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Davis Adv. Sh. No. 4
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Todd Jackson, Respondent,

v.

State of South

Carolina, Petitioner.

ON WRIT OF CERTIORARI

Appeal From Richland County

Joseph A. Wilson, II, Trial Judge

Gary E. Clary, Post-Conviction Judge

Opinion No. 24749

Submitted September 18, 1997 - Filed January 19, 1998

REVERSED

BURNETT, A.J.: The State appeals the grant of post

conviction relief (PCR) to respondent. We reverse.

p. 20

FACTS

Respondent was convicted of armed robbery and sentenced to

imprisonment for twenty-five years. His conviction and sentence were

affirmed on direct appeal. State v. Jackson, 315 S.C. 219, 433 S.E.2d 19

(Ct. App. 1993). Respondent filed a PCR application alleging

ineffectiveness of his trial counsel. After an evidentiary hearing, the PCR

judge found respondent's trial counsel was ineffective in several respects,

including failing to investigate the backgrounds of the eyewitnesses and

the victims; failing to call the co-defendants as witnesses; failing to

present a defense; failing to adequately prepare the case; and operating

under a conflict of interest. Respondent was granted a new trial.

ISSUE
Did the PCR judge err in finding respondent's trial counsel was ineffective?

DISCUSSION

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). In order to prove that counsel was ineffective, the

applicant must show counsel's performance was deficient and the deficient

performance prejudiced the defense. Strickland v. Washington, supra;

Thrift v. State, 302 S.C. 535, 397 S.E.2d 523 (1990). To show prejudice,

the applicant must show, but for counsel's errors, there is a reasonable

probability the result of the trial would have been different. Johnson v.

State, __S.C.__, 480 S.E.2d 733 (1997). A reasonable probability is a

probability sufficient to undermine confidence in the outcome of trial.

Strickland v. Washington, supra. This Court will sustain the PCR judge's

factual findings and conclusions regarding ineffective assistance of counsel

if there is any probative evidence to support those findings. Skeen v.

State, __ S.C.__ , 481 S.E.2d 129 (1997). However, if there is no

probative evidence to support the PCR judge's findings, the findings will

not be upheld. Satterwhite v. State, __ S.C. __, 481 S.E.2d 709 (1997);

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

p. 21

Failing to Investigate Backgrounds of Victims and Witnesses

The State contends the PCR judge erred in finding counsel's

failure to investigate the backgrounds of the victims and witnesses to

determine if they had criminal records or were involved in illegal activities

prejudiced respondent's defense. We agree.

Counsel admitted at the PCR hearing he did not check the

criminal records of the victims or eyewitnesses to the robbery prior to the

trial. Counsel further admitted it was an error not to investigate the

victims and eyewitnesses.

The robbery occurred after 11:00 p.m. in a high crime district.

Given the time and location of the robbery, a reasonable attorney would

have concluded a background investigation of the victims and witnesses

was necessary. An investigation to determine the credibility of the victims

and witnesses was especially important in light of respondent's claim that

he was merely retrieving property which had been stolen from him by the

victims. Therefore, there is probative evidence to support the PCR judge's

finding that counsel's performance was deficient in this matter. Skeen v.

State, supra.

However, there is no probative evidence to support the finding

of prejudice. While the PCR judge was correct in finding the credibility of

the eyewitnesses and victims "would have been critical," no probative

evidence was presented at the PCR hearing to show the eyewitnesses and

victims were not credible. The only "evidence" that either the victims or

eyewitnesses had criminal records were statements and questions by

respondent's PCR counsel that one of the victims was incarcerated in

another state at the time of respondent's trial and respondent's testimony

that he knew this victim was in jail.1 Respondent failed to substantiate

this allegation with any probative evidence. See Glover v. State, 318 S.C.

496, 458 S.E.2d 538 (1995) (applicant's allegations, alone, will not support

a finding of prejudice when applicant claims counsel was ineffective for

failing to investigate witnesses; instead, applicant must show the results of

an investigation would have resulted in a different outcome at trial).

Mere speculation and conjecture on the part of respondent is insufficient.

Id.

incarcerated unless there was evidence to support the allegation. The

PCR judge denied that motion.

p. 22

Even assuming one of the eyewitnesses or victims had a

criminal record, no evidence was presented to show the crime was one of

moral turpitude which could be used for impeachment purposes. State v.

Major, 301 S.C. 181, 391 S.E.2d 235 (1990). Moreover, because at the trial

the victims did not testify2 and the State never attempted to establish the

credibility of the victims, they could not be impeached with any prior

records.

Thus, no evidence supports the PCR judge's finding that

respondent was prejudiced by counsel's failure to check the records of

these individuals. Satterwhite v. State, supra; High v. State, 300 S.C. 88,

386 S.E.2d 463 (1989) (PCR judge's findings will not be upheld if there is

no probative evidence to support them).

Failure to Interview and Call Co-Defendants as Witnesses

The State claims the PCR judge erred in finding trial counsel

ineffective for failing to interview respondent's co-defendants and for

failing to call them as witnesses at respondent's trial because respondent

failed to prove prejudice. We agree.

Respondent testified he asked counsel to call one of his co-

defendants, Lorenzo Stanford (Stanford), as a witness at trial, but counsel

did not do so. At the PCR hearing, Stanford's statement he made to the

police following the robbery was introduced to support respondent's claim

of ineffectiveness.

Counsel testified Stanford and respondent's other co-defendant,

Sam Bennerman (Bennerman), were not called as witnesses because

Stanford's statement, which supported respondent's version of the incident,

was presented through the testimony of a police officer. According to

counsel, he contacted counsel for the co-defendants and was told any

testimony given by them would be the same as their statements given to

the police. Counsel also reviewed the co-defendant's statements. Counsel

made the decision not to call Stanford and Bennerman to testify because

he "didn't want to run the risk of calling them and having something go

wrong." Further, counsel thought the testimony of the police officer

admitting Stanford's statement supported respondent's version of the

who witnessed the robbery and two cousins of one of the victims who

witnessed the crime testified at trial.

p. 23

incident and lent more credibility to respondent's defense than calling

Stanford to testify.

Although respondent did introduce evidence at the PCR

hearing of what Stanford's testimony would have been had he testified at

trial, this same information was presented through the testimony of the

police officer who took the statement. Thus, the jury was aware

respondent's defense was corroborated. Respondent failed to show

Stanford's testimony could have provided additional information to what

was admitted through the police officer's testimony to assist in

respondent's defense. Compare with Thomas v. State, 308 S.C. 123, 417

S.E.2d 531 (1992) (petitioner showed uncalled witness' testimony would

have made a difference in the trial because it would have cast doubt on

the sole witness' identification of the petitioner). Therefore, respondent

failed to present any evidence of prejudice in failing to call Stanford as a

witness.

Respondent also produced no evidence of how counsel's failure

to interview Stanford or Bennerman prejudiced his defense. See Glover v.

State, 318 S.C. 496, 458 S.E.2d 538 (1995) (prejudice from trial counsel's

failure to interview or call witnesses could not be shown where the PCR

applicant failed to introduce evidence of what the uncalled witnesses'

testimony would have been and an applicant's mere speculation what a

witness' testimony would have been cannot satisfy the applicant's burden

of showing prejudice).3 It is pure speculation to conclude the outcome of

respondent's trial would have been different if counsel had interviewed

and/or called Stanford and Bennerman as witnesses.

Further, the decision not to call Stanford as a witness was

trial strategy. Counsel claimed he thought the testimony concerning the

corroboration of respondent's statement would be more credible if

presented through the testimony of the police officer instead of Stanford.

This is a valid reason for deciding not to call Stanford since Stanford's

credibility would have been at issue if he testified. Thus, counsel was not

ineffective for employing this strategy. Stokes v. State, 308 S.C. 546, 419

S.E.2d 778 (1992) (where counsel articulates a valid reason for employing

witness in order to show prejudice. The State is misreading the law.

Under our case law, the applicant must produce the witness at the PCR

hearing or otherwise introduce the witness' testimony in a manner

consistent with the rules of evidence. Glover v. State, supra.

p. 24

a certain strategy, such conduct will not be deemed ineffective assistance

of counsel).

Failure to Present a Defense

The State argues the PCR judge erred in finding trial counsel

ineffective in "failing to present any defense." We agree.

At trial, respondent's statement which set forth his defense

that he was merely reclaiming the property that had been taken from him

was admitted. Counsel cross-examined the police officer as to respondent's

statement and Stanford's corroborating statement. The solicitor mentioned

the defense and discredited it in his closing argument. Counsel requested

and received a jury charge that a person cannot steal his own property.

However, counsel did not offer any witnesses and respondent did not

testify.

At the PCR hearing, counsel testified he argued respondent's

defense to the jury4 and requested and received a jury charge on the

defense. Counsel admitted he did not attempt to find other witnesses to

support respondent's allegation that the stolen property belonged to him.

Respondent acknowledged counsel argued the defense in closing.

We find the probative evidence fails to support the PCR judge's

finding on this issue. Satterwhite v. State, supra. Instead, counsel

presented respondent's defense that respondent was merely reclaiming his

property. While it is true counsel did not present any witnesses at trial, a

criminal defendant is not required to present evidence. Further,

respondent has not shown what additional evidence counsel could have

presented to support this defense. Glover, supra. Accordingly,

respondent did not establish counsel was deficient or that any deficient

performance prejudiced his defense.

Further, it was a strategic decision not to have respondent

testify. See Stokes v. State, supra. Respondent has a conviction for

possession of crack cocaine, a crime of moral turpitude, which could have

been used to impeach him. See State v. Major, 301 S.C. 181, 391 S.E.2d

235 (1990). Counsel testified at the PCR hearing he was aware of

respondent's conviction. While confusion arose over whether respondent

had a previous conviction for strong arm robbery, this matter was resolved

p. 25

before sentencing. Further, regardless whether respondent had a prior

robbery conviction, counsel would have still advised respondent not to

testify because of his prior drug conviction. Thus, respondent has failed to

show prejudice.

Failing to Adequately Prepare the Case

The State claims the PCR judge erred in finding trial counsel

ineffective for failing to adequately prepare respondent's case. We agree.

According to its order, the lower court specifically found

counsel ineffective:

Respondent testified counsel met with him briefly when he

advised him to waive his preliminary hearing, when he was first offered a

plea bargain, and a week before trial when counsel again discussed a

guilty plea. According to respondent, he never discussed the facts of the

case until the day before his trial when counsel again attempted to

convince respondent to plead guilty. Respondent agreed to plead guilty;

however, respondent changed his mind during the plea and proceeded with

a jury trial. Respondent testified counsel advised him not to testify, told

him the defense would be the victims owed him drug money, and refused

respondent's request to subpoena Stanford.

Counsel testified at the PCR hearing he did not recall the

number of times he met with respondent, but it was probably three or four

times and that he did talk with him "several times about the case."

Counsel stated he discussed with respondent calling Bennerman, but

decided to leave that decision until trial. According to counsel, respondent

never asked him to call Stanford as a witness. Counsel testified he had

filed a discovery request and had reviewed the materials in the solicitor's

file, including Stanford's statement.

In our opinion, the PCR judge erred in finding counsel

ineffective in preparing respondent's case. Respondent failed to present

any evidence of what counsel could have discovered or what other defenses

respondent would have requested counsel pursue had counsel more fully

prepared for the trial. Thus, respondent has failed to show his counsel's

p. 26

lack of preparation prejudiced him, and no probative evidence supports the

PCR judge's findings on this issue. Satterwhite v. State, supra. Instead,

the PCR judge's order is based on respondent's speculation that counsel

could have done a better job representing respondent if he spent more

time with him. Glover, supra (speculation and conjecture will not support

a finding of ineffective assistance of counsel).

Conflict of Interest

The State contends the PCR judge erred in finding trial

counsel ineffective due to a conflict of interest. We agree.

Counsel for respondent was employed by the Richland County

Public Defender's Office, as were the attorneys for respondent's co-

defendants. Therefore, respondent argued counsel was operating under a

conflict of interest.

The PCR judge found counsel was ineffective due to a conflict

of interest. Specifically, the PCR judge found:

(emphasis added).

To establish a violation of the Sixth Amendment right to

effective counsel due to a conflict of interest arising from multiple

representation, a defendant who did not object at trial must show an

actual conflict of interest adversely affected his attorney's performance.

Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980);

Duncan v. State, 281 S.C. 435, 315 S.E.2d 809 (1984). An actual conflict

of interest occurs where an attorney owes a duty to a party whose

interests are adverse to the defendant's. Duncan v. State, supra. The

mere possibility of a conflict of interest is insufficient to impugn a criminal

conviction. Cuyler v. Sullivan, supra.

p. 27

In our opinion, respondent did not show any actual conflict of

interest resulted from counsel's representation of him while others in

counsel's office represented respondent's co-defendants. All respondent

showed and the PCR judge found was a potential conflict of interest

because counsel worked in the same office with the attorneys who

represented the co-defendants. Counsel testified no conflict existed, and

respondent could not point to an actual conflict. Thus, this potential

conflict never ripened into an actual conflict. Nothing in the record

suggests the potential conflict caused counsel to treat respondent's case in

such a manner as to obtain more favorable consideration for respondent's

co-defendants. Further, the fact that counsel never advised respondent of

the potential conflict of interest does not affect the constitutionality of the

conviction. See Langford v. State, 310 S.C. 357, 360, 426 S.E.2d 793, 794

(1993) ("Rules of Professional Conduct have no bearing on the

constitutionality of a criminal conviction"). Therefore, the PCR judge erred

in finding a conflict of interest existed.

REVERSED.

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

p. 28