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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Mark Wesley Edmond, Petitioner,

v.

State of South Carolina, Respondent.

ON WRIT OF CERTIORARI

Appeal From Greenville County

Paul M. Burch, Trial Judge

Larry R. Patterson, Post-Conviction Judge

Opinion No. 25155

Submitted May 24, 2000 - Filed June 26, 2000

REVERSED

Clay T. Allen of Greenville, for petitioner.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Teresa A. Knox, all of

Columbia, and Assistant Attorney General Kevin

Patrick Tierney of Greenville, for respondent.

JUSTICE WALLER: A jury convicted Mark Wesley Edmond

(petitioner) of first degree burglary and grand larceny. He was sentenced to life

in prison for burglary and four years, consecutive, for larceny. We dismissed his

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direct appeal following an Anders 1 review. State v. Edmond, Op. No. 96-MO-

086 (S.C. Sup. Ct. filed April 10, 1996).

The circuit court denied petitioner's application for post-conviction

relief (PCR). Counsel for petitioner filed a Johnson 2 petition for a writ of

certiorari. We ordered the parties to fully brief the issue raised in the Johnson

petition.

FACTS

The State accused petitioner of breaking into the home of Elizabeth S. Goldsmith

and stealing a television, a videocassette recorder, jewelry, and

other household items on August 31, 1994. The State presented no direct or

physical evidence of petitioner's guilt, but relied solely on circumstantial

evidence.

A detective testified he told petitioner in response to petitioner's

questions following his arrest several days after the burglary that someone had

told police where to find him. Petitioner, who had been drinking shortly before

his arrest, replied, "She called in. I know she did. She's out there free. My wife

was with me. I didn't do this alone." The detective acknowledged that

petitioner, in a more sober condition, later denied making such a statement.

The detective testified, " I did pull him out [of jail] the next day to interview him.

However, he invoked his right to counsel." On cross examination, the officer

testified that petitioner invoked his right to remain silent and he "honored that

(approving withdrawal of counsel after counsel conscientiously examines the

record, informs the appellate court the appeal is wholly frivolous and asks to

withdraw, and accompanies the request with a brief raising any issue that

might arguably support the appeal; counsel must furnish a copy of the brief to

the appellant, who must have an opportunity to raise any points that he

chooses; appellate court must then decide, after a full examination of all the

proceedings, whether the case is wholly frivolous; if so, it may grant counsel's

request to withdraw and affirm the conviction; if not, court may deny the

request to withdraw and direct the parties to fully brief any matter).

2 Johnson v. State, 294 S.C. 310, 364 S.E.2d 201 (1988) (approving the

withdrawal of counsel in meritless appeals of PCR actions by following Anders

procedure).

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right."

In her closing argument while describing the detective's testimony,

the prosecutor stated, "And then the very next day [after his arrest] [petitioner]

invoked his right to counsel, smartly enough."

Petitioner's trial counsel did not object to the detective's testimony

or the prosecutor's argument. Throughout the trial and in his closing

argument, counsel emphasized the circumstantial nature of the evidence.

Counsel also suggested the real culprit was the former husband of petitioner's

wife - a man who allegedly had access to the car used in the burglary and

matched the description of the person seen walking in front of the victim's home

the evening the burglary occurred. Petitioner did not testify at trial.

At the PCR hearing, petitioner testified that he and his wife left the

hospital to visit her son at her former husband's home. The former husband

borrowed the car while they were there. The former husband knew the location

of the victim's home because petitioner previously had taken the former

husband there to meet an ex-girlfriend. Petitioner claimed he went to a video

arcade, where he remained for a couple of hours after unexpectedly meeting a

female acquaintance. Petitioner's wife offered testimony corroborating

petitioner's version of events.

Petitioner asserted his trial counsel was ineffective in failing to

object to improper references to the invocation of his constitutional rights to

remain silent and be represented by counsel during the detective's testimony

and the prosecutor's closing arguments. Petitioner's trial counsel testified he

did not know why he failed to object to the testimony or comments. The PCR

judge denied petitioner's PCR application.

ISSUE

Does any probative evidence support the PCR judge's

denial of petitioner's claim that the detective's

testimony and the prosecutor's closing argument

violated his constitutional rights to remain silent and

be represented by counsel?

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DISCUSSION

Petitioner contends the PCR judge erred in denying his claim that

the detective's testimony and prosecutor's closing argument violated his rights

under the state and federal constitutions. See U.S. Const. amends. V & XIV;

S.C. Const. art. I, §§ 3 and 12. He further argues the error was prejudicial. We

agree.

It is improper for the State to refer to or comment upon a

defendant's exercise of a constitutional right. State v. Johnson, 293 S.C. 321,

360 S.E.2d 317 (1987). Such comments may not be made either directly or

indirectly. State v. Goolsby, 275 S.C. 110, 268 S.E.2d 31 (1980), overruled on

other grounds by State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991); State

v. Rouse, 262 S.C. 581, 206 S.E.2d 873 (1974).

In particular, the State may neither comment upon nor present

evidence at trial of a defendant's decision to exercise his right to remain silent

or be represented by an attorney. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct.

2240, 49 L.Ed.2d 91 (1976) (due process clause of Fourteenth Amendment is

violated when a state prosecutor seeks to impeach defendants' exculpatory

story, told for the first time at the trial, by cross-examining them about their

post-arrest silence after receiving the Miranda warnings); Griffin v. California,

380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (Fifth and Fourteenth

Amendments forbid comment by the prosecution on the accused's silence or

failure to testify, as well as instructions by the court that such silence is

evidence of guilt); State v. Cockerham, 294 S.C. 380, 365 S.E.2d 22 (1988)

(holding that prosecutor's indirect reference to defendant's silence and indirect

comments on defendant's exercise of his rights to counsel and jury trial violated

defendant's due process rights and were reversible error in murder and

kidnaping trial); State v. Hawkins, 292 S.C. 418, 423, 357 S.E.2d 10, 13 (1987)

(reversing conviction where prosecutor improperly commented upon defendant's

failure to testify and explaining that such a comment essentially is a comment

upon defendant's right to remain silent), overruled on other grounds by State

v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991); State v. Woods, 282 S.C. 18, 20,

316 S.E.2d 673, 674 (1984) (reversing conviction where solicitor improperly

introduced evidence that defendant had exercised his right to remain silent);

State v. Holliday, 333 S.C. 332, 509 S.E.2d 280 (Ct. App. 1998) (reversing

conviction because solicitor's cross-examination of defendant, during which she

repeatedly questioned defendant as to why he had not told his version of events

until the day of trial, was improper in that the questions clearly referenced his

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post-Miranda silence).

These principles are rooted in due process and the belief that justice

is best served when a trial is fundamentally fair. See Brecht v. Abrahamson,

507 U.S. 619, 629, 113 S.Ct. 1710, 1717, 123 L.Ed.2d 353, 367 (1993);

Wainwright v. Greenfield, 474 U.S. 284, 291, 106 S.Ct. 634, 638, 88 L.Ed.2d

623, 630 (1986); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966). The obvious purpose is to try to prevent jurors from improperly

inferring the accused is guilty simply because he exercised rights guaranteed

him by the state and federal constitutions. Such an inference is constitutionally

impermissible because the burden at all times remains upon the State to prove

beyond a reasonable doubt every element of a crime with which the accused is

charged. In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970);

State v. Schrock, 283 S.C. 129, 322 S.E.2d 450 (1984).

In a direct appeal, the admission of comments or evidence of the

defendant's exercise of a constitutional right is a "trial error" subject to

harmless error analysis. State v. Pickens, 320 S.C. 528, 530-31, 466 S.E.2d 364,

367 (1996); see also Arizona v. Fulminante, 499 U.S. 279, 306-10, 111 S.Ct.

1246, 1263-65, 113 L.Ed.2d 302, 329-32 (1991) (a "trial error" occurs during the

presentation of case to jury and is amenable to harmless-error analysis because

it may be quantitatively assessed in the context of other evidence presented in

order to determine the effect it had on the trial; these are distinguished from

structural defects in the constitution of the trial mechanism, which defy

harmless error analysis).

In this PCR proceeding, petitioner must meet the standard

established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). "To establish a claim of ineffective assistance of trial

counsel, a PCR applicant has the burden of proving counsel's representation fell

below an objective standard of reasonableness and, but for counsel's errors,

there is a reasonable probability that the result at trial would have been

different .... A reasonable probability is a probability sufficient to undermine

confidence in the outcome of the trial." Johnson v. State, 325 S.C. 182, 186, 480

S.E.2d 733, 735 (1997) (citing Strickland, supra). Thus, a PCR applicant must

show both error and prejudice to win relief in a PCR proceeding. Scott v. State,

334 S.C. 248, 513 S.E.2d 100 (1999).

The burden is on the applicant in a PCR proceeding to prove the

allegations in his application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813

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(1985). An appellate court must affirm the PCR court's decision when its

findings are supported by any evidence of probative value. Cherry v. State, 300

S.C. 115, 386 S.E.2d 624 (1989). However, an appellate court will not affirm the

decision when it is not supported by any probative evidence. Holland v. State,

322 S.C. 111, 470 S.E.2d 378 (1996).

We conclude the PCR judge erred in denying petitioner's claim

because no probative evidence supports his decision. Petitioner has shown error

in counsel's failure to object to the detective's testimony and the prosecutor's

comments, as explained by the above cases.

We further conclude petitioner has shown that the error prejudiced

him. In Johnson, supra, we held that counsel was not ineffective in failing to

object to the solicitor's closing comment that "You have seen that the defendant

has not put up a defense, he's not testified, and you will hear shortly, after I

argue and after Mr. Pough argues and his honor, Judge Whetstone, you cannot

even consider the fact that this man has not testified in this trial . . . ." Id. at

186, 480 S.E.2d at 734 (emphasis in original).

We found that the PCR judge's conclusion that the jury could have

drawn an adverse inference from the solicitor's comment was not supported by

the evidence. "In context, the comment was simply a statement of the evidence

which was before the jury, rather than a comment on Johnson's failure to

testify. As such, it is distinguishable from the typical 'comment' in which the

clear implication is that the defendant has failed to explain the circumstances

of the crime or has shown no remorse." Id. at 187, 480 S.E.2d at 735.

Furthermore, the judge's curative instruction nullified any error. Id. 3

defendant's silence prior to arrest, or his silence after arrest but prior to the

giving of the Miranda warnings, in order to impeach the defendant's testimony

at trial. "Such silence is probative and does not rest on any implied assurance

by law enforcement authorities that it will carry no penalty." Brecht v.

Abrahamson, 507 U.S. 619, 628, 113 S.Ct. 1710, 1716, 123 L.Ed.2d 353 (1993).

The State also may in limited instances raise a defendant's silence when the

defendant or his counsel "open the door" by asserting the State never has given

him an opportunity to tell his side of the story. United States v. Robinson, 485

U.S. 25,108 S.Ct. 864, 99 L.Ed.2d 23 (1988) (where defendant's counsel stated

several times in closing argument that the Government had not allowed

defendant to explain his side of the story, prosecutor's closing comment that (3 con't...)

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Johnson is easily distinguished from the present case. The

detective's testimony and the prosecutor's closing argument at petitioner's trial

were direct and improper references to the exercise of his constitutional rights.

Jurors may have used the improper testimony and comments to infer petitioner

was guilty simply because he exercised his rights. In addition, petitioner's

counsel did not request and the trial judge did not give a curative instruction.

In deciding the prejudice prong in this PCR action, we examine the

following factors, which are the same ones analyzed in deciding on direct appeal

whether a similar error is harmless beyond a reasonable doubt. Such an error

will not be deemed prejudicial when the record shows the reference to the

defendant's right to silence or to an attorney was a single reference, which was

not repeated or alluded to; the prosecutor did not tie the defendant's exercise

of his right directly to his exculpatory story; the exculpatory story was totally

implausible; and the evidence of guilt was overwhelming. See Pickens, 320 S.C.

at 530-31, 466 S.E.2d at 367. A court's confidence in the outcome of the trial

likely would not be undermined if those factors are met.

Petitioner has shown prejudice because the record contains three

direct references to the exercise of his right to remain silent or be represented

by counsel. Immediately after stating that petitioner had invoked his right to

counsel, the prosecutor told jurors that the man at whom petitioner had pointed

the finger testified he did not commit the crimes. The prosecutor tied the

exercise of the right to petitioner's exculpatory story, which was not totally

defendant's Fifth Amendment right against self-incrimination because

prosecutor's reference to defendant's opportunity to testify was a fair response

to a claim made by defendant's counsel). However, the proper practice in a

typical case such as petitioner's is for the prosecutor to avoid any mention of the

defendant's exercise of constitutional rights. See Holliday, 333 S.C. at 340, 509

S.E.2d at 284 (stating that Supreme Court and Court of Appeals repeatedly

have warned against violation of the Doyle prohibition, and citing cases).

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implausible. Finally, evidence of petitioner's guilt was not overwhelming as the

State's entire case was built on circumstantial evidence.

CONCLUSION

We reverse the denial of PCR and remand petitioner's case for a

new trial.

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

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