Douglas 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

Helen Marie Douglas, Respondent,

v.

State of South Carolina, Petitioner.

Appellate Case No. 2011-202766

Appeal From Colleton County
G. Thomas Cooper, Jr., Circuit Court Judge

Unpublished Opinion No. 2016-UP-316
Submitted January 1, 2016 – Filed June 22, 2016

REVERSED IN PART, AFFIRMED IN PART, AND
REMANDED IN PART

Attorney General Alan McCrory Wilson, Senior
Assistant Deputy Attorney General Salley W. Elliott and
Assistant Attorney General James Rutledge Johnson, all
of Columbia, for Petitioner.

Tricia A. Blanchette, Law Office of Tricia A. Blanchette,
LLC, of Columbia, for Respondent.
PER CURIAM: Helen Marie Douglas was convicted of murder and armed
robbery and received concurrent sentences of life imprisonment and thirty years
imprisonment, respectively. Douglas appealed, and this court affirmed in part,
reversed in part, and remanded for a new trial on both charges. State v. Douglas,
359 S.C. 187, 597 S.E.2d 1 (Ct. App. 2004) (hereinafter Douglas I). The State
appealed, and our supreme court affirmed in part and reversed in part. State v.
Douglas, 369 S.C. 424, 426, 632 S.E.2d 845, 846 (2006) (hereinafter Douglas II).
It affirmed this court's finding that the trial court abused its discretion in the
admission of certain insurance testimony, but reversed our determination of
reversible error—finding the admission of that testimony harmless—and upheld
Douglas's convictions. Id. at 433, 632 S.E.2d at 849. Thereafter, Douglas sought
post-conviction relief (PCR), which was granted. On appeal, the State contends
the PCR court erred in granting relief based upon its findings regarding trial
counsel's ineffectiveness in relation to counsel's failure to (1) investigate and call
alibi witnesses; (2) properly apply law, call witnesses, and cross-examine
witnesses concerning third party guilt; (3) properly investigate and challenge a
secretly recorded statement by Douglas; (4) investigate and challenge two
statements made by Douglas while she was on medication; (5) adequately review
and use two witness statements for impeachment purposes and to support
suppression of evidence; and (6) object to the trial court's statement at sentencing
concerning its sentencing options. Mindful of our standard of review, requiring
great deference be given to the findings of fact and conclusions of law of the PCR
court and affirmance if the PCR court's findings are supported by any probative
evidence in the record, Hyman v. State, 397 S.C. 35, 42, 723 S.E.2d 375, 378
(2012), we reverse the PCR court's grant of relief based upon its findings of
ineffectiveness during the guilt phase of the trial and its ordering of a new trial.1
However, we affirm the PCR court's determination of trial counsel's
ineffectiveness in failing to object at Douglas's sentencing, and we remand for a
new sentencing hearing on the murder charge alone.2

1. Alibi Witnesses

In making its finding of ineffectiveness in this regard, the PCR court stated trial
counsel failed to call any of the seven witnesses he listed as an alibi defense for

1
The relevant facts are set forth in Douglas I and Douglas II.
2
We decide this case without oral argument pursuant to Rule 215, SCACR.
Douglas to testify as to Douglas's whereabouts on the night of the murder.
However, Douglas only presented the testimony of three of those witnesses at her
PCR hearing, none of whom could provide an alibi for Douglas for the time of the
murder. Because Douglas failed to present any evidence at the PCR hearing
supporting an alibi defense, the PCR court erred in finding trial counsel ineffective
in this regard. See Glover v. State, 318 S.C. 496, 498, 458 S.E.2d 538, 540 (1995)
("[S]ince an alibi derives its potency as a defense from the fact that it involves the
physical impossibility of the accused's guilt, a purported alibi which leaves it
possible for the accused to be the guilty person is no alibi at all." (citing State v.
Robbins, 275 S.C. 373, 271 S.E.2d 319 (1980))); id. at 498-99, 458 S.E.2d at 540
("In order to support a claim that trial counsel was ineffective for failing to
interview or call potential alibi witnesses, a PCR applicant must produce the
witnesses at the PCR hearing or otherwise introduce the witnesses' testimony in a
manner consistent with the rules of evidence.").

2. Failure to Present a Defense, Examine Witnesses, and Effectively
Challenge Evidence

We also find the PCR court erred in finding trial counsel was ineffective in failing
to present a defense of third party guilt or properly examine witnesses or challenge
evidence.

a. As to the PCR court's determination that trial counsel failed to identify the
trial court's incorrect application of State v. Gay, 343 S.C. 543, 541 S.E.2d 541
(2001), abrogated by Holmes v. South Carolina, 547 U.S. 319 (2006), to a
circumstantial evidence case in regard to third party guilt, we note the trial court
did not improperly apply Gay in analyzing the matter. At the time of Douglas's
trial in April 2001, Gay was the most recent pronouncement and the controlling
law on third party guilt. Because Gay was the controlling authority at the time of
Douglas's trial, trial counsel did not provide ineffective assistance in this matter, as
trial counsel cannot be found deficient for failing to predict a change in the law.
See Harden v. State, 360 S.C. 405, 408, 602 S.E.2d 48, 49 (2004) (finding
petitioner's counsel was not deficient in failing to advise petitioner or object to
petitioner's sentencing because "[a]n attorney is not required to anticipate potential
changes in the law which are not in existence at the time of the conviction");
Gilmore v. State, 314 S.C. 453, 457, 445 S.E.2d 454, 456 (1994) ("We have never
required an attorney to be clairvoyant or anticipate changes in the law which were
not in existence at the time of trial." (citing Thornes v. State, 310 S.C. 306, 309–10,
426 S.E.2d 764, 765 (1993))), overruled on other grounds by Brightman v. State,
336 S.C. 348, 351 n.4, 520 S.E.2d 614, 615 n.4 (1999).
b. We likewise find error in the PCR court's finding that trial counsel was
ineffective in presenting a defense of third party guilt by failing to proffer or call
certain witnesses and failing to utilize the latitude given by the trial court to
address third party guilt on cross-examination or otherwise challenge evidence.

Based upon a thorough review of the entire record, we find the PCR court made
numerous incorrect and inaccurate findings, much of the testimony cited by the
PCR court was actually presented at Douglas's trial, and the decision of the PCR
court is unsupported by the evidence and/or constitutes an error of law.
Specifically, in regard to the PCR court's findings regarding trial counsel's failure
to present Douglas as a trial witness, we note as follows: Evidence of Ronald's past
drug use and problems with drugs was brought out by both the State—in direct
examination of Ronald at trial—and by trial counsel—in cross-examination of trial
witnesses Ronald, Tony, and Shelly. Likewise, trial counsel elicited testimony on
cross-examination of Ronald that he had taken money from Douglas in the past.
While no evidence was presented at the trial that Ronald had, specifically, been
violent toward Douglas, there was evidence presented at trial on cross-examination
that Ronald had cut the brake lines of a former girlfriend's car, he had a temper, he
had struck Shelly before, and he could get violent when provoked. The testimony
presented at the PCR hearing does not indicate when Ronald was allegedly violent
with Douglas or how such related to possible third party guilt of Ronald, as it was
not directed toward the victim. Additionally, in the deposition testimony of
Ronald, submitted by Douglas at the PCR hearing, Ronald testified to a time where
he had gotten into a physical altercation with Douglas, explaining it occurred when
he was drunk and Douglas had attempted to hit him after she became irate that
Ronald had refused to burn down someone else's property. In conjunction with
this testimony, Ronald recounted numerous other incidents in which Douglas had
engaged, or attempted to engage, Ronald in various criminal acts against the
property of others, including putting syrup in the oil of a car, burning crosses in
yards, cutting tires, and burning down another property. Thus, it would have been
reasonable for trial counsel not to explore this line of questioning at trial,
potentially opening the door to this harmful evidence against Douglas. Further, in
our review of Douglas's PCR testimony, we found nothing to support the PCR
court's findings regarding the following: Douglas's observation of Ronald driving
by on the night of the murder—though notably trial counsel did elicit testimony at
trial that Ronald would have driven within a block of the town house on his way
home from work late that night; Douglas's concerns that Ronald thought Shelly
was spending time with the victim; or that Ronald was familiar with the area where
evidence was found in the creek. Further, trial counsel successfully elicited
testimony from Tony at the trial that Ronald was generally familiar with the area
around the river house. As to Douglas's PCR testimony that Ronald found the
evidence at the river house, this was clearly presented at trial. We further note the
trial court agreed if Douglas testified at her trial, the State could potentially call as
a reply rebuttal witness the individual the trial court had excluded regarding
Douglas's alleged attempt to hire him to kill the victim. Accordingly, we find no
basis for concluding trial counsel was ineffective in failing to present Douglas's
testimony at trial.

We likewise find a review of witness Kuhn's PCR testimony does not support the
court's finding that Kuhn was "shocked" no witnesses were called at trial, and we
fail to see how Kuhn's opinion regarding who was guilty of the crimes based on his
familiarity in representing Douglas in a civil trial is sufficient to show
ineffectiveness of trial counsel.

In regard to the PCR testimony of Hamlet and Davenport, numerous findings of
the PCR court are mischaracterizations of the testimony, or are patently incorrect.
For example, neither testified Douglas was not comfortable shooting a gun.
Rather, Hamlet testified that Douglas told her on one occasion that she found it
"too hard to shoot" a particular pistol she had in her possession on one occasion.
Davenport testified that Douglas talked to him about buying a gun to shoot snakes
and rodents and he told her to "buy a .410." Additionally, Davenport did not
testify the area where the evidence was located in the creek was inaccessible by
boat. In regard to Davenport's testimony that the creek would go dry, although
Davenport did testify at the PCR hearing he thought Douglas "would have been
stupid if she put [the evidence] there," evidence was presented to the jury at trial
regarding the fluctuation in the creek's levels, with one witness testifying on cross-
examination that the water level would fall so low that her pontoon boat would sit
on the mud. Additionally, we disagree with the PCR court's assignment of any
effective impeachment value to Hamlet's testimony concerning trial witness
Creech. Hamlet's testimony on this point reveals, at most, Creech was surprised
that Douglas had not sent more money with Hamlet to pay Creech for work he had
performed for Douglas. Even assuming Hamlet's testimony indicated Creech's
displeasure with Douglas, it is insufficient to show trial counsel was deficient in
failing to call Hamlet to the stand when the result would have been to give up the
last argument to the jury in exchange for testimony of questionable value. As to
the testimony from Hamlet and Davenport concerning seeing Douglas after she had
been physically attacked by Ronald, a review of their PCR testimony shows only
that they observed Douglas with bruises after she told them she had an altercation
with Ronald, but not that they actually witnessed Ronald physically abusing his
mother. Further, it appears Hamlet's testimony in this regard could have opened
the door to the previously mentioned testimony from Ronald concerning why he
may have attacked Douglas, which potentially included extremely damaging
evidence against Douglas.

In regard to the PCR court's findings concerning the evidence custodian, Taylor,
and the possibility of missing evidence, we find the PCR court erred in relying on
this to determine trial counsel was ineffective in failing to present evidence to
establish Douglas's innocence and Ronald's guilt. Douglas failed to put forth any
evidence or argue how any possible stains on the victim's underwear had any
relevance to this case. Further, we can discern no import of such. See Dempsey v.
State, 363 S.C. 365, 369, 610 S.E.2d 812, 814 (2005) (holding the PCR court erred
in granting relief on the basis that trial counsel was ineffective in failing to
subpoena the victim's grandfather to testify at trial when it could not be determined
what the victim's grandfather would have said in his testimony, and any prejudice
to Dempsey was merely speculative). In regard to the microcassettes and recorder,
the only testimony concerning what was on the tapes was from Douglas. She
testified the recorder with a microcassette contained a recording of her, indicating
she "want[ed] to get in the truck to go with [the victim] when he was supposedly
going hunting, and he cursed [her] out, put [her] out, and another one . . . [she]
was begging him to make up with [her], and he didn't want to make up." We fail to
see the evidentiary value of this missing evidence. Even if there was some slight
value in showing Douglas had asked the victim if she could go hunting with him, it
ultimately indicated the victim declined to hunt with Douglas. Further, there is no
indication when this conversation may have occurred. Additionally, Douglas's
own description of the conversation on the tape would have supported the State's
theory of discord between Douglas and the victim.

We also find no evidence to support the PCR court's finding that trial counsel was
deficient in failing to "actively raise" any conflict with Investigator Stanfield acting
as the lead investigator based upon his relationship with Shelly. A thorough
review of the record reveals this matter was raised numerous times throughout
Douglas's trial by trial counsel in cross-examination of Ronald, Shelly, and
Investigator Stanfield and was addressed by trial counsel in the closing argument.

Additionally, after a thorough review of the record, we find the PCR court's
findings concerning witness Beach are unsupported by the record. While the PCR
court found Beach testified Investigator Stanfield was "untruthful," the record
reflects merely that the trial testimony about Beach being present for the
conversation concerning the wiring of Investigator Stanfield was incorrect, and
Beach acknowledged that Investigator Stanfield could have discussed the matter
with the Sheriff. Further, while Beach did testify he would not have condoned the
private searches conducted in this case, we fail to see how this called Investigator
Stanfield's credibility into question, as this court has previously found the private
searches were not sanctioned by law enforcement, but were undertaken by Ronald
on "his own accord." Douglas I, 359 S.C. at 201-02, 597 S.E.2d at 8.

The PCR court found trial counsel failed to properly cross-examine several of the
State's witnesses in order to establish Douglas's claims of innocence and third party
guilt, citing to the PCR testimony of Tony and Webster, as well as the depositions
of Ronald admitted in the PCR hearing. First, a review of Tony's PCR testimony
shows, contrary to the PCR court's findings: Tony was not aware Ronald
physically abused Douglas; Ronald was not familiar with the area where the
evidence was found; and evidence that Ronald stole from his mother, he had a drug
problem, and he was prone to violence was, in fact, elicited by trial counsel at trial.

The PCR court also found, after Webster testified on direct that Douglas had
expressed concern about the victim telling Douglas he wanted a divorce shortly
before the victim was found dead, trial counsel failed to ask him on cross-
examination why Douglas would have been concerned about a divorce if she had
just killed the victim and knew he was dead, and that "[o]ne simple question . . .
could have devastated . . . the State's theory of the case," exculpating Douglas and
implicating Ronald. However, we fail to see how trial counsel questioning
Webster in this manner would have implicated Ronald in any way. Further, we
note that the jury already had before it testimony that Douglas expressed concern
to Webster that the victim wanted to divorce her and the State's theory was that
Douglas knew the victim was already dead at that time. While it may have been an
appropriate question to ask Webster, we do not assign such lofty consequences as
devastating the State's theory of the case. Given the fact that the jury had the
information before it such that it could easily have drawn its own conclusion as to
the import of it, even assuming arguendo trial counsel was deficient in failing to
ask this one specific question on cross-examination, Douglas was not prejudiced
thereby. See Southerland v. State, 337 S.C. 610, 616, 524 S.E.2d 833, 836 (1999)
("[T]he burden of proof is upon [an applicant] to show that counsel's performance
was deficient as measured by the standard of reasonableness under prevailing
professional norms. . . . [T]he [applicant] must prove that he or she was prejudiced
by such deficiency to the extent of there being a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different.").
The PCR court also summarily found it reviewed Ronald's trial testimony and the
testimony from his two civil depositions and found "trial counsel failed to properly
utilize [Ronald's] cross-examination to establish third party guilt." However, the
court fails to point out specific areas trial counsel could or should have addressed
with Ronald and does not explain how trial counsel was deficient in this regard.
Further, as previously referenced, Ronald's deposition testimony included
substantial damaging testimony from Ronald in regard to Douglas, which could
have opened the door to very damaging evidence against Douglas.

The PCR court also found trial counsel failed to argue in his directed verdict
motion or closing that the State neglected to present evidence to establish the
elements of armed robbery. However, this court addressed, and ultimately
affirmed, Douglas's direct appeal assertion that the trial court erred in denying her
directed verdict motion because the State failed to prove the required elements of
armed robbery. Douglas I, 359 S.C. at 205-06, 597 S.E.2d at 10-11. Accordingly,
the issue was preserved for appeal and ruled upon by this court and, therefore, the
PCR court's finding that trial counsel failed to argue the same in its directed verdict
motion is clearly in error. As to the PCR court's finding that trial counsel failed to
argue the elements of armed robbery in his closing, it is clear trial counsel focused
closing arguments on the third party guilt of Ronald. Thus, it was reasonable for
trial counsel to not argue to the jury that the elements of armed robbery were not
met because his claim was that Ronald, and not Douglas, committed the crimes.

The PCR court's numerous findings in support of its determination that trial
counsel was ineffective in failing to present a defense are incorrect or inaccurate,
rely on mischaracterizations of testimony, could have invited evidence damaging
to Douglas, would not have been helpful, were inconsequential, and/or reflect
testimony already elicited by trial counsel before the jury. Accordingly, there is no
probative evidence to support the PCR court's conclusion in this regard and we find
the PCR court erred in finding trial counsel failed to properly present a defense.
See Holland v. State, 322 S.C. 111, 113, 470 S.E.2d 378, 379 (1996) (holding a
PCR court's findings should not be upheld if there is no probative evidence to
support them). Further, assuming arguendo there is some evidence to support any
deficiency by trial counsel, Douglas was not prejudiced because there is not a
reasonable probability such would have affected the outcome of Douglas's trial.
See Dawkins v. State, 346 S.C. 151, 156, 551 S.E.2d 260, 262 (2001) ("To show
prejudice, the applicant must show, but for counsel's errors, there is a reasonable
probability the result of the trial would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome of
trial." (citing Brown v. State, 340 S.C. 590, 593, 533 S.E.2d 308, 309-10 (2000))).
3. Secretly Recorded Statement

We also find the PCR court erred in finding, despite an objection raised at trial to
the statement, trial counsel was deficient in failing to properly investigate and
argue against the statement made by Douglas at her river house that she did not
know was being recorded. We note, as with numerous other instances in the PCR
court's order, its findings concerning Beach include mischaracterizations and
incorrect or inaccurate statements. First, Investigator Stanfield never testified that
the Sheriff and Beach "fitted" him with a wire. Rather, the testimony from the
investigator is that he discussed with the Sheriff and Beach the matter of Douglas
wanting him to come out to the river house, and at that time they decided the
investigator would use a recorder. Further, as discussed above, Beach was not
"adamant that [Investigator] Stanfield's testimony was not true." Instead, Beach
stated he was not involved in the matter, but the investigator could have spoken to
the sheriff about it. Additionally, the court's order mischaracterizes Beach's
testimony in regard to him "not fit[ting] [Investigator] Stanfield with a wire" and
the investigator "not follow[ing] proper procedure in obtaining his secret[]
recording of [Douglas]." There was no evidence whatsoever at trial concerning
whether the investigator had Beach "fit" him with a wire. Further, Beach did not
testify at the hearing that the investigator did not follow proper procedure. A
review of his PCR hearing testimony reveals that Beach would not have sanctioned
the manner in which Douglas was recorded at her river house, i.e., with a recorder
instead of a wire which would have allowed other personnel close by to overhear
the conversation and take action if there were a problem. Thus, Beach's testimony
does not indicate he would not have approved of a secret recording of Douglas, but
only that he would have employed a different method of recording, primarily for
officer safety. At any rate, even assuming arguendo that trial counsel was
ineffective in failing to argue against the admission of this statement on some other
ground than that raised at trial, we find the PCR court erred in determining there is
a reasonable probability the outcome of the trial would have been different, as this
court already determined in Douglas I that "any error in the failure to suppress
[Douglas's secretly recorded] statement was harmless given the substance of the
conversation was cumulative in nature." 359 S.C. at 200, 597 S.E.2d at 8. See
Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding, to receive relief, a
PCR applicant must show (1) counsel was deficient and (2) counsel's deficiency
caused prejudice); id. at 694 (defining prejudice as "a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have
been different").
4. Nov. 4, 1997 Statements

The PCR court found trial counsel's failure to request a Jackson v. Denno3 hearing
to address the voluntariness of the two November 4, 1997 statements taken while
she was under the influence of medication amounted to deficient performance.
The court stated it was not satisfied with trial counsel's explanation that the
statements were consistent, and trial counsel failed to articulate a reasonable
explanation for such deficient performance. However, the PCR court failed to
make any determination on the second prong of Strickland. 466 U.S. at 687
(holding, to receive relief, a PCR applicant must show (1) counsel was deficient
and (2) counsel's deficiency caused prejudice); id. at 694 (defining "prejudice" as
"a reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different" and holding "[a] reasonable probability
is a probability sufficient to undermine confidence in the outcome"); Southerland,
337 S.C. at 616, 524 S.E.2d at 836 ("[T]he burden of proof is upon [an applicant]
to show that counsel's performance was deficient as measured by the standard of
reasonableness under prevailing professional norms," and "he or she was
prejudiced by such deficiency to the extent of there being a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different."). Further, as with this court's determination in Douglas I
concerning the secretly recorded statement, we find a review of the substance of
these two statements shows they were cumulative in nature,4 and therefore their
admission, even assuming error, was harmless. Douglas I, 359 S.C. at 200, 597
S.E.2d at 8.

5. Failure to Review and Use Statements of Others for Impeachment

We hold the PCR court erred in finding trial counsel rendered ineffective
assistance in failing to properly prepare, investigate, and make necessary motions
regarding private searches conducted by Ronald and the ballistics evidence
introduced at trial. First, we note that trial counsel did, on cross-examination of

3
378 U.S. 368 (1964).
4
Douglas gave a statement on November 5, 1997, which, even in its redacted form,
was extremely lengthy and, as noted by trial counsel, showed consistent stories
from Douglas. There is no indication this redacted statement has ever been
challenged as inadmissible.
Ronald, elicit testimony showing inconsistency from his direct examination
testimony concerning when the bullets were found and when he turned them over
to the Sheriff's office. Trial counsel's cross-examination of Ronald and Shelly
further revealed inconsistencies between their trial testimony regarding finding the
evidence and when it was turned over to the authorities, and it is clear from a
review of trial counsel's cross-examination of both that he had reviewed and
utilized the information in the statements during his cross-examination. We also
observe the recitation by this court in Douglas I concerning Shelly finding the
bullets and gun box—as opposed to Ronald or Crosby—was of no import to our
decision in that case. See State v. Jolly, 304 S.C. 34, 39, 402 S.E.2d 895, 898 (Ct.
App. 1991) (noting our appellate courts recognize an overriding rule which says:
"whatever doesn't make any difference, doesn't matter" (quoting McCall v. Finley,
294 S.C. 1, 4, 362 S.E.2d 26, 28 (Ct. App. 1987))). Further, the PCR court failed
to explain how these statements would have supported suppression of the items.
Additionally, the PCR court again mischaracterized the testimony of Beach and
incorrectly stated Beach expressed concern that Investigator Stanfield was
involved with the searches. Rather, Beach testified he was not directly involved in
the private searches by Ronald, and it was not activity he would have sanctioned
when he was the chief or the Sheriff. Also, this court determined in Douglas I that
the private search was not sanctioned by law enforcement—which would include
Investigator Stanfield—but Ronald undertook searching Douglas's house on his
own. 359 S.C. at 201-02, 597 S.E.2d at 8. Finally, evidence was admitted at trial
from Douglas's unchallenged November 5, 1997 statement in which Douglas
indicated she "had a bag[,] if y'all searched the thing[,] with socks . . . and bullets
in it" that the authorities may have found in their search. Thus, even assuming trial
counsel was deficient in this regard, Douglas cannot show prejudice. See Dawkins,
346 S.C. at 156, 551 S.E.2d at 262 ("To show prejudice, the applicant must show,
but for counsel's errors, there is a reasonable probability the result of the trial
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome of trial." (citing Brown, 340 S.C. at 593, 533
S.E.2d at 309-10)).

6. Sentencing

We agree with the PCR court that trial counsel was deficient in failing to object to
the trial court's sentence in regard to the murder charge. The proper remedy is
resentencing.

The statute in effect at the time of Douglas's sentencing stated as follows: "A
person who is convicted of . . . murder must be punished by death, by
imprisonment for life, or by a mandatory minimum term of imprisonment for thirty
years." S.C. Code Ann. § 16-3-20(A) (2003) (emphasis added). In 2010, the
statute was amended to state, "A person who is convicted of . . . murder must be
punished by death, or by a mandatory minimum term of imprisonment for thirty
years to life." S.C. Code Ann. § 16-3-20(A) (2015) (emphasis added).

In the pre-amendment statute case of State v. Shafer, the defendant was convicted
of murder and sentenced to death. 340 S.C. 291, 294, 531 S.E.2d 524, 526 (2000),
reversed on other grounds, Shafer v. South Carolina, 532 U.S. 36 (2001).5 During
deliberations, the jury inquired about potential parole eligibility if the defendant
was given a life sentence. Id. at 296-97, 531 S.E.2d at 527. The trial court
informed the jury parole eligibility or ineligibility was not a consideration. Id. at
297, 531 S.E.2d at 527. On appeal, Shafer argued he was entitled to an instruction
on parole ineligibility because the State put his future dangerousness at issue. Id.
Our supreme court stated, "When the State places the defendant's future
dangerousness at issue and the only available alternative sentence to the death
penalty is life imprisonment without parole, due process entitles the defendant to
inform the jury he is parole ineligible." Id. at 297-98, 531 S.E.2d at 528. Citing
State v. Starnes, 340 S.C. 312, 531 S.E.2d 907 (2000), it held Shafer was not
entitled to such an instruction because "life without the possibility of parole is not
the only legally available sentence alternative to death." Id. at 298, 531 S.E.2d at
528. The court noted in a footnote that it had suggested in Starnes that "under the
terms of the statute, it is arguable a defendant could be sentenced to more than
thirty years and be eligible for parole after service of thirty years." Id. at 298 n.7,
531 S.E.2d at 528 n.7. This reference to Starnes relates to a footnote in that case
which provides as follows: "[T]he sentencing statute provides for a mandatory
minimum thirty year sentence. Based on the language of the statute, it is arguable a
defendant sentenced to more than thirty years is eligible for parole after service of
thirty years." 340 S.C. at 330 n.17, 531 S.E.2d at 917 n.17. Douglas raised this
sentencing issue on direct appeal, but this court found the issue was unpreserved

5
The United States Supreme Court (USSC) reversed and remanded Shafer, finding
whenever future dangerousness is at issue in a capital sentencing proceeding under
South Carolina's sentencing scheme, due process requires that the jury be informed
a life sentence carries no possibility of parole. State v. Shafer, 352 S.C. 191, 193-
94, 573 S.E.2d 796, 797 (2002). However, our supreme court's interpretation of
the statute as allowing other sentences for murder than life or death without the
possibility of parole is not affected by the USSC ruling.
because trial counsel failed to make a contemporaneous objection. Douglas I, 359
S.C. at 206-07, 597 S.E.2d at 11.

Considering the footnotes in Shafer and Starnes, as well as the plain language of
the statute in effect at the time of sentencing, we find the PCR court correctly held
trial counsel was ineffective in failing to object to the trial court's assertion the only
two options it had in sentencing under the statute were life or thirty years. Shafer
and Starnes contemplate a defendant could be eligible for a sentence of more than
thirty years, but less than life, and that a thirty year sentence is simply the minimum
a defendant could receive for murder. Further, although it was subsequently
amended to leave no doubt as to the intent of the legislature, we believe under a
plain reading of the statute in effect at the time of Douglas's sentencing, the trial
court had the option to sentence her to more than thirty years, but less than life.
See State v. Blackmon, 304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991) ("It is well
established that in interpreting a statute, the court's primary function is to ascertain
the intention of the legislature . . . . [I]n construing a statute, words must be given
their plain and ordinary meaning without resort to subtle or forced construction to
limit or expand the statute's operation . . . . [W]hen a statute is penal in nature, it
must be construed strictly against the State and in favor of the defendant.").
Further, we find no merit to the State's argument the trial court's statements clearly
indicated it planned to give Douglas the maximum sentence possible such that trial
counsel's failure to object had no impact on the sentence. A review of the trial
court's discussion indicates only that it viewed its options for Douglas's murder
sentence to be limited to thirty years or life. There is no indication the trial court
would have sentenced Douglas to life imprisonment regardless of what other
options may have been available. Accordingly, we reverse and remand for a new
sentencing hearing on Douglas's murder charge.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED IN PART.

HUFF, WILLIAMS, and THOMAS, JJ., concur.