THE
STATE OF SOUTH CAROLINA
In
The Supreme Court
Daryl Dean Sanchez, Respondent/Petitioner,
v.
State of South Carolina, Petitioner/Respondent.
ON WRIT OF CERTIORARI
Appeal From Charleston
County
John Hamilton Smith, Trial
Judge
Daniel F. Pieper, Post-Conviction
Relief Judge
Opinion No. 25521
Submitted October 23, 2001
- Filed August 26, 2002
AFFIRMED IN PART; REVERSED IN PART
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, of Columbia, for petitioner/respondent.
Assistant Appellate Defender Robert M. Pachak, of South Carolina Office of Appellate Defense, of Columbia, for respondent/petitioner.
JUSTICE MOORE: We granted both respondent/petitioner Sanchezs and petitioner/respondent States cross-petitions for certiorari. The post-conviction relief (PCR) judge had granted in part and denied in part Sanchezs PCR application. We affirm in part and reverse in part.
FACTS
Respondent/petitioner Sanchez was convicted of first-degree criminal sexual conduct with a minor and sentenced to sixteen years imprisonment.
At trial, the States first witness was the six-year-old victim. Victim testified she was visiting her grandmother on the evening of July 15, 1989, when Sanchez, a family friend, touched her on her bottom with his dingle. Direct examination continued:
Q. All right. Did he touch you with anything else on your bottom?
A. This time I have been thinking but nope, his fingers, not dingle.
Q. Now, [victim], did you touch [Sanchez] anywhere?
A. Yes.
Q. Where did you touch him?
A. On his hiney.
Q. Why did you do that?
A. Huh?
Q. Did he tell you to touch him there?
A. Yes, thats most likely [sic] he told me.
Q. All right. What happened when you touched him there?
A. He peed in my mouth.
. . .
Q. All right. Do you know how his hiney felt?
A. Hard, hard, hard.
Thereafter, victim testified Sanchez made her touch him on his penis again. She touched him with her hands.
Victim testified, the following morning, she told her mother Sanchez stuck his hiney -- he took his dingle over my hiney.
On direct examination, victims mother testified victim told her [Sanchez] stuck his finger in my hiney. Mother testified, later the same morning, victim stated [Sanchez] peed in my mouth. Trial counsel did not object to these statements.
On direct examination, victims father testified mother told him that victim told her [Sanchez] had stuck his finger in her hiney. He testified, later the same morning, victim stated Sanchez had peed in her mouth. Trial counsel did not object. Thereafter, father stated, in the afternoon, mother told him [Sanchez] did the whole thing; he raped [victim.]. At this point, the trial judge interjected, [w]e are getting into a lot of hearsay now.
On direct examination, Officer Georgia Malloy testified she showed victim four anatomically correct dolls. Malloy testified she asked victim to demonstrate what happened with Sanchez using the dolls. Victim selected the adult male doll and the child female doll. Malloy testified victim inserted the fingers of the adult male doll into the vagina of the child female doll then put the penis of the adult male doll against the vagina of the child female doll. Victim also placed the male dolls penis into the child dolls mouth. Counsel did not offer any objections to this testimony.
At the PCR hearing, trial counsel testified he did not object to mothers and fathers hearsay testimony because it did not bolster the victims testimony. Trial counsel stated he did not object to the testimony regarding the victims demonstration with the anatomically correct dolls because the victims statements with the dolls were vague.
The PCR judge found counsel had a valid strategic reason for not objecting to mothers and fathers hearsay testimony. The PCR judge also found counsel had a valid strategic reason for not objecting to hearsay testimony concerning the victims demonstration with the anatomically correct dolls. The judge concluded, for tactical reasons, counsel wanted the jury to hear the testimony regarding the victims use of the dolls because it illustrated her vague statements and descriptions regarding the alleged assault.
ISSUE
Was counsel ineffective for failing to object to hearsay testimony?
DISCUSSION
To prove ineffective assistance of counsel, a PCR applicant must establish that (1) counsel failed to render reasonably effective assistance under prevailing professional norms and (2) he was prejudiced by counsels deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). To establish prejudice, the applicant must show, but for counsels errors, there is a reasonable probability the result of the trial would have been different. Brown v. State, 340 S.C. 590, 533 S.E.2d 308 (2000). Where counsel articulates a valid reason for employing certain strategy, the conduct will not be deemed ineffective. Caprood v. State, 338 S.C. 103, 525 S.E.2d 514 (2000). If there is any probative evidence to support the findings of the PCR judge, those findings must be upheld. Anderson v. State, 342 S.C. 54, 535 S.E.2d 649 (2000).
The rule against hearsay prohibits the admission of an out-of-court statement to prove the truth of the matter asserted unless an exception to the rule applies. Dawkins v. State, 346 S.C. 151, 551 S.E.2d 260 (2001); Jolly v. State, 314 S.C. 17, 443 S.E.2d 566 (1994). A well-settled exception in criminal sexual conduct cases allows limited corroborative testimony. Id. When the victim testifies, evidence from other witnesses that the victim complained of the sexual assault is admissible in corroboration; however, such evidence is limited to the time and place of the assault and cannot include details or particulars or the identity of the perpetrator. Id.
Since mothers and fathers testimony was inadmissible hearsay, counsels failure to object to the introduction of that evidence fell below an objective standard of reasonableness. See Strickland v. Washington, supra; Brown v. State, supra.
As to the prejudice prong of Strickland v. Washington, supra, Sanchez was prejudiced by counsels deficient performance because improper corroboration testimony that is merely cumulative to the victims testimony cannot be harmless. As stated in Jolly v. State, 314 S.C. at 21, 443 S.E.2d at 569, it is precisely this cumulative effect which enhances the devastating impact of improper corroboration. Mothers and fathers testimony impermissibly bolstered the victims testimony. Mother and father both testified as to the identity of the perpetrator and the details and particulars of the assault. Their testimony corroborated the victims accusation. Consequently, the PCR judge erred by not granting Sanchez relief on this ground.
Furthermore, counsel was ineffective for failing to object to the police officers hearsay testimony concerning the victims demonstration of the assault through the use of anatomically correct dolls. Counsels reason for not objecting was that he wanted the jury to hear the testimony because it illustrated the victims vague statements regarding the alleged assault. Because the officers testimony regarding the dolls corroborated the victims testimony at trial, counsels strategy was not reasonable given the prejudicial effect this testimony had on Sanchez.
CONCLUSION
Because Sanchez was prejudiced by counsels deficient performance, we find he is entitled to a new trial. The States issue is affirmed pursuant to Rule 220(b)(1), SCACR, and the following authorities: Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997); California Dept of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995); Plyler v. Moore, 129 F.3d 728 (4th Cir. 1997), cert. denied, Moore v. Cummings, 524 U.S. 945, 118 S.Ct. 2359, 141 L.Ed.2d 727 (1998); Jernigan v. State, 340 S.C. 256, 531 S.E.2d 507 (2000); Plyler v. Evatt, 313 S.C. 405, 438 S.E.2d 244 (1993).
AFFIRMED IN PART; REVERSED IN PART.
WALLER and PLEICONES, JJ., concur. BURNETT, J., dissenting in a separate in which TOAL, C.J., concurs.
JUSTICE BURNETT (dissenting): I
respectfully dissent. As noted by the majority, if there is any probative
evidence which supports the findings of the PCR judge, those findings must be
upheld. Anderson v. State, 342 S.C. 54, 535 S.E.2d 649 (2000). Because there is
probative evidence which supports the PCR judge's findings in this matter, the
Court is required to affirm.
First, I agree mother and father offered inadmissible hearsay testimony
regarding the victim's identity of the perpetrator and the specific details of
the assault. Nonetheless, counsel articulated a valid, strategic reason for not
objecting to the hearsay. Counsel's decision not to object to mother's and
father's testimony because it did not bolster the victim's testimony was a
reasonable, strategic decision. Mother and father testified the victim stated
Sanchez "stuck his finger in her hiney." The victim, however,
testified to various accounts of the incident, none of which specifically stated
Sanchez "stuck his finger in her hiney." In my opinion, counsel
offered a valid trial strategy by not objecting to mother's and father's
testimony as their testimony contradicted the victim's already vague description
of the assault. Caprood v. State, 338 S.C. 103, 525 S.E.2d 514 (2000) (where
counsel articulates a valid reason for employing certain strategy, the conduct
will not be deemed ineffective).
Furthermore, even if it were deficient for counsel not to object to the hearsay
testimony, Sanchez failed to establish prejudice as mother's and father's
testimony arguably undermined the victim's testimony. Cf. Dawkins v. State, 346
S.C. 151, 551 S.E.2d 260 (2001) (improper hearsay testimony which corroborates
victim's testimony cannot be harmless). Accordingly, the Court must affirm the
PCR court. Anderson v. State, supra.
Second, counsel articulated a valid trial strategy by not objecting to the
police officer's hearsay testimony concerning the victim's demonstration of the
assault through the use of anatomically correct dolls. The police officer who
was present during the victim's demonstration testified the victim placed the
fingers of the adult male doll into the vagina of the child female doll.
However, the victim's testimony was less than clear. Initially, the victim
stated Sanchez "touched her on her bottom with his dingle." She later
appeared to retract this statement, testifying Sanchez touched her with his
fingers. To compound the difficulty of understanding her description of the
assault, the victim used the terms "hiney," "dingle," and
"penis" interchangeably. In my opinion, counsel articulated a valid
trial strategy by not objecting to the officer's testimony as the hearsay
testimony contradicted the victim's trial testimony. Caprood v. State, supra
(where trial counsel articulates valid reason for employing certain trial
strategy, the conduct will not be deemed ineffective).
Even if counsel should have objected to the officer's testimony, Sanchez failed
to establish prejudice. The victim's demonstration of the assault through the
use of anatomically correct dolls impeached, rather than corroborated, her trial
testimony. Cf. Dawkins v. State, supra (improper hearsay testimony which
corroborates victim's testimony cannot be harmless). Because the findings of the
PCR judge are supported by the record, the Court must affirm. Anderson v.
State,supra.
In essence, the majority holds it is never a reasonable trial strategy for trial
counsel to decline to object to inadmissible hearsay testimony in a case
involving criminal sexual conduct. I disagree with this conclusion. First, the
majority ignores the fundamental presumption that trial counsel rendered
adequate assistance and exercised reasonable professional judgment in making all
significant decisions in a case, Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that the PCR applicant has the burden of
proving the allegations in his complaint. Rule 71.1(e), SCRCP. Second, there are
circumstances where inadmissible hearsay testimony benefits a defense. This is
one of those cases. Trial counsel proffered a valid reason not to object to the
hearsay testimony. The Court should not second guess counsel's legitimate reason
for not objecting to the testimony.
I would affirm. (1)
TOAL, C.J., concurs.
1. I agree with the majority's decision affirming the State's issue pursuant to Rule 220(b)(1), SCACR, and the cited authorities.