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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Wilson A. Palacio, Respondent.

v.

State of South Carolina, Petitioner.

ON WRIT OF CERTIORARI

Appeal From Charleston County

Luke N. Brown, Jr., Circuit Court Judge

John C. Hayes, III, Post-Conviction Judge

Opinion No. 24884

Submitted October 21, 1998 - Filed January 18, 1999

REVERSED

Attorney General Charles M. Condon; Deputy

Attorney General John W. McIntosh; Assistant

Deputy Attorney General Teresa A. Knox; and

Assistant Attorney General Matthew M. McGuire, all

of Columbia, for petitioner.

Thomas J. Quinn, of Beaufort, for respondent.

TOAL, A.J.: In this application for post-conviction relief ("PCR"), the

PCR court granted the applicant a new trial, finding ineffective assistance of

counsel. We reverse.

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FACTUAL/PROCEDURAL BACKGROUND

On the morning,, of October 30, 1991, Charleston detectives Vanhorn and

Warren followed a woman named Kerri Johnson to the Amtrak station in

North Charleston. Police initiated the surveillance of Johnson as a result of

a tip from a phone call received by police earlier that morning. At the

Amtrak station, police followed Johnson into the train depot. At

approximately 7:15 a.m., a train arrived from New York. Police observed

Johnson greet Wilson Palacio ("Defendant") as he departed the train.

The detectives approached Johnson and Defendant after they exited the

train depot. Detective Vanhorn identified himself as a police officer and told

Defendant that he suspected Defendant was transporting illegal narcotics.

Vanhorn asked permission to search Defendant's person and luggage.

Vanhorn testified that Defendant said "yes" to the search. Defendant was

not yet under arrest.

Detective Warren uncovered a boot while searching Defendant's

luggage. According to Vanhorn, when the detective picked up the boot,

Defendant stated ' "you got it." Detective Warren pulled out an aluminum foil

bundle containing cocaine. Defendant was immediately placed under arrest.

After police arrested Defendant, he repeatedly told them that Johnson

was his girlfriend, and she knew nothing about the drugs. At the police

station, Defendant was advised of his Miranda1 rights. The detectives told

Defendant that they could not let Johnson go unless he gave them a written

statement. Defendant subsequently waived his Miranda rights and dictated

a statement to Detective Vanhorn. In the statement, Defendant explained he

picked up nine ounces of cocaine in New York and was to be paid $1500 upon

arriving in Charleston.2 Defendant signed the statement.

In 1993, Defendant was indicted for trafficking more than 100 grams

of cocaine and for conspiracy to traffic in cocaine. The State later dismissed

the conspiracy charge, leaving only the trafficking charge. A jury found

Defendant guilty of trafficking cocaine under S.C. Code Ann. § 44-53-370

(1966).

2 Defendant later revealed that he was transporting the drugs for his

uncle Mario.

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(Supp. 1997).3 Defendant was represented by Tara Anderson ("Attorney") at

trial. The trial judge sentenced Defendant to twenty-five years in prison and

a $50,000 fine. See S.C. Code Ann. § 44-53-370(e)(2)(c) (Supp. 1997).4

Defendant appealed his conviction and sentence. In an unpublished

opinion, the Court of Appeals affirmed the verdict and sentence. State v.

Palacio, 95-UP-209 (Ct. App. 1995).5 On December 12, 1995, Defendant

submitted his application for PCR. The PCR court granted the application,

finding ineffective assistance of counsel. The PCR court ordered a new trial.

We granted the State's petition for a writ of certiorari to consider the

following issues:

(1) Did the PCR court err in finding Attorney ineffective for failing

to obtain or request all documents necessary for trial?

(2) Did the PCR court err in finding Attorney ineffective for failing

to challenge the State's search of defendant based on lack of

probable cause?

(3) Did the PCR court err in finding Attorney ineffective for failing

to challenge the State's chain of custody?

(4) Did the PCR court err in finding Attorney ineffective for failing

manufacture, distribute, dispense, deliver, purchase, or aid, abet, attempt, or

conspire to manufacture, distribute, dispense, deliver, or purchase, or possess

with intent to manufacture, distribute, dispense, deliver, or purchase a

controlled substance."

4 This section provides: "one hundred grams or more, but less than two

hundred grams, a mandatory term of imprisonment of twenty-five years, no

part of which may be suspended nor probation granted, and a fine of fifty

thousand dollars."

5 Defendant raised the following arguments before the Court of Appeals:

(1) the trial judge erred in failing to grant his motion for a continuance; (2)

the trial court erred when it denied his motion to suppress his written

statement given to police; (3) the trial court erred when it allowed the State

to dismiss the conspiracy indictment against him and proceed only on the

trafficking charge; and (4) the trial court's reasonable doubt instruction was

unconstitutional.

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to use a peremptory strike during jury selection?

(5) Did the PCR court err in finding Attorney ineffective for failing

to request a jury charge discussing the dismissal of the State's

conspiracy charge?

LAW/ANALYSIS

A. STANDARD OF REVIEW

In PCR proceedings, the applicant has the burden of establishing his

entitlement to relief. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985).

Where allegations of ineffective assistance of counsel are made, the question

becomes, whether counsel's conduct so undermined the proper functioning of

the adversarial process that the trial cannot be relied on as having produced

a just result. Id.

Pursuant to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984), this Court applies the following two-pronged test

when considering a claim of ineffective assistance of counsel: (1) the applicant

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

reasonableness; and (2) but for counsel's error, there is a reasonable

probability the result at trial would have been different. Jackson v. State,

329 S.C. 345, 495 S.E.2d 768 (1998). A reasonable probability is a probability

sufficient to undermine confidence in the outcome of trial. Id.

In reviewing a PCR grant, we are concerned only with whether there

is any evidence of probative value to support the PCR judge's decision. If

any evidence of probative value is found, this Court must affirm the ruling

of the PCR court. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).

B. DISCOVERY REQUESTS

The State argues that the PCR court erred in finding Attorney

ineffective for failing to obtain all necessary documents before trial. We

agree.

The PCR court found that the solicitor supplied Attorney with

documents at 5:00 p.m. on the Friday before the trial began on Monday.

Attorney also did not receive certain documents until the morning of the

trial. These documents included receipts and witnesses' statements.

Additionally, the PCR court found that on the morning of the trial, the

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solicitor informed the trial court that there were witnesses' statements in his

file that he was not going to turn over to the defense. Attorney moved for

a continuance so that she could review the materials. In arguing for a

continuance, Attorney emphasized to the trial judge that on September 15,

1993, she made a motion for discovery pursuant to Rule 5, SCRCrimP and

Brady v. Maryland.6 She had also filed a supplemental discovery request on

October 8, 1993, because she believed there was a history of Charleston

solicitors not providing complete discovery. The trial court denied the

continuance.

At the PCR hearina, Attorney conceded she failed to make a request for

the trial court to conduct an in camera review of any of the documents. She

stated at the PCR hearing, "All I did was make the motion for a continuance

and/or dismissal based on the lack of evidence being provided to me and the

lack of compliance to the Brady and discovery motion." The PCR court held

that Attorney was ineffective for failing to obtain the documents in a more

timely fashion or in requesting that the trial court review the unproduced

documents to determine if they were, in fact, discoverable. We disagree.

It is undisputed that Attorney made several discovery motions weeks

before the trial and argued at length for a continuance. On direct appeal,

the Court of Appeals found that the trial court did not err in denying the

continuance. The court stated it could not determine whether the evidence

was material because it was not produced in the record. The court

nonetheless held that based on the solicitor's descriptions of the documents

to the trial court, the documents appear to have involved only inculpatory

evidence. As for the witnesses' statements that were allegedly never turned

over by the solicitor, the Court of Appeals held these statements were not

subject to discovery under Rule 5, SCRCP. We therefore find no evidence

indicating Attorney's performance fell below an objective standard of

reasonableness.

Yet, even if Attorney were deficient in this regard, Defendant has failed

to satisfy the second prong of Strickland. The second prong of Strickland

requires a showing that the deficient performance prejudiced the defendant

to the extent that there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different.

Jackson, supra. Since the contents of these documents were never revealed

at the PCR hearing, Defendant has failed to present any evidence of

probative value demonstrating how the failure to obtain the unproduced

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statements or acquire the other documents in a more timely fashion

prejudiced the defense. Id. (mere speculation and conjecture on the part of

a defendant in PCR is insufficient).

We therefore reverse the PCR court on this issue, finding no evidence

of probative value to support the PCR court's decision. See Cherry, supra.

B. SEARCH & SEIZURE

The State argues that the trial court erred in finding Attorney

ineffective for failing to challenge the search of Defendant at the train

station. We agree.

The PCR court found that Attorney failed to raise "to the trial court by

motion or argument the question of what probable cause or, if the

circumstance had been appropriate, reasonable suspicion, provided police

grounds to detain or search Defendant." The PCR court noted there was

nothing in the trial transcript to allow the trial judge to assess the

reasonableness of the search or whether the information relied upon by the

police was credible. The PCR court concluded Attorney's failure to challenge

the search denied Defendant a full and fair trial.

Detective Vanhorn testified at trial that Defendant provided consent to

search his luggage at the train station. Further, Defendant signed a written

statement stating he consented to the search.

The constitutional immunity from unreasonable searches and seizures

may be waived by valid consent. Katz v. United States, 389 U.S. 347, 88 S.

Ct., 507, 19 L. Ed. 2d 576 (1967). Warrantless searches and seizures are

reasonable within the meaning of the Fourth Amendment when conducted

under the authority of voluntary consent. United States v. Durades, 929 F.2d

1160 (7th Cir. 1991). The existence of consent is determined from the totality

of the circumstances. United States v. Zapata, 997 F.2d, 751 (10th Cir. 1993).

On a motion to suppress, the State has the burden of proving the validity of

the consent. Id.

At trial, Defendant never contradicted the State's evidence that he

voluntarily consented to the search. Moreover, no evidence was presented at

the PCR hearing to demonstrate that Attorney had access to information at

trial that would have impugned the State's assertion of voluntary consent.

At the PCR hearing, Defendant simply denied ever giving consent for the

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search.7

The PCR court held that Attorney should have challenged the search

to determine if police had probable cause or reasonable suspicion to conduct

the search, or if exigent circumstances existed. However, it would have been

futile for Attorney to have made such arguments since the State's theory for

the search was consent, not probable cause or exigent circumstances. Thus,

Defendant has failed to demonstrate how Attorney was deficient in this

regard.

We reverse the PCR court on this issue because there is no evidence

of probative value to support the PCR court's decision.

C. CHAIN OF CUSTODY

The State argues that the PCR court erred in finding Attorney

ineffective for failing to challenge the chain of custody of the cocaine. We

agree.

At trial, Detective Vanhorn testified that the cocaine recovered from

Defendant weighed 256.5 grams; this included the weight of two "Zip Lock"

bags within which the cocaine was stored. A drug chemist with SLED later

testified that when she received the cocaine, it weighed 250.3 grams. The

chemist explained this was the weight of the cocaine without the plastic bags.

Attorney made a motion challenging the chain of custody of the drugs. She

argued it was impossible for the plastic bags to weigh more than six grams.

The trial court denied the motion, stating that some of the cocaine had been

removed for testing, and there was no evidence of what the plastic bags

actually weighed. The PCR court found Attorney ineffective for failing to

have the bags and drugs independently weighed.

the government to its burden of proof to show facts sufficient to establish

that consent was freely and intelligently given. However, the State presented

ample evidence at trial demonstrating that Defendant's consent was

voluntary. Such evidence included the testimony of detective Vanhorn and

the statement signed by Defendant. In addition, at the PCR hearing,

Defendant simply denied ever giving consent. Defendant did not argue or

present facts demonstrating that his, consent was not voluntary. Moreover,

the PCR court did not rule on this issue. Thus, it is not preserved for

appellate review. Pauling v. State, 331 S.C. 606, 503 S.E.2d 468 (1998).

p.45

Defendant did not present any evidence at the PCR hearing regarding

the actual weight of the plastic bags. Thus, there is no evidence that

Defendant was prejudiced by Attorney's failure to have the bags or drugs

independently weighed. See Jackson, supra (mere speculation and conjecture

on the part of a defendant in PCR is insufficient).

Moreover, there is no reasonable probability the result of the trial

would have been different had Attorney's performance not been deficient.

At trial, Defendant admitted he was transporting nine ounces of cocaine into

South Carolina from New York for his uncle Mario. Defendant stated that

his uncle was paying him $1500 per trip to get the cocaine. Defendant

claimed he needed the money to buy cocaine for his own consumption. Under

cross-examination by the solicitor, Defendant provided the following

testimony:

Q. So then your testimony here today is that number one, you had

the cocaine on you? In your possession?

A. Yes.

Q. Your testimony number two is, that you were being paid to

deliver the cocaine to somebody in Charleston?

A. Precisely.

Q. And number three, you were using that money that you were

making to support your drug habit?

A. Certainly.

Q. So you, in fact, were trafficking in cocaine?

A. Nope, I wasn't trafficking.

Q. Do you realize that the law makes it illegal to have that much

cocaine in your possession, regardless of what you were going to

do with it?

A. Well, to my understanding, trafficking -- it's been dealing---

Thus, even if Attorney had independently weighed the cocaine and

plastic bags at trial and thereby revealed some discrepancy, there is no

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

therefore reverse the PCR court on this issue.

D. PEREMPTORY STRIKES

The State argues the PCR court erred in finding Attorney ineffective

for failing to use a peremptory strike during jury selection. We agree.

Defendant testified at the PCR hearing that he specifically instructed

Attorney to strike juror Lewis Joseph because Joseph was a lawyer, and

Attorney refused to do so. Attorney testified she could not recall having any

conversation with Defendant concerning Joseph.

The PCR court found Attorney ineffective for failing to follow her

client's wishes in this regard. Without citing any authority, the PCR court

found that the selection of a jury is a defendant's right and not trial strategy

left to counsel. The court noted it was impossible in South Carolina to ever

determine what prejudice a particular juror brought to the outcome of the

case as it is improper to violate juror discussions.

While this issue has not been addressed in South Carolina, other courts

have held jury selection is a process that inherently falls within the expertise

and experience of trial counsel. See, e.g., People v. McKenzie, 668 P.2d 769

(Cal. 1983); State v. Cosey, 873 P.2d 1177 (Utah Ct. App. 1994). "The

selection of a jury is inevitably a call upon experience and intuition. The

trial lawyer must draw upon his own insights and empathetic abilities."

Romero v. Lynaugh, 884 F.2d 871, 878 (5th Cir. 1989)(emphasis added). In

Commonwealth v. Sanders, 445 A.2d 820 (Pa. 1982), the Pennsylvania

Supreme Court held:

Inherently, a jury trial requires that the defendant be secured

the right to challenge potential jurors on the basis of cause or

peremptorily. Those rights are adequately secured to an accused

when they are exercised by defense counsel. The fact that an

accused does not personally select the jury is not a deprivation

of that right.

445 A.2d at 824 (emphasis added). Moreover, this Court has held that a

criminal defendant has no right to a trial by any particular jury, but only a

right to a trial by a competent and impartial jury. State v. Patterson, 324

S.C. 5, 482 S.E.2d 760 (1997).

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In the instant case, under the PCR court's analysis, a criminal

defendant could demand that his attorney strike a juror, and if the attorney

refused, the defendant could insure that any conviction would automatically

be reversed. We decline to follow this logic. In PCR proceedings, a

defendant must provide credible evidence that the trial attorney's refusal to

strike a juror prejudiced the defense. There has been no such showing in

this case. Therefore, we reverse the PCR court on this issue.

E. JURY CHARGE

The State argues that the PCR court erred in finding Attorney

ineffective for failing to request a jury charge discussing the dismissal of the

State's conspiracy charge. We agree.

The State originally indicted Defendant for trafficking cocaine and

conspiracy to traffic cocaine. At the beginning of the trial, the trial judge

instructed the jury that Defendant had been indicted for these two offenses.

The State later moved to dismiss the conspiracy charge, which the trial court

granted over defense counsel's objection.

The PCR court found that Attorney was ineffective for failing to request

an instruction concerning the dismissal of the conspiracy charge. The PCR

court held the jury, not knowing why the conspiracy charge was removed

from their consideration, reasonably could have been left with the belief that

if they thought Defendant was guilty of conspiracy, then he was also guilty

of trafficking cocaine.

It is conjecture, at best, to suggest the jury thought this way.

Additionally, prior to opening arguments and after closing arguments, the

trial judge specifically informed the jury that Defendant was only charged

with trafficking in cocaine. Attorney also made the following statement

during her closing arguments to the jury: "[Defendant] says I helped my

uncle, but that's conspiracy, that is not trafficking, it's a whole other statute.

It's not the one for which he's been indicted for. And that is trafficking in

cocaine."

We reverse the PCR court on this issue because there is no evidence

of probative value to support the PCR court's decision.

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CONCLUSION

Based on the foregoing, the PCR court is REVERSED.

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

dissenting in a separate opinion.

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FINNEY, C.J.: I respectfully dissent, and would affirm the grant of post-

conviction relief (PCR) to respondent. We are required to affirm the circuit

court's PCR order if it is supported by any evidence in the record. Pauling

v. State, _ S.C. _, 503 S.E.2d 468 (1998). In my opinion, the order's

finding regarding defective representation and resulting prejudice from trial

counsel's failure to request a jury instruction regarding the dismissal of the

conspiracy charge is supported by the evidence and we should not, and

properly cannot, overturn it. I would affirm.

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