*1 17 A review of the facts in this case verdict supports jury’s and our decisions reveal previous capital punishment death sentence is not disproportionate penalty imposed — Simmons, similar cases. See State v. —, 427 Bell, (1993); 11, S.E
We, therefore, the trial court’s imposition AFFIRM death sentence.
Harwell, C.J., Moore, JJ., Chandler and concur. Finney, J., concurs in result. JOLLY, Carolina, Respondent.
Lester Petitioner v. STATE of South
(443 S.E. Supreme Court *2 Savitz, III, Deputy Attorney L. of South Joseph Car- Chief Columbia, olina Appellate Defense, petitioner. Office of for Medlock, Attorney General T. Travis Deputy Atty. Chief Shine, Joseph Attys. Gen. and Asst. Gen. Delbert H. Singleton, Howard, Columbia, Jr. and E. Jeanne respondent. for 16, 1994. Submitted Feb. 9, 1994. May 7, 1994.
Decided Reh. Den. June Associate Acting Justice: Bristow, granted We certiorari to review the dismissal of Lester (PCR). Jolly’s (Jolly) application for relief postconviction Jolly contends that the PCR judge erred that he received finding effective assistance of counsel. agree We and reverse.
I. Facts Jolly was convicted of first-degree criminal sexual conduct having intercourse with his who was step-granddaughter less than eleven at years trial, old the time. At the victim tes- tified she lived with her grandmother, step-grandfather, and two uncles from the third to the fifth grade and that dur- intercourse in sexual repeatedly engaged time ing Jolly this cross-examination, however, she admitted her. with On had not mo- Jolly her aunt that a occasion she told prior on uncles had abused her.1 her, but that her two lested to bolster victim’s Thereafter, attempted the State a from social by eliciting claim that was the Jolly perpetrator that Jolly statement that the child had made worker Jolly’s objection trial overruled judge her. The abused Later, hearsay. Robert that this was inadmissible abused (Cobb), allegedly of the uncles who also Lee Cobb one the child child, previously without objection testified her. A con- jury him her mother that abused told conduct. criminal sexual Jolly first-degree victed trial conviction, that the alleging his Jolly appealed of the social worker. hearsay testimony erred in allowing affirmed, that it was unneces- holding The Court of Appeals admission error in any if error because to decide the sary the social the evidence was harmless because admitting *3 testimony cumulative to the testimony merely was worker’s (2d) 34, 402 child. v. 304 S.C. S.E. Jolly, of Cobb and the State 1991). (Ct. writ of cer- denied for Jolly’s petition 895 We App. tiorari. inef- PCR, that he received claiming later
Jolly applied attorney his failed to ob- of counsel because fective assistance failing preserve to hearsay testimony, thereby ject to Cobb’s trial hearing, Jolly’s At the PCR a record. appellate sufficient because testimony he not object that did counsel stated admitted the social worker’s trial had judge previously the after Jolly’s application, The PCR denied testimony. that determined already the of had Appeals Court finding cumula- the worker was of both Cobb and social testimony the not contradict and that he could testimony tive to the child’s certiorari. granted a court. We finding higher the of
II. Discussion to failing was ineffective for that counsel Jolly alleges him had told that the child testimony to Cobb’s object agree. her. We sexually abused Jolly counsel, the of a claim of ineffective assistance To establish 1 charged sexual conduct. also with criminal two uncles were The child’s guilty. convicted. pleaded The other uncle was uncle One
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defendant that counsel’s fell below representation must show reasonableness, an standard of and that but for objective errors, there is a reasonable the result probability counsel’s would have different. Strickland v. 466 Washington, been (2d) 668, 2052, (1984); 104 S.Ct. 80 L.Ed. 674 Gallman v. U.S. (1992). (2d) State, 273,414 307 S.C. S.E.
The rule the admission of ev against hearsay prohibits idence of an out-of-court statement to the truth prove of the matter asserted unless an to the rule exception (2d) 364, v. applies. Simpkins 401 S.E. (1991). recognized We have three to the rule exceptions against hearsay that allows consistent statements of a prior First, witness to be admitted. in criminal sexual conduct cases, testifies, when the victim evidence from other wit nesses that she of the sexual is complained assault admissible in corroboration, limited to the time and the place of assault 367, 401 details or Id. at excluding particulars. at Second, 143. the res or excited gestae exception utterance al lows corroborative without the ex rape testimony time/place — —, ception. Schumpert, S.C. 435 S.E. (1993). Third, when witness has been impeached by proof statement, that the witness has made a prior inconsistent proof is allowed that the witness made a consistent prior statement, provided the consistent statement must prior have been made the “existence before relation of [the] [the 316, witness] cause.” Burns v. Clayton, Cobb’s testimony regarding child’s statement that identified as the perpetrator clearly does not fall into any of the hearsay exceptions. Specifically, assault, not limited to the time and place there is no evi- *4 dence that the child’s statement to Cobb was an excited utterance, and because the case, witness is the victim in the she could not have made the prior consistent statement re- garding her assailant before she had a “relation to the cause.” Therefore, testimony because Cobb’s did not fall within an ex- ception hearsay rule and was detrimental Jolly’s de- fense, we find that object counsel’sfailure to to the introduc- tion hearsay of this evidence fell below an objective standard of reasonableness. there is a reason- whether then becomes question
The errors, the re- counsel’s that, but for probability able A different. would have been of the proceeding sult to undermine sufficient probability is probability reasonable 186, 298 S.C. Mitchell v. in the outcome. confidence (1989) Strickland, (2d) (citing supra). hearsay tes object failed to to Cobb’s counsel Because appeal, in direct Jolly’s of Appeals, the Court timony, the admit examining improper from precluded was — —, 435 v. Schumpert, State testimony. tance of Cobb’s (1993) (unless at the time an is made objection made, the issue is not ruling a final offered and the evidence is af review). of Appeals, the Court Accordingly, preserved the of so conviction, held that admittance firming Jolly’s perpe as the identifying Jolly hearsay testimony cial worker’s testimony merely was error because trator harmless the victim’s testimony and unobjected cumulative to Cobb’s (Ct. 34, 402 S.E. v. 304 S.C. Jolly, State testimony. 1991). merely is testimony corroboration Improper App. however, cannot be testimony, to the victim’s cumulative which cumulative effect it this harmless, precisely is because of corroboration. impact improper devastating enhances the (1989).There Barrett, 485, 386 S.E. ob properly been testimony had Cobb’s fore, find that we that the not have held could to, Appeals Court jected outcome of and the was harmless testimony social worker’s The decision different. have been would Jolly’s appeal direct is application PCR denying Jolly’s court Reversed. Finney Toal; JJ., concur. C.J., and
Chandler, Acting Moore, J., dissenting opinion. separate (dissenting): Justice Moore, received finds majority The
I dissent. respectfully record is clear The of counsel. ineffective assistance testimony be- reply to Cobb’s attorney object did not Jolly’s ruled, objection, after previously the trial cause was admissible. worker by the social that identical ineffec- is not object failure to reasonable such my opinion In *5 119, tiveness. Whitehead v. 417 S.E. (1992) (counsel not ineffective where trial reason- strategy able).
Further, in my view, victim’s consistent state ments would have been admissible rebut the evidence of her prior inconsistent statements under Burns v. Clayton, 316, 117 I read require Burns to only that the prior consistent statement be made before the wit ness’s relation to the pending cause of action rather than the underlying factual cause as the majority holds. I therefore conclude would not have prevailed on even if appeal counsel had objected to Cobb’stestimony.
I would affirm the judge’s PCR denial of relief. parte Ex Kirkpatrick Jr., John F. HARDAWAY Morgan, Respondents and S. LEXINGTON, v. The Appellant, COUNTY OF In re STATE of South SOUTHERLAND, Carolina v. Robert Haskell Defendant.
(443 (2d) 569) Supreme Court