Martina Putnam v. State of South Carolina, App. Case No. 2012-212396 a/k/a YOU WILL LOSE YOUR PCR CASE IF YOUR LAWYER DOESN’T BRING WITNESSES TO TESTIFY

July 11th, 2016
Elizabeth Franklin-Best

This case is a lesson regarding how a state PCR lawyer absolutely MUST perform at the evidentiary hearing that is provided for an inmate by statute.

The facts are very tragic and involve the conviction of a mother for homicide by child abuse.  After she was convicted and sentenced to 25 years in prison, she submitted a post-conviction relief application.  She alleged that her trial counsel rendered ineffective assistance of counsel by failing to call her husband and her children to testify to the events that occurred in the home on the day the victim died.  She argued that if the Children had attended trial and the trial court had admitted videotapes of the Children’s interviews that it would have helped her case.  At the PCR hearing, neither Patrick nor the Children testified.  Nor did Putnam introduce the evidence she alleged should have been admitted at her trial—the videotapes or the transcripts of the recorded interviews.  Putnam also alleged ineffective assistance of counsel for failing to call an expert to testify to the victim’s medical issues.  Putnam’s lawyer did not introduce any expert testimony at the PCR hearing.

Trial counsel must provide “reasonably effective assistance” under prevailing professional norms.”  Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Under the two-prong test established in Strickland, a PCR applicant must prove (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the applicant’s case.  Leon v. State, 379 S.C. 448, 450, 666 S.E.2d 260, 261 (Ct. App. 2008).  “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.”  Strickland, 466 U.S. at 700.

The real problem in this case is that PCR counsel did not secure these witnesses for the PCR hearing.  The Court of Appeals found that trial counsel rendered deficient performance based on their absence, but ultimately concluded Putnam couldn’t prevail on her claim because she could not show prejudice.  THE LAW IN SOUTH CAROLINA IS CLEAR ON THIS ISSUE:

“A PCR applicant cannot show that he was prejudiced by counsel’s failure to call a favorable witness to testify at trial if that witness does not later testify at the PCR hearing or otherwise offer testimony within the rules of evidence.”  Dempsey v. State, 363 S.C. 365, 369, 610 S.E.2d 812, 814 (2005).  “The applicant’s mere speculation what the witnesses’ testimony would have been cannot, by itself, satisfy the applicant’s burden of showing prejudice.”  Glover v. State, 318 S.C. 496, 499, 458 S.E.2d 538, 540 (1995).

This clearly sunk the case here.  The Court found, “[a]lthough Putnam asserted the Children’s testimony “may have shown some sort of information that may have helped in some way” and may have provided the jury with a better understanding of “what was actually going on in the house at the time,” that testimony was speculative and therefore insufficient to establish prejudice.”  And again, “[T]he evidence supports the PCR court’s conclusion that Putnam did not demonstrate prejudice from trial counsel’s failure to subpoena Patrick.”  But then, as if there was ANY confusion about the point, the Court notes in its footnote 3:

“In that regard, we are concerned that PCR counsel—who knew of trial counsel’s failure to secure Patrick’s and the Children’s presence at trial—failed to secure their presence at the PCR hearing or provide evidence of what their testimony would have been at trial.  At the PCR hearing, for example, PCR counsel failed to present any depositions or the Childen’s videotaped interviews in an effort to establish trial counsel’s deficient performance prejudiced Putnam’s case.”

For those inmates who are going into PCR, it is absolutely imperative that you make sure witnesses show up to your PCR hearing to testify if you’re alleging your trial counsel was ineffective for failing to call those witnesses.  You absolutely will not win your case without that being done.  Also, keep in mind that South Carolina does not currently recognize ineffective assistance of PCR counsel so if your lawyer screws up, you’re not going to be able to do anything about it.   This is a hard lesson for Ms. Putnam.

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