Susan Tappeiner v. State of South Carolina, Appellate No. 2013-001885, A PCR Win Based on Improper Solicitor Closing Argument (Beaufort County, no surprise there!)

Excellent work by the very experienced Tara Shurling! Unanimous opinion reversing the circuit court’s denial of Ms. Tappeiner’s application for post-conviction relief.

Ms. Tappeiner was accused of engaging in sexual intercourse with a young neighbor. The case lacked any physical evidence, and essentially came down to a swearing contest between Ms. Tappeiner (and her husband) and the alleged victim. A review of the case shows how weak this case really was, but of course the State did not drop the charges. What is notable is the South Carolina Supreme Court’s finding that trial counsel rendered ineffective assistance of counsel for failing to object to the Solicitor’s highly improper closing argument, and that Ms. Tappeiner was prejudiced by her counsel’s substandard performance.

The Solicitor argued that the case came down to “credibility” and then argued that the “[Victim] looked [the jurors] in the eye.” Then, she reminded the jury that she explicitly asked the school resource officer if he believed the Victim’s story to which the officer “said yeah. Yes.” The Solicitor also asserted the rape crisis counselor interviewed the Victim “face to face, eye to eye.” She further stated, “I think the expert told you that she has done over 200 forensic interviews. Folks, these are people who can detect when someone is making something up or if there is nothing there.” Again, the Solicitor reminded the jury that the police interviewed Ms. Tappeiner “face to face, eye to eye.” And not one to let go of a highly improper theme, the Solicitor then continued that the Victim made consistent statements throughout his “eye to eye, [] face to face interviews with various witnesses, and that the jury should “think about the eye to eye, face to face interviews that victim has had with law enforcement and the expert.” Then, the Solicitor suggested that if the jurors would not allow Ms. Tappeiner to babysit their children, they should find her guilty. Seriously, it is almost impossible to conceive of more inappropriate closing argument.  It’s practically a law school exam question– how many violations of the law and ethics can YOU spot?

It is black letter law that Solicitors must confine their closing remarks to the record and the reasonable inferences that may be drawn therefrom. Simmons v. State, 331 S.C. 333, 338, 503 S.E.2d 164, 166 (1998). They must additionally tailor their remarks “so as not to appeal to the personal biases of the jury” or “arouse the jurors’ passions or prejudices.” Von Dohlen v. State, 360 S.C. 598, 609, 602 S.E.2d 738, 744 (2004). They should avoid comments that ask jurors to place themselves in the victim’s— or another party’s— shoes, because those types of comments tend to “completely destroy all sense of impartiality of the jurors.” Brown v. State, 383 S.C 506, 515-16, 680 S.E.2d 909, 914 (2009). On a constitutional level, appellate courts must determine “whether the solicitor’s comment’s ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974).

In short, given the dearth of evidence tending to show that Ms. Tappeiner was guilty at all, these remarks by the Solicitor fundamentally denied her her right to a fair trial. Frankly, this one wasn’t even a close call. It’s a great day for Justice in South Carolina!