Rogers v. State of South Carolina

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

Michael Anthony Rogers, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2017-002116

Appeal From Spartanburg County
Edward W. Miller, Circuit Court Judge

Unpublished Opinion No. 2021-UP-247
Submitted June 1, 2021 – Filed June 30, 2021

AFFIRMED

Appellate Defender Taylor Davis Gilliam, of Columbia,
for Petitioner.

Assistant Attorney General William Harold Ray and
Assistant Attorney General Chelsey Faith Marto, both of
Columbia, for Respondent.

PER CURIAM: In this action for post-conviction relief (PCR), Petitioner Michael
Anthony Rogers argues the PCR court erred by failing to find his trial counsel
provided ineffective assistance for (1) failing to introduce a 911 recording that
contained evidence of Petitioner's efforts to save Victim John Ryan, and (2) failing
to request jury charges for involuntary manslaughter and habitation in Petitioner's
murder trial for the stabbing death of Victim. We affirm.

1. We find evidence supports the PCR court's dismissal of Petitioner's claim of
ineffective assistance of counsel for trial counsel's decision not to introduce the 911
recording. See Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d 512, 514 (2008) ("In
post-conviction proceedings, the burden of proof is on the applicant to prove the
allegations in his application."); id. ("On appeal, the PCR court's ruling should be
upheld if it is supported by any evidence of probative value in the record."); id. ("In
order to establish a claim for ineffective assistance of counsel, the applicant must
show that: (1) counsel failed to render reasonably effective assistance under
prevailing professional norms, and (2) counsel's deficient performance prejudiced
the applicant's case."). Trial counsel testified that he did not introduce the recording
because he believed statements from Petitioner's girlfriend in the recording made it
sound as if Petitioner fought and killed Victim because Victim made a romantic pass
at Petitioner's girlfriend. See Smith v. State, 386 S.C. 562, 567, 689 S.E.2d 629, 632
(2010) ("Counsel's performance is accorded a favorable presumption, 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.'" (quoting Strickland v. Washington, 466 U.S. 668, 690
(1984))); id. ("[W]hen counsel articulates a valid reason for employing a certain
strategy, such conduct will not be deemed ineffective assistance of counsel.").

2. We find evidence supports the PCR court's dismissal of Petitioner's claim of
ineffective assistance of counsel for trial counsel's decision not to seek jury charges
for involuntary manslaughter and the defense of habitation. See Speaks, 377 S.C. at
399, 660 S.E.2d at 514 ("In order to establish a claim for ineffective assistance of
counsel, the applicant must show that: (1) counsel failed to render reasonably
effective assistance under prevailing professional norms, and (2) counsel's deficient
performance prejudiced the applicant's case."); id. ("On appeal, the PCR court's
ruling should be upheld if it is supported by any evidence of probative value in the
record."); id. ("In post-conviction proceedings, the burden of proof is on the
applicant to prove the allegations in his application."). Petitioner did not produce
evidence from which it could be inferred that he committed involuntary
manslaughter. See State v. Sams, 410 S.C. 303, 308, 764 S.E.2d 511, 513 (2014)
("The [circuit] court is required to charge a jury on a lesser-included offense if there
is evidence from which it could be inferred that the defendant committed the lesser,
rather than the greater, offense."); State v. Smith, 391 S.C. 408, 414, 706 S.E.2d 12,
15 (2011) ("Involuntary manslaughter is: (1) the unintentional killing of another
without malice, but while engaged in an unlawful activity not amounting to a felony
and not naturally tending to cause death or great bodily harm; or (2) the unintentional
killing of another without malice, while engaged in a lawful activity with reckless
disregard for the safety of others."); Sullivan v. State, 407 S.C. 241, 244–45, 754
S.E.2d 885, 887 (Ct. App. 2014) ("To warrant a jury charge on involuntary
manslaughter under either definition, there must be some evidence that the killing
was unintentional."); Sams, 410 S.C. at 310–11, 764 S.E.2d at 515 ("To the extent
[the petitioner] further claims on appeal to this [c]ourt that he did not 'intend' to kill
the victim by choking him and intended only to restrain him but was perhaps
criminally negligent in doing so, we agree with the circuit court that this bald
assertion of [the petitioner]'s intent, i.e., that he meant no harm to [the victim], is not
singularly dispositive of whether [the petitioner] is entitled to an instruction on
involuntary manslaughter.").

Additionally, Petitioner did not produce evidence that would have entitled him
to a jury charge on the defense of habitation. See State v. Rye, 375 S.C. 119, 124,
651 S.E.2d 321, 323 (2007) ("For the defense of habitation to apply, a defendant
need only establish that a trespass has occurred and that his chosen means of
ejectment were reasonable under the circumstances."). Although the evidence
shows Petitioner asked Victim to leave his home, Petitioner admitted at trial that he
was not attempting to eject Victim from his home during the fight between the pair.

AFFIRMED.1

KONDUROS, GEATHERS, and MCDONALD, JJ., concur.

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