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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Irving Foye, Petitioner,

v.

State of South Respondent.

Carolina,.

ON WRIT OF CERTIORARI

Appeal From Charleston County

Luke N. Brown, Jr., Trial Judge

Daniel E. Martin, Sr., Post-Conviction Judge

Opinion No. 24974

Submitted June 23, 1999 - Filed July 26, 1999

AFFIRMED

Assistant Appellate Defender M. Anne Pearce, of

South Carolina Office of Appellate Defense, of

Columbia, for petitioner.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Teresa A. Knox, and

Assistant Attorney General Matthew M. McGuire,

all of Columbia, for respondent.

BURNETT, A.J.: Petitioner was convicted of trafficking in

cocaine and was sentenced to imprisonment for thirty years and payment

of a $200,000 fine. His conviction and sentence were affirmed on direct

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appeal by the Court of Appeals. State v. Foye, Op. No. 95-UP-323 (S.C.

Ct. App. filed December 6, 1995). Petitioner's application for post

conviction relief (PCR) was denied and this Court granted certiorari. We

affirm.

ISSUES

I. Was petitioner's counsel ineffective in failing to present

evidence of prejudice when petitioner appeared in chains before

members of the venire?

II Was petitioner's counsel ineffective in failing to reevaluate

petitioner's decision not to testify after his co-defendant

implicated him in the crime?

DISCUSSION

Petitioner claims trial counsel was ineffective in failing to

request on the record that the trial judge question the seated members of

the jury about whether they saw petitioner in chains when he was brought

into the courtroom. We disagree.

Prior to jury selection, members of the venire observed

petitioner in chains. Defense counsel moved for a mistrial and a

continuance to another term of court. The trial judge denied the motions,

finding no evidence of prejudice. On direct appeal, the Court of Appeals

affirmed, finding no evidence that the members of the venire who saw

petitioner in chains were selected to serve as jurors in that case. Id. The

Court of Appeals refused to address petitioner's further argument that the

trial judge should have questioned the jurors to see if any of them had

seen him because the court found petitioner's counsel failed to request this

relief at trial. Id.

The PCR judge found this claim was addressed by the Court of

Appeals on direct appeal. Thus, the claim was barred from collateral

attack. Drayton v. Evatt, 312 S.C. 4, 430 S.E.2d 517 (1993). This ruling

is incorrect. Finding the issue unpreserved because petitioner's counsel

failed to request the trial judge question the jurors, the Court of Appeals

refused to address this issue. Thus, the issue was properly before the

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PCR court to determine if petitioner's counsel rendered ineffective

assistance of counsel by failing to request this relief.

The burden is on the applicant in a post-conviction proceeding

to prove the allegations in his application. Butler v. State. 286 S.C. 441,

334 S.E.2d 813 (1985), cert. denied, 106 S.Ct. 869 (1986). There is a

strong presumption that counsel rendered adequate assistance and

exercised reasonable professional judgment in making all significant

decisions in the case. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2025, 80 L.Ed.2d 674 (1984); Cherry v. State, 300 S.C. 115, 386 S.E.2d 624

(1989). As to allegations of ineffective assistance of counsel, the applicant

must show his counsel's performance fell below an objective standard of

reasonableness, and but for counsel's errors, there is a reasonable

probability the result at trial would have been different. Strickland v.

Washington, supra; 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 the trial. Johnson v. State, supra. Where matters of

credibility are involved, this Court gives great deference to a judge's

findings, because this Court lacks the opportunity to directly observe the

witnesses. Drayton v. Evatt 312 S.C. 4, 430 S.E.2d 517 (1993). This

Court must affirm the findings of the PCR judge if they are supported by

any evidence in the record. Cherry v. State, supra.

At trial, counsel stated petitioner claimed two members of the

venire saw him in chains. However, there was no claim that members of

the seated jury saw petitioner in chains. Petitioner testified at the PCR

hearing that one of the seated jurors saw him in chains.

Petitioner's counsel testified at the PCR hearing that he asked

the trial judge at a bench conference to question the jurors to determine

whether any of the seated jurors had seen petitioner in chains. The trial

judge denied the request. However, because this request was not on the

record, the Court of Appeals refused to address this issue. Thus, counsel

was deficient because he failed to adequately preserve this issue for

review.

However, petitioner failed to prove he was prejudiced by

counsel's deficient performance. Although counsel testified he believed

petitioner was prejudiced by this incident, the PCR judge did not find this

statement credible or sufficient to establish prejudice. Butler v. State,

supra (the burden of. proof is on the applicant); Drayton v. Evatt, supra

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(matters of credibility are within the discretion of the PCR judge).

Further, the trial judge did not find petitioner's testimony that one

member of his jury saw him in chains credible. Petitioner did not offer

the testimony or affidavits of any of the seated jurors that they saw

petitioner in chains and petitioner was prejudiced thereby. Without this

evidence, petitioner's claim is not supported by any probative evidence and

is based on pure speculation. See Glover v. State, 318 S.C. 496, 458

S.E.2d 538 (1995) (mere speculation and conjecture on the part of

respondent is insufficient). Accordingly, petitioner failed to meet his

burden of proving counsel rendered ineffective assistance.1

II

Petitioner claims counsel was ineffective for failing to

reevaluate petitioner's decision not to testify after petitioner's co-defendant

provided damaging testimony.

For an applicant to be granted PCR as a result of ineffective

assistance of counsel, he must show his counsel failed to render reasonably

effective assistance under prevailing professional norms and he was

prejudiced by his counsel's ineffective performance. Strickland v.

Washington, supra. To prove prejudice, the applicant must show but for

counsel's errors, there is a reasonable probability the result at trial would

have been different. Johnson v. State, supra. A reasonable probability is

a probability sufficient to undermine confidence in the outcome of the trial

Id. If there is any probative evidence to support the findings of the PCR

judge, those findings must be upheld. Cherry v State, supra.

matter because due to the passage of time it is impossible to conduct an

adequate post-trial inquiry. See State v. Aldret, 333 S.C. 307, 509 S.E.2d

811 (1999) (recognizing under certain circumstances it may be appropriate

to order a new trial absent a showing of actual prejudice in a case of juror

misconduct). We disagree. The jury was instructed to determine

petitioner's guilt based only on the evidence presented in the trial. A jury

is presumed to follow instructions. State v. Ard, 332 S.C. 370, 505 S.E.2d

328 (1998). Therefore, without some showing the jurors disregarded these

instructions, this Court declines to presume prejudice.

p.4

Petitioner was tried with his father.2 After petitioner's father

informed counsel he would testify petitioner did not know cocaine was in

the gym bag, counsel advised petitioner not to testify because of his prior

convictions for possession of marijuana with intent to distribute and

possession of cocaine.

At trial, petitioner's father testified petitioner helped him drive

from New York to Charleston. Petitioner's father claimed he did not tell

petitioner he was transporting cocaine before or during the drive.

However, petitioner's father testified, as they were walking from the

parking lot to the hotel, his son asked him what was in the gym bag.

Petitioner's father stated he told petitioner the bag contained cocaine.

Petitioner expressed dismay at this information and wanted to help his

father because he was afraid his father would be hurt. During this time,

petitioner and petitioner's father passed the bag back and forth several

times. Petitioner's father testified he insisted his son should not get

involved and he took the bag away from him prior to entering the hotel.

Petitioner waited in the lobby while his father delivered the cocaine.

Several police officers testified they observed petitioner carrying the gym

bag containing the cocaine.

The State argues counsel was employing a valid trial strategy

in not putting petitioner on the stand even after his father's damaging

testimony. See Whitehead v. State, 308 S.C. 119, 417 S.E.2d 529 (1992)

(if counsel articulates a valid reason for employing certain trial strategy,

such tactics will not be deemed ineffective assistance of counsel); Stokes v.

State, 308 S.C. 546, 419 S.E.2d 778 (1992). However, based on counsel's

testimony at the PCR hearing, counsel did not consider the possibility of

petitioner testifying after his father's testimony; therefore, counsel failed to

use his discretion in employing an appropriate trial strategy in light of the

unexpected testimony. Further, counsel admitted it may have been proper

to put petitioner on the stand after his father's damaging testimony.

Accordingly, counsel was deficient in failing to reevaluate petitioner's

decision not to testify after his father implicated him.

cocaine and for conspiracy to traffic in cocaine. While the jury found his

father guilty on both counts, it found petitioner not guilty on the

conspiracy charge.

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Petitioner claims if he had testified the jury would have had a

chance to hear him adamantly deny involvement in the drug transaction.

According to petitioner, his denial, in addition to the slim evidence against

him, would have convinced the jury he was not guilty.

We disagree. Petitioner's prior convictions probably would

have been admissible to impeach his testimony and cast severe doubt on

his credibility.3 Accordingly, the PCR judge correctly found the jury would

not have found petitioner credible and his testimony would not have

changed the outcome of the trial. See Drayton v. Evatt, supra (matters of

credibility are within the discretion of the PCR judge); Cherry v. State,

supra (the PCR judge's findings should be upheld if supported by any

probative evidence).

Further, counsel sufficiently rehabilitated petitioner's father's

testimony during cross-examination and re-established petitioner's defense

that he was unaware he was transporting drugs. Thus, petitioner failed to

prove he was prejudiced by counsel's deficient performance.

AFFIRMED.

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

Evidence were adopted. Under the law prior to the SCRE, evidence of a

prior conviction was admissible for impeachment purposes if the prior

crime involved "moral turpitude." State v. Millings, 247 S.C. 52, 145

S.R.2d 422 (1965). Possession of marijuana with intent to distribute and

possession of cocaine were considered crimes involving moral turpitude.

See State v. Lilly, 278 S.C. 499, 299 S.E.2d 329 (1983); State v. Major, 301

S.C. 181, 391 S.E.2d 235 (1.990). However, evidence of these convictions

was not per se admissible. Instead, the trial judge had discretion to

determine whether the prejudicial effect of admitting the prior conviction

outweighs the probative worth of such evidence on the issue of credibility.

See Merritt v. Grant, 285 S.C. 150, 328 S.E.2d 346 (Ct. App. 1985); see

also State v. Harvey, 275 S.C. 225, 268 S.E.2d 587 (1980).

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