Henry L. Gray 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

Henry L. Gray, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2019-001127

Appeal From Richland County
G. Thomas Cooper, Trial Judge
Paul M. Burch, Post-Conviction Relief Judge

Unpublished Opinion No. 2024-UP-227
Submitted April 1, 2024 – Filed July 3, 2024

REVERSED AND REMANDED

Appellate Defender Joanna Katherine Delany, of
Columbia, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant
Attorney General D. Russell Barlow, II, both of
Columbia, for Respondent.

PER CURIAM: In this post-conviction relief (PCR) action, Henry L. Gray
(Petitioner) appeals the denial of his PCR application. The PCR court found trial
counsel deficient in failing to object to Petitioner being shackled at trial. The court
did not find prejudice. We reverse and remand.

FACTS

In October 2011, a Richland County grand jury indicted Henry L. Gray (Petitioner)
for murder and first-degree lynching. Petitioner's sister, Robin Reese, was indicted
on the same offenses, and the two were tried together in 2012. The jury convicted
both defendants as charged, and the trial court sentenced each defendant to
concurrent sentences of thirty years' imprisonment on the murder charge and thirty
years' imprisonment on the lynching charge. Petitioner filed a direct appeal to this
court, which affirmed his convictions and sentences.1

The charges against Petitioner and Reese arose from the death of Kenneth Mack on
February 13, 2010. According to the State, Mack approached Reese's thirteen-
year-old daughter (Minor) outside Gonzales Gardens, the housing complex where
she lived, and, after she rebuffed him and punched his face, he grabbed her and
knocked her to the ground. The State further alleged Minor, Marcellius Brooks,
and others who witnessed the incident attacked Mack, who went "running down
towards the bottom of the complex" when the fight ended. The State contended
Reese, who became upset when she learned what had happened to Minor despite
assurances from Brooks that he and others "took care of it," called Petitioner to tell
him about the incident just as Mack, still "knocked up" from the fight, came to see
him. When Petitioner learned about the incident from Reese, he allegedly grabbed
Mack and swept his "feet out from under him," which caused Mack to fall onto the
concrete. Petitioner and Reese, who came onto the scene, then beat and punched
Mack, and Reese grabbed a heavy metal chair, which she "slam[med] into" Mack
several times. Mack became unresponsive, and someone eventually called 911;
however, he was pronounced dead after he was taken to the hospital.

Dr. Bradley Marcus performed the autopsy of Mack's body and determined he died
from a skull fracture caused by blunt force trauma to his head. Dr. Marcus stated
the amount of force necessary to cause such a fracture would have been significant,
and opined the fatal injury was consistent with the State's theory that Mack fell
head first onto the concrete after someone swept his feet from under him.

Petitioner, however, contended Mack died from the first beating by Brooks and the
other participants in that fight. In support of this theory, trial counsel called Dr.

1
See State v. Gray, 408 S.C. 601, 759 S.E.2d 160 (Ct. App. 2014).
Adel Shaker, an expert in forensic pathology, who testified a person can walk away
from an initial beating during a "lucid interval" but subsequently succumb to fatal
injuries inflicted during that beating. Dr. Shaker explained that during the lucid
interval, blood would have accumulated on the surface of the decedent's brain to
the point that it could stop respiratory and cardiac activity.

In rebuttal to the defense's case, the State called Dr. Clay Nichols, who was
qualified as an expert in forensic pathology. Dr. Nichols testified that he reviewed
Mack's autopsy report and determined the evidence did not support the conclusion
Victim suffered blunt force trauma in the first attack, but the evidence did support
the finding that he suffered blunt force trauma from falling onto the concrete
during the second assault. Therefore, he concluded that, but for the second assault,
Victim would not have died.

Both Petitioner and Reese were shackled throughout their trial. At the PCR
hearing, trial counsel agreed it was obvious Petitioner was shackled during trial
and he called attention to this fact in his opening argument; however, he also
explained the purpose of his comments was "to soften the blow a little bit." Trial
counsel testified he and Reese's attorney had a conversation with the trial court in
chambers before the trial began about the shackles, and the trial court informed
them the shackles were "required in this particular matter." Trial counsel also
admitted he was not aware of the requirement that a trial court must place on the
record its reasons for shackling a defendant and agreed he should have made an
on-the-record objection to the shackling.

The PCR court found "the absence of an objection to the trial judge's failure to
place [on the record] his findings as to why visible shackling was required in
[Petitioner's] case constituted deficient performance under Strickland."2 The PCR
court, however, denied relief based on its finding that Petitioner failed to show
prejudice from this deficiency. The PCR court reasoned "an objection would have
simply required the trial judge to place his previously-found . . . reasons for
requiring shackling in this case on the record and thereby preserve the issue for
appellate review." This court granted certiorari.

STANDARD OF REVIEW

"This Court gives great deference to the factual findings of the PCR court and will
uphold them if there is any evidence of probative value to support them." Sellner

2
Strickland v. Washington, 466 U.S. 668 (1984).
v. State, 416 S.C. 606, 610, 787 S.E.2d 525, 527 (2016) (quoting Jordan v. State,
406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013)). "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." Id. (quoting Jamison v. State, 410 S.C. 456, 465, 765 S.E.2d 123,
127 (2014)).

LAW/ANALYSIS

Petitioner contends the PCR court erred in finding he was not prejudiced by trial
counsel's failure to object to him being shackled during the majority of the trial.
We agree.

"A PCR applicant bears the burden of establishing he is entitled to relief." Terry v.
State, 394 S.C. 62, 66, 714 S.E.2d 326, 329 (2011). "To prove counsel was
ineffective, the applicant must show counsel's performance was deficient and the
deficient performance caused prejudice to the applicant's case." Id. "To prove trial
counsel's performance was deficient, an applicant must show 'counsel's
representation fell below an objective standard of reasonableness.'" Smalls v.
State, 422 S.C. 174, 181, 810 S.E.2d 836, 840 (quoting Williams v. State, 363 S.C.
341, 343, 611 S.E.2d 232, 233 (2005)).

We first find the record supports the PCR court's finding that trial counsel
performed deficiently in failing to object on the record to the shackling; trial
counsel himself agreed at the PCR hearing that he should have made such an
objection.

We next turn to the prejudice prong of a claim of ineffective assistance of counsel.
"To show prejudice, the applicant must show that, but for counsel's errors, there is
a reasonable probability the result of trial would have been different." Terry, 394
S.C. at 66, 714 S.E.2d at 329. "A reasonable probability is a probability sufficient
to undermine confidence in the outcome of trial." Id.

We find there is a reasonable probability the outcome of the trial would have been
different. "Whether a defendant is restrained during trial is within the trial [court]'s
discretion." State v. Heyward, 432 S.C. 296, 323, 852 S.E.2d 452, 466 (Ct. App.
2020) (quoting State v. Tucker, 320 S.C. 206, 209, 464 S.E.2d 105, 107 (1995)).
However, "the Constitution forbids the use of visible shackles during the . . . guilt
phase [of trial], unless that use is 'justified by an essential state interest'—such as
the interest in courtroom security—specific to the defendant on trial." Deck v.
Missouri, 544 U.S. 622, 624 (2005) (quoting Holbrook v. Flynn, 475 U.S. 560
(1986)). "The trial judge is to balance the prejudicial effect of shackling with the
considerations of courtroom decorum and security." Tucker, 320 S.C. at 209, 464
S.E.2d at 107.

In Heyward, this court determined the trial court abused its discretion in denying
the defendant's request to remove his shackles during jury selection because the
record showed no reason that shackling him was necessary, such as concerns about
security or courtroom decorum, and the defendant asserted he was "well-behaved
in his three prior court appearances." Heyward, 432 S.C. at 324, 852 S.E.2d at
466. Nevertheless, this court ultimately held there was no reversible error because
"nothing in the record indicate[d] . . . any of the jurors who were selected for
Heyward's trial could or did see his shackles"; thus, the trial court's decision to
allow him to be shackled was harmless error. Id. at 326-27, 852 S.E.2d at 467-68.

Our supreme court addressed this court's decision in Heyward and affirmed as
modified. Our supreme court found the trial court's summary denial of the request
to remove the visible leg shackles during jury selection violated due process
because "the trial court made no effort whatsoever to assess whether the shackles
were necessary, nor to ensure the jury could not see them." State v. Heyward, 441
S.C. 484, 494, 895 S.E.2d 658, 663 (2023). Thus, the supreme court found the trial
court's failure to consider Heyward's request was an abuse of discretion. However,
the supreme court found the trial court's error was harmless because the State
conclusively proved Heyward's guilt with overwhelming evidence such that no
other rational conclusion could be reached except that he was guilty. The
"overwhelming evidence" provided by the State included Heyward's DNA under
the victim's fingernails and neck, eye-witness testimony, and fingerprints. The
court went on to explain:

[A] defendant in a criminal trial may not be required to
wear handcuffs, leg shackles, or other restraints in the
presence of the jury unless the trial court makes specific
findings on the record as to the particular reasons the
restraints are necessary. If the court finds restraints are
necessary, it must make every reasonable effort to ensure
the restraints are not visible to the jury.

Id. at 493–94, 895 S.E.at 663.
Here, the court neither explained nor put on the record the reason for shackling
Petitioner. Further, there was no indication that the trial court, in concluding
shackling was necessary, ever conducted the required balancing test between the
"prejudicial effect of shackling with the considerations of courtroom decorum and
security." Tucker, 320 S.C. at 209, 464 S.E.2d at 107. In contrast to the situation
in Heyward, there was no dispute here that Petitioner's shackles were "obvious."
Further, although the State argued in its return that an objection would have been
futile because of legitimate security concerns that would warrant physical restraints
on both defendants—specifically, the brutal nature of the crimes with which
Petitioner and Reese were charged and Petitioner's alleged gang affiliations—we
agree with Petitioner that the record included no evidence Petitioner had been
disruptive in pretrial detention or posed a flight risk. Unlike Heyward, the State
did not provide overwhelming evidence to conclusively prove Petitioner was
guilty. Conflicting testimony from experts and eyewitnesses created ambiguity as
to which attack on Victim ultimately killed him. Thus, we find the PCR court's
finding that Petitioner was not prejudiced by the trial court's error was not
harmless.

Petitioner was prejudiced by trial counsel's deficiency; therefore, the PCR court's
finding is reversed and remanded. Petitioner and his co-defendant, Reese, were
tried together. They were seated together, along with counsel, at the defense table
for the entirety of the trial. At the PCR hearing, Petitioner testified that he was
wearing everyday civilian clothes at trial, but his hands and feet were shackled. He
further testified that when he stood to look at the jury members, he was sure they
could see the shackles. At trial, Reese testified on her own behalf. She walked to
the witness stand while her hands and feet were both bound in handcuffs and
shackles. In its opinion addressing Reese's application for post-conviction relief,
this court explained it was unclear from the record whether the jury could view
Reese's shackles at any other time during the trial; however, it was clear to the
court and the jury that Reese was shackled on her walk to and from the witness
stand. Reese v. State, 441 S.C. 392, 406, 894 S.E.2d 295, 302 (Ct. App. 2023).
Here, although Petitioner did not testify in front of the jury, we find trial counsel's
failure to object to his shackles was prejudicial. We believe the jury would have
no other reaction but to look to Reese's co-defendant as she walked, completely
shackled, to the witness stand to testify. Her obvious shackling only drew more
attention to Petitioner's shackling. We believe the jury inferred dangerousness,
volatility, and fear of both co-defendants when viewing the shackles in the trial
context. Similar to this court's finding in Reese, we believe "the potential impact
[of shackling] on the jury was far greater than the PCR court's order suggests." Id.
REVERSED AND REMANDED. 3

THOMAS, MCDONALD and VERDIN, JJ., concur.

3
We decide this case without oral argument pursuant to Rule 215, SCACR.