Buckson v. State

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Jerome Curtis Buckson, Respondent,

v.

State of South Carolina, Petitioner.

Appellate Case No. 2012-209540

Appeal From Spartanburg County
J. Mark Hayes, II, Circuit Court Judge

Unpublished Opinion No. 2016-UP-174
Heard October 13, 2015 – Filed April 13, 2016

REVERSED

Attorney General Alan McCrory Wilson and Assistant
Attorney General James Rutledge Johnson, of Columbia,
and Assistant Deputy Attorney General Suzanne
Hollifield White, of Spartanburg, for Petitioner.

Tricia A. Blanchette, of the Law Office of Tricia A.
Blanchette, LLC, of Columbia, for Respondent.

PER CURIAM: The State appeals the grant of post-conviction relief (PCR) to
Jerome Curtis Buckson (Respondent), arguing the PCR court erred in finding trial
counsel was ineffective for (1) failing to investigate or call four witnesses in an
attempt to establish Respondent was not guilty of first-degree burglary, (2) failing
to utilize trial witnesses more effectively, (3) focusing more on the defense of the
murder charge than the first-degree burglary charge, and (4) failing to object to an
item stricken on the jury verdict form. We reverse.

1. We find the PCR court erred in concluding Respondent was prejudiced by trial
counsel's failure to interview and call four witnesses who could have helped
establish his habitation defense by testifying he lived with the victim. See Walker
v. State, 407 S.C. 400, 404–05, 756 S.E.2d 144, 146 (2014) (stating to prevail on
an ineffective assistance of counsel claim, a PCR applicant must demonstrate (1)
"counsel was deficient" and (2) "the deficiency resulted in prejudice" (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984))); Edwards v. State, 392 S.C.
449, 456, 710 S.E.2d 60, 64 (2011) (explaining the petitioner must demonstrate
any deficiency by trial counsel resulted in prejudice "to the point that he was
deprived of a fair trial whose result is reliable"). To the extent trial counsel was
ineffective for failing to interview and call the four witnesses, we find Respondent
failed to demonstrate he was prejudiced by such deficiency. See Franklin v. Catoe,
346 S.C. 563, 571, 552 S.E.2d 718, 723 (2001) ("To prove prejudice, an applicant
must show . . . a reasonable probability that[,] but for counsel's deficient
performance, the result of the proceeding would have been different."). A
thorough review of the record reveals the four witnesses' testimonies at the PCR
hearing, consisting of assertions that Respondent lived with the victim, were
cumulative to testimony offered by multiple witnesses at trial. See Edwards, 392
S.C. at 459, 710 S.E.2d at 66 (stating when "evidence produced during the PCR
proceedings is cumulative to or does not otherwise aid evidence introduced at trial,
no prejudice results from counsel's failure to bring it forward"). Accordingly, we
reverse the PCR court's finding as to this issue.

2. With regard to the PCR court's finding that trial counsel was ineffective for
focusing on the murder charge and neglecting the first-degree burglary charge, we
find the PCR court erred in concluding trial counsel's performance was deficient.
Our review of the trial transcript indicates trial counsel acted reasonably with his
investigation and preparation for the burglary charge. See Dempsey v. State, 363
S.C. 365, 369, 610 S.E.2d 812, 814 (2005) ("An attorney's performance is not
deficient if it is reasonable under professional norms."). Trial counsel addressed
the burglary charge and Respondent's residency status in both his opening and
closing statements. Indeed, trial counsel devoted a significant amount of time to
this subject during his closing statement, outlining the various testimonies and
evidence tending to show Respondent lived with the victim, and he claimed
Respondent could not be guilty of burglary beyond a reasonable doubt. In
addition, trial counsel frequently questioned the witnesses, when appropriate,
regarding aspects related to the burglary charge. Trial counsel successfully
objected on multiple occasions when the State attempted to elicit testimony
showing why the victim changed her locks shortly before the incident, which
would have strengthened the State's claim that the victim and Respondent ended
their cohabitation prior to the incident. He cross-examined several other
prosecution witnesses to show the jury Respondent could have resided with the
victim, even though, at times, he used his mother's mailing address. Also, he
questioned an employee of the victim's apartment complex to show the jury a valid
reason why the victim could have decided against adding Respondent's name to the
lease. Following the conclusion of the State's case, trial counsel moved for a
directed verdict on the burglary charge alone, arguing no evidence demonstrated
Respondent entered the victim's apartment without permission. During the
defense's case, trial counsel called multiple witnesses that were used, in part, to
create reasonable doubt on the burglary charge by supporting his contention that
Respondent lived with the victim. Trial counsel called a total of four witnesses,
including Respondent, who testified Respondent lived with the victim and spent a
significant amount of time in her apartment and with her children. During
Respondent's testimony, trial counsel questioned him extensively about living with
the victim and keeping personal items in her apartment. He also showed
Respondent multiple photographs of the victim's apartment so Respondent could
identify the clothing and toiletry items he maintained in the apartment. In light of
trial counsel's efforts, we find no evidence of probative value supports the PCR
court's assertion that he "put his entire focus" on the murder charge. See Davie v.
State, 381 S.C. 601, 608, 675 S.E.2d 416, 420 (2009) ("In reviewing the PCR
court's decision, an appellate court is concerned only with whether any evidence of
probative value exists to support that decision."). In our view, trial counsel acted
reasonably to defend Respondent on the burglary charge, and he conducted an
independent investigation by interviewing and calling multiple witnesses and
reviewing the evidence. See Dempsey, 363 S.C. at 369, 610 S.E.2d at 814 ("An
attorney's performance is not deficient if it is reasonable under professional
norms."). Because the record of Respondent's trial shows trial counsel exhibited a
reasonable amount of focus and attention on the burglary charge, while also
successfully defending the murder charge, we reverse the PCR court's finding of
ineffective assistance of counsel.

3. With regard to the PCR court's finding that trial counsel "was ineffective in his
preparation and utilization of Tate," we find the PCR court erred in concluding trial
counsel's performance was deficient. After comparing Tate's trial testimony with
his PCR hearing testimony, we find trial counsel's utilization of Tate was
reasonable. See Dempsey, 363 S.C. at 369, 610 S.E.2d at 814 ("An attorney's
performance is not deficient if it is reasonable under professional norms."). Trial
counsel established Tate believed Respondent lived with the victim, and he elicited
an explanation as to why Respondent's name would not have been on the lease.
Tate also testified at trial he did not see Respondent during the week prior to this
incident and, thus, could not refute the State's claim that Respondent and the victim
ended their relationship shortly before this incident. We believe Tate's PCR
testimony failed to add anything significant to his trial testimony. To the extent
Tate's PCR testimony more clearly established his belief that Respondent lived
with the victim, we find his testimony was cumulative to the testimonies of several
other witnesses and Respondent suffered no prejudice from its omission. See
Edwards, 392 S.C. at 459, 710 S.E.2d at 66 (stating when "evidence produced
during the PCR proceedings is cumulative to or does not otherwise aid evidence
introduced at trial, no prejudice results from counsel's failure to bring it forward").
Thus, we reverse the PCR court as to this issue because no evidence of probative
value exists to support the finding that trial counsel's utilization of Tate as a
witness was deficient. See Davie, 381 S.C. at 608, 675 S.E.2d at 420 ("In
reviewing the PCR court's decision, an appellate court is concerned only with
whether any evidence of probative value exists to support that decision.").

4. Finally, with regard to the PCR court's finding that trial counsel was ineffective
for failing to "address the matter stricken through by the jury" on the verdict form,
we find the PCR court erred in concluding trial counsel's performance was
deficient. Respondent failed to present any actual evidence during the PCR
hearing to show the verdict was somehow compromised. In any event, we believe
trial counsel was not deficient for failing to raise an objection because the circuit
court took reasonable and adequate precautions to confirm the guilty verdict. The
circuit court polled the jury, per trial counsel's request, after the jury read the
verdict. Subsequently, the court noticed the word "not" was scratched from the
verdict form in front of where the jury wrote "guilty." Realizing this could be an
issue, the foreman initialed the alteration, and the court questioned whether the
foreman actually made the alteration. The foreman confirmed he made the
alteration and the guilty verdict was correct. The court then polled the jury again
to confirm the guilty verdict was correct, and the entire jury agreed. Because the
circuit court thoroughly addressed the verdict form issue to ensure the jury's
verdict was not compromised, we find trial counsel's decision not to further pursue
the argument was reasonable. See Dempsey, 363 S.C. at 369, 610 S.E.2d at 814
("An attorney's performance is not deficient if it is reasonable under professional
norms."). Accordingly, we reverse the PCR court as to this issue because no
evidence of probative value supports its finding that trial counsel was deficient for
failing to address the jury verdict form. See Davie, 381 S.C. at 608, 675 S.E.2d at
420 ("In reviewing the PCR court's decision, an appellate court is concerned only
with whether any evidence of probative value exists to support that decision.").
Further, to the extent the State argues the PCR court erred in hinging its analysis
on the cumulative prejudice doctrine, we need not address this issue because our
resolution of the prior issues is dispositive. See Green v. State, 351 S.C. 184, 197,
569 S.E.2d 318, 325 (2002) (recognizing "the threshold to asking the cumulative
prejudicial question is to first find multiple errors").

REVERSED.1

HUFF, A.C.J, and WILLIAMS and THOMAS, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.