*1 4) The of attachment between the child and the degree custodian. temporary
The order in the case before us fails to indicate presently family foregoing court considered each of the custody factors in the decision to award to the re- reaching spondents. Likewise, finding regard there is no of fact with custody the fitness or unfitness of the to maintain appellant natural child. reasons, For the we remand case to the foregoing Family Bamberg County light Court of for reconsideration in Moore, of the factors set forth in Moore v. an supra, explicit of whether or not the deemed fit finding appellant is or unfit granted custody child, to be of the minor in ac- judgment with finding. cordance such
Remanded. C.J., JJ., concur.
Harwell, Moore, Chandler J., only. concurs result Toal, DRAYTON, Leroy Joseph EVATT, Commissioner, Petitioner v. Parker D. Institution, Respondent. Central Correctional
(430 ((2d)) 517) S. E. Supreme Court *2 Holmes, Charleston, B. Gibbs & John H. Coming Gibbs W. Carolina Death Draper, and Franklin South Blume Center, Columbia, and South Carolina Penalty Resource Of- Defense, Columbia, petitioner. Appellate fice of Deputy Atty. Gen. Atty. Gen. T. Travis Medlock Chief Zelenka, Correspondent. Donald J. Columbia 19, 1993; May 10, 1993. Decided Submitted Jan. 9, 1993.
Reh. Den. June *3 Chief Justice:
Harwell, for Leroy Drayton’s petition granted petitioner Joseph We application post- of his for portions writ of certiorari (PCR). Drayton alleges judge that conviction relief by Drayton erred in that a number of issues raised ruling Dray- and in that finding were barred from collateral We disagree had received effective assistance counsel. ton and affirm.
1. FACTS stemming convicted twice on charges has been Kayo gaso cashier at nineteen-year-old from the death of re and The convictions sentences line station Charleston. appeal, reversed on direct and from first trial were sulting his Drayton, remanded. State v. 337 S.E. the case retrial, Drayton murder, was convicted of At He sentenced to death kidnapping. and was robbery, armed twenty-five years imprisonment murder, and armed robbery. sentences from the sec resulting His convictions and Drayton, this Court. State were affirmed ond trial on other overruled Torrence, grounds, State v. PCR,
On Drayton raised a of allegations upon number which he based his claim that he received ineffective assis- at tance of counsel his second trial. Drayton also asserted variety of trial errors. After a lengthy hearing, judge the PCR dismissed Drayton’s application ground that trial coun- sel had not performed deficiently. The PCR also deter- judge mined that the trial errors alleged Drayton could have been raised on direct appeal, thus were barred from col- lateral review.
We granted parties leave to four brief issues:
(1) Whether the PCR finding erred that alleged
trial review; errors were barred from collateral (2) Whether trial counsel was ineffective for failing
present evidence of future adaptability prison;
(3) Whether counsel was for failing ineffective to de-
velop testimony victim; that knew the (4) Whether trial counsel was ineffective in closing ar-
gument jury the sentencing phase.
II. DISCUSSION A. Drayton first contends that the PCR judge erred con- cluding that a number the allegations contained in his PCR were barred from application disagree. collateral review. We his PCR application, claimed that his rights under the Eighth Fourteenth Amendments were violated result of South Carolina law him prevented from introducing adapt evidence he would well in prison, and precluded from jury receiving accurate information *4 regarding Drayton’s eligibility Drayton for parole. also as- rights serted that his under the Eighth and Fourteenth Amendments were violated because the death sentence was obtained as a result of irrelevant, and improper, prejudicial guilt in the testimony phase of the trial regarding charac- victim, ter of the as well as improper closing by remarks solicitor in the guilt sentencing phases Dray- trial. ton additionally contended that the trial penalty court’s phase regarding mitigating instruction circumstances, in- its regarding struction the aggravating circumstance of kidnap- Eighth and Fourteenth under the rights violated ping, in opinion were not addressed Amendments. These issues Drayton’s appeal. direct we issued after vitae review Court conducted an in This favorem In direct of his death sentence. appeal fa in vitae us vorem painstakingly requires error has prejudicial determine whether spect capital cases to assign in of whether an trial, irrespective been committed a Once we dis of error has been made the defendant. ment becomes error, no that determination cern there has been MacDougall, v. 245 S.C. on the defendant. See Moorer binding (2d) 633, 142 S.E. State, v. enunciated in Simmons
Under the doctrine (2d) can 417, 215 (1975), errors which 264 S.C. S.E. not be asserted for appeal may be reviewed on direct reasserted, in time, postconviction proceedings. or the first in vitae errors are as all direct Under favorem Court, are been reviewed and thus sumed urges, however, barred from collateral attack. in Simmons should be when inapplicable the rule articulated has been sen relief seeking postconviction the defendant essence, have this Court tenced to death. would vitae proceedings review to collateral apply favorem vitae rev abolishing prior to our decision brought favorem Aiken, (2d) v. cites Yates 231, 349 S.E. iew.1 S.C. (1986), Rev’d, 211, 108 Aiken, v. 239, 315 Thompson S.E. of Court’s implicit acceptance of this examples fa vorem vitae review in relief proceedings. 17-27-20(b) (1985) Uniform § of the Code Ann. postcon provides Procedure Act
Post-Conviction it for nor does affect viction relief “is not substitute or of court, any proceedings incident to the remedy The Simmons sentence or conviction.” direct review of the clear intent that the post- to the Legislature’s rule effect gives for or is not substitute procedure conviction relief first time which could have asserting errors place State, Peeler v. 277 S.C. appeal. been reviewed on direct Cummings v. see also (1981); Torrence, 1. State *5 (2d) State, 187 (1979); Ashley v.
26,
260 S.E.
436,
(2d)
Boone,
501 (1973); Sellers v.
200 S.E.
(2d)
(1973).
Issues that could have been raised at trial or on
direct appeal cannot be asserted in an application for postcon
viction relief absent a claim of ineffective assistance of counsel.
State,
v.
Hyman
(2d)
We conclude contrary contention, Yates and Thompson do not stand for the proposition that we implicitly vitae re adopted favorem postconviction view of relief proceedings death penalty cases. Although we addressed direct Yates issues Thompson we did so without discussion or consideration 17-27-20(b) of section Simmons rule. or the Yates view, our and Thompson are contrary legislative to the intent evi 17-27-20(b). denced by section We adhere to the rule articu Simmons, lated in and, in doing, so affirm the PCR judge’s determination the trial alleged errors are barred from collateral review.2
B. Drayton next contends that he was denied the right to ef- fective assistance guaranteed counsel as the Sixth disagree. Amendment. We
To prove ineffective of counsel, assistance a criminal defendant must show that his attorney’s performance was not reasonable under Strickland norms. prevailing v. Washington, 466 U.S. S.Ct. 2052, 80 L.Ed. (1984). Further, a criminal defendant must demonstrate that counsel’s deficient performance prejudiced the defense by showing counsel’s errors were so serious as to deprive trial, defendant of fair a trial whose result is reliable. Id. We have held that where trial counsel articulates a valid rea son for certain employing strategy, such conduct will not be — State, counsel. Stokes v. deemed ineffective assistance —, say This is not to opportunities a defendant who has exhausted his review on completely direct relief is without rem edy. See Butler (1990) (writ 111 S.Ct. corpus of habeas issued violation, which, under circumstances where there was setting, con shocking stituted a denial of fundamental fairness to the universal sense of justice). *6 deficient that trial counsel was first asserts
Drayton Drayton’s of future present to evidence failing At sentencing the phase. to prison during adaptability an trial, regarding favorable evidence Drayton’s the time of a from adaptability future to was excluded prison accused’s of trial. State during sentencing phase the jury’s consideration re Koon, (1982), after denied, Patter mand, Carolina, South son v. U.S. However, an from the United States opinion viability the of this doc
Supreme affecting Court potentially Drayton’s trial, and within weeks pending during trine was the United States after was sentenced to death testimony the exclusion of Supreme Court determined that a incarcerated de regarding good previously behavior of place of his to relevant right fendant defendant deprives jury. Skipper of before the mitigation punishment evidence in Carolina, v. South 106 S.Ct. 90 L.Ed trial that hearing, acknowledged At the PCR counsel Skipper Drayton’s pend trial that was during he was aware he of the issue of ing, cognizant preserve and that was how to to life How prison appellate future review. adaptability to present trial decided not evidence of future ever, counsel to because his information included unfa adaptability prison poor evaluations and psychiatric disciplinary reports vorable de during Drayton’s juvenile confinement as compiled during well as some of facility, tention accounts misconduct as an The information had prior his incarceration adult. been use in first trial. Drayton’s collected for justified that trial not utiliz- Drayton argues counsel was ing psychiatric psy- the unfavorable information because provided had not been with chiatrists who evaluated on during imprisonment record his Drayton’s good prison contention, the first To support death row after trial. presented psychiatrists from the two who testimony had originally had evaluated him. These stated that experts good row, of they been aware behavior death previous Dray- have revised their they predictions would However, adapt prison. experts ton not well to these would the controlled environment on death row also admitted atmosphere structured with less was inconsistent prison They also conceded that their test- general population. Drayton indicated he was and more ing unpredictable liable become violent less restrictive his surroundings. trial assuming provided Even counsel could have Dray- experts ton’s with information that would have resulted developing their a more favorable prediction regarding Dray- future adaptability prison, ton’s we are not convinced that counsel attempted should have this evidence present in mitigation punishment. Drayton’s actions in past juvenile detention and when incarcerated as reflect a an adult mixed of his to function in picture ability setting. An at- prison tempt favorable future develop adaptability evidence of opened would have the door for prosecution reveal Drayton’s earlier misconduct in prison. Trial counsel also de- *7 testimony termined that from that prison Drayton had guards well on row a negative behaved death would have had impact view, jury. on the our there is evidence to the support PCR finding that trial counsel was ineffective for judge’s failing not Drayton’s present adaptability to evidence of future to prison. Drayton next that asserts trial counsel should have devel- Drayton that oped testimony the victim knew each other charge in order to rebut the that had Drayton the kidnapped victim.
At hearing, the PCR Drayton’s number of friends and relatives testified that and the victim had Drayton romantically been involved with other the prior each to evidence, however, There is no that Drayton murder. told been romantically counsel that he had trial involved with the Drayton victim. also never informed counsel trial of the wit testimony Drayton nesses whose claims corroborates his story. Clearly, trial counsel was not ineffective to failing investigate an he alleged relationship of which was not aware.
Moreover, the judge found witnesses’ Drayton’s testi mony to be We give great incredible. deference to a judge’s of findings where matters involved credibility are since we witnesses. lack the the opportunity directly to observe Forrester, Social Dept. Services of (Ct.App.1984); Stokes,- , at cf. Thus, at 779. if trial ineffective, even counsel had been is no his performance there evidence deficient would have the defense. prejudiced he had met the victim only trial counsel that
Drayton told to her enough speak and knew her well to several occasions the Based on this informa- stopped by Kayo when he station. showing that the victim trusted tion, trial counsel concluded could find jurors, could on the who Drayton impact negatively Kayo left voluntar- even had victim station kidnapping 1992) Drayton. See S.C. Code Ann. (Supp. § ily 16-3-910 with abduct, or seize, confine, inveigle, decoy, kidnap, (felony means whatsoever with- away any person any other carry law). trial authority out We with the PCR that agree Drayton fact emphasize not that counsel’s decision the victim knew each other was reasonable.
Drayton finally contends that trial counsel was ineffec during sentencing closing arguments tive Drayton the trial. claims that trial counsel phase of why Drayton to offer reason should be any meaningful failed to life rather than death. imprisonment sentenced by remind light that trial counsel cast him in a bad complains great pillar had not of the ing jury “been or in had not was community” “[done] or any in this reason what being poor volved because you.” view, taking closing whole, In our as a argument jury’s mercy. counsel endeavored sense not acknowledged nothing, Trial counsel even back ease the suffered death, bring pain would victim or her counsel observed that it family. the victim and Trial *8 life for the “the of someone who jury would be easier save rea- something significant has done but for whatever bizarre somebody life,” son took and jury give else’s entreated opportunity, the same even “is though Drayton prob- society far we can ably rung get.” down as argument found judge closing The PCR counsel’s “ on in the sense ‘proves was ineffective [trial counsel] are lawyers that all criminal defense whose clients found or guilty any argument are ineffective. That more different this result would be might possibly contentions altered ” Harris, v. F. (citing Supp. 540 speculation.’ sheer Barfield (2d) (E.D.N.C. (4th 1982), aff'd, 719 1983), F. 58 Cir. 461 451, (2d) 2401, U.S. 104 81 L.Ed. 357 467 S.Ct.
13 (1984)). reading closing Our of trial counsel’s in the argument sentencing this phase supports finding.
We must an order of a PCR if is uphold judge any there evi- State, Webbv. dence in the 281 support ruling. record (2d) S.C. 314 839 S.E. We discern that the evi- supports judge’s dence PCR determination allegations of trial errors are barred from collateral and that effective Drayton received assistance counsel. The order of the PCR is
Affirmed. JJ., concur.
Chandler, Moore, Toal J., dissenting separate opinion. Finney, Judge: Finney,
I I respectfully any dissent. would hold that di- substantive rect issues raised appeal petitioner capital case are not barred from collateral relief (PCR) proceedings. majority’s decision,
Under bar procedural estab State, lished in Simmons v. (2d) 264 S.C. 215 S.E. 883 is revived prohibiting consideration of this capital prisoner’s direct issues Although review. majority concedes that the Simmons rule has been abrogated by this Court in two it ap instances1 when considered direct peal conjunction issues in with PCR proceedings, several this Court’s recent decisions reveal that it has consistently ad dressed direct during issues PCR review in both capi tal and noncapital cases.2 what I
Additionally, view as the far damaging prece- more Simmons rule on dential effect of imposing defen- capital dants further is erosion of the procedural protections formerly available South Carolina. When a majority of this Court Aiken, rev’d, (2d) See Yates v. 349 S.E. (2d) Aiken, 211, 108 (1988); Thompson v. 281 S.C. (2d) 239, 315 S.E. — See, e.g., State, (2d) (1992) Plyler v. —, (noncapital); S.C. 424 S.E. — State, State, (1992) —, Graves v. Plath v. (noncapital); S.C. — — State, (1992) —, v. —, Brown (capital); (1991) (noncapital); Dover S.E. *9 (1991) (noncapital). of em vitae ap the of direct
abolished doctrine review favor cases, in death of the two asserted peals penalty grounds one meaningful availability to rationalize its actions was the of Torrence, See State v. relief. 305 S.C. 315, 324 S.E. Aice v. 448, 409 relatively case,
In a recent 305 S.C. (2d) 392 this a claim of in- (1991), S.E. Court determined that of PCR not for a grounds effective assistance counsel is suc- gravamen peti- cessive PCR of application. Apparently, failure tioner’s assertions emanates from PCR counsel’s couch direct issues a claim of ineffective assistance I majority’s of counsel. am convinced that the decision have crucial penalty deny petitioner right death case on collateral review renders the effectively issues considered already provision superficial remedy narrowed for PCR equal protection rights the federal petitioner denies under and state constitutions. underlying a series of circumstances —the
Notwithstanding thereby pre petitioner’s object failure counsel for direct petitioner’s serve issues the failure of appeal, failure properly issues, PCR counsel to frame the and the recognize this Court for consider appropriate issues vitae and/or its disposition ation on direct favorem of the issues,3 majority of such affirms judgment —the court; thereby denying claims without petitioner’s to their merits. regard
I would ameliorate the denigration meaningful appellate Torrence, the decision in State v. supra, created restore substance to constitutional afford- safeguards on to have ing, right collateral substantive issues on the merits. adjudicated Drayton, See State S.E. overruled other U.S. Torrence, (1991)].
grounds, [see State v.