No Strategy = A Valid Strategy?

Should counsel's response that he had no strategy whatsoever in failing to object to impermissible hearsay testimony constitute a valid trial strategy and negate a PCR applicant's claim of ineffective assistance of counsel?

Yes, according to Chief Justice Toal's dissent in Smith v. State.

In Smith, the Court voted 4-1 to reverse a PCR judge and grant the defendant a new trial based on ineffective assistance of counsel.  The defendant's trial lawyer failed to object to impermissible corroborative hearsay testimony at the defendant's trial for 2nd degree criminal sexual conduct.  At the PCR hearing, trial counsel was asked whether he had any strategy when he failed to object to what was clearly improper testimony from a forensic interviewer.  Counsel's response was, "none."  The Supreme Court found that this was not a valid trial strategy and that the defendant was prejudiced thereby, and reversed the PCR court.

The Chief Justice, however, disagreed.  Relying on Watson v. State, she wrote that in her opinion, "the PCR court correctly found that trial counsel articulated a valid trial strategy consistent with his failure to object to the inadmissible hearsay testimony at issue."  Under Watson, the deficiency prong of the Strickland test is not satisfied where trial counsel "articulates a valid reason for failing to object to . . . hearsay testimony."  But the Chief Justice failed to offer any support for this view.

In my opinion, the Chief Justice's reliance on Watson here is severely misplaced.  In Watson, the PCR issue, as in Smith, was based on counsel's failure to object to impermissible hearsay testimony under Rule 801(d)(1)(D), SCRE, which limits corroborative testimony in a criminal sexual conduct case when the alleged victim testifies.  At the PCR hearing, Watson's trial counsel stated that she felt objecting to the corroborative testimony would open the door for the Solicitor to play a tape of the victim (a 9-year-old child) describing the abuse and identifying Watson as her attacker.*  The Court found this to be a valid trial strategy and reversed the PCR court's decision to grant Watson a new trial.

It seems clear that Smith is very different from Watson.  Smith's trial counsel failed to offer any strategy whatsoever in his decision not to object to the hearsay testimony.  So how does the Chief Justice support her dissent?  It appears she doesn't, unless you interpret her dissent as based on the Court's narrow scope of review in PCR cases (the Court should affirm if the PCR judge's ruling is supported by any evidence of probative value).  But even then, there is no mention of the evidence that supposedly supports the PCR judge's ruling.  The dissent doesn't refute or even offer an alternative interpretation of trial counsel's 'no strategy' testimony.

The Chief Justice's dissent is troubling, as she seems content to interpret her own opinion in Watson as equating "no strategy" with "a valid strategy."  The dissent further posits that even if trial counsel's assistance was ineffective, it still didn't prejudice the defendant, the reason for which is a separate issue that warrants a separate discussion.

*In fairness, it should be noted (as Justice Pleicones points out in his dissent) that counsel's strategy in Watson was based on a seemingly obviously erroneous interpretation of the South Carolina Rules of Evidence.  Nonetheless, it was a strategy, even if misguided.  Compare that to counsel's testimony in Smith, where he stated explicitly that he had absolutely no strategy in failing to object to the impermissible hearsay testimony.