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.

S.C. Supreme Court Looking More Closely at PCR Decisions

The South Carolina Supreme Court has recently been delving more deeply into review of PCR decisions.

In Kolle v. State, the Court conducted a review of Judge Breeden's decision to grant Kolle's PCR application.  The Court split 3-2 in favor of affirmance, including both a concurring and dissenting opinion.

Kolle's PCR hearing focused, perhaps predictably, on a Sixth Amendment ineffective assistance of counsel claim.  Essentially, Kolle's PCR arguments boiled down to whether his plea counsel adequately investigated certain discrepancies in police testimony and documentary evidence, whether plea counsel should have made a more detailed discovery request, and whether plea counsel properly advised Kolle to not accept a preliminary plea deal and instead plead guilty after an unsuccessful suppression hearing.

The relevant facts are as follows.  A North Myrtle Beach policeman responded to a complaint of excessively loud music coming from an apartment where Kolle had been staying.  The policeman knocked on the door of the apartment, but received no response.  He then observed what he described as "fresh damage" to the door of the apartment, which was slightly ajar.  The policeman continued to knock on the door and a window before calling for backup under the impression that there may have been an injured person inside the apartment.  Once backup arrived, the policemen entered the apartment and found a small amount of cocaine during a protective search of the apartment, during which they found no one inside.  The officers then left, obtained a search warrant, and returned to the apartment a short while later where they arrested Kolle and 2 women, and found 63 grams of cocaine.  A grand jury later indicted Kolle for trafficking between 28 and 100 grams of cocaine.

The majority opinion, authored by Justice Beatty, found that Kolle's plea counsel was ineffective in "failing to procure pertinent discovery materials, in particular the call/dispatch logs and the search warrant" used by the police to re-enter the apartment after their initial entry during which they found cocaine.  Apparently, according to the time logs, the search warrant was somehow issued 42 minutes before the loud music complaint was received by the officer.

South Carolina Court Vacates Death Sentence

Eddie Elmore had been on South Carolina's death row for over half his life when Judge Mark Hayes (Greenville) vacated Elmore's death sentence on February 4 and ordered him to serve a life sentence instead.  Elmore was convicted and sentenced to die in 1982 for the stabbing death of 75-year-old Dorothy Edwards.  Since then, Elmore's case has traveled through many jurisdictions, including the Supreme Court of the United States, which in 1986 vacated Elmore's sentence.  Elmore was then retried twice and eventually convicted again.

Last May, a team of defense attorneys led by nationally-renowned South Carolina criminal defense attorney and death penalty advocate John Blume took up Elmore's case again.  The attorneys petitioned for post-conviction relief (a civil state action similar to habeas corpus), arguing that Elmore is ineligible for the death penalty based on Atkins v. Virginia, a 2002 Supreme Court decision holding that execution of people who are mentally retarded (defined on a state-by-state basis) violates the Eighth Amendment's prohibition against cruel and unusual punishment.

Elmore's attorneys proved he met South Carolina's definition of mental retardation, and Judge Hayes appropriately vacated Elmore's death sentence and remanded the matter to the Court of General Sessions for resentencing.

In PCR petitions, South Carolina criminal defense attorneys need to be more aggressive in pushing the Atkins argument.  Blume has been a pioneer on the state and national levels by ensuring defendants' Eighth Amendment rights are adequately protected.  PCR is often seen as a last-ditch haphazard legal avenue, but in reality it is an effective mechanism in the right hands.

Charleston Law Review to Host Crime & Punishment CLE

The Charleston Law Review will be hosting a CLE on crime and punishment as part of its 2nd annual Law & Society Symposium, held in conjunction with the Riley Institute of Furman University.  The keynote address will be February 18 at the Charleston Music Hall on 37 John Street.  February 19 will be the meat of the symposium.  The program qualifies for 8 CLE credit hours, including 1 ethics hour.

CLR's short description: "This year's symposium, led by noted scholars, judges, and attorneys, will address the functions of criminal punishment in law and society in diverse areas ranging from white collar crime and the financial markets to cruel and unusual punishment, actual innocence, and the school-to-prison pipeline."

The tuition is $75 for private attorneys, and $50 for government/nonprofit employees and academics.

South Carolina criminal defense attorneys and anyone interested in criminal law should sign up for the program and attend.

South Carolina Court of Appeals Issues Double Jeopardy Opinion

The South Carolina Court of Appeals recently released an opinion in which it was asked whether the Double Jeopardy Clause barred the State from prosecuting a defendant for kidnapping when that defendant had already pled guilty to carjacking for the same conduct.  In a straightforward opinion by Justice Geathers, the Court held in State v. Elders that such prosecution was not barred by double jeopardy.  Justice Geathers cited Blockburger and pointed out that kidnapping requires proof that the defendant "unlawfully seized, confined, inveigled, decoyed, abducted, or carried away any other person by any means whatsoever," while carjacking requires no such proof.  Specifically, carjacking requires proof that the defendant "took . . . a motor vehicle from another person."  It surprises me that this was even an issue on which the Court wanted to hear oral argument.

The Court also ruled on the admission of photographs and knives into evidence, though that discussion was far less interesting than the double jeopardy issue.