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.