McCall 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

Robert Duncan McCall, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2010-175426

ON WRIT OF CERTIORARI

Appeal From Greenville County
Edward W. Miller, Trial Court Judge
Robin B. Stilwell, Post-Conviction Relief Judge

Opinion No. 2015-UP-344
Heard February 2, 2015 – Filed July 15, 2015

AFFIRMED

J. Falkner Wilkes, of Greenville, for Petitioner.

Attorney General Alan McCrory Wilson, Senior
Assistant Deputy Attorney General Karen Christine
Ratigan, and Assistant Attorney General John Walter
Whitmire, of Columbia, for Respondent.
PER CURIAM: Robert McCall was convicted of first-degree criminal sexual
conduct (CSC) with a minor and lewd act upon a child. He appeals from the denial
and dismissal of his application for post-conviction relief (PCR), arguing his trial
counsel was ineffective for not properly preparing, presenting, raising, and
preserving the issue of whether Victim should have received an independent
psychological examination. We affirm.

Trial counsel must provide "reasonably effective assistance" under "prevailing
professional norms." Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
Reviewing courts presume counsel was effective. Id. at 690. To receive relief, the
applicant must show (1) counsel was deficient and (2) counsel's deficiency caused
prejudice. Id. at 687. An attorney's performance is not deficient if it is reasonable
under professional norms. Cherry v. State, 300 S.C. 115, 117, 386 S.E.2d 624, 625
(1989). Prejudice is defined as a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id. "Failure to make the required showing
of either deficient performance or sufficient prejudice defeats the ineffectiveness
claim." Id. at 700.

Dr. Allison Foster, an expert in psychology and interview techniques, testified at
the PCR hearing on behalf of McCall. She believed the basis of the pre-trial
motion was to receive a forensic evaluation. She testified she believed a forensic
evaluation was appropriate in this case; however, she could not testify to what the
results would have been. She opined the appropriate standard for forensic
interviewing was not met in this case. Although she did not specifically answer the
State's question about whether a forensic interview is the same thing as a
psychological evaluation, she testified:

The forensic interview arguably is just the interview
itself. A psychological evaluation may or may not have
been warranted but a licensed Master's level or Doctorate
level evaluator who could have met this child would have
been able to appraise the need for further evaluation such
as neuro[-]psychological testing or a psychiatric consult
or whatever that evaluator might have deemed
appropriate, but at least that way a mental health
professional who specializes in this area would have been
able to make that determination about what else is needed
if anything.

The PCR court determined Dr. Foster's testimony was speculative and could not be
given much weight and noted Dr. Foster did not testify about whether or not
Victim should have received a psychological examination.

We find McCall failed to prove prejudice because he did not present evidence at
the PCR hearing that would support an order allowing an independent
psychological examination. See Strickland, 466 U.S. at 687 (providing that to
receive relief, the applicant must show (1) counsel was deficient and (2) counsel's
deficiency caused prejudice); id. at 700 ("Failure to make the required showing of
either deficient performance or sufficient prejudice defeats the ineffectiveness
claim."). Dr. Foster testified about the importance of a forensic evaluation, not a
psychological examination. Thus, her testimony is not relevant to the question of
whether McCall was entitled to an independent psychological examination of
Victim, and there is no reasonable probability the court would have ordered an
independent psychological examination if trial counsel had presented the evidence
that was presented at the PCR hearing. See Strickland, 466 U.S. at 694 (defining
prejudice as a reasonable probability that the outcome would have been different
but for trial counsel's deficient performance). Accordingly, we find McCall failed
to prove prejudice.

AFFIRMED.

SHORT, LOCKEMY, and MCDONALD, JJ., concur.