Victor D. Smith 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

Victor D. Smith, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2019-000549

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

Unpublished Opinion No. 2024-UP-116
Heard March 12, 2024 – Filed April 3, 2024

AFFIRMED

Chief Appellate Defender Robert Michael Dudek, of
Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Assistant
Attorney General D. Russell Barlow, II, and Assistant
Attorney General Shayla Joan Flores, all of Columbia,
for Respondent.

PER CURIAM: Victor D. Smith appeals an order from the post-conviction relief
(PCR) court denying his PCR application based on ineffective assistance of counsel.
Smith argues the PCR court erred by finding trial counsel was not ineffective for
failing to object to the lead investigator's testimony that bolstered the testimony of
one of Smith's codefendants. We affirm the PCR court's order.

Skeletal remains found in July 2009 that were otherwise unidentifiable were
connected to the unresolved missing person investigation for Ernest Robinson that
police had conducted almost a year prior in September 2008. The missing person
investigation determined that Robinson was last seen at Smith's apartment. Police
interviewed three people connected with the apartment: Jeremiah Jones; Allen
Fulton; and Jazmine Bright, who was Smith's girlfriend and is the mother of his son.
Fulton initially denied any knowledge or involvement in Robinson's death. When
police interviewed Jones, he implicated Fulton, Smith, Smith's brother, and himself
in Robinson's murder.

Police then interviewed Fulton again, who this time implicated himself after
police confronted him with Jones's version of events. Police also interviewed Bright,
who told them that Smith confessed to her that he killed Robinson over missing
money, albeit under different circumstances and in a different location than Jones's
account.

Consequently, police arrested Smith (and Jones, Fulton, and Smith's brother),
and a grand jury indicted Smith for murder. At trial, Jones and Fulton both testified
on behalf of the State that Smith shot and killed Robinson during a fight over missing
money. Bright testified about Smith's confession to the killing. Smith's brother
invoked his right against self-incrimination and did not testify. Lead Investigator
Travis Holdorf testified as follows concerning his interview with Jones:

[Jones initially] did not want to implicate
[Smith] . . . [Smith] was like a brother to him. [Jones] was
emotional. I think it was very real what he was saying,
because, again, it was emotional. There are just some
things you get a feeling they're not faking. He didn't want
to tell, but he didn't have a choice. He even implicate[d]
himself in the murder. When he started doing that, that
was actually very surprising to us.

Smith was found guilty and sentenced to life imprisonment without possibility of
parole.
Smith subsequently filed an Anders 1 brief, and this court dismissed the appeal.
State v. Smith, Op. No. 2013-UP-423 (Ct. App. filed Nov. 30, 2013). Smith then
filed a PCR application. Following an evidentiary hearing, the PCR court dismissed
his application. This court granted certiorari as to the single issue on appeal.

On appeal, Smith argues that Investigator Holdorf's testimony improperly
bolstered Jones's credibility. However, this argument was never made to the PCR
court. Instead, PCR counsel only argued that Investigator Holdorf's testimony
bolstered the credibility of Fulton rather than that of Jones, including in PCR
counsel's Rule 59(e), SCRCP motion. The PCR court thus never had an opportunity
to rule on the question that is before this court on appeal. Consequently, we hold
that the issue is unpreserved. See State v. Sheppard, 391 S.C. 415, 421, 706 S.E.2d
16, 19 (2011) ("[T]he plain error rule does not apply in South Carolina state courts.
Instead, a party must have a contemporaneous and specific objection to preserve an
issue for appellate review." (citation omitted)); State v. Morales, 439 S.C. 600, 609,
889 S.E.2d 551, 556 (2023) ("One primary purpose of our issue preservation rules
is to 'give the trial court a fair opportunity to rule.'" (quoting Atl. Coast Builders &
Contractors, LLC v. Lewis, 398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012)));
Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000)
("Without an initial ruling by the trial court, a reviewing court simply would not be
able to evaluate whether the trial court committed error.").

Even if we were to treat the issue as preserved, we find that Smith has failed
to establish prejudice. See Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d 512, 514
(2008) (noting that to establish an ineffective assistance of counsel claim, PCR
applicants must show "(1) counsel failed to render reasonably effective assistance
under prevailing professional norms, and (2) counsel's deficient performance
prejudiced the applicant's case"); Strickland v. Washington, 466 U.S. 668, 694
(1984) (holding that to establish prejudice, a PCR applicant must "show that there is
a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different").

Specifically, it would have been difficult for the jury to ignore the testimony
of Smith's codefendant, Fulton, and of Bright, his girlfriend, both of whom gave
testimony that was not bolstered. Although the witnesses did not give identical
accounts, all of their testimonies supported the State's theory that Smith killed
Robinson over missing money. See Honea v. Prior, 295 S.C. 526, 532, 369 S.E.2d
846, 850 (Ct. App. 1988) (finding that any error resulting from witness bolstering

1
Anders v. California, 386 U.S. 738 (1967).
was harmless because another witness, "without objection, gave similar, if not
identical testimony"); State v. Moorer, 241 S.C. 487, 496, 129 S.E.2d 330, 335
(1963) ("The law . . . recognizes the fallibility of human memory as well as the
variation in powers of perception among human beings . . . ." (quoting 20 Am. Jur.
Evidence § 768)), overruled on other grounds by State v. Torrence, 305 S.C. 45, 69
n.5, 406 S.E.2d 315, 329 n.5 (1991) (Toal, J., concurring)).

For the foregoing reasons, the PCR court's denial of Smith's PCR application
is

AFFIRMED.

GEATHERS, HEWITT, and VINSON, JJ., concur.