South Carolina Criminal Defense Blog

The SCOTUS decided Padilla v. Kentucky today, and held that a defense lawyer has a duty to advise a client that they will be deported if they plead guilty, where the deportation consequences are clear. South Carolina draws a distinction between collateral and non-collateral consequences when analyzing a claim of ineffective assistance (in the context of a petition for PCR/ post conviction relief). Under S.C. law, a failure to advise of collateral consequences was not ineffective assistance,although bad advice would be ineffective assistance. Today's decision makes clear that immigration consequences are not collateral.

Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim.

The Court declines to decide whether there is such a thing as "collateral consequences" at all:

We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.

Does this leave a door open for other issues that counsel currently has no duty to advise of under South Carolina law? Parole eligibility comes to mind - certain offenses are not parole eligible and a defendant must serve 85% of their sentence and two years of community supervision upon release; under current law there is no duty to advise of this and it is considered ineffective assistance only if bad advice is given.

More at Defending People.

No criminal defense related stories at the moment, just enjoying life in Myrtle Beach.

It's beautiful today. This past week things have been jumping at the beach - it's warmed up, people are coming down to the water, there are events going on and people are driving, walking, riding motorcycles, bicycling, enjoying themselves and relaxing all around. There has been a car show going on down the road for the past three days and traffic is jammed up for blocks.

Today I'm working on a case that may go to trial week after next, but took a break to go down to the ocean, eat lunch, and play in the sand with my three-year old son. Tomorrow I may take him to Alligator Adventure, he will love it.

Back to work for now.

A Baltimore judge performed a marriage ceremony for the Defendant in a criminal domestic violence case, during trial, so that the victim could claim spousal immunity. "Judge Darrell Russell Jr., the Baltimore County District Court judge assigned to the non-jury trial, performed the wedding ceremony in his chambers for defendant Frederick Wood and his girlfriend."

According to the article, the judge stopped the trial, sent the two to get their marriage license, and then married them in chambers when they got back. They resumed the trial, the new wife claimed spousal privilege, and the defendant was found not guilty. Following the trial, the judge proclaims:

"Mr. Wood, I found you not guilty, so I can't sentence you as a defendant in any crimes ... but earlier today, I sentenced you to life married to her."

The judge has, at least temporarily, been "reassigned to chambers," meaning he will not be hearing cases while the matter is being reviewed.

The Town of Atlantic Beach is looking for a new judge again - no doubt people are lined up to apply. They had to go to North Carolina to find the last one - some residents were complaining because they wanted an Atlantic Beach resident to fill the position. With a population of 397, that may be difficult.

In the magistrate court this morning, waiting to pick a jury and then waiting for trial to start, I'm sitting in a little waiting area which is between a hallway to the west, a courtroom to the east, clerk's offices to the north, and judge's chambers to the south. I'm sitting on one of a row of 6 orange chairs, looking around at the wonderful pictures of bunny rabbits that they have put up on the window to one clerk's office in front of me (someone else comes by and turns them all upside down while she is not looking - she is not amused but I am). On the door leading into the courtroom is a person-sized girl bunny rabbit with a basket and a happy smile. It must be getting close to Easter.

Sitting in the magistrate court today, I witnessed a full array of human emotion and behavior. Happy people with smiling faces, angry police officers, smiling police officers, angry defense lawyers (unfortunately, myself at one point), prosecutors threatening defendants who were scared and frightened (and whose mother nearly had a heart attack - not my case but good lord go easy on the elderly woman with the cane). While waiting, I had the opportunity to calm some people who were hurting, to share smiles with people I do not know, to get to know a defense lawyer I had not met before, and to talk with some old friends.

Off and on I'm talking with our police officer who is very tough, and who apparently has nothing better to do than spend his day in the magistrate court trying traffic violations to juries. My client (CW) who is charged with reckless driving (a 6-point violation that potentially carries up to 30 days in jail) has offered to take a four point ticket for "failure to maintain lane" instead (a 4-point violation which he appears to be what he is actually guilty of). The officer insists that CW must plead guilty to reckless driving, which we decline. The officer says that CW was, in fact, DUI and that he cut him a break. Maybe, but from what I saw he could not have made a case for DUI if he wanted to under the circumstances of this case.

The jury agreed with us that, regardless of whether he was guilty of failure to maintain his lane or DUI, CW was not guilty of reckless driving. I think, sometimes, in small cases like this, juries vote against whoever they think is wasting their time in the courtroom. They could not have known that we had offered to plead to failure to maintain a lane, but I'm sure may have guessed as much if they thought about it.

I don't mind spending a day in the magistrate court for a small case like this - although we really did not expect to have a trial today, and of course there are bigger cases that need my attention, CW was relying on me to take care of him and it felt good to do it. Sometimes, we say the magistrate court is our playground - it's good sometimes, and it's refreshing, to get on our feet in a courtroom with a jury in a case where the potential sentence does not involve years or a lifetime in prison. And, the Easter bunnies were a nice touch.

Nothing gets to me quite like spending a morning in the juvenile court. My hat is off to the people that work in there every day. Or not, I haven't decided for sure.

It is difficult to watch children being punished for their parent's failings. Because more often than not, when a child is being sent to DJJ, or sent to alternative placement, that is what is happening. I understand the dilemma that DJJ and prosecutors and judges face - what can be done? A child does not stay in school, how do you force him to go to school? At some point, apparently, the answer is you remove him from his family and send him to live at a boy's home. A child commits crimes and will not stop, how do you change his behavior? You don't, you lock him up at DJJ's prison for kids.

I think that the good people who work in that system quickly become desensitized to the real and immediate pain that families are experiencing right there in front of them. Like the cliche about children becoming desensitized to violence due to the violence on the television, our lawyers and other professionals in the juvenile court become desensitized to the devastating effects that juvenile "justice" has on already devastated families that make their way through the system.

I've seen family court judges talk to children or their parents like they are scum of the earth. I've seen defense lawyers who are representing children in the juvenile court argue for detention when everyone else in the courtroom is asking the judge to release them. I've seen prosecutors verbally attack children with no hint of forgiveness or compassion as they ask a judge to tear them from their family and lock them away. I've seen lawyers plead children to serious crimes, an hour after being handed a file and first meeting with the child. At times there seems to be no rhyme or reason to what happens, and at others it feels as if everyone in the room has thrown up their hands and said "so what?"

I was in juvenile court with an appointed client this morning. She was in court this morning to be sentenced, after being sent to the Coastal Evaluation Center for 45 days. The Coastal Evaluation Center, by the way, is a small compound of grey concrete buildings, surrounded by tall fences with razor wire, located next door to Lieber Correctional which houses the state's death row inmates. This morning she returned to court with a recommendation of probation, which the judge accepted and released her to her mother.

Before she went in front of the judge however, her brother was taken in front of the judge for a probation violation. He would not go to school. DJJ recommended 5 days incarceration, as a wake up call, and recommended continued probation. The prosecutor asked the judge to remove him from his home and send him to DJJ until an alternative placement could be found. His lawyer says "as his lawyer," she has to ask the judge to accept DJJ's recommendation, but then gratuitously adds, "if I were his guardian," she would tell the judge to put him in alternative placement. Wonderful lawyering, that was.

The judge orders that my client's brother be taken from his family and put into an alternative placement. After her brother is taken away through the back door of the courtroom into a cage, my client and I sit at the table. She is sobbing quietly. She was taken through that same door less than two months ago.

The machine keeps moving, with no emotion from anyone in the room except my client whose brother was just taken from her. Until we stop, as I am trying to tell the judge how wonderfully my client adjusted and how well behaved she was at the Coastal Evaluation Center, in mid sentence, I am stopped so that the court reporter can go to the next courtroom and help to fix their recording equipment. My client sits at the table for 20 minutes until the gears begin to grind again. I tell the court again how wonderful she was at the evaluation center.

I tell the court how I felt her pain as she sat next to me after her brother was just taken from her. And how I am not sure if anyone else in this courtroom felt it or saw it, but I want them to know it. I pause, and look around the courtroom, and not a single person is looking at me. She went home on probation. She has the same life that she had before she was brought into the juvenile "justice" system, except with more rules and with the threat of incarceration if she screws up again. Same parents. Will watching her brother get taken away from his family motivate her to go to school? Will she be taken from her family when she does not attend school in the weeks or months to come?

I feel my client's pain when I am standing next to her in that courtroom. If I ever become desensitized to what these very real people are going through as their families are torn apart (or not, as the case may be), I think that I will need to leave and find a job welding on steel beams and trusses, rather than people's lives.

Is anyone's life better because I was there in the juvenile court this morning?

In State v. Stahlnecker, decided March 1st, the S.C. Supreme Court upheld the conviction of Stahlnecker for first degree criminal sexual conduct (CSC) with a minor and lewd act on a minor.

Issue preservation at trial - the Court held that the victim's statements to an interviewer at the hospital under 17-23-175 of the S.C. Code did not violate the Ex Post Facto Clause, but that the defendant's remaining issues raised on appeal were not preserved. Although the defendant's attorney objected that the testimony violated his right to confrontation, he did not articulate as grounds for the objection 1) that it was impermissible hearsay; 2) that it was prejudicial because it conflicted with the victim's trial testimony; or 3) that the state failed to comply with section 17-23-175.

The defendant also objected to testimony from the mother regarding the victim's statements to her, but did not articulate that the victim's statement went beyond the time and place of the assault as provided in Rule 801(d)(1)(D), and so this argument was also waived on appeal. The Court does hold that the statement is admissible as an excited utterance, however.

The Court holds that statements made by the defendant to a guardian ad litem appointed by the family court are admissible, because 1) the guardian ad litem is not an agent of the state (because they are not an agent of the prosecution specifically; it does not make much sense to say that they are employed by DSS but that they are not an agent of the state); and 2) because the statements were made voluntarily anyway, after the guardian ad litem told the defendant not to talk about the sexual assault.

In State v. Brayboy, decided March 4, the S.C. Court of Appeals reversed Brayboy's murder conviction because the trial judge failed to charge the jury on involuntary manslaughter. Where there is any evidence of manslaughter presented at trial, the jury must be charged on the lesser included offense, and the evidence must be viewed in the light most favorable to the defendant:

Importantly, our courts have long emphasized that to warrant a court's eliminating the offense of manslaughter, it should very clearly appear that there is no evidence whatsoever tending to reduce the crime from murder to manslaughter. State v. Cole, 338 S.C. 97, 101, 525 S.E.2d 511, 513 (2000); State v. Burriss, 334 S.C. 256, 265, 513 S.E.2d 104, 109 (1999); Casey v. State, 305 S.C. 445, 447, 409 S.E.2d 391, 392 (1991). A request to charge a lesser included offense is properly refused only when there is no evidence that the defendant committed the lesser rather than the greater offense. Casey, 305 S.C. at 447, 409 S.E.2d at 392.

Involuntary manslaughter is (1) the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others.

In this case, there was evidence presented that Brayboy's girlfriend picked up a gun, that the two struggled over it, that Brayboy was waving it as they argued, and that it went off unintentionally. The Court holds that it does not matter if the defendant is acting in self-defense, but the question is whether the defendant is lawfully armed.

The Court says that, since the girlfriend picked up the weapon first, Brayboy was not "presenting" the weapon; distinguishing State v. Reese, 370 S.C. 31, 633 S.E.2d 898 (2006), where the defendant was the one who produced the gun. Since Brayboy was not "presenting" the gun, the jury could find that he was lawfully armed and the jury should have been charged with involuntary manslaughter.

That's 7 years, 4 months, and 3 days. Two years and two months ago, I received a letter from an inmate. He had been convicted of burglary 1st degree and sentenced to 15 years (the minimum sentence for burglary 1st degree), but he claimed he was innocent and he asked for my help. I get letters similar to this quite often, but this person had funds available and so we agreed to look at his case (that feels terrible to say, but we have to keep the doors open and the bills paid).

His direct appeal had been denied but we were within the time limit for PCR, so I got a copy of the transcript from his trial, reviewed it, and we filed for post conviction relief. Without getting into details, his attorney had done a terrible job presenting his case and there was at least one glaring example of a constitutional right that had been denied to him at the trial.

One thing that pisses me off is when I talk to an attorney in the context of PCR, and they explain to me that their job is to "make sure that their client gets a fair trial," and that is what they did. Well, no - your job is to win the case for your client and to defend him zealously. But besides, if he got a fair trial, why are we in PCR court arguing that you gave ineffective assistance of counsel? In general, the fact that someone has filed a PCR against you should not be taken personally - it is an essential stage of the system and you should be glad that someone is looking out for your former client. But, don't tell me a defense lawyer's job is only to make sure their client gets a "fair trial."

The PCR was denied by the trial court. Despite no evidence presented at the PCR hearing that contradicted our claims. We appealed the denial of PCR to the S.C. Supreme Court, and they reversed and granted our guy a new trial. A new trial that I was ready to win for our client, although there are never any guarantees. I believe that there is a very good chance that he is innocent.

Today we went to court for an arraignment and bond hearing, and instead he pled guilty to a lesser included offense, to time served. Two thousand, six hundred and eighty three days time served. I understand that it had to be done, and he is going home. I suspect he admitted guilt because he feared the months or even years that it could take before his case was retried. And he is going home, it's a victory and I should be happy for him.

Why is a defense lawyer's job more than to make sure their client gets a "fair trial?" Because it has been 2683 days since this guy has seen the outside of a jail cell. Because if someone is going to be caged, dehumanized, abandoned by society, and lose 7 years or 15 years or their entire life, their defense lawyer needs to be doing everything that is ethically within their power to help that person.

An associate had a drug case pending in Marion County that was supposed to go to trial this week. The officers claimed that they came up on the defendant's car at a park and that they witnessed the defendant (male) and another person (male), in some degree of nakedness, scrambling from the back seat to the front (this was denied by the occupants).

The officers got everyone out of the car and then searched the interior of the car, eventually finding a small amount of cocaine inside a cigarette pack. Of course, my advice to the lawyer was that his first question on cross-examination of the officer should be, "now officer . . . was the crack in plain view?"

Beyond that, I pointed out that it appears the cocaine was not in plain view - it was inside a cigarette pack. This means that the officers had to have a reason to search the car - a reasonable suspicion at least that there was further evidence of criminal activity in there. If their intent was to arrest for indecent exposure (the officers did not charge anyone with indecent exposure, by the way), then as I read Arizona v. Gant the officers had no business searching the car unless they were searching for further evidence of indecent exposure. I'm not sure what further evidence of indecent exposure would look like, but I am pretty sure it would not be found inside a cigarette pack.

Further, it appears that the car was parked legally and so there would be no reason to tow the car - hence no justification for an inventory search. If there was no reasonable suspicion of drug activity, the drugs were not in plain view, there would be no evidence of indecent exposure concealed in a cigarette pack, and the car was parked legally, suppression of the drugs would be in order.

Tuesday the solicitor called the defense lawyer and said that they were trying the case Wednesday, and that the co-defendant would be testifying against his client. Later Tuesday evening the solicitor called back and said nevermind, the case would be dismissed as the co-defendant was going to plead guilty. Trial Chicken. It turns out the "crack" was not in plain view, after all.

In State v. Williams, decided February 8, the S.C. Supreme Court upheld Williams' death sentence following his convictions for murder, kidnapping, and possession of a firearm during the commission of a violent crime.

The Court held that 1) it was not error for the trial judge not to declare a mistrial where the jury sent out a note disclosing that they were split 9-3 for death (if the court had asked what the division was it may have been grounds to reverse); 2) it was not error for the trial judge not to declare a mistrial when the jury revealed that they were divided; 3) that the Allen charge given to the jury was not coercive; and 4) that it was not error for the trial judge not to declare a mistrial based on the testimony of the state's psychiatrist who testified to bolster the state's decision to seek the death penalty despite not being qualified as an expert (her testimony was as a lay witness).

Justice Pleicones' concurrence highlights the difficulties of preserving the record for appeal - although he agreed with the result, he would have found that at least one of the issues on appeal was not preserved. Regarding the objections to the psychiatrist's testimony, one of the defendant's lawyers asked for a curative instruction, and the defendant's second lawyer asked for a mistrial. The judge gave the curative instruction and denied the motion for mistrial; because the second lawyer did not object to the sufficiency of the curative instruction, Pleicones points out that the mistrial issue was not preserved for appeal.

In State v. Frazier, decided February 16, the S.C. Supreme Court upheld Frazier's convictions for murder, conspiracy, and armed robbery in Horry County. This was the second trial, the first conviction being overturned for failing to allow Frazier to call an expert in his case.

This case is an exercise in the minimum evidence required to allow a case to go to a jury, and Frazier appealed the denial of directed verdict at trial. The evidence presented was solely circumstantial - Frazier was having an affair with the victim's wife, Renee. The state's theory of the case was that Frazier and Renee planned to kill Renee's husband. Renee and her husband came to Myrtle Beach for vacation, Frazier lay in wait as Renee got her husband to take a moonlight stroll on the beach, Frazier came up and shot the husband, and Frazier and Renee tried to make it look like a robbery.

The evidence presented included that there was an affair between Frazier and Renee, that Frazier had tried to fight with the victim, that Frazier had borrowed his mechanic's car at the time the murder happened, and that the victim's valuables were found nearby which included his money. A couple that were on vacation later identified Frazier as someone they saw near the crime scene. There was no direct evidence that placed Frazier at the scene, but the circumstantial evidence that was presented was sufficient to allow the case to go to a jury.

In Kolle v. State, released February 16, the S.C. Supreme Court upheld a grant of post conviction relief, overturning a guilty plea to trafficking cocaine in a North Myrtle Beach case.

Kolle pled guilty on the advice of his attorney and was sentenced to seven years in prison, the minimum sentence for trafficking in cocaine 28 to 100 grams, first offense. His defense lawyer had been practicing for three years, but had never handled a felony case before. The lawyer advised Kolle to turn down a plea offer for five years until after the suppression hearing, telling him that the offer would still be available (it was not).

The lawyer relied on the documents that the solicitor's office had provided to the public defender who had the case before him, and did not obtain complete discovery before arguing the suppression motion. The officers in the case had responded to a loud music complaint, then entered the apartment without a warrant when no-one answered the door, claiming that there were exigent circumstances:

Because there were lights on in the apartment and no one answered his knocks, Officer Canfora "presumed that there may be something wrong inside the apartment . . . that somebody was in the residence, maybe injured or incapacitated."

At some point they went and got a search warrant, after they discovered cocaine in the apartment. During the suppression hearing, Kolle's defense lawyer failed to point out to the trial judge serious discrepancies in the testimony of the officers:

In recounting the suppression hearing, plea counsel conceded that he did not point out the discrepancies between the officers' testimony and the documentary evidence, which included the incident reports, the search warrant, and the police call logs. Specifically, PCR counsel established that plea counsel failed to question the officers regarding the following time discrepancies: the call/dispatch log indicated the loud music complaint was received at 12:43 a.m.; Officer Canfora arrived at the apartment at 12:48 a.m.; the search warrant appears to indicate it was issued at 12:01 a.m. and executed at 12:43 a.m. Plea counsel admitted that he did not have this documentary evidence in his file. He further acknowledged that he never requested the lab report or the chain of custody report regarding the cocaine that was seized pursuant to the search warrant

If the defense lawyer had investigated and prepared the case for trial, there was a substantial likelihood that the cocaine would have been suppressed. If the defense lawyer had presented all relevant evidence at the suppression hearing and suppression was denied, he still would have had to try the case to preserve the issue and appeal to the Court of Appeals.

Some lessons from this case - if you take over a case from the public defender's office, do not rely on the discovery in their file. Do not rely on the first discovery that is sent out in any case - there is almost always something that the prosecutor is not providing or that can be obtained from law enforcement's files.

Don't assume that a suppression hearing is a foregone conclusion - when you get into the details of a case you might be surprised. Law enforcement often cuts corners, and then tries to fix it later with testimony tailored for court. And, believe it or not, there are circuit court judges in South Carolina who care about the Constitution and who will not automatically rule in favor of the state.