798 S.E.2d 561
S.C.2017Background
- Bobby Wayne Stone shot and killed Sgt. Charles Kubala in 1996; convicted of murder and related charges; conviction and death sentence affirmed, death sentence later vacated and resentenced to death in 2005; PCR application alleged ineffective assistance of counsel.
- PCR court denied relief; Supreme Court granted certiorari limited to three issues: effectiveness of trial/appellate counsel regarding (1) victim impact evidence, (2) investigation/presentation of brain damage/intellectual impairment, and (3) investigation/presentation of the accident theory.
- At resentencing the State introduced victim-impact testimony from law enforcement colleagues and widow Teresa Kubala-Hanvey, who testified she attempted suicide after the Court reversed the first death sentence.
- PCR experts later established Stone suffers congenital organic brain damage and significant intellectual impairment; that evidence was not developed or presented at the 2005 resentencing.
- Trial counsel used an accident-defense strategy, retained a firearms expert who could not opine the shooting was accidental, and relied on cross-examination rather than calling that expert at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Trial counsel ineffective for not objecting to certain law-enforcement victim-impact testimony | Stone: counsel should have objected to five specific components (golf tournament, use of proceeds, Explorer program collapse, informing widow, recruiting visits to gravesite) | State: admission was within trial court discretion; testimony was permissible victim-impact evidence | Court: Counsel’s failure to object was deficient (Strickland prong 1) for several components, but Stone failed to show prejudice (prong 2); PCR denial affirmed |
| 2. Trial/appellate counsel ineffective re: widow’s testimony about suicide attempt | Stone: trial counsel’s objection was inadequate; appellate counsel failed to brief the key objection—testimony was improper victim-impact/apellate-injection evidence | State: testimony was relevant victim-impact; not so unduly prejudicial to require reversal | Court: Both trial and appellate counsel were deficient in formulation/preservation, but Stone failed to prove a reasonable probability of different outcome; no reversal |
| 3. Trial counsel ineffective for failing to investigate/present brain damage/intellectual impairment evidence | Stone: records, school history, and available indicators should have prompted neurotesting and presentation of powerful mitigation evidence | State: no obligation to perform neuroimaging in every capital case; counsel’s investigation (social worker, psychologist, psychiatrist) was reasonable given record | Court: Although experts at PCR confirmed brain damage, counsel’s pretrial investigation was objectively reasonable; no deficient performance established |
| 4. Trial counsel ineffective for inadequate investigation/presentation of accidental-shooting defense | Stone: counsel failed to procure an expert to affirm accident theory and failed to present ballistic/trajectory evidence | State: counsel retained a firearms expert who could not opine accident; strategy to elicit accident facts by cross was reasonable; no credible expert available at PCR to improve theory | Court: Counsel’s investigation and strategic choices regarding the accident theory were reasonable; no ineffective assistance found |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective assistance of counsel test)
- Payne v. Tennessee, 501 U.S. 808 (1991) (permissibility of victim impact evidence; undue prejudice standard)
- Wiggins v. Smith, 539 U.S. 510 (2003) (prevailing professional norms and reasonableness of mitigation investigation)
- Caldwell v. Mississippi, 472 U.S. 320 (1985) (state-induced comments shifting sentencing responsibility to appellate court unconstitutional)
- Hughey v. State, 339 S.C. 439 (S.C. 2000) (scope of admissible victim impact evidence under state law)
- Bennett v. State, 369 S.C. 219 (S.C. 2005) (victim-impact may include specific harm and a glimpse of the life extinguished)
- Bixby v. State, 388 S.C. 528 (S.C. 2010) (trial judge’s broad discretion admitting victim-impact material)
- Sears v. Upton, 561 U.S. 945 (2010) (brain damage can be significant mitigation)
- Tennard v. Dretke, 542 U.S. 274 (2004) (evidence of significantly impaired intellectual functioning is mitigating)
- Porter v. McCollum, 558 U.S. 30 (2009) (counsel’s obligation to conduct thorough background investigation)