Gould 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

Dale Gould, Respondent,

v.

State of South Carolina, Petitioner.

Appellate Case No. 2018-000876

Appeal From Charleston County
Maite Murphy, Circuit Court Judge

Unpublished Opinion No. 2022-UP-004
Submitted September 1, 2021 – Filed January 5, 2022

REVERSED

Senior Assistant Deputy Attorney General Megan
Harrigan Jameson, of Columbia, for Petitioner.

Appellate Defender Lara Mary Caudy, of Columbia, for
Respondent.

PER CURIAM: The State appeals the post-conviction relief (PCR) court's grant
of PCR to Dale Gould. This court granted the State's petition for writ of certiorari
and ordered briefing on the issue of whether Gould's trial counsel was ineffective
for failing to object to the trial court's "strong evidence" jury charge. We reverse
the PCR court.
FACTS/PROCEDURAL HISTORY

A Charleston County grand jury indicted Gould for distribution of cocaine in 2014.
At Gould's trial, Taylor Boyd, a student at the College of Charleston, testified that
she was a confidential informant in a Charleston City Police sting operation
involving Gould. In an effort to have her minor in possession of alcohol charge
dropped, Boyd told the police that Gould was selling illegal drugs out of Joe Pasta,
a restaurant in downtown Charleston, where he was the manager. Detective Gill of
the Charleston City Police told Boyd to text Gould to set up a cocaine buy at Joe
Pasta. Boyd wore an audio feed and was accompanied by Officer Frederick of the
Charleston City Police, who was wired for video and audio surveillance. The pair
met Gould in his office, and Gould instructed Officer Frederick to close the door.
Gould pointed to a bag of white powder on the floor and Officer Frederick picked
it up. Boyd testified that Gould told her to do the cocaine in the office and not
leave with it because he was worried he could go "to jail for distributing it." The
video surveillance showed Gould snorting white powder in the office. Boyd and
Officer Frederick testified that they left the bag of white powder in the office and
went to sit at the bar. Gould followed them to the bar and stood between the
barstools where they were sitting. Gould then pointed to another small plastic bag
of white powder lying on the ground between the barstools. Officer Frederick
picked up the bag. After she and Boyd left Joe Pasta, Officer Frederick gave the
bag to Detective Gill during debriefing. Laboratory testing of the bag revealed it
contained 0.23 grams of cocaine.

During the jury charge, the trial court instructed the jury that "mere presence at the
scene where the drugs were found is not enough to prove possession. Actual
knowledge of the presence of the cocaine is strong evidence of [Gould's] intent to
control its disposition or use." Gould's trial counsel did not object. During
deliberations, the jury requested the trial court read the charge a second time, and
the trial court repeated the previous instruction, including the "strong evidence"
charge. Trial counsel did not object.

The jury convicted Gould as indicted, and the trial court sentenced him to ten
years' imprisonment. Gould filed a direct appeal, which was perfected pursuant to
Anders v. California,1 and later withdrew it. Thereafter, Gould filed a PCR
application, which the PCR court granted.

1
386 U.S. 738 (1967).
In his application, Gould asserted his trial counsel was ineffective for failing to
object to the trial court's "strong evidence" charge because it was improper
pursuant to the holding in State v. Cheeks.2 During the PCR hearing, trial counsel
stated the video from the sting operation showed Gould snorting "cocaine, or
something that looked like cocaine." According to trial counsel, the defense
strategy surrounded the "question of whether or not [Gould] had been the one to
drop [the bag] or not" because there was no testimony that Gould actually placed
the bag on the floor between the barstools. Trial counsel explained that when the
video showed Officer Frederick, Boyd, and Gould at the bar, there was an
exchange during which Gould was evasive about what Officer Frederick and Boyd
should do with the bag of cocaine on the floor. Trial counsel noted Gould did not
explicitly state that the bag contained cocaine. When asked whether she saw any
basis to object to the trial court's jury instructions, trial counsel responded, "I think
I botched that one. . . . I think I should have objected to that."

In its order granting Gould's application, the PCR court found trial counsel was
deficient for failing to object to the trial court's "strong evidence" charge because
the charge was improper under Cheeks.3 The PCR court further found Gould was
prejudiced by trial counsel's failure to object to the charge.

ISSUE ON APPEAL

Did the PCR court err in finding trial counsel was ineffective for failing to object
to the trial court's "strong evidence" jury charge?

STANDARD OF REVIEW

"In post-conviction proceedings, the burden of proof is on the applicant to prove
the allegations in his application." Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d
512, 514 (2008). "[Appellate courts] defer to a PCR court's findings of fact and
will uphold them if there is any evidence in the record to support them." Mangal v.
State, 421 S.C. 85, 91, 805 S.E.2d 568, 571 (2017). However, "[appellate courts]
do not defer to a PCR court's rulings on questions of law." Id.

LAW/ANALYSIS

2
401 S.C. 322, 737 S.E.2d 480 (2013) (Cheeks I).
3
In its order, the PCR court specified it solely found trial counsel was ineffective
in failing to object to the jury instruction but not in her representation of Gould
during trial or his direct appeal.
"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). "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, 377 S.C.
at 399, 660 S.E.2d at 514. Deficiency "is measured by an objective standard of
reasonableness." Taylor, 404 S.C. at 359, 745 S.E.2d at 102. To establish
prejudice, an applicant must show that "but for counsel's error, there is a
reasonable probability the result of the proceedings would have been different."
Id. "A reasonable probability is a probability sufficient to undermine confidence in
the outcome." Id. (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).
"Failure to make the required showing of either deficient performance or sufficient
prejudice defeats the ineffectiveness claim." Strickland, 466 U.S. at 700.

"[C]harging a jury that 'actual knowledge of the presence of a drug is strong
evidence of intent to control its disposition or use' unduly emphasizes that
evidence, and deprives the jury of its prerogative both to draw inferences and to
weigh evidence." Cheeks I, 401 S.C. at 328–29, 737 S.E.2d at 484. "[T]his charge
largely negates the mere presence charge, and erroneously conveys that a mere
permissible evidentiary inference is, instead, a proposition of law." Id. at 329, 737
S.E.2d at 484. "[T]he 'strong evidence' charge is improper as an expression of the
judge's view of the weight of certain evidence." Id.

In Cheeks I, our supreme court held the defendant could not show prejudice from
the "strong evidence" charge because there was no evidence that he was "merely
present." Id. Instead, the evidence showed the defendant was "actively cooking
crack cocaine" and that he possessed crack found on the kitchen counter. Id.

Later, in Cheeks II, which involved a Cheeks I co-defendant, our supreme court
reiterated its holding in Cheeks I and found the "strong evidence" jury charge was
improper. State v. Cheeks, 408 S.C. 198, 200, 758 S.E.2d 715, 716 (2014) (Cheeks
II). The Cheeks II court found the defendant was not prejudiced by the jury charge
because there was no evidence he was "merely present." Id. The court found the
defendant "provided financial assistance to the drug operation, aided and abetted
the operation, and was in actual possession of the drugs." Id.

The State concedes, and we agree, that trial counsel was deficient in failing to
object to the "strong evidence" jury charge. See Cheeks I, 401 S.C. at 329, 737
S.E.2d at 484. ("We now . . . instruct the bench to no longer use the 'strong
evidence' charge."). However, the State contends the PCR court erred in finding
trial counsel was ineffective because Gould failed to show he was prejudiced by
trial counsel's deficiency. We agree.

Gould has not met his burden of establishing that trial counsel's failure to object to
the strong evidence jury charge prejudiced him to the extent that there is a
reasonable probability the outcome of his trial would have been different. See
Speaks, 377 S.C. at 399, 660 S.E.2d at 514 ("In post-conviction proceedings, the
burden of proof is on the applicant to prove the allegations in his application.").
Here, as in Cheeks I and Cheeks II, no evidence showed Gould was merely present.
Rather, testimony showed Gould took Boyd and Officer Frederick into his office
for the purpose of distributing cocaine to them. He pointed to a bag of cocaine on
the office floor, encouraged them to try the cocaine from the bag, and snorted it in
demonstration. He discussed the possibility of going to prison for distribution of
cocaine. He then followed Officer Frederick and Boyd to the bar and pointed to a
bag of cocaine on the floor between their barstools. Officer Frederick picked up
the bag of cocaine and left Joe Pasta with it. Because the evidence shows Gould
possessed the cocaine and actively distributed it to Officer Frederick, we find the
PCR court erred in finding Gould was prejudiced by trial counsel's failure to object
to the strong evidence jury instruction. See Taylor, 404 S.C. at 359, 745 S.E.2d at
102 ("[An applicant] must demonstrate he was prejudiced by counsel's
performance in such a manner that, but for counsel's error, there is a reasonable
probability the result of the proceedings would have been different.").

Accordingly, we REVERSE the PCR court's order granting Gould PCR.4

WILLIAMS, A.C.J., and MCDONALD, J., and LOCKEMY, A.J., concur.

4
We decide this case without oral argument pursuant to Rule 215, SCACR.