S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Ronald Dove, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Anderson County
James E. Lockemy, Trial Judge
Rodney A. Peeples, Post-Conviction Judge
Opinion No. 25019
Submitted October 20, 1999 - Filed November 22, 1999
REVERSED
Deputy Chief Attorney Joseph L. Savitz, III, of the
South Carolina Office of Appellate Defense,
Columbia, for petitioner.
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Teresa A. Knox, and
Assistant Attorney General J. Benjamin Aplin, all of
Columbia, for respondent.
WALLER, A.J.: A jury convicted Ronald Dove (petitioner) of
murdering his estranged wife. This Court affirmed. State v. Dove, Op. No. 91-
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DOVE v. STATE
MO-266 (S.C. Sup. Ct. filed September 18, 1991). Petitioner filed a post
conviction relief application, which a circuit judge denied after an evidentiary
hearing. We granted the petition for a writ of certiorari to review that decision,
and now reverse.
FACTS
Petitioner returned to Anderson for several days to visit his
estranged wife, Sandra Dove (victim) and their children. He stole a credit card
and a small handgun before the trip from his sister-in-law in Texas, where he
was living. Petitioner's sister-in-law discovered the theft March 9, 1990, a few
days after petitioner left for South Carolina. She immediately reported it to
Anderson police; the victim's mother, Barbara Junkins; and petitioner's sister
in Anderson.
The victim spent a few nights with petitioner at his hotel room. The
couple went to a lounge the evening of March 9. There, the victim learned
about the stolen credit card and gun from a lounge employee who had spoken
to petitioner's sister. The news visibly angered the victim, and she and
petitioner left at about 9:30 p.m.
The next afternoon, Anderson police went to petitioner's hotel to
serve him with a bad check warrant in an unrelated case. Petitioner refused to
open the door. When police tried to force it open, he placed the handgun to his
head. The officers retreated ., then negotiated with petitioner for several hours.
Police ultimately rushed into the room, subdued petitioner, and discovered the
victim's body.
The State alleged petitioner shot at the victim three times the
previous evening after a fight about the thefts. The gun misfired once, one
bullet struck a paneled wall, and the final bullet killed the victim. The fatal
wound to the left temple area was inconsistent with a self-inflicted injury
because the victim was right-handed, the pathologist testified. He based his
opinion on the angle of the bullet, the bruises on the victim's head, and the fact
the entrance wound was on the victim's left side. However, the pathologist
conceded it was possible the victim shot herself with her left hand. The victim
had seriously injured her right hand at work a few months before her death,
and had worn a cast for several weeks, a defense witness testified.
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DOVE v. STATE
Petitioner testified he and the victim returned to his hotel room that
night, still arguing about the credit card and gun. He tried to apologize, but the
victim was very upset. The victim took the handgun from a drawer and shot at
him as he emerged from the bathroom. He ducked back into the bathroom and
locked the door. Neither spoke for more than twenty minutes, petitioner
testified. He heard a gunshot and some "bumping going on." He opened the
door and heard the victim say she was hurting, but she was dead when he
walked over to her. He refused to let police enter the hotel room the next day
because he believed they would accuse him of murdering the victim, and he was
scared of police because they had beaten him in the past, petitioner testified.
Petitioner denied shooting the victim and said he loved her. He
testified he tried to kill himself "many times" after the victim died that night,
as well as during the standoff the following day, but could not pull the trigger.
He testified he first told police after they took him to jail that he believed the
victim had committed suicide. He knew the victim had been involuntarily
admitted to a mental hospital for drug abuse problems, but did not know
whether the commitment was for psychological problems. On cross
examination, he testified he did not know exactly how the shooting occurred,
but the victim "could have been playing around and shot herself."
The victim's mother, Ms. Junkins, testified the victim had never
threatened to commit suicide, although she had been admitted twice to
psychiatric facilities for substance abuse problems during the two years before
her death. The prosecutor tried to nullify any evidence that the victim
committed suicide by emphasizing she had a regular job at the time and
exhibited no signs of depression. During closing arguments, the prosecutor told
jurors that family and friends believed the victim was neither depressed nor
suicidal, and explained how she believed the evidence showed it was not suicide.
At the PCR hearing, petitioner's trial attorney testified he did not
investigate the victim's medical background; nor did he recall petitioner asking
him to obtain the victim's medical records. Petitioner's sister handed the
attorney a note during th e trial asking why the victim had been committed and
suggesting he obtain the medical records. The attorney testified he believed it
was too late to obtain and use the records, although he probably could have
gotten them. He conceded at the hearing that petitioner could have used the
records in his defense if they contained evidence of suicidal tendencies -or
depression.
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DOVE v. STATE
The medical records show that from July 1988 to December 1989,
three months before her death, the victim was twice admitted to a psychiatric
facility. She was diagnosed with substance abuse problems and depression.
The records contain numerous references to her repeated threats to commit
suicide. In October 1988, the victim's mother swore in an affidavit for
emergency admission that the victim repeatedly had expressed suicidal
thoughts. That sworn statement directly conflicted with the mother's testimony
at trial, when she said the victim had never expressed suicidal thoughts.
After reviewing the records, the PCR judge stated in a letter to the
parties that he had "serious concerns" about trial counsel's failure to subpoena
them for possible use at trial. Nevertheless, after further consideration, the
judge denied petitioner's application.
ISSUE
Does probative evidence support the PCR judge's
decision to deny petitioner's application because his
attorney was not ineffective in failing to subpoena and
use at trial medical records revealing the victim's past
suicidal tendencies?
DISCUSSION
Petitioner alleges the PCR judge erred in denying his application
because his trial attorney was ineffective in failing to subpoena and use at trial
medical records revealing the victim's past suicidal tendencies and history of
depression. We agree.
"To establish a claim of ineffective assistance of trial counsel, a PCR
applicant has the burden of proving counsel's representation fell below an
objective standard of reasonableness and, but for counsel's errors, there is a
reasonable probability that the result at trial would have been different.... A
reasonable probability is a probability sufficient to undermine confidence in the
outcome of the trial." Johnson v. State,. 325 S.C. 182, 186, 480 S.E.2d 733, 735
(1997) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984)). Thus, a PCR applicant must show both error and
prejudice to win relief in a PCR proceeding. Scott v. State, 334 S.C. 248, 5,13
S.E.2d 100 (1999).
p.33
DOVE v. STATE
The burden is on the applicant in a post-conviction proceeding to
prove the allegations in his application. Butler v. State, 286 S.C. 441, 334
S.E.2d 813 (1985). An appellate court must affirm the PCR court's decision
when its findings are supported by any evidence of probative value. Cherry v.
State, 300 S.C. 115, 386 S.E.2d 624 (1989). However, an appellate court will not
affirm the decision when it is not supported by any probative evidence. Holland
v. State, 322 S.C. 111, 470 S.E.2d 378 (1996).
We conclude the PCR judge erred because no probative evidence
supports his decision. Petitioner has shown both error and prejudice.
Petitioner's trial attorney erred in failing to subpoena the medical
records and use them at trial. The records are replete with evidence about the
victim's past suicidal tendencies and depression, evidence that would have been
crucial in trying to prove the victim committed suicide.
Petitioner was prejudiced because he was unable to present
relevant and important evidence supporting his assertion that his wife
committed suicide. For example, petitioner could have used the medical records
to challenge the testimony of the mother that her daughter never had suicidal
thoughts. The State's case consisted entirely of circumstantial evidence and,
while the State's theory was plausible, petitioner's suicide theory also was
plausible. Investigators, for instance, found no gunpowder residue on the hands
of either petitioner or the victim; nor did they find any blood splatters indicating
a close-range shooting on petitioner's clothes. We hold that the fact the jury
never had a chance to consider medical records containing crucial evidence
about the victim's suicidal tendencies and depression undermines confidence in
the outcome of petitioner's trial.
The State argues the records are consistent with the PCR judge's
findings and corroborate Ms. Junkins and petitioner's trial testimony that the
victim was committed for substance abuse problems. The suicide threats were
simply the result of those problems, not the underlying cause of the
commitment, the State contends.
We find the State's arguments unpersuasive. The victim's
substance abuse and mental problems likely were related, but it makes no
difference precisely why she may have wanted to kill herself. The point is that
she may have wanted to end her life, for whatever reason, and petitioner did not
p.34
DOVE v. STATE
have a chance to introduce relevant and material evidence of those suicidal
tendencies.
This case is easily distinguished from Stokes v. State, 308 S.C. 546,
419 S.E.2d 778 (1992). In that case, the petitioner contended her trial attorney
was ineffective in failing to call witnesses whose testimony purportedly would
have supported her theory that the victim committed suicide. The Court held
counsel was not ineffective, but had employed a legitimate strategy by calling
only the witness he believed would be credible. Other potential witnesses
vacillated when offering their recollections to the attorney and presented no
evidence that victim actually committed suicide. In this case, petitioner's
attorney did not employ a legitimate strategy, but failed to obtain and use
medical records that plainly supported petitioner's contention that his wife
committed suicide.
CONCLUSION
We reverse the PCR judge's denial of petitioner's application and
grant him a new trial.
REVERSED.
Finney, C.J., Toal, Moore and Burnett, JJ., concur.
p.35