Opinion
Opinion No. 26121.
Submitted October 19, 2005.
Filed March 6, 2006.
Appeal from Chester County, Kenneth G. Goode, Circuit Court Judge.
REVERSED.Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Molly R. Crum, all of Columbia, for Petitioner.
Assistant Appellate Defender Aileen P. Claire, South Carolina Office of Appellate Defense, of Columbia, for Respondent.
[EDITORS' NOTE: THIS OPINION WAS WITHDRAWN. FOR SUBSTITUTED OPINION, SEE 368 S.C. 378, 629 S.E.2d 353.]
ON WRIT OF CERTIORARI.
The post-conviction relief (PCR) court granted Johnell Porter (Porter) a new trial after finding that counsel was ineffective for failing to file a Brady motion, failing to investigate the validity of a photographic identification, and failing to interview a witness. This Court granted the State's petition to review the PCR court's decision. We reverse.
FACTUAL/PROCEDURAL BACKGROUND
Porter was indicted in 1980 for the armed robbery of Morris Jewelers. Porter pled guilty and was sentenced to twelve years confinement, consecutive to any sentence imposed by other jurisdictions. Porter did not appeal his guilty plea or sentence.
At the time of the plea, Porter was incarcerated in North Carolina.
Porter applied for PCR in 1984. The PCR petition was dismissed without prejudice, with leave to re-file when Porter returned to South Carolina to serve his sentence. Porter refiled his petition for PCR in 1997, after being returned to South Carolina. This petition was also dismissed. Porter subsequently moved for a new PCR hearing, which was granted. At the hearing, Porter argued that his trial counsel was ineffective for failing to file a Brady motion, failing to investigate the validity of a photographic identification, and failing to interview a witness. The PCR judge agreed with Porter and granted Porter a new trial.
The State appealed, raising the following issues for review:
I. Did the PCR court err in finding Porter's trial counsel ineffective for failing to file a Brady motion?
II. Did the PCR court err in finding Porter's trial counsel ineffective for failing to investigate the validity of the photographic identification?
III. Did the PCR court err in finding Porter's trial counsel ineffective for failing to interview a witness?
STANDARD OF REVIEW
This Court gives great deference to the PCR court's findings of fact and conclusions of law. Caprood v. State, 338 S.C. 103, 109, 525 S.E.2d 514, 517 (2000) (citing McCray v. State, 317 S.C. 557, 455 S.E.2d 686 (1995)). On review, a PCR judge's findings will be upheld if there is any evidence of probative value sufficient to support them. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989). If no probative evidence exists to support the findings, this Court will reverse. Pierce v. State, 338 S.C. 139, 144, 526 S.E.2d 222, 225 (2000) (citing Holland v. State, 322 S.C. 111, 470 S.E.2d 378 (1996)).
LAW/ANALYSIS
I. Brady Motion
The State contends that the PCR court erred in finding that Porter's trial counsel was ineffective for failing to file a Brady motion. We agree.
In order to establish a claim of ineffective assistance of counsel, a PCR applicant must prove: (1) that counsel failed to render reasonably effective assistance under prevailing professional norms; and (2) that the deficient performance prejudiced the applicant's case. Strickland v. Washington, 466 U.S. 668, 687 (1984). An applicant may attack the voluntary and intelligent character of a guilty plea entered on the advice of counsel only by demonstrating that counsel's representation was below an objective standard of reasonableness. Roscoe v. State, 345 S.C. 16, 20, 546 S.E.2d 417, 419 (2001). Further, the applicant must show that there is a reasonable probability that he would have insisted on proceeding to trial on the matter instead of pleading guilty. Id. Additionally, the applicant has the burden of proving the allegations of the PCR petition. Bannister v. State, 333 S.C. 298, 302, 509 S.E.2d 807, 809 (1998).
The Brady disclosure rule requires the prosecution to provide to the defendant any evidence in the prosecution's possession that may be favorable to the accused and material to guilt or punishment. State v. Kennerly, 331 S.C. 442, 452, 503 S.E.2d 214, 220 (Ct.App. 1998) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). Favorable evidence includes both exculpatory evidence and evidence which may be used for impeachment. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, (1985). Materiality of evidence is determined based on the reasonable probability that the result of the proceeding would have been different had the evidence been disclosed to the defense. Kennerly, 331 S.C. at 453, 503 S.E.2d at 220. "A `reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression `undermines confidence in the outcome of the trial.'" Bagley, 473 U.S. at 678, 105 S.Ct. at 3381. Furthermore, the prosecution has the duty to disclose such evidence even in the absence of a request by the accused. United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, (1976).
In the instant case, the prosecution did not possess any material evidence which was not disclosed to Porter's trial counsel. The evidence Porter claims his trial counsel failed to obtain through a Brady motion consists of the fact that the witness did not identify Porter at the crime scene. This information was immaterial in light of the subsequent identification of Porter in a photographic line-up. Further, Porter has failed to provide any evidence of probative value that would indicate the outcome of the proceeding would have been different. Stated otherwise, the confidence of the proceeding has not been undermined. Regardless of the witness' inability to identify Porter at the scene of the crime, the fact remains that Porter was positively identified by the witness in a photographic line-up. Moreover, Porter's co-defendant also indicated a willingness to identify Porter as one of the perpetrators. In addition, Porter's trial counsel testified that he informed Porter that the solicitor would request a life sentence if Porter went to trial and was found guilty. Accordingly, we find that the alleged nondisclosure was not material exculpatory evidence.
While the materiality of the evidence is important, the dispositive issue in this case is whether trial counsel rendered reasonably effective assistance under prevailing professional norms. The United States Supreme Court has held that, although not required to do so by law, if a prosecutor adopts an "open file policy" where the defense is allowed to review the prosecution file in satisfaction of the prosecution's discovery obligations and the duty to disclose material exculpatory evidence as a matter of the due process clause, defense counsel may reasonably rely on that file to contain all materials the state is obligated to disclose. Strickler v. Greene, 527 U.S. 263, 283 n. 23, 119 S.Ct. 1936, 1949 n. 23 (1999).
It is important to note that we do not find that the prosecution is presumed to comply with Brady simply by instituting an open file policy. The duty to disclose under Brady applies to the prosecution regardless of the manner in which the prosecution chooses to do so.
Porter's trial counsel testified at the PCR hearing that he did not file a formal Brady motion because the solicitor had an open file policy. Porter's trial counsel was allowed to review all the evidence in the solicitor's file. Under Strickler, Porter's trial counsel's failure to file the Brady motion was reasonable in light of the open file policy.
For these reasons, we find that Porter's trial counsel's failure to file a Brady motion did not constitute ineffective assistance of counsel.
II. Photographic Line-up
The State contends that the PCR court erred in finding that Porter's trial counsel was ineffective for failing to investigate the validity of the photographic identification. We agree.
Failure to conduct an independent investigation does not constitute ineffective assistance of counsel when the allegation is supported only by mere speculation as to result. Moorehead v. State, 329 S.C. 329, 334, 496 S.E.2d 415, 417 (1998).
Porter's trial counsel testified that he had the opportunity to examine the photographic line-up from which Porter was identified. Counsel further testified that the line-up was reasonable. The photographic line-up formed the basis upon which the arrest warrant for Porter was issued. No probative evidence was presented at the PCR hearing to show that the statement in the arrest warrant was false, or that the witness's identification of Porter from the photographic line-up was false or unreasonable. Additionally, no evidence was presented at the PCR hearing showing that further investigation would have lead to a different result. Accordingly, we hold that Porter's trial counsel's failure to further investigate the identification was neither deficient nor prejudicial, and thus did not rise to the level of ineffective assistance of counsel.
The Chief of Police made the sworn statement in the arrest warrant that the "[d]efendant was identified as one of the suspects involved in the armed robbery of Morris Jewelers in Great Falls, SC. [A witness] identified the defendant in a photo-line up [sic]."
III. Witness Interview
The State argues that the PCR court erred in finding that Porter's trial counsel was ineffective for failing to interview a witness. We agree.
Mere speculation of what a witness' testimony may be is insufficient to satisfy the burden of showing prejudice in a petition for PCR. Bannister, 333 S.C. at 303, 509 S.E.2d at 809.
Porter's trial counsel testified that he did not interview the witness because he believed the information that was given to him by the solicitor and the chief of police was true. Despite the improvidence of counsel's reliance on these statements alone, Porter has not presented any evidence showing that an interview of the witness would have yielded a result different from that which Porter's trial counsel believed at the time of the plea. Porter pled guilty in light of the complete information that was available at that time. Therefore, we hold that Porter's trial counsel's failure to interview a witness did not amount to ineffective assistance of counsel.
Because we find that trial counsel's performance was not deficient, Porter has not satisfied the first prong of Strickland. Accordingly, a finding of prejudice is not required.
The dissent would find trial counsel's performance deficient and that Porter was prejudiced thereby. In doing so, the dissent misconstrues Jackson v. State. 342 S.C. 95, 535 S.E.2d 926 (2002). In Jackson, this court held that where the only evidence of prejudice is the PCR applicant's own testimony, this evidence is sufficient, but only in the absence of evidence that rebuts the testimony. Id. at 97, 535 S.E.2d at 927. In other words, the PCR applicant's statement is only sufficient where there is no other probative evidence that contradicts the statement. Id. In the instant case, the record contains probative evidence in contradiction to Porter's statement, including statements by his trial counsel concerning the co-defendant's willingness to identify Porter, Porter's knowledge of a positive photographic identification, and the solicitor's intention to request a life sentence at trial. Therefore, even if counsel's performance was deficient, Porter would not satisfy the prejudice requirement of Strickland because Jackson is not applicable to the instant case.
CONCLUSION
For the foregoing reasons, we reverse the PCR court's ruling and reinstate Porter's conviction and sentence.
MOORE, WALLER AND BURNETT, JJ., concur. PLEICONES, J., dissenting in a separate opinion
I respectfully dissent and would affirm the post-conviction relief (PCR) judge's order because I find there is some evidence of probative value in the record to support his findings. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).
The PCR judge found trial counsel was ineffective in failing to file a Brady motion. Had such a motion been made, the State presumably would have revealed the fact that the witness who identified Porter in a photo line-up had been unable to identify him at the scene, a fact which would have had impeachment value had the witness testified at trial.
The first question is not whether the PCR court erred in finding counsel's performance deficient in failing to make aBrady request, but rather there is any evidentiary support in the record for the finding. Cherry, supra. While I may not have reached the same conclusion as the PCR judge regarding counsel's performance, I cannot say it lacks evidentiary support especially in light of trial counsel's testimony that he did no independent investigation but instead relied solely on information supplied by law enforcement and by the solicitor's office.
Certainly had the PCR found counsel's performance not deficient because he reasonably relied upon the solicitor's open file policy, that finding would be upheld under Cherry. Nothing in Strickler v. Greene, 527 U.S. 263 (1999), however, precludes a finding that such reliance was not reasonable. This is especially so where, as here, the undisclosed evidence is not a document or other physical item, but rather something intangible, a witness's non-identification.
The second question is whether the record contains any evidence of probative value to support the PCR judge's finding that Porter established the prejudice as the result of this deficient performance, that is, evidence that but for counsel's deficient performance Porter would not have pled guilty but would have insisted on going to trial. In my opinion, Porter's testimony that he would not have pled had he had all relevant information is sufficient to uphold the PCR judge's prejudice finding.E.g., Solomon v. State, 313 S.C. 526, 443 S.E.2d 540 (1994) (great appellate deference to PCR judge's credibility findings required Court to uphold judge's determination even where testimony at PCR hearing flatly contradicted by trial record).
In Jackson v. State, 342 S.C. 95, 535 S.E.2d 926 (2000), the Court held that where an applicant's testimony that he would not have pled guilty but for counsel's deficient performance was the only evidence of prejudice in the record, the PCR judge could not, in the absence of other evidence, merely discount that evidence as incredible and thereby deny relief. The Court reversed the PCR judge's finding that Jackson had failed to present evidence of prejudice, citing Alexander v. State, 303 S.C. 539, 402 S.E.2d 484 (1991) where we also reversed the denial of PCR because there was no evidence in the record other than the applicant's claim of prejudice. Further, in Jackson the Court specifically overruled Judge v. State, 321 S.C. 554, 471 S.E.2d 146 (1996) "to the extent [it] can be read to hold that petitioner's statement is insufficient evidence to satisfy the prejudice prong. . . ." In other words, the testimony of the PCR applicant is to be viewed as that of any other witness.
In my opinion, the majority misreads Jackson as permitting this Court to weigh the evidence of prejudice in the record on certiorari when the finding rests on the applicant's testimony.Jackson and Alexander were reversed on certiorari because the PCR judges had erroneously denied relief where the only evidence in the record supported the applicant's claim. Here we have a record with conflicting evidence on the question of prejudice, and the issue before us is whether there is any evidence in the record to support the prejudice finding. Porter's testimony is such evidence, Jackson, supra; Solomon, supra, and the finding should therefore be upheld. Cherry, supra.
While I may not have made the same findings as did the PCR judge on the failure to file a Brady motion claim, or on the failure to interview a witness issue, under our limited scope of review these findings should be upheld. Cherry, supra. I therefore respectfully dissent and would affirm the grant of PCR to Porter.