Derrick Fishburne 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

Derrick Fishburne, Respondent,

v.

State of South Carolina, Petitioner.

Appellate Case No. 2021-000107

Appeal From Colleton County
Edgar W. Dickson, Circuit Court Judge

Unpublished Opinion No. 2023-UP-248
Submitted May 1, 2023 – Filed June 21, 2023

REVERSED

Attorney General Alan McCrory Wilson, Senior
Assistant Deputy Attorney General Megan Harrigan
Jameson, and Senior Assistant Deputy Attorney General
William M. Blitch, Jr., all of Columbia, for Petitioner.

Tristan Michael Shaffer, of Adams Bischoff LLC, of
Columbia, for Respondent.

PER CURIAM: The State appeals the post-conviction relief (PCR) court's order
granting Derrick Fishburne a new trial. On appeal, the State argues the PCR court
erred in finding trial counsel was ineffective for referencing Fishburne's criminal
history at trial. We reverse.

We find the PCR court erred in finding trial counsel ineffective for referencing
Fishburne's criminal history at trial because counsel articulated a reasonable trial
strategy for doing so. See Strickland v. Washington, 466 U.S. 668, 687 (1984)
(stating a PCR applicant arguing ineffective assistance of counsel must show: (1)
counsel's performance was deficient because it fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that, but for counsel's
errors, the result of the proceeding would have been different); id. at 690
(explaining counsel's performance is presumed to be reasonable, and a reviewing
court proceeds from the rebuttable presumption that counsel "rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment"). At trial, counsel referred to Fishburne's criminal history
throughout his opening and closing statements, calling him one of the "usual
suspects," asserting law enforcement had "picked Fishburne up from roll call" for
an unrelated charge when it arrested him for the crime, and indicating Fishburne's
family had prior conflict with law enforcement. Counsel testified he strategically
referenced this information in an attempt to explain to the jury why Fishburne
mistrusted law enforcement and lied to officers about his presence at the crime
scene. Accordingly, we find counsel was not deficient. See Smith v. State, 386
S.C. 562, 567, 689 S.E.2d 629, 632 (2010) ("[W]hen counsel articulates a valid
reason for employing a certain strategy, such conduct will not be deemed
ineffective assistance of counsel."); Magazine v. State, 361 S.C. 610, 617, 606
S.E.2d 761, 764 (2004) abrogated on other grounds by Smalls v. State, 422 S.C.
174, 810 S.E.2d 836 (2018) (explaining appellate courts review trial counsel's
strategy under "an objective standard of reasonableness" (quoting Ingle v.
State, 348 S.C. 467, 470, 560 S.E.2d 401, 402 (2002))); Cullen v. Pinholster, 563
U.S. 170, 189 (2011) (explaining a defendant must show defense counsel failed to
act reasonably considering all the circumstances of a case in order to overcome the
presumption of adequate representation).

REVERSED. 1

THOMAS, MCDONALD, and HEWITT, JJ., concur.

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