Smith v. State

689 S.E.2d 629, 386 S.C. 562, 2010 S.C. LEXIS 102
CourtSupreme Court of South Carolina
DecidedFebruary 16, 2010
Docket26773
StatusPublished
Cited by59 cases

This text of 689 S.E.2d 629 (Smith v. State) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. State, 689 S.E.2d 629, 386 S.C. 562, 2010 S.C. LEXIS 102 (S.C. 2010).

Opinions

Justice KITTREDGE.

We granted a writ of certiorari to review the denial of post-conviction relief. We reverse.

I.

In 2004, Petitioner Larry Smith was convicted of second-degree criminal sexual conduct (CSC) with a minor and contributing to the delinquency of a minor. Smith was sentenced to twelve years in prison. Smith’s direct appeal challenged only the denial of his directed verdict motion. The court of appeals affirmed in an unpublished opinion.1 Smith then sought post-conviction relief (PCR).

II.

In his application for PCR, Smith claimed trial counsel had rendered ineffective assistance by failing to object to “hearsay testimony that was improperly corroborative of the Victim.” At the PCR hearing, Smith contended he was entitled to a new trial because forensic interviewer Ginger Gist had testified without objection that the Victim told Gist that Smith had sexually assaulted her. The forensic interviewer, at the invitation of the solicitor, also testified without objection that she found the Victim’s statement “believable” and stated the Victim had no reason “not to be truthful.”

Smith contends the testimony of the forensic interviewer interjected impermissible hearsay into the trial, which improperly bolstered the Victim’s testimony. Smith additionally contends counsel’s failure to object to this testimony resulted [565]*565in prejudice, pointing to the State’s closing argument, which emphasized the forensic interviewer’s testimony.

In denying relief, the PCR court found trial counsel’s failure to object was a valid “trial strategy.” See Watson v. State, 370 S.C. 68, 634 S.E.2d 642 (2006) (recognizing when counsel provides a valid trial strategy in response to a Sixth Amendment ineffective assistance of counsel claim, counsel’s performance will not be deemed deficient). However, when trial counsel was asked if he had a strategy in failing to object to the hearsay and the bolstering testimony, he responded, “none.”

The PCR court further found Smith had failed to show he was prejudiced by the challenged testimony. The PCR court’s order acknowledged that the testimony at trial was conflicting, but noted the Victim had identified Smith as the perpetrator and a partial DNA profile had indicated the probability of Smith not being the assailant was “1 in 1600.” As noted, the PCR court denied Smith’s application for relief.

III.

The burden is on the petitioner to prove the allegations in the PCR application. Bannister v. State, 333 S.C. 298, 302, 509 S.E.2d 807, 809 (1998). In reviewing the PCR judge’s decision, an appellate court will uphold the PCR court if any evidence of probative value supports the decision. Smith v. State, 369 S.C. 135, 138, 631 S.E.2d 260, 261 (2006) (citing Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989)).

To establish a claim of ineffective assistance of counsel, the PCR applicant must prove: (1) counsel’s performance fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defendant’s case. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cherry, 300 S.C. at 117, 386 S.E.2d at 625. “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. To establish prejudice, the defendant is required “to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been [566]*566different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Moreover, no prejudice occurs, despite trial counsel’s deficient performance, where there is otherwise overwhelming evidence of the defendant’s guilt. Rosemond v. Catoe, 383 S.C. 320, 325, 680 S.E.2d 5, 8 (2009).

IV.

A.

Limited, Non-hearsay Corroborative Testimony in a CSC Case

In a CSC case, the testimony of a witness regarding the Victim’s out-of-court statement is not hearsay when:

[T]he declarant testifies at the trial ... and is subject to cross-examination concerning the statement, and the statement is ... consistent with the declarant’s testimony in a criminal sexual conduct case or attempted criminal sexual conduct case where the declarant is the alleged Victim and the statement is limited to the time and place of the incident.

Rule 801(d)(1), SCRE (emphasis added).

In Jolly v. State, this Court found trial counsel ineffective for failing to object to the introduction of a social worker’s testimony that the child Victim had discussed her sexual abuse by Jolly. 314 S.C. 17, 20, 443 S.E.2d 566, 568 (1994). This Court reversed the PCR court’s denial of relief after finding there was a “reasonable probability” that the social worker’s testimony affected the outcome of Jolly’s trial. Id. at 21, 443 S.E.2d at 569.

Under Rule 801(d)(1), SCRE, corroborative witness testimony is limited to time and place of the alleged assault. The corroborative testimony cannot include “details or particulars” regarding the assault. Dawkins v. State, 346 S.C. 151, 156, 551 S.E.2d 260, 262 (2001). In Dawkins, four witnesses testified without objection regarding the Victim’s out-of-court conversations with them concerning the alleged abuse, and each witness repeated the Victim’s identification of Dawkins as the perpetrator. Id. at 154, 551 S.E.2d at 261. This Court [567]*567found tidal counsel’s failure to object to the admission of inadmissible corroborative hearsay was an error that fell below an objective standard of reasonableness. Id. at 156, 551 S.E.2d at 268. Furthermore, the Court disagreed with the PCR court’s finding that no prejudice had resulted from the improper corroboration testimony, explaining:

[Petitioner was prejudiced by counsel’s deficient performance because improper corroboration testimony that is merely cumulative to the [Vjictim’s testimony cannot be harmless.... ‘[I]t is precisely this cumulative effect which enhances the devastating impact of improper corroboration.’

Id. at 156-57, 551 S.E.2d at 263 (quoting Jolly, 314 S.C. at 21, 443 S.E.2d at 569).

In contrast to Dawkins, in another PCR case involving CSC, the Court applied the Strickland analysis and denied relief after finding: (1) defense counsel’s failure to object to the admission of written witness statements that went beyond time and place of the alleged sexual assault fell below an objective standard of reasonableness, but

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Maron Alexander Lindsey v. State
Supreme Court of South Carolina, 2025
Marcus Wright v. State
Court of Appeals of South Carolina, 2025
Branham v. Stirling
D. South Carolina, 2025
Jerald D. Gaskins, Jr. v. State
Court of Appeals of South Carolina, 2025
Sincere J. Owens v. State
Court of Appeals of South Carolina, 2025
State v. Brandon J. Clark
Supreme Court of South Carolina, 2024
Shiquan Tyon Cwiklinski v. State
Court of Appeals of South Carolina, 2024
Rodney C. Bryan v. State
Court of Appeals of South Carolina, 2024
Devatee T. Clinton v. State
Court of Appeals of South Carolina, 2024
John Upson v. State
Court of Appeals of South Carolina, 2024
Sammy L.Scarborough
Court of Appeals of South Carolina, 2023
Mitchel L. Hinson v. State
Court of Appeals of South Carolina, 2023
Derrick Fishburne v. State
Court of Appeals of South Carolina, 2023
Wilton Q. Greene v. State
Court of Appeals of South Carolina, 2023
Matthew C. Dwyer v. State
Court of Appeals of South Carolina, 2023
Theodore Wills, Jr. v. State
Court of Appeals of South Carolina, 2022
Larry Tyler v. State
Court of Appeals of South Carolina, 2022
James Allen Johnson v. State of SC
Court of Appeals of South Carolina, 2022
Stone v. South Carolina
Court of Appeals of South Carolina, 2021
Weldon v. South Carolina
Court of Appeals of South Carolina, 2021

Cite This Page — Counsel Stack

Bluebook (online)
689 S.E.2d 629, 386 S.C. 562, 2010 S.C. LEXIS 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-sc-2010.