Conviction Reversed For Ineffective Assistance Of Counsel

The South Carolina Supreme Court held that the court below had erred in concluding that defense counsel had adequately prepared for trial in a case involving charges of armed robbery and kidnapping. The client was convicted of kidnapping and sentenced to life without parole. Post conviction relief was appropriate:

Newell [the attorney] did not articulate a strategy because he did not testify at the PCR hearing.  Although Newell did state to the trial court he believed the witnesses would not add much to petitioner’s defense, we find this was not objectively reasonable given the defense theory of the case.  The only defense Newell presented to the jury was that petitioner and Garrett knew each other through drug dealing.  If witnesses other than petitioner were willing to testify to this fact, certainly that would have added significantly to the credibility of petitioner’s case.  Thus, we find the PCR court erred in finding that Newell offered an objectively valid strategic reason not to call these witnesses.

Furthermore, both the trial transcript and petitioner’s PCR testimony inescapably point to the conclusion that Newell simply had not adequately prepared the defense case.  Newell himself admitted to the trial court he had only learned of defense witnesses that morning, and therefore they had neither been interviewed nor subpoenaed.  Petitioner corroborated this at the PCR hearing when he stated Newell had only spoken to him about the case on the morning of trial.

We hold the evidence clearly shows that Newell inadequately prepared for trial.  See Ard v. Catoe, supra (at a minimum, counsel has the duty to interview potential witnesses).  This was unreasonable in light of the fact that Newell had several months’ notice that petitioner was facing LWOP if convicted.  Therefore, we find counsel deficient in this regard. 

As to the prejudice resulting from counsel’s deficient performance, we believe petitioner clearly was prejudiced by Newell’s failure to subpoena and call witnesses who would have supported petitioner’s own testimony at trial.  With its not-guilty verdict on the armed robbery charge, the jury necessarily rejected several aspects of Garrett’s account, and accepted as true certain parts of petitioner’s testimony.  Moreover, the jury’s questions during deliberations indicate it also struggled with whether petitioner was guilty of kidnapping.  Thus, we find that if additional witnesses had confirmed petitioner’s testimony, there is a reasonable likelihood the result of the trial would have been different on the kidnapping count.

Accordingly, the PCR court erred in not finding ineffective assistance of counsel on this issue.

The court further found ineffective assistance of counsel in closing argument. (Mike Frisch)