Staten 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

Dushun Staten, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2011-187273

ON WRIT OF CERTIORARI

Appeal From Richland County
L. Henry McKellar, Trial Court Judge
L. Casey Manning, Post-Conviction Relief Judge

Unpublished Opinion No. 2015-UP-465
Heard April 13, 2015 – Filed September 30, 2015

AFFIRMED

Jeremy Adam Thompson, of Law Office of Jeremy A.
Thompson, LLC, of Columbia, for Petitioner.
Attorney General Alan McCrory Wilson and Assistant
Attorney General James Clayton Mitchell, III, of
Columbia, for Respondent.

PER CURIAM: Dushun Staten was convicted of murder and first-degree
lynching. He appeals from the denial and dismissal of his application for post-
conviction relief (PCR), arguing his trial counsel was ineffective for failing to
object to (1) testimony that he pointed a gun at the victim in the days prior to the
murder as improper prior bad act evidence, and (2) the State's improper closing
argument. We affirm.

FACTS

The victim in this case was shot and killed in a parking lot on Monday, January 15,
2001. Witnesses stated that on the day of the shooting, Petitioner retrieved a gun
from a car and handed it to the shooter, who wore a black Northface jacket.1
Multiple witnesses also testified that on the Friday before the shooting they
observed Petitioner and the victim get into an altercation concerning what color
clothing each man wore.2 Andrew Britt, the victim's cousin and roommate,
testified he and the victim had another altercation with Petitioner and Petitioner's
brother on the Saturday before the murder. Britt further testified that on the
Sunday night before the murder, the victim came into Britt's room "hysterical" and
"scared" and reported that the people they argued with on Saturday pulled a gun on
him. Trial counsel objected based on hearsay, but the objection was overruled
after the State laid the necessary foundation concerning the victim's demeanor to
show the statement was an excited utterance. During cross-examination, Britt
clarified that the victim said Petitioner pulled a gun on him.

1
The man in the black jacket was identified as Limel Sims, and at trial, an
investigator testified Sims was wanted for murder.
2
Petitioner was reputedly a member of the Bloods street gang, while the victim
was reputedly a member of the Crips street gang.
During closing arguments, the State attempted to discredit trial counsel's theory
that a man named Maurice Sanders was the shooter and that Sanders acted alone.
The State argued three witnesses identified the shooter as the man who wore the
black Northface jacket, and two witnesses testified Sanders and a man named
Shakeem Wilson were "hanging back" from the fatal argument. The State asserted,
"They were hanging back. That's why they're not charged with murder but
accessory after the fact based on evidence that you all didn't hear about because it's
not relevant to this case, certain things are done after the fact that you didn't hear
about because it's not relevant."

During the PCR hearing, trial counsel admitted he did not consider making a prior
bad acts objection to Britt's testimony because he felt the evidence was related to
the case and would have shown "motive or a willingness to do something or a state
of mind." Concerning the comments from the State's closing argument, trial
counsel testified he saw no reason to object because he felt the information
referenced by the State came out during trial and it was not apparent who the word
"they" referenced. Trial counsel also stated he was hesitant to object during a
closing argument for fear the other attorney would "have you eat your words and
watch him stuff it right down you."

STANDARD OF REVIEW

"In a PCR proceeding, the burden is on the applicant to prove the allegations in his
application." Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007). "Any
evidence of probative value to support the PCR court's factual findings is sufficient
to uphold those findings on appeal." Lee v. State, 396 S.C. 314, 320, 721 S.E.2d
442, 446 (Ct. App. 2011). Thus, "[an appellate court] gives great deference to the
PCR court's findings of fact and conclusions of law." Porter v. State, 368 S.C.
378, 383, 629 S.E.2d 353, 356 (2006). "If matters of credibility are involved, then
this court gives deference to the PCR court's findings because this court lacks the
opportunity to directly observe the witnesses." Lee, 396 S.C. at 319, 721 S.E.2d at
445.

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. Therefore, to receive
relief, the applicant must show (1) counsel departed from professional norms (2)
resulting in prejudice. Id. at 691-92. Prejudice is defined as a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. Id. 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.

LAW/ANALYSIS

Staten argues his trial counsel was ineffective for failing to object to testimony that
he pointed a gun at the victim in the days prior to the murder as improper prior bad
act evidence. We disagree. We find trial counsel was not deficient in failing to
make a prior bad acts objection because Britt's testimony about the gun-pointing
incident was admissible under Rule 404(b), SCRE, to show Petitioner's motive or
intent. See Rule 404(b), SCRE ("Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible to show motive, identity, the existence
of a common scheme or plan, the absence of mistake or accident, or intent."); see
also Blakely v. State, 360 S.C. 636, 639, 602 S.E.2d 758, 759 (2004) (holding
evidence of prior threats against a defendant's girlfriend was admissible to show
intent); State v. Atkins, 303 S.C. 214, 220, 399 S.E.2d 760, 763 (1990) (finding
evidence of a defendant's prior difficulties with a victim's family concerning racial
differences was relevant to prove motive); State v. Plyler, 275 S.C. 291, 296, 270
S.E.2d 126, 128 (1980) (holding evidence of a verbal argument between the
defendant and victim that occurred three days before the murder was admissible to
show motive). Additionally, we find the testimony's probative value was not
substantially outweighed by the danger of unfair prejudice because the incident
occurred on the day before the shooting and showed the escalating nature of the
confrontations between Petitioner and the victim. See Rule 403, SCRE ("Although
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence."); State v. Sweat, 362 S.C. 117, 132, 606
S.E.2d 508, 516 (Ct. App. 2004) ("The determination of prejudice depends upon
the unique circumstances of each case.").

To the extent Petitioner argues under State v. Taylor that the details of the gun-
pointing incident were inadmissible, we note that Britt did not testify about
additional details of the incident. See 333 S.C. 159, 168, 508 S.E.2d 870, 874
(1998) (holding a trial court properly admitted a husband's testimony about a prior
incident when his wife struck him on the head with a beer bottle but properly
excluded the specifics of the incident). Accordingly, we find trial counsel was not
deficient for failing to make a prior bad acts objection to Britt's testimony. See
Strickland, 466 U.S. at 700 ("Failure to make the required showing of either
deficient performance or sufficient prejudice defeats the ineffectiveness claim.").

Staten also argues his trial counsel was ineffective for failing to object to the
State's improper closing argument. We find the State's comments were improper
and trial counsel was deficient in failing to object. Specifically, the State
referenced "evidence that [the jury] didn't hear about" to explain why Sanders and
Wilson were not charged with murder, improperly suggesting the State had other
evidence at its disposal that exonerated the pair of murder. See Simmons v. State,
331 S.C. 333, 338, 503 S.E.2d 164, 166 (1998) (stating the State's closing
argument and its content should stay within the record and reasonable inferences to
it); State v. Shuler, 344 S.C. 604, 630, 545 S.E.2d 805, 818 (2001) ("Vouching
occurs when a prosecutor implies he has facts that are not before the jury for their
consideration.").

However, given the record as a whole, we find there was not a reasonable
probability that but for trial counsel's failure to object to the State's comments, the
result of the trial would have been different. See Strickland, 466 U.S. at 694
(defining prejudice in the context of a PCR claim as a reasonable probability that
but for trial counsel's errors the result of the proceeding would have been
different). Specifically, we do not believe the comments were such that they
infected the trial with unfairness. See Simmons, 331 S.C. at 338, 503 S.E.2d at 166
("Improper comments do not automatically require reversal if they are not
prejudicial to the defendant."); id. at 338, 503 S.E.2d at 166-67 ("The relevant
question is whether the [State's] comments so infected the trial with unfairness as
to make the resulting conviction a denial of due process."). Notably, the State did
not repeat the comments, and the comments occurred during a lengthy closing
argument that spanned fifty-seven pages of the record. See Brown v. State, 383
S.C. 506, 517, 680 S.E.2d 909, 915 (2009) (holding the State's improper argument
did not infect the trial with unfairness and result in prejudice when the argument
"came at the very end of [its] closing argument and [was] limited in duration").
Therefore, we hold Petitioner has not demonstrated trial counsel was ineffective
with regards to this issue. See Strickland, 466 U.S. at 700 ("Failure to make the
required showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim.").

CONCLUSION

Accordingly, the circuit court's dismissal of Petitioner's application for post-
conviction relief is

AFFIRMED.

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