*1 108
nоted, this is the strongest punishment we can give respon- dent, given the fact that he has already resigned his duties as a magistrate. See re Gravely, S.C. S.E.2d (1996)(“A public reprimand is the most severe sanction that can imposed be when the no respondent longer judicial holds office.”) Accordingly, respondent hereby is publicly repri- manded for his conduct.
PUBLIC REPRIMAND.
TOAL, C.J., MOORE, WALLER, PLEICONES and BEATTY, JJ., concur.
Submitted 2008. July Decided 2008. Rehearing Aug. Denied *2 Pachak, Appellate Defender Robert M. of South Carolina Defense, on Indigent Commission Division of Appellate De- fense, Columbia, for Petitioner. McMaster,
Attorney Henry Dargan General Deputy Chief McIntosh, Attorney General John W. Assistant Attor- Deputy Elliott, ney Salley Attorney General W. .Assistant General Columbia, Karen Ratigan, Respondent. for BEATTY: Justice (PCR) case,
In this relief court post-conviction found trial counsel not in establishing ineffective Bruce Randall Miller’s defense of for the third-party guilt charge armed robbery. This Court certiorari granted review court’s decision. Because Miller’s sole defense was mistaken identity third-party guilt, conclude there is no proba- we tive evidence to support the PCR court’s of fact and findings conclusions of law counsels effectiveness. Therefore, we grant reverse decision of the PCR court and Miller reliеf to his respect with conviction. HISTORY
FACTUAL/PROCEDURAL Around 9:00 a.m. on December James Holden Li’l stopped by the Cricket store on convenience White Horse Road in Greenville to use the pay phone. As Holden was *3 truck, back getting into his he was an approached by African- American male for asking directions to Interstate 85. After 1-85, in Holden motioned the direction of man pointed the a at him gun and demanded his wallet. the man When realized wallet, Holdеn did not any money have his he ordered Holden to his empty pockets. Holden then turned over $106 Holden, in cash. According to the man took money and drove off in a “bluish purple” colored vehicle. Holden fol- lowed the vehicle until the man pulled nearby apartment into a complex. During pursuit, Holden was able to take down plate license number.
Holden returned to the convenience store and called police Snider, to report robbery. Stacy deputy a with the County Greenville Sheriff’s Department, responded to the scene. build, Holden described the a suspect as medium five- inch, foot-ten pound African-American male with a “Fu mustache,” Manchu goatee. similar to a of clothing, terms hat, Holden claimed the suspect was a wearing white ski a shirt, nylon jacket, black a black pants, dark and dark tennis shoes. He further stated the suspect wearing “a necklaсe gold oí' a braid or something made into the shirt.” Holden also suspect’s described the vehicle and gave plate the license information, number to Deputy Using Snider. Deputy vehicle, a Kia Sephia, regis- determined that the Snider Stephanie Pauling. tered to an Bailey, investigator December Antonio with
On continued the County Department, Sheriffs the Greenville on Holden’s writ- by contacting Holden. Based investigation Bailey registration, Investigator ten statеment and the vehicle Miller’s then Stephanie Pauling, girlfriend, interviewed aunt, Johnson, lived at the address her Brenda who where investigation, had been As a result of this registered. vehicle Bailey compiled photographic lineup pre- Investigator time, it on 2001. At that sented to Holden December Miller’s identified photograph positively Holden selected day, him the man had robbed him. The next Investi- as who jail County arrested Miller. The Greenville gator Bailey tall and five-feet-eight intake form listed Miller as inches weighing pounds. him, Miller County grand jury
After a indicted Greenville and the robbery. tried for armed addition to Holden officers, Stephanie Pauling investigating presented State to establish that Miller had access to primary as its witness robbery. Pauling at the time of the armed testi- her vehicle September eventually Miller in 2001 and began dating fied she that Miller often him. She claimed borrowed moved with that he off in the vehicle on December her car and drove did not see Miller until one According Pauling, she time, could find At that Miller told her that she week later. he had left it. Because Highway her car on Poinsette where keys, Pauling arranged had lost her car Miller claimed he Johnson, aunt, her the gave spare Brenda who meet with the car. When car in order that she could retrieve keys set of robbery, Pauling the armed specifics about the questioned *4 a and that Miller wаs handgun that Miller owned testified day robbery. the of the a medallion on wearing gold cross-examination, trial counsel out that brought Miller’s On in robberies three armed currently charged with Pauling robberies, Pauling to one of these respect With Greenville. Miller, ultimately but initially implicated that she admitted Miller, Derrick Bruce and identified her statement changed of During portion a nephew, participant. as Miller’s cross-examination, began as trial counsеl objected the State question Pauling about Derrick Miller and his in involvement the robberies. the presence jury, Outside the trial counsel inquired whether he would be permitted question Pauling regarding specifics the of her three armed robbery charges in an attempt Miller, Miller, to establish that Derrick not Bruce the person who robbed Holden. The trial judge sustained objection the and State’s trial counsel concluded his cross- examination of Pauling. conference, the
Following bench trial counsel proffered his cross-examination Pauling. the During proffer, Pauling testified that Derrick Miller was a co-defendant in all three armed robberies charged. with which she had been She also male, described Derrick Miller as an African-American who tall, approximately weighed five-feet-seven inches pounds, and had facial hair lip over his and under his chin. At proffer, conclusion trial counsel cоntended this testimony was relevant as evidence of third-party guilt. Spe- cifically, he stated that he wanted to establish before jury that another individual similar physical with characteristics to Bruce Miller had access to Pauling’s vehicle had been involved recent armed robberies Greenville using the same during vehicle the same time period. The trial judge then permitted trial counsel to recall Pauling question again presence outside thе of the jury. During this second proffer, Pauling acknowledged that her car was used during each of the three robberies for which she and Derrick Miller charged were as well as one for which Bruce Miller was charged.
After denying Miller’s motion for a directed verdict and a recess, brief judge the trial returned to the courtroom and informed the attorneys he had reversed his earlier ruling. The judge stated that he permit would Miller’s counsel to question Pauling Derrick physical Miller’s charac- teristics and that Pauling would be “testifying consistent with proffer.”
During her cross-examination before the jury, Pauling de- scribed Derrick Miller as an African-American male who was approximately tall weighed five-feet-seven inches pounds. acknowledged She also that he has “Fu Manchu mustache.” In reply, State recalled Holden as a witness *5 again positively who identified Bruce Miller as the man who robbed him.
Miller did not or testify prеsent any witnesses on his behalf. After the him of jury robbery, convicted armed the trial judge sentenced him to eighteen years imprisonment.
Miller appealed his conviction to the Appeals. Court of After the conviction,1 Court of affirmed Appeals his Miller an application filed for post-conviction relief. The State filed a return requested an evidentiary hearing.
At the hearing, Miller’s counsel called PCR Bruce Miller and trial counsel as witnesses. Miller maintained that his Miller, Derrick nephew, committed the robbery for he charged. which was Miller claimed his trial counsel was (1) in that ineffective he failed to: an on expert obtain witness (2) eyewitness identification testimony; and adequately pres- ent the third-party guilt nephew, of his Derrick Miller. terms of third-party guilt, Miller believed that trial counsel should have established his nephew that had similar physical features and had been charged with three armеd robberies in Greenville that occurred around the time Holden was robbed. Additionally, Miller claimed that Derrick used Pauling’s vehi- cle and a handgun owned similar to the one that Holden claimed to have seen during robbery.
Trial counsel admitted that he erred in failing bring out through Pauling’s cross-examination that her car used and a similar handgun was used of Holden as well as the other three armed for robberies which she and Derrick Miller were Because sole сharged. Miller’s defense was mis- guilt, identification and trial counsel conceded he “missed opportunity” during Pauling’s testimony to [his] tie in specifically gun and vehicle used in all of the By robberies. means of explanation, counsel stated he was remiss in not connecting handgun Pauling’s vehicle because he off the trial caught guard judge when reversed his initial ruling.
At the hearing, conclusion the PCR court denied application post-conviction Miller’s for relief. he Although Miller, (S.C. Op. Ct.App. 1. State v. No. 2004-UP-620 filed Dec. 2004). case,” that it a acknowledged “close the court found Miller did not meet his burden of proof warrant relief. order, written court his ruling affirmed oral *6 dismissed Miller’s application. Specifically, the court held that Miller did not meet his burden of establishing error or trial prejudice regarding how counsel failed to effectively (1) identification; handle the following eyewitness issues: (2) third-party guilt. terms of the court third-party guilt, fоund that “trial counsel was to present party allowed a third trial. guilt defense at This Court finds that trial counsel’s (dur- hindsight admission to regarding his failure ask Pauling cross-examination) ing the second about the similar car and gun does operate satisfy Applicant’s to burden of [not] error.” proving
This granted petition Court Miller’s for certiorari to review the PCR court’s denial of his application post-conviction for relief.
DISCUSSION
Miller asserts the PCR court erred in
to
failing
find
triаl counsel was ineffective in not cross-examining Stephanie
Pauling regarding similar armed robberies
commit
allegedly
ted by Derrick Miller. Because his entire defense rested on
mistaken
identity
third-party
Miller
guilt,2
contends his
counsel’s
prejudicial
ineffectiveness was
and warranted a re
versal of his
agree.
conviction. We
third-party guilt,
imposed
terms of
this Court has
strict limitations
66, 81,
admissibility.
Mansfield,
on its
257,
State v.
343 S.C.
538 S.E.2d
(Ct.App.2000).
by
265
“Evidence offered
a defendant as to the
by
person
commission of the crime
another
is limited to facts which are
guilt.”
inconsistent with the defendant's
Id. “The evidence must raise
a reasonable inference
Recently,
as to the accused's innocence.”
Id.
trial,
after
Supreme
Miller's
our United States
Court clarified the
above-outlined rule
guilt
the admission of
Carolina,
319,
1727,
v.
Holmes
South
547 U.S.
126 S.Ct.
164 L.Ed.2d
(2006).
essentially permits
503
Holmes
a defendant
evi
introduce
third-party guilt regardless
dence of
strength
of the
of the State's case if
by
the evidence offered
the accused as to the commission
crime
person
another
is limited to such facts as are inconsistent with his
guilt
own
presumption
that raise a reasonable inference or
as to his
Holmes,
328-29,
own innocence.
115 assistance to the effective right A defendant has Amendment to the United States under the Sixth counsel 668, 104 466 Washington, v. U.S. Strickland Constitution. (1984). 2052, strong pre “There is a L.Ed.2d 674 80 S.Ct. exer assistance and adequatе that counsel rendered sumption all making signifi professional judgment cised reasonable 331, Catoe, 318, v. 372 in the case.” Ard S.C. cant decisions — denied, —, 590, (2007), 128 cert. U.S. 596 642 S.E.2d (2007). 247 169 L.Ed.2d S.Ct. bears the burden applicant
In a
proceeding,
State,
v.
Caprood
to relief.
establishing
that he is entitled
(2000).
In order
525 S.E.2d
338 S.C.
ineffective,
must
applicant
the PCR
that counsel was
prove
(2)
(1)
deficient; and
performance
that:
counsel’s
show
errors,
that, but for counsel’s
probability
there is a reаsonable
(citing
have been different.
Id.
result of the
would
S.Ct.
Washington,
U.S.
Strickland
*7
(1984)).
is a
probability
probabili
“A reasonable
L.Ed.2d 674
the
in the outcome of
to undermine confidence
ty sufficient
Ard,
331,
at
at 596. “Further
trial.”
372 S.C.
642 S.E.2d
‘the
more,
challenged,
ques
conviction is
a defendant’s
when
that, absent
probability
is a reasonable
tion is whether there
errors,
had a reasonable doubt
the fact finder
have
would
Washington,
v.
Strickland
(quoting
Id.
respecting guilt.’”
(1984)).
2052,
668, 695,
Although we to support evidence review, probative find there is no we conclusions of law of fact and findings court’s estab- the record believe trial counsel’s effectiveness. We that, deficient was performance that trial counsel’s lished error, but for counsel’s there was a reasonable probability the result of Miller’s trial would have been different.
The State established the charge against Bruce Miller based on a single eyewitness. Both trial counsel and Miller maintained that the theory defense was misidentifi- cation and third-party guilt. misidentification, In terms of trial counsel failed to call an expert witness to testify regard- ing eyewitness Thus, identification testimony. the key de- fense was guilt. defense, view this limited it was crucial for trial
counsel to elicit testimony from Pauling that showed the similarities between the armed robberies for which she and Derrick Miller were charged and the one for which Bruce Miller was charged. Based on the рroffer of Pauling’s testi- mony and the transcript from the PCR it hearing, is clear that trial counsel could have established Derrick Miller’s third- party guilt by showing that Pauling’s vehicle was used as the “get away” car in each of the robberies and that a similar handgun was used.
Although counsel, through Pauling’s testimony, was able to a physical establish description Miller, of Derrick not sufficient to adequately establish defense of third- party guilt. A review of Holden’s testimony reveals that he described the robber as an African-American male who approximately five-feet-ten inches tall and weighed 170 pounds. He also described the robber’s facial hair as a “Fu Manchu mustache” “goatee.” or Significantly, this description akin is to Derrick Miller’s physical features rather than Bruce Miller’s. Additionally, Pauling’s credibility questionable at given best she initially implicated Bruce Miller in one of the *8 other three armed robberies until she became aware that he not could have been involved jail because he in at the time of the crime. Inferentially, Pauling could have been “cover- ing” for Derrick Miller for Holden’s robbery armed as she did when she falsely identified Bruce Miller in another robbery.
Furthermore, trial counsel conceded he was remiss in failing to adequately cross-examine Pauling regarding specifics the of the other armed robberies. Counsel attempted to elicit specif- ic of testimony third-party guilt the during proffer of Pauling’s however, testimony; he failed to do so in front of the jury by judge question the trial given opportunity an when gun during car and a similar further the use of her robberies. charged conclude the record is devoid foregoing, Based on the we court’s decision to support evidence to PCR any probative and Clearly, judge both the application. dismiss Miller’s recognized third-party court there was evidence the PCR trial counsel the gave the trial guilt. Specifically, judge More- jury. this defense before opportunity establish over, clearly pursued court found that “trial counsel the PCR Yet, the at trial.” evidence third-party guilt the defense adequately that deficient in cross- established counsel was of the other three examining Pauling regarding specifics and Derrick Miller armed robberies for which she were Derrick Miller’s physical as as out that chargеd pointing well Holden. similar to the robber as described features were and third- identity sole defense mistaken Because Miller’s trial counsel’s error and prejudiced by he was party guilt, relief. entitled to post-conviction
CONCLUSION reasons, court’s we reverse foregoing For convic- relief as to Miller’s grant decision tion.
REVERSED. JJ., TOAL, C.J., WALLER, concur.
MOORE PLEICONES, J., in separate opinion in a which dissenting PLEICONES, J., separate opinion dissenting concurs. TOAL, C.J., concurs. which dissenting: Justice TOAL
Chief my opinion, Plеicones’ dissent. join I in Justice third-party guilt. meet the threshold for evidence does not view, Derrick Miller testimony Pauling that my and that a Pauling’s vehicle using other robberies committed that is not evidence used in all four robberies gun similar Beckham, 834 guilt. Petitioner’s State is inconsistent with (1999) (recognizing 513 S.E.2d S.C. are incon- is limited to facts which guilt evidence *9 118 Furthermore,
sistent with the defendant’s I guilt). agree with Justice Pleicones that Petitioner failed to show he preju- by diced trial alleged adequately counsel’s failure to present this evidence. The jury testimony heard from Pauling that pled guilty she to an that she committed with Derrick Miller in which she drove the “get-away” vehicle.
Furthermore, view, in my Petitioner failed to show counsel was ineffective to call an failing expert on witness identification. Petitioner did not offer any expert such at his thus, PCR hearing, he failed to meet his burden of State, See Lorenzen v. 521, proving prejudice. 376 S.C. (2008) 657 S.E.2d (holding 776-77 that the appliсant failed to prejudiced by show he was trial counsel’s failure to an eyewitness call expert identification because “it merely is speculative that allegedly these favorable expert witnesses defense.”). would have aided his reasons, For these I believe there is support evidence to PCR court’s and I findings, would affirm the order denying Petitioner relief.
PLEICONES, J., concurs.
Justice
dissenting:
PLEICONES
I respectfully dissent and would affirm the post-conviction
(PCR)
rеlief
judge’s
finding
petitioner’s trial counsel was
not
in failing
ineffective
to adequately present evidence of
Catoe,
guilt. E.g., Ard v.
372 S.C.
642 S.E.2d
(PCR
(2007)
findings
upheld
must be
where supported by
record).
any
of probative
evidence
value in the
Under South Carolina’s third-party guilt evidence rule:
by
Evidence offered
accused as to the commission of the
crime
another
person must be limited to such facts as are
inconsistent
his
guilt,
with
own
and to such facts as raise a
reаsonable inference or presumption as to his own inno-
cence;
(no)
evidence which can have
other effect that than
another,
to cast a bare suspicion upon
or
conjec-
to raise a
tural inference as to the commission of the crime by anoth-
er,
not
is
admissible....
such testimony
[BJefore
can be
received, there
it,
must be such proof of connection with
a train
circumstances,
such
of facts or
аs tends clearly out such other
as the
point
person
guilty party. State
104-105,
Gregory,
Cited Holmes South 547 U.S. (2006).3 1727, 164 S.Ct. L.Ed.2d outset, At the I must reservations whether the third- express evidence at trial met the party guilt proffered by petitioner view, my threshold for In admissibility. Stephanie Pauling’s conjectural little more than raise a inference testimony did Miller, that Derrick rather than robbed petitioner, may have Grеgory, supra. James Holder. State v. case,
In there is in the record to any support evidence that trial counsel not deficient in judge’s finding was casting suspicion through on Derrick his cross-examination to trial counsel Pauling. majority points The two facts which 1) to trial counsel that Pauling’s failed to elicit find ineffective: 2) car in her and Derrick’s armed robberies and that was used view, my a similar used in all four robberies. In gun was Pauling counsel’s failure to cross-exаmine about these two prejudiced “similarities” was not deficient nor petitioner was Washington, 466 U.S. 104 S.Ct. thereby. Strickland (1984) (defendant alleging 80 L.Ed.2d trial counsel performance ineffective must establish both deficient was resulting prejudice). in
It that testified for the State appears Pauling petitioner’s that, understanding following testimony, trial as of an part to be to down her three armed permitted plead she was accessory to three counts of after the fact. robbery charges cases, three to been the Pauling alleged those have Derrick) (one car driver two codefendants getaway while to stores and a fast food attempted robbed or rob convenience testify did not that she Pauling explicitly restaurant. While crimes, there no during her car these three driving Holmes, Supreme Court found unconstitutional a the United State third-party guilt permitted rule which variant of South Carolina's forensic) guilt trump strong (especially to the defendant’s evidence right present third-party guilt evidence. suggestion she was driving any other vehicle.'4 The testimony automobile, only focused on this as did the attor neys’ closing arguments. In my opinion, trial counsel’s failure to specifically question about Pauling the car used in the armed robberies in getaway which she was the driver was not deficient, nor was petitioner, prejudiced omission since it was clear to jury thаt the same car was involved in all four incidents. Washington, Strickland v. supra.
The majority also holds trial counsel’s failure to exploit the similarities between the gun used to rob Holder and the gun used in the three other armed robberies was ineffective. During however, her in camera trial testimony, Pauling stated gun that the used robberies which she participated “didn’t look like the other one.” In my opinion, counsel cannot be deemed ineffective for failing present evidence at trial through Pauling of the guns’ similarities.
Having concluded that there is evidence of probative value *11 in the record supports which findings I judge, would affirm the order denying petitioner a new trial. Ard v. Catoe, supra.
TOAL, C.J., concurs.
No. 26526. Supreme Court of South Carolina.
Heard June 2008. Aug. Decided 2008. Rehearing Sept. Denied 2008. especially light she, Pauling's This is so in testimony only her aunt, petitioner car, permitted were to drive the and evidence that participation motivated, her in the three part, robberies was at least in just job fact she had lost and was unable to make her car payments.