Opinion
C/A 1:23-1645-BHH-SVH
09-22-2023
William Mark Brockmeyer, Petitioner, v. Bryan Stirling, Commissioner, South Carolina Department of Corrections, and Kirkland Correctional Institution, Respondents.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
William Mark Brockmeyer (“Petitioner”) is currently incarcerated in the South Carolina Department of Corrections pursuant to orders of commitment by the Lexington County Clerk of Court. Through counsel, Petitioner filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondents' return and motion for summary judgment. [ECF Nos. 9, 10]. The motion having been fully briefed [ECF Nos. 13, 14], it is ripe for disposition.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondents' motion for summary judgment be granted.
I. Factual and Procedural Background
In May 2011, Petitioner was indicted by the Lexington County Grand Jury for murder and possession of a weapon during the commission of a violent crime (2011-GS-32-01255 and -1257). [ECF No. 9-6]. The case was prosecuted by 11th Circuit Deputy Solicitor Samuel “Rick” Hubbard and Deputy Solicitor Shawn Graham and Senior Assistant Public Defender David M. Mauldin (“Mauldin”) and Attorney Robert M. Madsen (“trial counsel”) represented Petitioner. [ECF No. 9-1 at 1]. Pretrial hearings were conducted on June 23, 2011, and August 3, 2011, and Petitioner then proceeded to a jury trial before the Honorable Edward B. Cottingham, Circuit Court Judge, on August 22 to 25, 2011, after which he was found guilty as charged on August 26, 2011. [See ECF No. 9-4 at 889-902]. Judge Cottingham sentenced Petitioner to 35 years' imprisonment for murder and five consecutive years for the gun conviction. Id. at 908.
The State presented facts at trial that Petitioner, after a night of drinking in crowded bar with his friends, went outside where his good friend Nicolas Rae (“Rae”) was slumped over in his chair, sick due to intoxication, and murdered Rae using a gun that Petitioner and Rae had passed back and forth between each other throughout the night. The State presented eyewitness Gina Brakefield (“Brakefield”) to support its theory of the case that the shooting was intentional, with Petitioner testifying that the shooting was accidental.
Petitioner timely appealed his convictions and sentences and perfected it with a brief that raised the following issues:
1. Did the Trial Court err by applying the wrong legal standard and denying the defendant's motion to enforce a subpoena where the information sought was clearly relevant, unavailable from other sources, and not otherwise protected?
2. Did the Trial Court err and violate the Confrontation Clause of the Sixth Amendment to the United States Constitution by permitting the State to establish the chain of custody of its evidence through the use of a computer log read aloud by a witness rather than by live testimony from the parties handling the evidence?
3. Did the Trial Court err by permitting the State to introduce a photograph of the defendant where the State repeatedly used the photograph for the illicit purpose of implying that the defendant was guilty?
4. Did the Trial Court err by permitting the State to introduce hearsay testimony taken from the decedent's cell phone?[ECF No. 9-4 at 911-37].
Instead of the case being heard by the South Carolina Court of Appeals (“Court of Appeals”), the Supreme Court of South Carolina certified it for review and heard oral arguments on May 15, 2013. [ECF No. 9-5 at 1015-38]. The court affirmed on November 27, 2013, in a published opinion. Id.
Petitioner filed an application for post-conviction relief (“PCR”) on February 25, 2014, and made the following claims and allegations of error:
1. Ineffective assistance of counsel by failing to properly preserve motion to enforce subpoena for appellate review.
2. Ineffective assistance of counsel by failing to properly preserve a violation of the Confrontation Clause of the Sixth Amendment.Id. at 1039-54.
Petitioner later filed an amended application through counsel raising additional issues:
3. Ineffective assistance of trial counsel for failing to object to inadmissible hearsay testimony.
4. Ineffective assistance of trial counsel for failing to preserve the record clearly and have physical demonstrations done in Court described for the transcript.
5. Ineffective assistance of trial counsel for failing to effectively preserve arguments regarding the angle of the gunshot wound and failure to allow the Applicant to demonstrate what happened.
6. Ineffective assistance of counsel for failure to present evidence regarding reputation and use of a nickname prior to the incident.
7. Ineffective assistance of counsel for failure to object when the trial judge provided instructions to the jury prior to the closing arguments of counsel.
8. Ineffective assistance of counsel for failing to object when the Court did not emphasize to the jury that a conviction on a violent crime was a prerequisite for a conviction on
possession of a deadly weapon during commission of a violent crime.
9. Ineffective assistance of counsel for failing to object and/or request a mistrial and/or move for a new trial based on the fact that the jury reached a verdict on possession of a weapon during the commission of a violent crime prior to reaching a verdict on whether or not he committed a violent crime, and the Court instructed the jury to re-date the verdict on the indictment.Id. at 1060-62, see also 1122-23.
An evidentiary hearing was held on November 9, 2016 before the Honorable R. Keith Kelly, Circuit Court Judge (“PCR Judge”). Id. at 10631119. Assistant Attorney General Johanna C. Valenzuela represented the State and Kristy G. Goldberg, Esq., represented Petitioner. Id. at 1063. The court heard testimony from Petitioner and trial counsel Mauldin and admitted no exhibits. Id. at 1064.
The PCR Judge issued an order on October 25, 2018, denying and dismissing the application with prejudice. Id. at 1120-55. He included a summary of the testimony given at the hearing and made specific findings of fact and conclusions of law. Petitioner later filed a motion to alter or amend the judgment under Rule 59(e), SCRCP, in November 2018, arguing the PCR judge erred in finding counsel was effective as to any mistrial motion or objection in connection with inconsistent verdicts, Id. at 1156-58. The motion was denied on April 17, 2019. Id. at 1165-68.
Petitioner timely appealed the denial of relief to the South Carolina Supreme Court through a petition for writ of certiorari, raising one issue:
1. Whether trial counsel's admitted failure to object to hearsay that “people have seen [petitioner] shoot [the decedent]” in a shooting outside of a crowded bar that petitioner testified was accidental constitutes ineffective assistance of counsel depriving petitioner of his Sixth Amendment right to counsel and requiring a new trial?[ECF Nos. 9-8, 9-9, 9-10].
The Supreme Court of South Carolina transferred the PCR appeal to the Court of Appeals, and the court subsequently denied the petition on August 19, 2022.[ECF Nos. 9-12, 9-13]. The court issued a remittitur on September 12, 2022, which was filed with the Lexington County Clerk of Court on September 15, 2022. [ECF No. 9-14].
Pursuant to Rule 243(1), SCACR, “The Supreme Court may transfer a case filed under this rule to the Court of Appeals.”
II. Discussion
A. Federal Habeas Issues
Petitioner raises the following grounds for relief in his federal habeas petition:
Ground One: Ineffective Assistance of Counsel
Supporting Facts: Trial counsel was ineffective by his admitted failure to object to inadmissible hearsay that “people had seen [Petitioner] shoot [the decedent]” in a shooting outside of a crowded bar that Petitioner testified
was accidental, thereby depriving Petitioner of his Sixth Amendment right to counsel.
Ground Two: The Trial Court Violated the Sixth Amendment's Compulsory Process.
Supporting Facts: The trial court's failure to grant Petitioner's motion to enforce a subpoena to a media news outlet to provide the identification of an anonymous commenter whose comment on the news story regarding the shooting supported the defense's position that the shooting was accidental violated Petitioner's rights under the Sixth Amendment's Compulsory Process Clause.
Ground Three: The Trial Court Violated the Sixth Amendment's Confrontation Clause.
Supporting Facts: The trial judge committed reversible error by permitting the State to use a computer log to establish the chain of custody rather than witnesses subject to cross examination in violation of Petitioner's rights under the Sixth Amendment's Confrontation Clause.[ECF No. 1].
B. Standard for Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 410. Moreover, state court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Respondents concede that Petitioner timely pursued and exhausted all of the claims raised in Ground One, Ground Two, and Ground Three and does not assert a defense based on failure to exhaust or statute of limitations. [See ECF No. 9 at 9 (“Here, Petitioner presented his first claim to the PCR court and the Supreme Court of South Carolina, and the last two to the Court of Appeals and the Supreme Court of South Carolina. Therefore, he has properly exhausted his claims and they are ripe for consideration . . . . Only 218 passed before Petitioner filed his petition with this Court through counsel. 1 + 218 = 219.”).
2. Ineffective Assistance of Counsel Claims
To prevail on his ineffective assistance of counsel claims, Petitioner must show (1) that his trial counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The court must apply a “strong presumption” that trial counsel's representation fell within the “wide range of reasonable professional assistance,” and the errors must be “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2011). This is a high standard that requires a habeas petitioner to show that counsel's errors deprived him “of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. That the outcome would “reasonably likely” have been different but for counsel's error is not dispositive of the prejudice inquiry. Rather, the court must determine whether the result of the proceeding was fundamentally unfair or unreliable. Harrington, 562 U.S. at 104; Strickland, 466 U.S. at 694.
The United States Supreme Court has cautioned that “‘[s]urmounting Stricklands high bar is never an easy task[,]' . . . [establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Harrington, 562 U.S. at 88 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). When evaluating an ineffective assistance of counsel claim, the petitioner must satisfy the highly deferential standards of 28 U.S.C. § 2254(d) and Strickland “in tandem,” making the standard “doubly” more difficult. Harrington, 562 U.S. at 105. In such circumstances, the “question is not whether counsel's actions were reasonable,” but whether “there is any reasonable argument that counsel satisfied Stricklands deferential standards.” Id. The unreasonableness of the state court determination must be “beyond any possibility of fairminded disagreement.” Id. at 103. “If this standard is difficult to meet, that is because it was meant to be.” Id. at 102. Section 2254(d) codifies the view that habeas corpus is a “‘guard against extreme malfunctions in the state criminal justice system,' not a substitute for ordinary error correction through appeal.” Id. at 102-103 (citing Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
D. Analysis
1. Ground One
A central issue at trial was whether Petitioner shot Rae accidentally, as testified by Petitioner, or intentionally, as testified by the only eyewitness, Brakefield.
During the trial, Mariko Clack (“Clack”) testified that Petitioner called her and asked her to pick him up from the police station after his arrest, as follows:
Q: What, if anything, did he tell you on the phone about what happened to Nick?
A: He called me and told me to come get him, and I told him that he wasn't leaving and that people had seen him shoot Nick.
Q: People said what?
A: That they had seen him shoot Nick. There was witnesses that had seen him shoot Nick.
Q: What did he say?
A: He said he didn't do it .... He said he didn't do it, and then he said he couldn't have done it because he was inside dancing . . . . He just kept saying he didn't do this, and he asked what everyone was saying ....[ECF No. 9-1 at 147-48].
Petitioner argues that trial counsel was ineffective for failing to object to these inadmissible hearsay statements.The PCR judge held as follows as to this issue:
“‘Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), SCRE. Hearsay is not admissible except as provided by the South Carolina Rules of Evidence, by other rules prescribed by the South Carolina Supreme Court, or by statute. Rule 802, SCRE.
At the PCR evidentiary hearing, counsel testified that the statement that there were witnesses that had seen Applicant shoot the victim were hearsay. (PCR Tr. 29). Counsel could not recall if there was a specific reason no objection was made, and he surmised that it might have gone by quickly because the witness testified about Applicant denying shooting the victim immediately afterwards. (PCR Tr. 30). Counsel further noted only one witness testified to actually seeing the shooting. (PCR Tr. 30). Further, Ms. Clack did not see the shooting, and she did
not identify the people who claimed to have seen the shooting. (PCR Tr. 30). Counsel then noted it was probably a missed objection. (PCR Tr. 30). During cross examination, counsel again noted, “that might have gone by quick because then most of it afterward was about him denying doing anything wrong.” (PCR Tr. 46, 1121-22). Counsel wanted the testimony regarding Applicant's denial of involvement in the shooting to come out. (PCR Tr. 46).
This Court finds Applicant has failed to meet his burden of showing trial counsel was ineffective in not objecting to this testimony. Here, Applicant fails to establish there is a reasonable probability the result of the proceeding would have been different had counsel objected to this testimony. In this Court's opinion, this testimony had very limited impact on Applicant's trial. The testimony itself was limited in nature. The State did not attempt to use Clack's mention of other witnesses as evidence of Applicant's guilt at any point throughout the rest of the trial. One witness testified she actually saw the shooting. (Tr. 99-103). Another witness described the victim as slumping over in his chair when Applicant approached. (Tr. 245). This witness, Mr. Kabar, noted Applicant knelt down, had his hands on or about the victim, and talked with the victim for approximately fifteen seconds. The witness testified they heard a loud pop, and then Applicant stood up and walked off around the building. (Tr. 24546). Second, Applicant's defense was that the shooting was accidental. He testified that he touched either the victim's hand or the gun, and the gun went off. (Tr. 759). There was no question at trial that Applicant was involved in shooting the victim; Clack's testimony did not contradict Applicant's assertions that the shooting was accidental. Furthermore, this Court finds there was overwhelming evidence of Applicant's guilt outside this one statement made by Ms. Clack. In light of these considerations, this Court finds Applicant fails to establish he was prejudiced. As a result, he has not shown trial counsel was ineffective. This claim for relief is denied and dismissed with prejudice.[ECF No. 9-5 at 1134-36]. The PCR Judge also included the following in a footnote:
This Court would also question whether trial counsel was deficient as a strong argument could be made that the testimony at issue was hearsay under Rule 801(c), SCRE. The transcript reflects the testimony was not offered to prove the truth of the matter asserted (i.e. multiple people saw Applicant shoot the victim). To the contrary, this Court finds this testimony was offered to establish Applicant's response to initial allegations regarding his involvement in the shooting, which was to deny he had anything to do with the shooting. See generally Rhodes v. State, 349 S.C. 25, 31, 561 S.E.2d 606, 609 (2002).Id. at n.2.
Petitioner also raised this ground to the Supreme Court of South Carolina in his petition for writ of certiorari, but the court denied it without comment. Petitioner here has not shown how either of the state courts unreasonably applied federal law or made an unreasonable determination of the facts in finding counsel was effective.
Petitioner argues otherwise. Although the PCR Judge's analysis was primarily focused on the prejudice prong, the PCR Judge also suggested that the statements at issue were not inadmissible hearsay because they were not being offered for the truth of the matter asserted. Petitioner argues “[t]his is an unreasonable view of the record and the law,” as follows:
If the statement was not being offered for the truth of the matter asserted but rather for the response of the Petitioner, then it would not have been necessary for the solicitor to get the witness to repeat her statement and it would not have been necessary for her to elaborate as to her interpretation of that hearsay statement. The solicitor used that statement by the witness, and his subsequent question of clarification of the statement, to offer it to prove the truth of the matter asserted which makes the
statement inadmissible hearsay.[ECF No. 1 at 15].
Petitioner has failed to show the PCR Judge's conclusion that trial counsel's performance was not deficient was an unreasonable application of federal law, particularly Strickland, or show by clear and convincing evidence that a factual determination was made incorrectly. In determining whether trial counsel's performance was constitutionally deficient, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,” in order to avoid “the distorting effects of hindsight.” Strickland, 466 U.S. at 689.
Here, the PCR Judge relied on South Carolina precedent to determine the statements at issue were not inadmissible hearsay and, therefore, trial counsel was not ineffective for failing to object. See, e.g., Rhodes, 561 S.E.2d at 609 (“We find that the testimony admitted in this case about Thompson hearing petitioner was the shooter does not constitute hearsay .... Here, it was repeatedly made clear during trial that the information Thompson had heard was ‘from the street,' i.e., a ‘rumor.' It was not offered to prove that petitioner had committed the crimes, but rather to explain Cook's identification of petitioner in the yearbook.”). Here, similar to Rhodes, Clack testified she heard from unknown people that Petitioner had shot Rae, not to prove Petitioner had shot Rae with intent, but in response to Petitioner's questions about what people were saying and to establish Petitioner initially denied being involved in the shooting.
At trial Petitioner testified that he approached Rae and “leaned in,” “tried to grab the gun,” “touched something, [Rae's] hand or the end of the gun,” and “the gun went off.” [ECF No. 9-3 at 759].
Petitioner additionally argues that where trial counsel, at the PCR hearing, “openly admitted the deficiency and that the statements were inadmissible hearsay” and “did not offer a strategic reason why he did not object or how he made a conscious decision to not object to some end to aid in his defense of Petitioner,” trial counsel's performance was deficient. [ECF No. 1 at 14-15]. In support, Petitioner cites Thompson v State, 814 S.E.2d 487 (S.C. 2018) (holding that trial counsel was deficient for failing to object to hearsay in a child sexual abuse case). See Id.
Trial counsel admitted the statements were hearsay and responded “probably, yes” to the question “there wasn't any necessarily trial strategy to let that go, it was just a missed objection.” [ECF No. 9-5 at 1092]. There was no conversation at the PCR hearing whether the statements were inadmissible hearsay and trial counsel did not state he was “deficient.” Id.
Thompson is distinguishable where, in that case and unlike here, the statements at issue were “clearly inadmissible hearsay,” extensive, and found to be prejudicial where the testimony “improperly bolstered Victim's credibility.” 814 S.E.2d at 489-90, 493-95 (finding petitioner was prejudiced by his trial counsel's failure to object to (1) a DSS case worker's testimony that the victim revealed the petitioner sexually abused her; (2) the expert forensic interviewer's testimony that the victim disclosed chronic abuse by the petitioner and the specific types of sexual abuse committed, and that the victim's disclosure was “the most compelling she had encountered in almost one thousand child interviews”; and (3) the testimony of a detective, who was also a trained forensic interviewer, that the victim's disclosures were consistent with her training and experience).
Here, unlike in Thompson, and as stated by the PCR Judge, the relevant testimony consistent of two statements made by Clack and not used again, the statements did not address whether Petitioner intentionally shot Rae, and the statements were not offered for the truth of the matter asserted.
Additionally, the PCR Judge determined the statements to not be inadmissible hearsay based the South Carolina Rules of Evidence and South Carolina state law. To the extent that Ground One challenges a decision based on South Carolina's evidentiary rules and the PCR Judge's analysis based on South Carolina state law, it is not cognizable in a habeas proceeding before this court. “It is not the province of a federal habeas corpus court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Furthermore, “in considering federal habeas corpus issues involving state evidentiary rulings, ‘we do not sit to review the admissibility of evidence under state law unless erroneous evidentiary rulings were so extreme as to result in a denial of a constitutionally fair proceeding.'” Barbe v. McBride, 521 F.3d 443, 452 (4th Cir. 2008) (quoting Burket v. Angelone, 208 F.3d 172, 186 (4th Cir. 2000)); see also Cowan v. McCall, C/A No. 0:10-2100-RBH-PJG, 2011 WL 4345821, at *5 (D.S.C. Aug. 23, 2011) (rejecting petitioner's argument that petitioner is entitled to habeas relief where petitioner argued that the trial court erred in admitting testimony rather than excluding the testimony as hearsay), report and recommendation adopted, C/A No. 0:10-02100-RBH, 2011 WL 4345784 (D.S.C. Sept. 15, 2011).
Accordingly, the undersigned recommends the district judge grant Respondents' motion for summary judgment as to Ground One.
Given the recommendation above, it is unnecessary to address Petitioner's additional argument that the PCR Judge erred in determining Petitioner was not prejudiced. [See ECF No. 1 at 15-18 (citing Smalls v. State, 810 S.E.2d 836, 845 (S.C. 2018) (holding overwhelming evidence of guilt precludes a finding of prejudice only where the evidence provides “something conclusive, such as a confession, DNA evidence demonstrating guilt, or a combination of physical and corroborating evidence so strong that the Strickland standard of ‘a reasonable probability .... the factfinder would have had a reasonable doubt' cannot possibly be met.”); see also Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one.”))].
2. Ground Two
On August 3, 2011, at one of the pretrial hearings, trial counsel informed the court that they had served a subpoena to a local news station where a story about the shooting had appeared and an anonymous commenter by the online name “AndTheTruth” commented on the article saying, “Were you there, did you see what happened? Did you see the tears on his young, confused face when he realized he had just accidentally killed his friend?” [ECF No. 9-1 at 14]. Trial counsel issued the subpoena to obtain the identity of the person who made the comment. Id.
At the hearing, counsel for the news station indicated it would not be complying with the subpoena, invoking the First and Fourteenth Amendments. Id. at 20. The trial court ruled that the witness was constitutionally-protected and that the witness's identity was otherwise attainable through the sign-in sheet of those present at the bar on the night of the incident. Id. at 25-26. When asked about the sign in sheet, trial counsel stated they were provided with the sign in sheet but that most of the names were illegible. Id. at 24. The solicitor agreed with trial counsel that there were “some names on there we too had a question about.” Id. at 26. The solicitor commented in response that the State was working with law enforcement on that very issue to try and generate names and addresses from that list that could be used to identify witnesses by the State as well. Id. at 24-25. The State informed the court that all the names they currently had had already been provided to Petitioner's trial counsel and if they could produce this list of other names and contact information using law enforcement's assistance, they would also provide that list to trial counsel. Id. at 25. The State indicated it had already requested this assistance from law enforcement but had not received a positive response. Id. The trial judge ordered the State assist the defense, as best they could prior to trial, with identifying the names on the list so the defense could attempt to find this witness through this list. Id. at 24-25. Due to the existence of this list, the trial judge ruled the identity of the witness existed elsewhere and the subpoena did not need to be enforced to get the witness's identity. Id. at 27 (“If such a person exists, it is clear to me that with exhaustive discovery, knowing all of these people who were there, that individual's name can be forthcoming if it exists at all.”).
Petitioner claims the Supreme Court of South Carolina unreasonably affirmed his conviction in violation of the Sixth Amendment to the United States Constitution when it failed to grant his motion to enforce a subpoena. The Supreme Court held Petitioner had not properly preserved the argument for appellate review, but that even so, any error was harmless, as follows:
“[C]riminal defendants have the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.” Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). However, “the Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses.'” United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). Rather, to demonstrate a Compulsory Process Clause violation, an appellant must make some plausible showing of how the testimony of an
absent witness would have been both material and favorable to his defense. Id..... This Court has not specifically addressed whether and under what circumstances the right to anonymity must give way to other constitutionally protected interests, such as a criminal defendant's rights under the Sixth Amendment's Compulsory Process Clause ....
Although Brockmeyer presents a compelling argument for the disclosure of the commenter under the circumstances presented, we decline to reach this issue on issue preservation grounds. We have no way of properly evaluating Brockmeyer's continuing need for the information he sought to subpoena following the trial judge's instructions for the solicitor to take additional steps to assist the defense in identifying everyone at Jager's on the night of the shooting. This is so because Brockmeyer failed to renew his motion at the outset of trial. Thus, Brockmeyer has failed to provide this Court with a sufficient record on appeal to evaluate this assertion of error. See Harkins v. Greenville Cnty., 340 S.C. 606, 616, 533 S.E.2d 886, 891 (2000) (finding it impossible to evaluate the merits of certain issues because the Appellant failed to include the relevant material in the record on appeal); Crestwood Golf Club, Inc. v. Potter, 328 S.C. 201, 215, 493 S.E.2d 826, 834 (1997) (noting an appellant bears the burden of providing a sufficient record to review his assertions of error).
However, even assuming the trial court erred in not requiring disclosure of the anonymous commenter's identity, the error would not be reversible. Brockmeyer is unable to show he was prejudiced by the trial judge's denial of his motion to enforce the subpoena. More to the point, evidence of an accidental shooting and Brockmeyer's distraught state was presented. Brockmeyer testified that the shooting was an accident and that he was “in shock” afterwards. More importantly, Mariko Clack, who was among the group of friends with Brockmeyer and the victim on the night of the shooting, testified that Brockmeyer was weeping and was “really shaky and frantic” after the shooting. Thus, any error was harmless because even assuming the anonymous commenter testified to that effect, it would have been cumulative. See State v. Commander, 396 S.C. 254, 263, 721 S.E.2d 413, 418 (2011) (“To warrant reversal based on the admission or exclusion of evidence, the appellant must prove both the error of the ruling
and the resulting prejudice, i.e., that there is a reasonable probability the jury's verdict was influenced by the challenged evidence or the lack thereof.”). In sum, the issue is not properly preserved, but in any event, any error in the trial court's refusal to enforce the subpoena would not constitute reversible error.State v. Brockmeyer, 751 S.E.2d 645, 650, 652-53 (S.C. 2013).
In addressing this same issue, the PCR Judge held as follows:
This Court finds Applicant has failed to establish he is entitled to relief upon this claim of ineffective assistance of counsel. First, Applicant has not shown trial counsel was deficient in not further contending the subpoena was needed before trial. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is; the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 689 (19.84). Applicant presented no evidence at the PCR evidentiary hearing that the information requested .in the subpoena was still needed at trial. Nor did Applicant establish trial counsel did not make a strategic decision to not continue seeking enforcement of the subpoena. Thus, this Court finds Applicant fails to meet his burden of showing trial counsel was deficient.
Applicant also fails to establish he was prejudiced by any error of counsel in the handling of the subpoena. First, Applicant presented no evidence at the evidentiary hearing in this action to establish what would have been obtained had the subpoena been enforced. His argument regarding prejudice is purely speculative and insufficient to establish prejudice. See Putnam v. State, 417 S.C. 252, 266, 789 S.E.2d 594, 601 (Ct. App. 2016). Second, to the extent Petitioner's argument relies upon his belief that his prejudice stems from the argument not being preserved for appellate review, this Court finds his argument is without merit. In making this finding, this Court finds very persuasive the Supreme Court's reasoning for its finding that any error by the trial court was harmless. As noted by the Supreme Court, the information contained in the online comment that was the basis for the subpoena was cumulative to evidence presented at
Applicant's trial. Applicant had testified the shooting was an accident, and he was in shock afterwards. (Tr. 653, 656-58). Further, Mariko Clack had testified that when she saw Applicant after the shooting, she “saw him like weeping”, in response to an inquiry as to whether he was crying that night. (Tr. 100, 12). In light of the Supreme Court's determination that any error by the trial court in not enforcing the subpoena would have been harmless, this Court finds Applicant cannot show he was prejudiced by counsel's failure to preserve this issue for appeal. This claim for relief is therefore denied and dismissed with prejudice.[ECF No. 9-5 at 1128-29].
Petitioner has failed to show that the rulings of the South Carolina Supreme Court or the PCR Judge unreasonably applied federal law or made an unreasonable determination of the facts.
As to the former, Petitioner concedes, as the South Carolina Supreme Court also noted, that “[t]here is not clearly established federal law specifically weighing an anonymous commenter's right to remain anonymous under the First Amendment versus the criminal defendant's right to Compulsory Process under the Sixth Amendment,” but notes rightly that “the Supreme Court has ruled that First Amendment rights are not absolute.” [ECF No. 1 at 24]. In support, Petitioner cites Bartnicki v. Vopper, 532 U.S. 514, 534 (2001) wherein the Supreme Court noted “privacy concerns give way when balanced against the interest in publishing matters of public importance” and that “[o]ne of the costs associated with participation in public affairs is an attendant loss of privacy.” However, Bartnicki in no way establishes that the trial judge, the South Carolina Supreme Court, or the PCR Judge unreasonably applied federal law in their handling of the subpoena issue in this case.
Petitioner argues that testimony from this potential witness “would have been both material and favorable to the defense as required to show a Compulsory Process Clause violation under clearly established federal law.” [ECF No. 13 at 6 (citing Valenzuela-Bernal, 458 U.S. 858)]. However, neither the South Carolina Supreme Court nor the PCR Judge directly addressed this issue and therefore did not rule otherwise.
Petitioner also argues the conclusion that the name of the relevant person who made the anonymous comment could be found through the list of patrons at the bar on the night of the incident “was an unreasonable view of the facts presented.” [ECF No. 1 at 22]. However, Petitioner does not address Respondent's argument that “the trial court directed the solicitor to help the defense in identifying the anonymous poster who would have been at the bar that night (and would have been required to sign in on the bar's sign-in sheet), and Petitioner failed to re-raise the issue at trial or ask the court for more help. Thus, he is not entitled to relief here.” [ECF No. 9 at 15].
Finally, Petitioner argues he was prejudiced in that “[i]f there was another witness to the shooting, that person's testimony would have been essential to the jury deciding the central issue of whether this shooting was intentional or accidental.” [ECF No. 1 at 25]. As stated by the PCR Judge, Petitioner's arguments regarding prejudice are purely speculative and insufficient to establish prejudice. See, e.g., Putnam, 789 S.E.2d at 601 (“Although Putnam asserted the Children's testimony ‘may have shown some sort of information that may have helped in some way' and may have provided the jury with a better understanding of ‘what was actually going on in the house at the time,' that testimony was speculative and therefore insufficient to establish prejudice.”).
Accordingly, the undersigned recommends the district judge grant Respondents' motion for summary judgment as to Ground Two.
3. Ground Three
As argued by Petitioner, at trial, the State admitted five pieces of evidence, a shirt worn by Petitioner, a shell casing, a pistol magazine, a pistol, and a recovered bullet, using the testimony of two witnesses, one from the Lexington County Sherriff's Department and one from the South Carolina Law Enforcement Division, reading aloud from computer generated logs accounting for which law enforcement personnel had custody of the evidence rather than having those persons present to testify as to the chain of custody of those items. Trial counsel objected to the admission of these items into evidence, arguing the State had not laid a sufficient chain of custody and there lacked foundation for the admission of the items in evidence. As argued by Petitioner, trial counsel “stated the witness ‘has absolutely no idea what has happened with any of these items' alluding to the fact that the witness was not the only person who handled the items and those others who did handle the items were not present to be crossexamined by the defense.” [ECF No. 1 at 27 (citing ECF No. 9-5 at 1028)]. The trial court admitted the items into evidence and overruled the defense's objections.
The South Carolina Supreme Court addressed this issue extensively, in part as follows:
Brockmeyer argues statements of certain non-testifying evidence custodians found in computerized chain-of-custody logs were introduced indirectly at trial in violation of the Confrontation Clause of the Sixth Amendment. Brockmeyer argues this constitutional violation invalidated the chain of custody and rendered the related evidence inadmissible. We disagree ....
In short, the Confrontation Clause analysis turns on whether the challenged out-of-court statement is testimonial .... Recently, the Fourth Circuit Court of Appeals examined the Supreme Court's Confrontation Clause jurisprudence-including Crawford, Melendez-Diaz, and Bullcoming-and concluded “‘the chain of custody is not relevant when a witness identifies the object as the actual object about which he testified.'” United States v. Summers, 666 F.3d 192, 201 (4th Cir.2011) (quoting United States v. Phillips, 640 F.2d 87, 94 (7th Cir.1981)). “Establishing a strict chain of custody ‘is not an ironclad requirement, and the fact of a missing link does not prevent the admission of real evidence, so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material respect.'” Id. (quoting United States v. Ricco, 52 F.3d 58, 61-62 (4th Cir.1995)). “The [trial] court's role is merely to act as a gatekeeper for the jury, and the proponent of the evidence need only make a prima facie showing of its authenticity.” Id. (citing United States v. Vidacak, 553 F.3d 344, 349 (4th Cir.2009)) ....
We first find Brockmeyer's claim is not preserved for appellate review. Although Brockmeyer objected to the admission of the t-shirt, the shell casing, the magazine, the .380 pistol, and the fired
projectile, none of Brockmeyer's initial objections alleged a Confrontation Clause violation; rather, Brockmeyer challenged only the sufficiency of the foundation for admitting each item. The issue of whether evidence is admissible under “state-law requirements regarding proof of foundational facts” is distinct from the issue of whether a defendant's Sixth Amendment confrontation right was violated. See Williams v. Illinois, --- U.S. ----, ----, 132 S.Ct. 2221, 2243, 183 L.Ed.2d 89 (2012) (“[I]f a statement is not made for ‘the primary purpose of creating an out-of-court substitute for trial testimony,' its admissibility ‘is the concern of state and federal rules of evidence, not the Confrontation Clause.'” (quoting Bryant, 131 S.Ct. at 1155)). Thus, on appeal, Brockmeyer may not bootstrap a Confrontation Clause objection onto his objection to the State's proof of foundational facts. Although Brockmeyer eventually raised Confrontation Clause objections, those objections were untimely as to the admission of the items themselves and do not preserve for appellate review the issue of whether that evidence was properly admitted. See State v. Aldret, 333 S.C. 307, 312, 509 S.E.2d 811, 813 (1999) (finding where a defendant failed to call an alleged error to the trial judge's attention at the first opportunity to do so, the defendant is procedurally barred from raising the issue on appeal).
In any event, the challenged testimony referring to certain statements of other non-testifying evidence custodians in the chain-of-custody logs was admissible as a matter of state law and would not raise Confrontation Clause concerns. Therefore, the admission of the challenged non-fungible items was proper, notwithstanding Brockmeyer's inability to confront each custodian who handled the evidence.Brockmeyer, 751 S.E.2d at 653, 654-55, 659.
As argued in part by Respondents:
Petitioner argues even though an investigator testified he had collected the following himself at trial - the shell casing found near the victim's body, a t-shirt, a .380 caliber magazine, a .380 pistol, and a fired projectile - and argued it should have been excluded at trial because of the chain of custody. Petitioner did
not argue a Confrontation Clause argument then; only alleged insufficient foundation. Brockmeyer, 751 S.E.2d at 655-656. The State also offered the testimony of a second investigator who had collected evidence, and Petitioner also objected to insufficient foundation, not to a Confrontation Clause violation. Id. at 656. The State further developed the chain of (and process of) custody for all of the items through the second investigator, a county evidence custodian, and a SLED evidence custodian as well. Id. at 656-657. The defense objected a third time to hearsay but not to a Confrontation Clause violation. Id. at 657.
The S.C. Supreme Court found the issue was also not preserved for appellate review. Id. at 659. Nevertheless, they held the State had laid a proper foundation, and the log was not hearsay as it was a business record under Rule 803(6), SCRE. Id. at 660. Finally, the logs were nontestimonial as they were not created “for the sole purpose of providing evidence against the defendant,” Melendez-Diaz, 557 U.S. at 323, so even if Petitioner had preserved the issue, it did not hold merit. Id. As there was no Confrontation Clause issue, the Court found it was therefore purely a matter of state law, and held because the log was not fungible like cocaine, a strict chain of custody was not required for admission into evidence. Id. Even so, Petitioner himself admitted to holding the .380 and its magazine and to tossing it into the woods after. Therefore, he could not prove prejudice. Id. Petitioner has not shown how the above conclusions were unreasonable determinations of the facts or an unreasonable application of federal law, so this Court should grant the motion for summary judgment.[ECF No. 9 at 16-17].
Here, although Petitioner invokes Melendez-Diaz v. Massachusetts, 577 U.S. 305 (2009), arguing the trial judge committed reversible error by ruling the relevant testimony at issue concerning the chain of custody had to be live, Petitioner fails to address the extensive case law and reasoning provided by the South Carolina Supreme Court in finding no Confrontation Clause issue nor does Petitioner address argument and case law provided by Respondent. [See ECF No. 1 at 26-29, ECF No. 13 at 7-8]. For example, Petitioner's only argument as to the issue of prejudice is that “Petitioner was substantially and injuriously prejudiced by the trial judge's decision to allow the State to establish a chain of custody through the reading of a computer log.” [ECF No. 1 at 29, ECF No. 13 at 8]. Petitioner has failed to show the South Carolina Supreme Court's holding as to the chain of custody issue unreasonably applied federal law or made an unreasonable determination of the facts.
Accordingly, the undersigned recommends the district judge grant Respondents' motion for summary judgment as to Ground Three.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court grant Respondents' motion for summary judgment [ECF No. 10] and dismiss the petition with prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).