Brown 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

Hubert Brown, Respondent,

v.

State of South Carolina, Petitioner.

Appellate Case No. 2016-001363

Appeal From York County
John C. Hayes, III, Trial Judge
Frank R. Addy, Jr., PCR Judge

Unpublished Opinion No. 2020-UP-144
Submitted April 1, 2020 – Filed May 20, 2020
Withdrawn, Substituted, and Refiled August 19, 2020

AFFIRMED

Lindsey Ann McCallister, of Columbia, for Petitioner.

Wanda H. Carter, of Columbia, for Respondent.

PER CURIAM: In July 2013, a jury convicted Hubert Brown of first-degree
burglary and attempted murder. The trial judge sentenced Brown to life without
parole (LWOP) for each charge. Brown filed a direct appeal and this court
affirmed his convictions and sentences. Brown then filed an application for
post-conviction relief (PCR), which the PCR court granted following an
evidentiary hearing. This court thereafter granted the State's petition for a writ of
certiorari. We now affirm the PCR court's order granting Brown PCR pursuant to
Rule 220(b), SCACR, and the following authorities:

1. As to whether the PCR court erred by finding trial counsel was ineffective for
failing to object to the trial court's jury charge instructing them that attempted
murder required general, rather than specific, intent: Sellner v. State, 416 S.C. 606,
610, 787 S.E.2d 525, 527 (2016) (holding a reviewing court will uphold the factual
findings of the PCR court if there is any evidence of probative value to support
them); id. ("Questions of law are reviewed de novo, and we will reverse the PCR
court's decision when it is controlled by an error of law."); Strickland v.
Washington, 466 U.S. 668, 687 (1984) (to establish a claim of ineffective
assistance of counsel, a PCR applicant must show (1) counsel was deficient and (2)
counsel's deficiency prejudiced the defendant's case); State v. Simmons, 384 S.C.
145, 178, 682 S.E.2d 19, 36 (Ct. App. 2009) ("In reviewing jury charges for error,
this [c]ourt must consider the . . . charge as a whole in light of the evidence and
issues presented at trial."); id. ("If, as a whole, the charges are reasonably free from
error, isolated portions which might be misleading do not constitute reversible
error."); Battle v. State, 382 S.C. 197, 203, 675 S.E.2d 736, 739 (2009) ("In
determining whether a defendant was prejudiced by improper jury instructions, the
court must find that, viewing the charge in its entirety and not in isolation, there is
a reasonable likelihood that the jury applied the improper instruction in way that
violates the Constitution."); S.C. Code Ann. § 16-3-29 (2015) ("A person who,
with intent to kill, attempts to kill another person with malice aforethought, either
expressed or implied, commits the offense of attempted murder."); State v. Sutton,
340 S.C. 393, 397, 532 S.E.2d 283, 286 (2000) ("Attempted murder would require
the specific intent to kill and conduct towards that end."); State v. King, 412 S.C.
403, 409, 772 S.E.2d 189, 192 (Ct. App. 2015) ("Before 2010, our courts held
attempt crimes require the State to prove the defendant had specific intent to
complete the attempted crime."), aff'd as modified, 422 S.C. 47, 810 S.E.2d 18
(2017), and overruled on other grounds by State v. Burdette, 427 S.C. 490, 832
S.E.2d 575 (2019).

2. As to whether the PCR court erred by finding trial counsel was ineffective for
consenting to the admission of a psychiatric evaluation prepared by a doctor who
did not testify at trial and for failing to object to the testimony of another doctor
concerning the contents of that psychiatric evaluation: Rule 801(c), SCRE
("'Hearsay' is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.");
Rule 803(6), SCRE ("A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the course of a
regularly conducted business activity, and if it was the regular practice of that
business activity to make the memorandum, report, record, or data compilation, all
as shown by the testimony of the custodian or other qualified witness, unless the
source of information or the method or circumstances of preparation indicate lack
of trustworthiness; provided, however, that subjective opinions and judgments
found in business records are not admissible) (first emphasis added); Stevens v.
Allen, 336 S.C. 439, 455, 520 S.E.2d 625, 633 (Ct. App. 1999), aff'd, 342 S.C. 47,
536 S.E.2d 663 (2000) ("[U]nder Rule 803(6), SCRE, a proper foundation must be
laid for admittance of the evidence, and this includes a chain of custody."); Briggs
v. State, 421 S.C. 316, 323, 806 S.E.2d 713, 717 (2017) ("[I]mproper bolstering
testimony is inadmissible."); id. at 325, 806 S.E.2d at 718 ("[N]o witness may give
an opinion as to whether [another witness] is telling the truth."); State v. Jennings,
394 S.C. 473, 479, 716 S.E.2d 91, 94 (2011) ("When credibility is the ultimate
issue in a case, improper corroboration evidence that is merely cumulative to other
testimony is not harmless.").

3. As to whether the PCR court erred by granting PCR on the ground that the State
referred to Brown's expert as a "lady doctor," we find the PCR court did not intend
for its remarks regarding the State's inappropriate comment to be a basis for PCR.
The PCR court noted the issue was not raised by Brown, the court did not frame its
discussion of the comment in the context of trial counsel's ineffectiveness, and it
expressed its desire to "note" that the comment was inappropriate and to
"discourage[]" it.

Affirmed pursuant to Rule 220(b), SCACR, and the following authorities:

AFFIRMED.1

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