Yancey Thompson v. State, S.C. Supreme Court, filed 3/21/18: South Carolina Supreme Court Continues to Monitor PCR Cases Closely

Once again the South Carolina Supreme Court has reversed a PCR case, finding that the PCR Court did not properly assess the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984).  The Court is clearly taking longer and harder looks at this legal vehicle, and that’s a great thing for criminal justice in South Carolina.

This was a criminal sexual misconduct case, and the State used their standard playbook.  It called a DSS caseworker who testified to improper hearsay (Rule 801(d)(1)(D), SCRE excludes, as hearsay, statements made by an alleged victim to others, but those statements, when testified to by a witness must be limited to the time and place of the alleged sexual assault).  So, the caseworker testified beyond that limitation.  Then it called a doctor qualified as an expert in clinical psychology and child sexual abuse assessment.  That person also testified beyond the limits allowed by SCRE, Rule 801. In its closing, the State relied heavily on this expert’s opinions in arguing that Thompson was guilty. A detective also testified that the victim’s disclosures were consistent with her training as a forensic interviewer, and that the physical evidence corroborated the victim’s statements to the expert witness.  Trial counsel did not object to any of this inadmissible hearsay, or the detective’s improper bolstering.

In its order of dismissal, the PCR court found that counsel was deficient (he should have objected to the inadmissible hearsay), but that Thompson was not prejudiced by his substandard performance because the properly admitted evidence overwhelmingly established Thompson’s guilt.

Since its recent opinion in Smalls v. State, Op. No. 27764 (S.C. Sup. Ct. filed Feb. 7, 2018), the Court is looking anew at the prejudice analysis to be used in these cases.  The Court, now, will be addressing the question of “overwhelming evidence” in a PCR setting by balancing the individual impact of trial counsel’s error(s) against the strength of properly admitted evidence of a PCR applicant’s guilt.  As the Court explains in this opinion, the PCR court and the reviewing court must consider the strength of the State’s case apart from the inadmissible evidence to which trial counsel deficiently failed to object.

So here, the PCR court relied on 4 basic factors– 1) the physical evidence, 2) victim’s credible testimony that provided details of the offense, 3) mother’s credible testimony, and 4) the lack of contradictory evidence.  The Court found that the physical evidence only supports a finding that the victim was abused, not that Thompson was the abuser.  As to the victim’s and mother’s trial testimonies, the Court found that it did not need to defer to those findings since the PCR judge was not in any better position to read a cold transcript than the Supreme Court. When PCR judge’s make credibility determinations regarding witnesses they actually perceive, the Court will defer to their judgments. The Court noted a significant issue in the victim’s testimony that showed there was at least a basis to call her credibility into question. And then, as to the lack of contradictory evidence, the Court notes the PCR judge’s reliance on that factor is burden-shifting since the onus is always on the State to prove the elements of a crime beyond a reasonable doubt.  The Court concluded that, as a whole, the properly admitted evidence of guilt was not strong enough to overcome trial counsel’s failure to object to the inadmissible evidence of the DSS caseworker and expert. The Court also found the detective’s testimony to constitute improper bolstering. Under the facts of this case, Thompson was prejudiced by his trial counsel’s ineffectiveness.

Again, I think this case signals that PCR judges are going to have to conduct deeper analyses of issues that are raised in their courts, or the South Carolina Supreme Court will reverse the judgments.