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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Joseph Paul Hudgins, Petitioner,

v.

Michael W. Moore,

Director, South

Carolina Department of

Corrections, Respondent.

Appeal From Anderson County

Gary E. Clary, Circuit Court Judge

ON WRIT OF CERTIORARI

Opinion No. 25033

Heard October 19, 1999 - Filed December 6, 1999

REVERSED

David I. Bruck; David P. Voisin; and S.C. Office of

Appellate Defense, all of Columbia, for petitioner.

Attorney General Charles M. Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka, and

Senior Assistant Attorney General William E. Salter,

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III, all of Columbia, for respondent.

Lesly A. Bowers, of Columbia; David W. Debruin and

Elizabeth E. Appel Blue, both of Jenner & Block, of

Washington, D.C.; and James McHugh and Nathalie

Gilfoyle, both of Washington, D.C., for amici curiae

American Psychological Association and Protection and

Advocacy for People with Disabilities, Inc.

MOORE, A.J.: We granted a writ of certiorari to review the

denial of post-conviction relief (PCR) in this capital case. We reverse.

FACTS

Petitioner and his co-defendant, Terry Cheek, stole a truck from

the locked lot of an Orkin Pest Control Company. They were driving around

in the truck the next evening when they were stopped by Officer Chris

Taylor because a hose was dragging from the truck. Cheek, who was driving,

did not have his driver's license with him. Officer Taylor asked petitioner

and Cheek to get in the back of his patrol car. As they walked toward the

patrol car, Officer Taylor was shot once in the head. Petitioner and Cheek

fled on foot. Officer Taylor died on the side of the road.

When they were arrested several days later, petitioner and

Cheek each gave a statement indicating petitioner was the triggerman.

During the guilt phase of trial, Cheek testified consistently with his

statement. Petitioner testified to the contrary that Cheek shot the officer.

Petitioner claimed he cared for Cheek "like a brother" and had confessed to

the murder only because he was younger than Cheek and thought he would

be treated more leniently.1 He admitted it was his idea to lie to police but

testified he changed his mind after learning that Cheek had given a

statement against him.

Cheek was eighteen.

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On cross-examination, the solicitor questioned petitioner

regarding his responses to a psychological test given during his pre-trial

competency examination.2 The test was the Minnesota Multiphasic

Personality Inventory for Adolescents, a true-false test commonly referred to

as the MMPI-A. In response to the solicitor's questioning, petitioner

admitted he had answered "true" to the following statements on the test:

Counsel did not object to the solicitor's cross-examination. Instead, they

called in rebuttal Dr. Thrasher, a psychiatrist, who testified that MMPI-A

answers are analyzed for patterns and the answer to any single question

standing alone has little significance.

After Dr. Thrasher testified on direct regarding the MMPI-A,

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the State elicited on cross-examination the following testimony:

Q: Have you looked at the diagnosis the defendant

received after being diagnosed in Columbia?

A: Conduct disorder, group type.

Q: Do you know what the criteria are for conduct

disorder? How do you diagnose conduct disorder?

What has to be ---

A: You look for a number of criteria.

Q: And does anything in there talk about any kind of

psychosis or schizophrenia or anything other things

like that?

A: No.

Q: Basically just not obeying rules?

A: Could be truancy, thefts, lying, could be assaults

on people, it could be other criminal acts.

Dr. Thrasher then went on to testify that petitioner could also be diagnosed

as having "antisocial personality traits" but that conduct disorder most

closely fit. He added:

There is more pathology underneath all that than

just the conduct disorder. He has a personality

structure that is quite worrisome ....

The solicitor used petitioner's MMPI-A answers to argue in

closing that petitioner lacked credibility. The jury found petitioner guilty of

murder and grand larceny. At the sentencing phase, the jury found two

aggravating circumstances: murder of a law enforcement officer and murder

committed while in the commission of larceny with a deadly weapon.

Petitioner was sentenced to death and this Court affirmed. State v.

Hudgins, 319 S.C. 233, 460 S.E.2d 388 (1995), cert. denied 116 S.Ct. 821

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(1996).

Petitioner then brought this PCR action alleging he was

prejudiced by counsel's ineffectiveness in failing to object to the admission of

the MMPI-A answers which further resulted in Dr. Thrasher's harmful cross-

examination testimony regarding petitioner's character. The PCR judge

found there was no basis for objecting to the admission of the MMPI-A

answers for impeachment and denied relief.

ISSUE

Is petitioner entitled to relief because counsel failed

to object to the State's use of his MMPI-A answers for

impeachment?

DISCUSSION

Failure to object

Petitioner contends the MMPI-A answers are inadmissible under

state and federal law and that counsel were ineffective in failing to object.

While we find no constitutional violation,3 we agree this evidence is

Miranda is admissible for impeachment. Havens v. United States, 446 U.S.

620 (1980); Harris v. New York, 401 U.S. 222 (1971); State v. Brown, 296

S.C. 191, 371 S.E.2d 523 (1988). Further, although the United States

Supreme Court has not specifically addressed whether a voluntary

statement obtained in violation of the Sixth Amendment right to counsel

is admissible for impeachment, the vast majority of state and federal courts

to address the issue have held it is. See United States v. Lott, 854 F.2d 244

(7th Cir. 1988); United State v. McManaman, 606 F.2d 919 (10th Cir. 1979);

People v. Brown, 42 Cal. App. 4th 461, 49 Cal. Rptr. 2d 652 (1996); People v.

Ridley, 872 P.2d 1377 (Colo. Ct. App. 1994); Martinez v. United States, 566

A.2d 1049 (D.C. App. 1989); People v. Bacino, 41 Ill. App. 3d 738, 354 N.E.2d

641 (1976); State v. Thomas, 698 S.W.2d 942 (Mo. Ct. App. 1985); People v.

Ricco, 56 N.Y.2d 320, 452 N.Y.S.2d 340, 437 N.E.2d 1097 (1982); Com. v.

(continued... )

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inadmissible under state law as set forth in State v. Myers, 220 S.C. 309, 67

S.E.2d 506 (1951).

In Myers, we considered whether a court-ordered examination to

determine the defendant's sanity violated his right against self

incrimination. We found no violation reasoning that the defendant "will not

be required to vouch for anything. Nothing will depend upon his testimonial

responsibility." 67 S.E.2d at 508. We then stated:

the authorities of [the State Hospital for the Insane]

will not be permitted, over the protest of the accused,

to reveal any confession made by him in the course of

such examination, or any declarations implicating

him in the crime charged.

Id. The PCR judge found this language in Myers did not prohibit admission

of the MMPI-A answers as impeachment evidence.4 We disagree.

In Myers, we recognized the need to protect the integrity of a

Batson, 396 Pa. Super. 513, 578 A.2d 1330 (1990); State v. Mattatall, 603

A.2d 1098 (R.I. 1992); State v. Swallow, 405 N.W.2d 29 (S.D. 1987); State v.

Wilder, 177 W.Va. 435, 352 S.E.2d 723 (1986). Moreover, there is no

evidence petitioner's answers to the MMPI-A were coerced or involuntary.

Cf. State v. Victor, 300 S.C. 220, 387 S.E.2d 248 (1989) (defendant testified

on cross-examination that the statement being used to impeach him was

coerced by threats from police); State v. Patton, 322 S.C. 408, 472 S.E.2d 245

(1996) (to establish entitlement to a suppression hearing, defendant must

show there are contested issues of fact regarding admissibility of the

evidence in question).

4 This evidence was not impeaching in the sense of contradicting the

substance of petitioner's testimony but was an attempt to impeach his

character for truthfulness. See State v. Robertson, 26 S.C. 117, 1 S.E. 443

(1887) (by choosing to testify, a defendant puts his character for truthfulness

in issue and may be impeached thereon).

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court-ordered mental health examination by forbidding the use of the

information obtained for purposes other that ordered by the court. Allowing

the use of this information for impeachment of a defendant's credibility at

trial would defeat the protection established under Myers. Cf. State v.

Thompson, 329 S.C. 72, 495 S.E.2d 437 (1998) (attorney-client privilege

prohibits use of defendant's communications to a mental health expert for

impeachment). Accordingly, absent a waiver in this case, we hold counsel

were ineffective in failing to object.

Prejudice

In order to prevail on a claim of ineffective assistance of counsel,

petitioner must demonstrate that but for counsel's ineffectiveness, there is a

reasonable probability the result of the trial would have been different.

Palacio v. State, 333 S.C. 506, 511 S.E.2d 62 (1999). We find petitioner has

met this burden.

First, credibility was a crucial issue at trial since it was

essentially petitioner's word against Cheek's. While petitioner's guilt could

have been supported on a theory of accomplice liability based on the facts

given in his own testimony,5 this theory of guilt was never submitted to the

jury. The State specifically declined to request this charge since it insisted

petitioner was the triggerman.

Further, not only did the MMPI-A answers include the

information that petitioner would lie, which could be harmless in light of the

fact that petitioner admitted he lied in his first statement to police, they

specifically indicated petitioner would lie to get out of trouble, implying his

retraction at trial was the lie rather than his original confession.

Finally, and perhaps most damaging, counsel's failure to object

to petitioner's impeachment led to Dr. Thrasher's harmful testimony

probable consequence of the crime to which the defendant was an

accomplice. State v. Bell, 305 S.C. 11, 405 S.E.2d 165 (1991). Here,

petitioner admitted he stole the Orkin truck with Cheek and he knew Cheek

had a gun with them in the truck.

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regarding petitioner's pathological nature and propensity to commit criminal

acts, evidence that otherwise would have been inadmissible in the guilt

phase of trial. See State v. Peake, 302 S.C. 378, 396 S.E.2d 362 363 (1990)

(character evidence is not admissible to prove the accused possesses a

criminal character or propensity to commit the crime with which he is

charged).

We hold petitioner is entitled to PCR on the ground counsel

failed to object to the use of the MMPI-A answers for impeachment. We need

not address petitioner's remaining arguments. The PCR judge's denial of

relief is

REVERSED.

Toal, A.C.J., Waller, Burnett, JJ., and Acting Associate Justice

George T. Gregory, Jr., concur.

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