Lеwis Henry SOLOMON, Petitioner v. STATE of South Carolina, Respondent.
24047
Supreme Court
April 18, 1994
(443 S.E. (2d) 540)
Instead, the motion to dismiss has the effect of asserting that respondent has failed to state a cause of action.1 The denial of such a motion is not immediately appealable under
It is so ordered.
HARWELL, C.J., not participating.
Attorney General T. Travis Medloсk and Chief Deputy Atty. Gen. Donald J. Zelenka, Columbia, for respondent.
Submitted Jan. 19, 1994.
Decided Apr. 18, 1994.
WILLIAM T. HOWELL, Acting Associate Justice:
We granted certiorari to review the dismissal of Lewis Henry Solomon‘s (Solomon) applicаtion for postconviction relief (PCR). Solomon contends that the PCR judge erred in finding that he received effective assistance of counsel. We disagree and affirm.
I. Facts
Solomon and his brother, Darnell, approached a house where drug agents were conducting a search and asked to see the owner. Solomon and Darnell entered the house but fled after seeing another agent. During the ensuing chase, Solomon allegedly discarded a bag that was later detеrmined to contain cocaine. Both brothers were arrested and subsequently indicted for trafficking in cocaine. Following a mistrial, the State severed the trials against the brothers.
Solomon later applied for PCR, claiming that he rеceived ineffective assistance of counsel because his attorney failed to call Darnell as a witness or object to the agreement thаt dissuaded darnell from testifying. Solomon also claimed that his attorney was ineffective in failing to object to the trial judge‘s instruction on possession. At the PCR hearing, Dаrnell‘s attorney and the assistant solicitor denied the existence of an agreement to dismiss the charges against Darnell in exchange for his refusing to testify in Solomon‘s trial. The PCR judge dismissed Solomon‘s PCR application, finding that counsel was not ineffective because no deal existed with regard to Darnell‘s testimony and that thе trial judge‘s jury instruction taken as a whole was free from error. We granted certiorari.
II. Discussion
Solomon first contends that the PCR judge erred in ruling that trial counsel was not ineffective in failing to object to the solicitor‘s alleged agreement to dismiss the charges against Darnell if he refused to testify. We disagree.
To establish a clаim of ineffective assistance of counsel, the defendant must show that counsel‘s representation fell below an objective standard of reasonableness, and that but for counsel‘s errors, there is a reasonable probability the result would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.E. (2d) 674 (1984); Gallman v. State, 307 S.C. 273, 414 S.E. (2d) 780 (1992).
At the PCR hearing, Darnell‘s attorney testified that he infоrmed the solicitor‘s office prior to trial that Darnell would assert his Fifth Amendment right if called
We give grеat deference to a judge‘s findings when matters of credibility are involved since we lack the opportunity to directly observe the witnesses. Drayton v. Evatt, — S.C. —, 430 S.E. (2d) 517 (1993). Any evidence of probative value is sufficient to uphold the PCR judge‘s findings. Cherry v. State, 300 S.C. 115, 386 S.E. (2d) 624 (1989). Here, the testimony of Darnell‘s attorney and the assistant solicitor is evidence that supports the PCR judge‘s finding that thеre was no deal to withdraw Darnell‘s indictment in exchange for his refusal to testify at Solomon‘s trial. Accordingly, we hold that the PCR judge did not err in finding that because no agrеement had been entered into, Solomon failed to show that trial counsel‘s failure to object to the “deal” prejudiced the outcome of the triаl.
Solomon next contends that the PCR judge erred in holding that trial counsel was not ineffective in failing to object to the court‘s charge that “actual knowledgе of the presence of [a] controlled substance is strong evidence of intent to control disposition.” Solomon argues that the trial judge‘s use of the wоrd “strong” amounted to a comment on the facts or an opinion on the weight of the evidence. We disagree.
In State v. Kimbrell, 294 S.C. 51, 362 S.E. (2d) 630 (1987), we held that “[b]ecause actual knowledge of the presence of the drug is strong evidence of intent to control its disposition or use, knowledge may be equated with or substituted for the intent element.” The trial judge‘s instruction was in accord with Kimbrell. Accordingly, the PCR judge properly held that trial counsel acted reasonably in not objecting to this charge.
For the foregoing reasons, the order dismissing Solomon‘s PCR application is
Affirmed.
FINNEY, J., dissenting in separate opinion.
FINNEY, Justice:
I respectfully dissent. In my opinion, the trial record unequivocally shows that Darnell‘s attorney and the аssistant solicitor had an agreement that the charges against Darnell would be dropped if he did not testify for petitioner, and that this agreement was honored by the State. Accordingly, the denials of the attorney and the assistant solicitor at the PCR hearing lack probative value.
As the majority notes, Darnell‘s attornеy informed the trial court at the outset that the solicitor‘s office “agreed that if [Darnell] did not testify then at the end of [petitioner‘s] trial they would dismiss the case against him.” As soon as petitioner was convicted and sentenced, the assistant solicitor announced “I will formally on the record note our intention to go immediately next door and not pros [Darnell‘s] indictment.” She then did so. While both the assistant solicitor and the attorney denied the existence of the agreement аt the PCR hearing, both Darnell and petitioner‘s trial attorney confirmed the “deal” at the hearing.
Ordinarily, we defer to the PCR judge‘s credibility determinations. Drayton v. Evatt, — S.C. —, 430 S.E. (2d) 517 (1993). If the Court were faced with a disagreement between the recollections of Darnell‘s attorney and the assistant solicitor on the one hand, and petitioner‘s attorney and Darnell on the other, then I would agree there was probative evidence to support the PCR judge‘s ruling and that it should be affirmed. Here, however, we havе more than simply conflicting testimony years after the fact; we have the contemporaneous statements of the parties to the alleged agreement. This Court is not bound by the PCR record alone, but must look as well at the trial record. See Harres v. Leeke, 282 S.C. 131, 318 S.E. (2d) 360 (1984). A review of the entire record unequivocally demonstrates the еxistence of the agreement. Trial counsel‘s failure to object to it was unreasonable, and the prejudice to petitioner undeniable. I would revеrse and grant petitioner‘s application for postconviction relief, United States v. Henricksen, 564 F. (2d) 197 (5th Cir. 1977); see Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed. (2d) 330 (1972).