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Davis Adv. Sh. No. 3
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

David L. Burgess, II,      Petitioner

v.

State of South

Carolina,      Respondent.

ON WRIT OF CERTIORARI

Appeal From Union County

William T. Howell, Trial Judge

H. Dean Hall, Post-Conviction Judge

Opinion No. 24746

Submitted December 17, 1997 - Filed January 12, 1998

AFFIRMED

WALLER, A.J.: This Court granted certiorari to review the

denial of petitioner's application for post-conviction relief.

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Petitioner was convicted of first degree criminal sexual conduct and

kidnapping. He was sentenced to consecutive terms of thirty years and life

imprisonment.

Petitioner chose to testify at his trial. While the solicitor was cross-

examining petitioner, he asked petitioner to explain why the victim identified

him as the person who kidnapped and molested her. He also asked

petitioner to explain why three other witnesses presented by the state

identified him as the man they saw in the vicinity of the crime scene on the

day the crime occurred. The solicitor asked petitioner to give the jury a

reason why one of these witnesses would lie. After petitioner contradicted

the testimony of another of these witnesses, the solicitor asked, "She's lying,

too?" Petitioner would not accuse any witness of lying, causing the solicitor

to then ask, "So everybody's wrong except poor old [petitioner]?"

Petitioner applied for post-conviction relief, alleging his counsel was

ineffective for failing to object when the solicitor improperly pitted him

against four of the state's witnesses. The court below found "[t]he Solicitor's

questions did not necessarily force [petitioner] to attack the veracity of the

witnesses, but rather gave him the opportunity to explain any biases the

witnesses may have had."

The distinction drawn by the post-conviction relief judge follows

language from State v. Wells, __ S.C. __, 426 S.E.2d 814 (Ct. App. 1992).

In Wells, the Court of Appeals distinguished between pitting witnesses and

merely asking questions to uncover bias. In that case, the solicitor asked the

defendant if he knew of any reason why the state's witness would come into

the courtroom and accuse him of murder. In that context, the court could not

"say the solicitor sought to force [the defendant] to attack the veracity of [the

state's witness]. The focus of the solicitor's questioning was to uncover any

bias by [the state's witness], not to encourage [the defendant] to state [the

state's witness] was lying." 426 S.E.2d at 816.

We find the distinction made in Wells is illogical. A solicitor would

never try to discredit a state's witness by uncovering potential bias during

cross-examination of a defendant. Uncovering bias of the state's witnesses

would be the concern of a defense attorney and would either be done during

cross-examination of the state's witnesses or during direct examination of the

defendant. Therefore, the distinction drawn by Wells is unsound.

No matter how a question is worded, anytime a solicitor asks a

defendant to comment on the truthfulness or explain the testimony of an

p. 64

adverse witness, the defendant is in effect being pitted against the adverse

witness. This kind of argumentative questioning is improper. State v.

Bryant, 316 S.C. 216, 221, 447 S.E.2d 852, 855 (1994); State v. Sapps, 295

S.C. 484, 486, 369 S.E.2d 145, 145-46 (1988).

However, improper pitting constitutes reversible error only if the

accused is unfairly prejudiced. Id. To establish his claim of ineffective

assistance of counsel, petitioner had to show a reasonable probability that the

result of his trial would have been different if counsel had objected to the

solicitor's improper questions. Johnson v. State, 325 S.C. 182, 480 S.E.2d 733

(1997). A reasonable probability is a probability sufficient to undermine

confidence in the outcome of a trial. Id.

After reviewing the record, we do not find petitioner was prejudiced by

his counsel's failure to object to the solicitor's improper questions. In light

of the evidence presented, this error does not undermine confidence in the

outcome of this case. Accordingly, the dismissal of petitioner's application for

post conviction relief is affirmed. To the extent State v. Wells is inconsistent

with this opinion, it is hereby overruled.

AFFIRMED.

FINNEY, C.J., TOAL, MOORE and BURNETT, JJ., concur.

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