Washington v. State of South Carolina

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Carrol Tremayne Washington, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2021-000754

ON WRIT OF CERTIORARI

Appeal from Newberry County
J. Mark Hayes, II, Post-Conviction Relief Judge

Opinion No. 6095
Heard November 12, 2024 – Filed January 15, 2025

REVERSED

Appellate Defender Lara Mary Caudy, of Columbia, for
Petitioner.

Assistant Attorney General Zachary William Jones, of
Columbia, for Respondent.

GEATHERS, J.: In this post-conviction relief (PCR) action, Petitioner Carrol
Tremayne Washington assigns error to the PCR court's dismissal of his PCR
application, wherein he alleged ineffective assistance of counsel because trial
counsel failed to object to the State's closing argument that improperly vouched for
the complaining witness. We reverse.
FACTS/PROCEDURAL HISTORY

In March 2016, a jury found Washington guilty of one count of first-degree
criminal sexual conduct (CSC) with a minor,1 and he was sentenced to twenty-five
years' imprisonment.

A year earlier, in March 2015, the minor victim (Victim) disclosed to her
mother (Mother), Nicole Simms, that "Man" took her into a bathroom during a game
of hide and seek and digitally penetrated her anus. Washington's nickname is "Man."
Victim was eight-years-old at the time of the alleged abuse.2 Shortly after Victim's
disclosure, Mother contacted law enforcement to alert them of the allegations.
Investigator Brad Epps of the Newberry Sheriff's Office presented Victim with a
photo lineup, and she identified Washington as the person who molested her.

Victim alleged the abuse occurred when she was visiting her grandmother
(Grandmother), Ethyl Simms, at her apartment in the Whitmore Apartments
complex. While visiting Grandmother, Victim, along with many other children in
the area, would often play in Tonya Dawkins's apartment in the same complex.
Dawkins, Mother's second cousin, lived with her son and her boyfriend, Washington.
The alleged abuse occurred in Dawkins's and Washington's apartment.

At trial, Mother testified about Victim and her disclosure, and Grandmother
testified about Victim's visits to her home. Mother testified that in spring 2014,
Victim began to refuse to go to Grandmother's home and to have behavioral
problems like crying and acting up in school. Investigator Epps testified about
Mother's report of abuse and Victim's selection of Washington's photo in the lineup.
S.B., a minor who also played in Dawkins's apartment, testified that she saw Victim
and Washington in the bathroom together during a game of hide and seek.3 Trina

1
"A person is guilty of [CSC] with a minor in the first degree if . . . the actor engages
in sexual battery with a victim who is less than eleven years of age . . . ." S.C. Code
Ann. § 16-3-655(A)(1) (2015). "'Sexual battery' means . . . any intrusion, however
slight, of any part of a person's body or of any object into the genital or anal openings
of another person's body, except when such intrusion is accomplished for medically
recognized treatment or diagnostic purposes." S.C. Code Ann. § 16-3-651(h)
(2015).
2
Victim also alleged two other occasions in which Washington acted in an
inappropriate manner but did not touch her. Washington was not indicted for
anything related to these two occasions.
3
S.B. did not specify when she witnessed this interaction.
Elfering, who conducted Victim's forensic interview, testified Victim identified her
buttocks as the area where Washington touched her.

Candice Hopkins, who knew Washington and Victim, testified her children
would often go to Dawkins's apartment. Hopkins stated that after she questioned her
children, none made any allegations against Washington and that Washington had a
positive reputation. Hopkins also testified that she had known Mother for many
years and that Mother had a reputation for being a "fabricator."4 On
cross-examination, Hopkins admitted she had a prior conviction for giving false
information. Dawkins testified that she had never heard about or seen Washington
acting inappropriately with any child and that neighborhood children still often came
over to her apartment, even after neighbors became aware of Victim's allegations.
Finally, Washington testified he never inappropriately touched Victim and had never
been alone with Victim.

During closing arguments, the State argued,

I submit to you [Victim] was wholly credible. That she's
only capable of telling the truth. She's not capable of
carrying on a lie to that degree for that long. A child just
isn't capable of doing that. And they tried to crack her
under the pressure. They have cross-examination . . . they
question her and question her until she cracks and they
catch her in a lie. They couldn't do it. And a child will
fold under a cross-examination because they're not
capable of lying to that degree and to that extent and her
story was consistent.

(emphases added).

In giving the jury instructions, the trial court provided,

You are to consider only the testimony which has been
presented from this witness stand, any exhibits which have
been made a part of the record in this case and any
stipulations of counsel. . . . As I also told you, in
every . . . case tried in this [c]ourt before a jury, the jury
becomes the sole and exclusive judge of the facts in this

4
This testimony was not corroborated.
case. . . . As jurors it is your duty to determine the
[e]ffect, value, weight and truth of the evidence presented
during this trial. . . . Necessarily, you must determine the
credibility of witnesses who have testified in this case.
Credibility simply means believability. It becomes your
duty as jurors to analyze and to evaluate the evidence and
determine which evidence convinces you of its truth.

The trial court also informed the jury of the special considerations when reviewing
the credibility of a child witness (e.g., age of child, ability of child to observe and
remember facts, child's ability to understand and answer questions, whether child
can understand the difference between lying and telling the truth).5 The jury
deliberated for an hour and twenty minutes, returning a verdict of guilty.
Washington appealed his conviction, and this court dismissed the appeal pursuant to
Anders v. California, 386 U.S. 738 (1967).

Washington timely filed a PCR application alleging, among other things, that
trial counsel provided ineffective assistance by failing to object to the State's
improper vouching when addressing Victim's credibility during its closing
arguments. During the PCR hearing, trial counsel testified that he did not object to
the solicitor's statements because "I did not see . . . where any of the statements
individually are clearly improper[,] and I did not see collectively where they crossed
the line either." Trial counsel further stated, "[I]t is my opinion that the [State] [was]
not vouching for the credibility of the witness."

The PCR court dismissed Washington's PCR application. The court first
found the statements did not amount to improper vouching and thus trial counsel's
performance was not deficient, reasoning "the solicitor used the evidence and record
to attempt to counter the defense's theory that the [V]ictim either misremembered
the incident or was coached into making the allegation." The PCR court further
reasoned, "Although the solicitor state[d] at one point, 'I submit to you [Victim] was

5
The trial court also charged the jury with language from section 16-3-657 of the
South Carolina Code (2015)—"The testimony of the victim need not be corroborated
in [CSC] prosecutions." Two months after this trial concluded, our supreme court
overruled its precedent and held that it is impermissible to use section 16-3-657 as a
jury charge. State v. Stukes, 416 S.C. 493, 500, 787 S.E.2d 480, 483 (2016) ("Based
on the foregoing, we overrule our precedent to the extent it condones the use of
section 16-3-657 as a jury charge."). However, this instruction complied with the
law at the time.
wholly credible,' the solicitor made no personal assurances as to the witness's
credibility, nor did he directly or indirectly refer to any information outside of the
record." The PCR court additionally found Washington failed to prove the
comments prejudiced him because he did not show "the comment infected the trial
with unfairness as to make his conviction a denial of due process." This appeal
followed.

ISSUE ON APPEAL

Did the PCR court err in finding trial counsel provided effective assistance despite
failing to object to the solicitor's improper vouching of the minor witness during the
State's closing argument?

STANDARD OF REVIEW

"Our standard of review in PCR cases depends on the specific issue before us.
We defer to a PCR court's findings of fact and will uphold them if there is evidence
in the record to support them." Smalls v. State, 422 S.C. 174, 180, 810 S.E.2d 836,
839 (2018). "However, [we] will reverse the [PCR] court's decision if it is controlled
by an error of law." Milledge v. State, 422 S.C. 366, 374, 811 S.E.2d 796, 800
(2018). "We review questions of law de novo, with no deference to trial courts."
Smalls, 422 S.C. at 180–81, 810 S.E.2d at 839.

LAW/ANALYSIS

To prevail in an ineffective assistance of counsel claim, PCR applicants must
show "(1) counsel failed to render reasonably effective assistance under prevailing
professional norms, and (2) counsel's deficient performance prejudiced the
applicant's case." Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d 512, 514 (2008).
Deficiency "is measured by an objective standard of reasonableness." Taylor
v. State, 404 S.C. 350, 359, 745 S.E.2d 97, 102 (2013). "[C]ounsel is strongly
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment." Strickland v.
Washington, 466 U.S. 668, 690 (1984). A PCR applicant establishes prejudice by
showing that "there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Id. at 694. "If it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed." Id. at 697. "In determining
whether [a PCR] applicant has proven prejudice, the PCR court should consider
the specific impact counsel's error had on the outcome of the trial." Smalls, 422 S.C.
at 188, 810 S.E.2d at 843.

During closing argument, "[a] solicitor has a right to state his version of the
testimony and to comment on the weight to be given such testimony." Smith v.
State, 375 S.C. 507, 523, 654 S.E.2d 523, 531–32 (2007) (citation omitted) (quoting
Randall v. State, 356 S.C. 639, 642, 591 S.E.2d 608, 610 (2004)), abrogated on
other grounds by Smalls v. State, 422 S.C. 174, 181 n.2, 810 S.E.2d 836, 839 n.2
(2018). However, "[a] solicitor's closing argument must be carefully tailored so as
not to appeal to the personal biases of the jury. The State's closing arguments must
be confined to evidence in the record and the reasonable inferences that may be
drawn from the evidence." Smith v. State, 375 S.C. at 522–23, 654 S.E.2d at 531.

Additionally, "[i]t is improper for a judge or a prosecutor to bolster a witness's
credibility by stating to the jury his or her view that the witness is likely being
truthful." State v. Reyes, 432 S.C. 394, 401, 853 S.E.2d 334, 338 (2020).
"Credibility is a determination for the jury." Id. at 404, 853 S.E.2d at 339.
Moreover, "[a] solicitor may not vouch for the credibility of a State's witness based
on personal knowledge or other information outside the record." Matthews v. State,
350 S.C. 272, 276, 565 S.E.2d 766, 768 (2002). "A prosecutor improperly vouches
for a witness'[s] credibility and places the government's prestige behind a witness
by making explicit personal assurances[] or indicating that information not
presented to the jury supports the testimony." Vaughn v. State, 362 S.C. 163, 169,
607 S.E.2d 72, 75 (2004). "In assessing the propriety of remarks made during the
State's closing argument, appellate courts must determine 'whether the solicitor's
comments "so infected the trial with unfairness as to make the resulting conviction
a denial of due process."'" Tappeiner v. State, 416 S.C. 239, 251, 785 S.E.2d 471,
477 (2016) (quoting Vaughn, 362 S.C. at 169–70, 607 S.E.2d at 75)).

We hold the PCR court erred in finding trial counsel was not deficient by
failing to object to the State's closing argument because the State improperly
vouched for Victim's credibility. Trial counsel testified at the PCR hearing that he
did not object to the comments because he did not believe the comments amounted
to vouching for Victim. Though this court does not seek to second-guess the
reasonable decisions of trial counsel, trial counsel still must articulate a valid
strategy for his decisions. See Lounds v. State, 380 S.C. 454, 462, 670 S.E.2d 646,
650 (2008) ("[W]hen counsel articulates a valid reason for employing a certain
strategy, such conduct generally will not be deemed ineffective assistance of
counsel." (emphasis added)). "[C]ounsel cannot assert trial strategy as a defense for
failure to object to comments which constitute an error of law and are inherently
prejudicial." Matthews, 350 S.C. at 276, 565 S.E.2d at 768.
The State's comments were clearly improper vouching. The State stated, "I
submit to you [Victim] was wholly credible" followed by assurances that all children
of Victim's age are not capable of lying and that children would "fold" under
cross-examination if they were lying. The State's assurances were broad,
unsubstantiated claims unrelated to anything raised during the trial. See Matthews,
350 S.C. at 276, 565 S.E.2d at 768 ("A solicitor may not vouch for the credibility of
a State's witness based on personal knowledge or other information outside the
record."). Although Victim's credibility and the possibility that her allegation was
false certainly were at issue, the State did not confine its statements to the
consistency of Victim's testimony or a characterization of the evidence from trial.6
See Vasquez v. State, 388 S.C. 447, 458, 698 S.E.2d 561, 566 (2010) ("The State's
closing arguments must be confined to evidence in the record and the reasonable
inferences that may be drawn from the evidence."); State v. Busse, 439 S.C. 104,
111, 886 S.E.2d 208, 212 (2023) ("[T]he State should not inject the personal views
or opinions of its representative as to the credibility of a witness into the jury's
thought process."); see also Matthews, 350 S.C. at 276–77, 565 S.E.2d at 768 ("The
solicitor's summation led the jury to believe the government corroborated the
witness'[s] testimony before trial and found it credible. The solicitor did not support
this vouching with anything within the record, such as corroboration by other
witnesses or physical evidence. The solicitor improperly vouched for the witness.").

Further, the State used first-person language at the start of the comments—"I
submit"—that suggested to the jury that the State held the opinion that Victim was
telling the truth. See Busse, 439 S.C. at 112, 886 S.E.2d at 212 (stressing that
"prosecutors must be cautious how they use the first person"); see also Reyes, 432
S.C. at 405, 853 S.E.2d at 340 (holding questions in which the solicitor used the
first-person pronoun "we" when questioning the minor witness about telling the truth

6
We note the beginning of the State's statement—"I submit to you [Victim] was
wholly credible."—was framed in the past tense. The verb "was" at the beginning
of the comment could be read as a reference back to Victim's testimony during the
trial. See State v. Busse, 439 S.C. 104, 114, 886 S.E.2d 208, 213 (2023) (discussing
that when "[v]iewed in the proper context," the solicitor's use of the past tense during
the closing arguments "was actually to lead the jury to focus on the evidence
presented to them, not to improperly harken back to his unique knowledge of some
event or proceeding outside their presence"). However, the context of the State's
overall comments make clear the State was not referring only to Victim's testimony.
The State followed its statement that Victim was wholly credible with assurances
that Victim was not capable of lying at all because children are not capable of lying.
were improper); State v. Kelly, 343 S.C. 350, 369 n.12, 540 S.E.2d 851, 860–61 n.12
(2001) (finding a solicitor's questions were improper vouching when the solicitor
phrased his questions to the witness in the first person—"'What did I tell you that I
absolutely required regarding your testimony to this jury today?' and 'Did I tell you
to tell the truth to this jury?'" (emphases added)), rev'd and remanded on other
grounds, 534 U.S. 246 (2002). The solicitor's opinion of the witness's credibility
"carries with it the imprimatur" of the State and "may induce the jury to trust the
[State's] judgment rather than its own view of the evidence." Busse, 439 S.C. at 112,
886 S.E.2d at 212 (quoting Kelly, 343 S.C. at 369, 540 S.E.2d at 860).

Finally, trial counsel's failure to object was prejudicial because there was no
physical evidence of the alleged CSC and the only other evidence in the case
required an assessment of the relative credibility of the witnesses. See Tappeiner,
416 S.C. at 253, 785 S.E.2d at 478 (holding that because the case was "entirely
dependent on a credibility determination" and "[g]iven the dearth of evidence"
beyond the victim's allegations, the court could not "say evidence of [the defendant's]
guilt was overwhelming"; therefore, "but-for the improper vouching for [the
v]ictim's credibility, there is a reasonable likelihood the outcome of the trial would
have been different, and [the defendant] was thus prejudiced by trial counsel's failure
to object"). Evidence of Washington's guilt was not overwhelming. Other than
Victim's and Washington's testimonies, the only evidence presented to the jury was
Victim's refusal to go to Grandmother's home, her behavioral problems, and her
report of sexual abuse that identified Washington as the perpetrator. There is no
physical evidence or corroborating evidence. Cf. Chappell v. State, 429 S.C. 68, 78,
81, 837 S.E.2d 496, 501, 503 (Ct. App. 2019) (holding that a blind expert witness's
testimony improperly bolstered the minor victim's credibility "when she testified,
'Children don't often lie about sexual abuse incidents,' because a comment on the
credibility of a class of persons to which the victim belongs is a comment on the
credibility of the victim" and that "our courts have found improper bolstering
testimony was prejudicial in every South Carolina case in which the State presented
no physical evidence of the defendant's guilt or relied solely on the victim's
testimony to establish the details of the crime"). At most, S.B.'s testimony that she
saw Washington and Victim in the bathroom together during a game of
hide-and-seek undercut Washington's testimony that he was never alone with
Victim. However, S.B. did not see touching of any kind. Thus, in a case that turned
on a credibility determination with little circumstantial evidence and no physical
evidence, the State's comments granted Victim's testimony the imprimatur of
credibility from the State and infected the trial with unfairness such that there was a
reasonable probability that the outcome would have been different had trial counsel
properly objected to these comments.
We take a moment to address the potential curative effect of the trial court's
instructions to the jury that it alone bore the burden of weighing witness credibility
and that it must consider only the testimony presented from the witness stand. In
Reyes, our supreme court held the State's improper bolstering of a minor witness's
credibility was cured by the trial court's jury instructions that the jury was
responsible for determining credibility and "[c]rucially" that the credibility of a
minor witness should be assessed through a "more suspect lens, thus removing any
improper influence that arose from the solicitor's questioning." 432 S.C. at 408, 853
S.E.2d at 342. The State's comments in Reyes were "fleeting"7 and occurred at the

7
The exchange in Reyes was as follows:

Solicitor: Okay. Do you know that while you're here, we
only talk about things that are the truth?

Minor: Yeah.

Defense: Your Honor, just for the record, I want to
preserve my objection.

Trial Court: All right. As to the bolstering. Yeah, I think
that the person can testify on their own behalf, just not
another party.

Solicitor: Minor, do you know the difference between the
truth and a lie?

Minor: (Nods head.)

...

Solicitor: Okay. So you understand that when we're in
here, we're going to talk about the truth. Do you
understand that?

...

Minor: Yes.
start of the minor witness's testimony. Id. at 407, 853 S.E.2d at 341. Also, in Reyes,
defense counsel contemporaneously objected to the questioning as bolstering. Id. at
400, 853 S.E.2d at 337.

Here, the jury instructions cannot cure the improper vouching by the State.
First, the comments were extensive, and they posited not only that Victim was
credible, but also that it was impossible for her to be untruthful. Unlike in Reyes,
this vouching was not fleeting and it occurred during the summation of the case.
Even though the crucial instruction in Reyes—to view Victim's testimony through a
more suspect lens due to her minor status—was given here, it did little to cure the
improper vouching because the vouching did not happen during Victim's testimony.
Second, trial counsel did not object at all. We have difficulty imagining how jury
instructions could be curative when the jury was never made aware of the improper
vouching. See Tappeiner, 416 S.C. at 251, 785 S.E.2d at 477 ("In assessing the
propriety of remarks made during the State's closing argument, appellate courts must
determine 'whether the solicitor's comments "so infected the trial with unfairness as
to make the resulting conviction a denial of due process."'" (quoting Vaughn, 362
S.C. at 169–70, 607 S.E.2d at 75)); State v. White, 371 S.C. 439, 445, 639 S.E.2d
160, 163 (Ct. App. 2006) ("If the trial judge sustains a timely objection to evidence
and gives the jury a curative instruction that it be disregarded, the error is deemed to
have been cured by the instruction." (emphasis added)).

CONCLUSION

For the foregoing reasons, the PCR court's order dismissing Washington's
PCR application is

REVERSED.

KONDUROS and MCDONALD, JJ., concur.

Solicitor: Okay. Judge, at this time, I would move her as
qualified to testify.

Reyes, 432 S.C. at 400, 853 S.E.2d at 337 (omissions in original).