Mitchel Rivers 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

Mitchell Rivers, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2017-002302

Appeal From Chesterfield County
Roger E. Henderson, Circuit Court Judge

Unpublished Opinion No. 2023-UP-261
Heard December 5, 2022 – Filed July 12, 2023

REVERSED AND REMANDED

Appellate Defender Taylor Davis Gilliam and Appellate
Defender Jessica M. Saxon, both of Columbia, for
Petitioner.

Attorney General Alan McCrory Wilson, Senior
Assistant Deputy Attorney General William M. Blitch,
Jr., and Assistant Attorney General Chelsey Faith Marto,
all of Columbia, for Respondent.

PER CURIAM: In this post-conviction relief (PCR) action, Appellant Mitchell
Rivers (Rivers) seeks review of an order dismissing his claim of ineffective
assistance of counsel. Rivers argues that the PCR court erred in finding that Rivers's
trial counsel was not ineffective in failing to object to evidence related to the victim's
injuries. We reverse and remand.

FACTS

On August 7, 2005, around 6:00 a.m., Rivers woke up to find his four-month-
old adopted son (Victim) asphyxiated underneath his armpit. In his initial interview
with the police, Rivers stated that he successfully performed CPR on Victim, laid
him down in the play pen, and went outside to mow the grass. Later that morning,
Kimberly Rivers, his wife and Victim's adoptive mother, found that Victim was no
longer breathing and dialed 9-1-1. Tragically, Victim died.

On September 19, 2005, after the autopsy report was filed, Rivers was re-
interviewed by SLED officers, who found some inconsistencies in his prior
statement. After giving this new statement, Rivers was arrested and charged with
homicide by child abuse (HCA).

At the pretrial hearing, trial counsel for Rivers moved to suppress evidence of
collateral injuries. The circuit court denied the motion, stating that "[t]hese child
cases are getting a little different treatment than what we normally are use[d] to
involving adult cases and other type criminal cases." However, the court clarified
that counsel was protected on the record on that motion.

At trial, the State called Dr. Janice Ross, a forensic pathologist, to testify to
Victim's collateral injuries. She stated that she found abrasions and bruises on
Victim's scalp, abrasions on the back of Victim's head, and several rib fractures that
were in the process of healing. She indicated that some of the abrasions occurred
contemporaneously with the asphyxiation but answered in the affirmative when
asked whether these abrasions could have been the result of an overweight individual
rolling over on a child. Ron Martin, a paramedic on the scene of the incident, and
Dr. Clay Nichols also testified to Victim's collateral injuries. Counsel objected to
the testimony of Dr. Nichols and Dr. Ross on the ground that their testimony was
cumulative and speculative. However, he never raised the grounds set forth in his
pretrial motion to suppress evidence of the collateral injuries. Also, four of Rivers's
family members, who were living at the house1 at the time of the incident, testified

1
It is unclear exactly how many people were living in the house at the time of the
incident. However, Wayne Jordan, the lead investigator of this incident, estimated
that there were "somewhere of five to seven folks living in that home."
that Rivers never mistreated Victim. At the trial's conclusion, the jury found Rivers
guilty of HCA, and the circuit court sentenced Rivers to life imprisonment.

Rivers appealed to this court, which subsequently affirmed his conviction.
State v. Rivers, 411 S.C. 551, 769 S.E.2d 263 (Ct. App. 2015). The court found the
issue of the admission of collateral injuries unpreserved. Id. at 553, 769 S.E.2d at
265.2 Rivers later filed a PCR application for ineffective assistance of counsel. The
PCR court dismissed Rivers's PCR application. This appeal followed.

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, the [appeals c]ourt will reverse the lower 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 (footnote omitted).

LAW/ANALYSIS

Rivers alleges that his trial counsel was ineffective by failing to object to
evidence of the Victim's collateral injuries. We agree.

"A criminal defendant is guaranteed the right to effective assistance of counsel
under the Sixth Amendment to the United States Constitution." Taylor v. State, 404
S.C. 350, 359, 745 S.E.2d 97, 101 (2013); see also U.S. Const. amend. VI. "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." Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d 512, 514 (2008).
"[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).

I. Prejudice

2
When this case was first heard before this court, "the State admitted its strongest
argument was the issue presented is unpreserved." Rivers, 411 S.C. at 555 n.2, 769
S.E.2d at 266 n.2.
Rivers argues that he was prejudiced through evidence of prior bad acts
presented to the jury. We agree.

To prove prejudice, an appellant must show a "reasonable probability that,
absent the errors, the fact finder would have had a reasonable doubt respecting guilt."
Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007) (quoting
Strickland, 466 U.S. at 695). "A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the trial." Rutland v. State, 415 S.C. 570,
577, 785 S.E.2d 350, 353 (2016) (citing Strickland, 466 U.S. at 694). In making the
determination of whether a PCR applicant met their burden, "we must consider the
totality of the evidence before the jury." Jones v. State, 332 S.C. 329, 333, 504
S.E.2d 822, 824 (1998) (footnote omitted). "Moreover, a verdict or conclusion only
weakly supported by the record is more likely to have been affected by errors than
one with overwhelming record support." Strickland, 466 U.S. at 696.

A. Prior Bad Acts

"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." Rule 404(b),
SCRE; see also State v. Lyle, 125 S.C. 406, 417, 118 S.E. 803, 807 (1923) (indicating
that the admission of prior bad acts creates propensity evidence that has "the
inevitable tendency . . . to raise a legally spurious presumption of guilt in the minds
of the jurors"). "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." Rule 404(b). "To be admissible, the bad act must logically relate to the
crime with which the defendant has been charged. If the defendant was not convicted
of the prior crime, evidence of the prior bad act must be clear and convincing." State
v. Fletcher, 379 S.C. 17, 23, 664 S.E.2d 480, 483 (2008). "Clear and convincing
evidence is that degree of proof which will produce in the mind of the trier of facts
a firm belief as to the allegations sought to be established." Id. at 24, 664 S.E.2d at
483. "Further, even though the evidence falls within a Lyle exception, it must be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice to the defendant." State v. Brooks, 341 S.C. 57, 62, 533 S.E.2d 325, 328
(2000).

When there is no proof offered to show that a defendant inflicted previous
injuries, "testimony regarding [these] injuries is inadmissible[.]" State v. Pierce, 326
S.C. 176, 178, 485 S.E.2d 913, 914 (1997). However, "[w]hen a child is brought to
an emergency room with injuries in various stages of healing, there is evidence of
recurring child abuse." State v. Martucci, 380 S.C. 232, 254, 669 S.E.2d 598, 609
(Ct. App. 2008). This court in Martucci warned that "[i]f the multiple, separately
occurring injuries are not admissible in child abuse prosecutions, the crime would
be virtually impossible to prove." Id.

While we appreciate the unique set of difficulties that encumber HCA
prosecutions, this case is distinguishable from Martucci. In that case, the defendant
sought to exclude testimony related to prior bad acts. See id. at 251, 669 S.E.2d at
608. A witness testified that the victim was abused "by slapping his face, taping his
mouth shut, and dunking his head in the bathtub until he choked to stop him from
crying." Id. at 241–42, 252–53, 669 S.E.2d at 603, 609. The court found that this
testimony, combined with efforts to conceal the abuse, established the intent
necessary for admissibility under Rule 404(b) and Lyle. See id. at 253, 669 S.E.2d
at 609.

In the present case, we find it more difficult to establish a nexus between the
collateral evidence and the circumstances surrounding Victim's death such that
logical relevance may be established to prove intent. See Lyle, 125 S.C. at 417, 118
S.E. at 807 ("[I]f the court does not clearly perceive the connection between the
extraneous criminal transaction and the crime charged, that is, its logical relevancy,
the accused should be given the benefit of the doubt, and the evidence should be
rejected."). We acknowledge the evidence of concurrent injuries but reiterate that
Victim's injuries related to asphyxia are separate and chronologically distinct from
other collateral injuries. Further—unlike the eyewitness testimony presented in
Martucci—the only type of evidence regarding the cause of Victim's injuries is
postmortem medical testimony. The weak chronological nexus between the prior
injuries and Victim's death creates a high degree of unfair prejudice that requires
excluding evidence of the [prior][collateral] injuries. See Pierce, 326 S.C. at 178,
485 S.E.2d 914 (finding evidence of prior child abuse inadmissible where there was
negligible evidence that defendant inflicted the collateral injuries); see also State v.
Cutro, 332 S.C. 100, 106, 504 S.E.2d 324, 327 (1998) (finding evidence of prior
infant death and diagnosis of a second infant's Shaken Baby Syndrome inadmissible
where there was insignificant evidence that defendant inflicted the injuries).
Considering the entirety of the evidence in the record on appeal, there is a reasonable
probability that a jury could find that the evidence of these prior bad acts was not
clear and convincing. See Fletcher, 379 S.C. at 25, 664 S.E.2d at 483–84 (evidence
for prior bad act testimony was inadmissible when there was no evidence connecting
defendant to the prior bad act).

B. Sufficiency of the Remaining Evidence
The State argues that even if the collateral evidence is inadmissible, Rivers is
still not prejudiced because counsel's failure to object did not affect the trial
proceedings and the admission of this evidence amounted to harmless error. We
disagree.

Section 16-3-85(A)(1) of the South Carolina Code (2015) (HCA statute) states
in pertinent part:

(A) A person is guilty of homicide by child abuse if the
person:

(1) causes the death of a child under the age of
eleven while committing child abuse or neglect, and
the death occurs under circumstances manifesting
an extreme indifference to human life[.]

S.C. Code Ann. § 16–3–85 (emphasis added).

"For the purposes of the HCA statute, 'extreme indifference' has been defined
as 'a mental state akin to intent characterized by a deliberate act culminating in
death.'" McKnight v. State, 378 S.C. 33, 48, 661 S.E.2d 354, 361 (2008) (quoting
State v. Jarrell, 350 S.C. 90, 98, 564 S.E.2d 362, 367 (Ct. App. 2002)). The State
argues that the following establishes the "extreme indifference" sufficient to sustain
an HCA claim:

[Rivers] left his helpless child alone immediately after
reviving him by CPR[;] [Rivers] did not call for follow-up
medical attention[;] [Rivers] did not wake his wife to
monitor or attend to the child, who by his testimony slept
through his performing CPR on the Victim[; and Rivers]
went outside and stayed outside until his wife woke and
found the child dead.

(record citations omitted).

This court has found "extreme indifference to human life" in the HCA context
when a defendant displays sheer apathy in the face of a life-threatening situation to
a child. See State v. Thompson, 420 S.C. 192, 209, 802 S.E.2d 623, 631 (Ct. App.
2017) (finding extreme indifference where a mother failed to help her child bleeding
out through a shirt); see also Jarrell, 350 S.C. at 99, 564 S.E.2d 362 at 367 (finding
extreme indifference when a mother left her child at her residence knowing that he
would be killed). There is a stark difference between failing to act when doing so
would prevent certain death, and negligently failing to follow up with additional care
after an action which would have prevented death based on a mistaken belief that a
child is no longer in danger. 3 Thus, in the absence of the prior-bad-acts evidence,
there is a reasonable probability4 that a jury could have had a reasonable doubt that
Rivers exhibited an "extreme indifference to human life," integral to a finding of
HCA. 5

Therefore, the connection between the prior-bad-acts evidence and Victim's
asphyxiation is tenuous and raises a "legally spurious presumption of guilt" that our
supreme court cautioned against. Lyle, 125 S.C. at 417, 118 S.E. at 807; see also
Brooks, 341 S.C. at 62, 533 S.E.2d at 328 ("When the prior bad acts are similar to
the one for which the appellant is being tried, the danger of prejudice is enhanced.").
Accordingly, the admission of the prior-bad-acts evidence was prejudicial such that
it undermines confidence in the outcome of the trial.

II. Deficient Performance

"To prove trial counsel's performance was deficient, an applicant must show
'counsel's representation fell below an objective standard of reasonableness.'"
Smalls, 422 S.C. at 181, 810 S.E.2d at 840 (quoting Williams v. State, 363 S.C. 341,
343, 611 S.E.2d 232, 233 (2005)). "[C]ounsel's strategic decisions will not be found
to be deficient performance if he articulates a valid reason for employing the
strategy." Stone v. State, 419 S.C. 370, 384, 798 S.E.2d 561, 569 (2017). "Under
certain circumstances, [] counsel may employ a strategy of not objecting—even
when counsel has a good argument for exclusion—if counsel reasonably perceives

3
Rivers testified on cross-examination that "I made sure that [Victim] was breathing,
breathing first, and when I saw he could breath[e] and his complexion came back, I
thought he was okay, that's when I put him in the play pen, and then I left the room."
4
Evidence of the contemporaneous injuries, while admissible, was not strong
enough to offset the reasonable probability that those injuries could have happened
accidentally.
5
We note that our inquiry cannot supplant the jury's role as the finder of fact; instead
we adduce that but for the prior-bad-acts evidence, there is a reasonable probability
that a rational fact finder "would have had a reasonable doubt respecting guilt."
Catoe, 372 S.C. at 331, 642 S.E.2d at 596.
the benefits of doing so are outweighed by some other consideration." Id. at 383,
798 S.E.2d at 568. "The necessary converse of this principle is that counsel's
decision to employ a certain strategy will be deemed unreasonable under the Sixth
Amendment if the reasons given for the strategy are not sound." Id. at 384, 798
S.E.2d at 569.

In the present case, counsel for Rivers failed to renew his pretrial motion when
the evidence of prior bad acts was presented. Because no valid trial strategy was
articulated by counsel, this mistake is sufficient to support a finding of deficient
performance. Furthermore, a finding of deficient performance is also supported by
trial counsel's failure to object on the ground that the evidence that Rivers committed
the prior bad acts was not clear and convincing. See Smalls, 422 S.C. at 186, 810
S.E.2d at 842 (finding counsel deficient when not objecting to evidence that was not
clear and convincing). Therefore, counsel was deficient in failing to raise the
grounds set forth in the pre-trial motion to suppress.

For those reasons, we reverse and remand for a new trial.

REVERSED AND REMANDED.

GEATHERS and MCDONALD, JJ., and HILL, A.J., concur.