Tappeiner v. State

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Susan Tappeiner, Petitioner,

v.

State of South Carolina, Respondent,

Appellate Case No. 2013-001885

ON WRIT OF CERTIORARI

Appeal from Beaufort County

The Honorable Perry M. Buckner, III, Circuit Court

Judge

Opinion No. 27632

Submitted March 15, 2016 – Filed May 4, 2016

REVERSED

Tara Dawn Shurling, of Law Office of Tara Dawn
Shurling, PA, of Columbia, for Petitioner.

Attorney General Alan M. Wilson, and Assistant
Attorney General J. Rutledge Johnson, both of Columbia,
for Respondent.

JUSTICE HEARN: A Beaufort County jury convicted Susan
Tappeiner of criminal sexual conduct (CSC) with a minor, second degree.
Tappeiner withdrew her direct appeal and filed an application for post-conviction
relief (PCR), asserting, inter alia, that her trial counsel was deficient in failing to
object to the State's improper remarks during closing arguments. The PCR court
denied her relief, finding that although trial counsel was deficient in failing to
object, Tappeiner was not prejudiced by the deficient performance. We reverse.

FACTUAL/PROCEDURAL BACKGROUND
In February 2009, Victim informed his school resource officer that he was
sexually assaulted by Tappeiner, his forty-two year old neighbor. Victim stated the
assault happened in August 2008, approximately seven weeks before his fourteenth
birthday.

According to Victim, on that August night, he went to Tappeiner's house
with his sister and a neighbor to watch movies with Tappeiner, her husband, and
their two daughters while his parents were out of town. Tappeiner and her husband
were drinking alcohol during the movies, although neither was noticeably
intoxicated. By the end of the last movie, all of the children except Victim had
fallen asleep in front of the television, and Tappeiner's husband had gone upstairs
to bed. Tappeiner briefly left the room where the children lay sleeping, then
reentered and began fondling Victim's penis. When he resisted, Tappeiner pulled
Victim upstairs into her daughter's bedroom, where she forced him to perform oral
sex on her, as well as engage in vaginal intercourse. Although Victim stated he
screamed for help, apparently no one heard him or woke up. Eventually, Victim
was able to escape and return home.1

Tappeiner was arrested and indicted for CSC with a minor, second degree.
From the outset of the trial, both parties acknowledged there was no physical
evidence of the alleged crime, and therefore the case was entirely dependent on a
credibility determination between Victim and Tappeiner. The State presented

1
During the police investigation into Victim's allegations, Tappeiner voluntarily
went to the police station and made a statement in which she confessed she had
sexual intercourse with Victim. However, after the Jackson v. Denno, 378 U.S.
368 (1964), hearing the trial court granted Tappeiner's motion to suppress, finding
the statement involuntarily-made based primarily on expert testimony that
Tappeiner was heavily abusing alcohol and Klonopin, an antianxiety drug, at the
time she made the statement. According to the testimony, Klonopin is a powerful
tranquilizer that may cause side effects such as dizziness, nausea, blurred vision,
poor judgment, lack of balance and coordination, sleep disturbances, amnesia,
forgetfulness, fainting, or seizures.
testimony from Victim, the school resource officer, two police officers, and a
counselor at a local rape crisis center, who was qualified as an expert witness in
forensic interviewing. Notably, although the rape crisis counselor interviewed
Victim after he reported the assault, she did not testify as to that interview, instead
merely addressing the solicitor's hypothetical questions as to why child victims of
sex crimes may delay reporting the abuse. In an effort to corroborate Victim's
story as to the details of the assault, the State introduced the dress and panties that
Tappeiner allegedly wore during the attack because both articles of clothing were
very distinctive. However, both items were clean and did not contain any DNA
evidence.

In Tappeiner's defense, trial counsel called one witness—Tappeiner's
husband. He testified that on the night in question, he accompanied his wife to bed
at the end of the last movie, he slept with her all night, and she did not leave the
bed for any reason. He stated his wife was "a little loopy" from the combination of
her antianxiety medication and alcohol, and likely was not able to remember
anything that occurred that night. However, he recalled that his wife was not
wearing the clothing Victim described. Further, Tappeiner's husband asserted he
was a light sleeper, and their house is small, such that he definitely would have
heard Victim if he had yelled out, as alleged, that night. Moreover, Tappeiner's
husband testified one of their dogs was "very protective and would have barked" at
any loud noises, such as if Victim had shouted. Tappeiner's husband further stated
that when he awoke the following morning, Victim was still sleeping in the living
room with the other children, and when Victim awoke, he acted completely
"normal," entering the kitchen to have breakfast with him. Finally, Tappeiner's
husband testified that prior to Victim reporting the assault, several neighbors
informed the couple that Victim and his sisters were using the Tappeiners'
hideaway key to enter their home without their permission, which could explain
how Victim was able to describe the articles of clothing in question.2

During closing arguments, trial counsel asserted "[t]here's no scientific
evidence here. There's no semen. There's no DNA." Citing repeatedly to
Tappeiner's husband's testimony, trial counsel discussed the discrepancies between
the version of events offered by Victim and the husband, such as Tappeiner not
2
According to Tappeiner's husband, at some point after the night of the alleged
assault, Tappeiner hired Victim's sisters to babysit for her daughters after school
and provided them with the location of her hideaway key. However, Tappeiner
later fired the sisters after learning of the sisters' and Victim's entry into her house
at times when the sisters were not babysitting.
wearing the described clothing on the night in question, and that she slept with her
husband all night after the last movie ended. Moreover, trial counsel pointed out
that Victim's story was unlikely, as the house was small and someone would have
heard him screaming; he remained in the house after the alleged assault and had
breakfast with Tappeiner's husband the next morning like normal; and, given the
disparity in sizes between Victim and Tappeiner, Tappeiner would have been
unable to physically drag him upstairs if he was resisting. Trial counsel then
criticized the rape crisis counselor's testimony, stating "she gave no information
that was really specifically related to [V]ictim." Finally, trial counsel also
reminded the jury that Victim had unauthorized access to the Tappeiner house via
the hideaway key.

By contrast, the solicitor reiterated that this case centered on credibility.
After stating to the jurors that "Victim looked [them] in the eye" to aid them in
their credibility determination, the solicitor summarized the relevant testimony.
First, the solicitor reminded the jury of the colloquy in which the solicitor
explicitly asked the school resource officer if he believed Victim's story, to which
the officer "said, yeah. Yes."3 The solicitor then asserted the rape crisis counselor
likewise interviewed Victim "face to face, eye to eye," and she believed his version
of events as well. Specifically, the solicitor stated, "I think the expert told you that
she has done over 200 forensic interviews. Folks, these are people who can detect
when someone is making something up or if there is nothing there." The solicitor
then reminded the jury that the police interviewed Tappeiner "face to face, eye to
eye," and that she was charged the same day with CSC with a minor, second
degree.

In concluding, the solicitor repeatedly argued that Victim made consistent
statements throughout his "eye to eye, [] face to face discussions" with the various
witnesses, and that the jury should "think about the eye to eye, face to face
interviews that victim has had with law enforcement and the expert[]." As her final
statement to the jury, the solicitor asserted that in making their decision, the jurors
should consider "would you let [Tappeiner] babysit your kids? Your grand kids
3
Trial counsel objected to this line of questioning during trial, arguing that the
testimony improperly bolstered Victim's testimony. However, he did not renew
this objection when the solicitor reiterated this testimony during closing arguments.
We note the trial court improperly admitted the initial testimony. See State v.
Kromah, 401 S.C. 340, 358–59, 737 S.E.2d 490, 500 (2013) (stating that in child
sex abuse cases, "it is improper for a witness to testify as to his or her opinion
about the credibility of a child victim").
[sic]? Nieces and nephews? I think the answer to that is why you should find her
guilty."

Ultimately, the jury found Tappeiner guilty of CSC with a minor, second
degree, and the trial court sentenced Tappeiner to ten years' imprisonment,
suspended on the service of five years' imprisonment and three years' probation.4
The trial court also informed Tappeiner she would be placed on the sex offender
registry for life.

Tappeiner elected to abandon her direct appeal due to preservation problems
and proceeded to post-conviction relief. PCR counsel then filed an application for
PCR, asserting twenty-seven grounds for relief.

The PCR court denied relief on all counts. However, in its order, the court
only made specific findings on four of the twenty-seven grounds, including, inter
alia, that trial counsel was deficient in failing to object to the State's allegedly
improper remarks during closing argument. However, the PCR court found that
trial counsel's deficiencies did not prejudice Tappeiner.

The State and Tappeiner filed cross-motions to alter or amend pursuant to
Rule 59(e), SCRCP. The State requested the PCR court reconsider its findings that
trial counsel was deficient. Tappeiner argued, inter alia, that the PCR court failed
to make factual findings or conclusions of law on twenty-three of her twenty-seven
allegations of ineffectiveness as required by law, and requested that the PCR court
make such findings. See S.C. Code Ann. § 17-27-80 (2014) (stating the PCR court
must make specific findings of fact and rulings of law).

In response, the PCR court issued an amended order that was identical in all
respects to the initial order, except at the end, it listed the allegations by number
and inserted an identical paragraph under each allegation, stating:

[Tappeiner] fails to carry her burden in proving (1) that her counsel
failed to render reasonably effective assistance under prevailing
professional norms, and (2) that she was prejudiced by her counsel's
ineffective performance. Further, even if this [c]ourt were to find a
deficiency in [trial counsel's] representation, any such deficiency did
not prejudice the defense in that this [c]ourt does not conclude from
reviewing the evidence that by a preponderance of the evidence the
result of the trial would have been different.
4
Thus, at the time of this appeal, Tappeiner is no longer in prison.
Tappeiner made a second motion to alter or amend, asserting the PCR court's order
still did not comply with the requirements set forth in section 17-27-80. However,
the PCR court denied the motion.

We granted Tappeiner's petition for a writ of certiorari to review the PCR
court's decision.

ISSUE PRESENTED
Did the PCR court err in failing to find that trial counsel's failure to object
during the State's closing argument constituted prejudicial error?

STANDARD OF REVIEW
In PCR actions, an appellate court will uphold the lower court's findings if
there is any evidence of probative value that supports the findings. Cherry v. State,
300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989). However, the Court will reverse
the PCR court's decision if it is controlled by an error of law. Pierce v. State, 338
S.C. 139, 145, 526 S.E.2d 222, 225 (2000). "The burden of proof is on the
applicant to prove his allegations by a preponderance of the evidence." Frasier v.
State, 351 S.C. 385, 389, 570 S.E.2d 172, 174 (2002) (citing Rule 71.1(e),
SCRCP).

Generally, in supporting any allegations of ineffective assistance of counsel,
a PCR applicant must satisfy a two-prong test. Strickland v. Washington, 466 U.S.
668, 687 (1984). First, the applicant must demonstrate that trial counsel's
performance was deficient. Cherry, 300 S.C. at 117, 386 S.E.2d at 625. "Under
this prong, 'the proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.'" Id. (quoting Strickland, 466
U.S. at 688) (internal alteration marks omitted); see also Franklin v. Catoe, 346
S.C. 563, 570–71, 552 S.E.2d 718, 722 (2001) (stating that the applicant must
demonstrate that trial counsel's performance fell below an objective standard of
reasonableness).

Second, the applicant must demonstrate that trial counsel's "deficient
performance prejudiced the [applicant] to the extent that 'there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.'" Cherry, 300 S.C. at 117–18, 386 S.E.2d at 625
(quoting Strickland, 466 U.S. at 694). "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Smith v. State, 386 S.C. 562,
566, 689 S.E.2d 629, 631 (2010).5

Courts must strongly presume that trial counsel "rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment." Strickland, 466 U.S. at 690; Edwards v. State, 392 S.C.
449, 456, 710 S.E.2d 60, 64 (2011). Thus, "[j]udicial scrutiny of counsel's
performance must be highly deferential." Strickland, 466 U.S. at 689.

LAW/ANALYSIS
Tappeiner argues trial counsel was ineffective for failing to object to the
numerous instances in the State's closing argument in which the solicitor vouched
for Victim's credibility by implying the police and rape crisis counselor believed
Victim, and not Tappeiner. Tappeiner further contends trial counsel was
ineffective for failing to object when the solicitor appealed to the jurors' emotions
by asking them if they would want Tappeiner babysitting their own children and
relatives. The PCR court found trial counsel's failure to object on both issues was
deficient, but found these errors were not prejudicial to Tappeiner, stating only that

5
Upon reaching a decision, the PCR court is required to "make specific findings of
fact, and state expressly its conclusions of law, relating to each issue presented" in
a PCR application, including whether the applicant satisfied his burden as to each
prong of the Strickland test described above. S.C. Code Ann. § 17-27-80; see also
Marlar v. State, 375 S.C. 407, 408, 653 S.E.2d 266, 266 (2007) (per curiam);
McCray v. State, 305 S.C. 329, 330, 408 S.E.2d 241, 241 (1991). Here, the PCR
court failed to comply with these requirements, dealing with twenty-three of the
twenty-seven grounds for relief in a summary fashion and making no factual
findings on those issues whatsoever.

Ordinarily, when the PCR court makes inadequate factual findings, we
remand the matter to the PCR court for a new hearing. See Pearson v. Harrison, 9
Fed. App'x 85, 87 (4th Cir. 2001) (per curiam) ("[T]he South Carolina Supreme
Court has consistently vacated and remanded PCR court judgments that do not
contain findings on issues presented to the PCR court . . . ." (collecting South
Carolina Supreme Court cases) (citations omitted)). Here, however, we find the
PCR court should have granted Tappeiner relief on one of the very few issues it did
make specific findings on—trial counsel's failure to object during the State's
closing argument. Thus, we find that a remand in this case is unnecessary.
it did "not believe from the evidence presented there exist[ed] a reasonable
probability that, but for counsel's unprofessional error, the result of the proceeding
would have been different." We agree counsel's performance was deficient, but
find, contrary to the PCR court's conclusion, that these deficiencies prejudiced
Tappeiner.

Generally, "[t]he assessment of witness credibility is within the exclusive
province of the jury." State v. McKerley, 397 S.C. 461, 464, 725 S.E.2d 139, 141
(Ct. App. 2012) (citing State v. Wright, 269 S.C. 414, 417, 237 S.E.2d 764, 766
(1977)). Thus, solicitors may not vouch for a witness's credibility, as doing so
improperly invades the province of the jury and places the government's prestige
behind the witness. Vaughn v. State, 362 S.C. 163, 169, 607 S.E.2d 72, 75 (2004)
(citing State v. Shuler, 344 S.C. 604, 630, 545 S.E.2d 805, 818 (2001)) (stating that
a solicitor improperly vouches for a witness's credibility "by making explicit
personal assurances, or indicating that information not presented to the jury
supports the testimony"); Matthews v. State, 350 S.C. 272, 276, 565 S.E.2d 766,
768 (2002). Thus, solicitors must confine their closing remarks to the record and
the reasonable inferences that may be drawn therefrom. Simmons v. State, 331
S.C. 333, 338, 503 S.E.2d 164, 166 (1998).

In keeping their closing arguments within the record, solicitors additionally
must tailor their remarks "so as not to appeal to the personal biases of the jury" or
"arouse the jurors' passions or prejudices." Von Dohlen v. State, 360 S.C. 598,
609, 602 S.E.2d 738, 744 (2004). Accordingly, solicitors should avoid comments
that ask jurors to place themselves in the victim's—or another party's—shoes,
because those types of comments tend to "'completely destroy all sense of
impartiality of the jurors.'" Brown v. State, 383 S.C. 506, 515–16, 680 S.E.2d 909,
914 (2009) (quoting State v. Reese, 370 S.C. 31, 38, 633 S.E.2d 898, 901 (2006)).

In assessing the propriety of remarks made during the State's closing
argument, appellate courts must determine "whether the solicitor's comments 'so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.'" Vaughn, 362 S.C. at 169–70, 607 S.E.2d at 75 (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 642 (1974)); Von Dohlen, 360 S.C. at 609, 602
S.E.2d at 744; cf. Dawkins v. State, 346 S.C. 151, 157, 551 S.E.2d 260, 263 (2001)
(stating that testimony that improperly corroborates a child sex victim's testimony
has a devastating impact because of the cumulative effect of repeating the victim's
testimony, and thereby improperly bolstering the victim's credibility). As a result
of this inquiry, courts may occasionally apply the "invited reply" doctrine, and find
that although a solicitor's closing argument was inappropriate, it was responsive to
statements or arguments made by the defense, and thus did not deny the defendant
due process. Vaughn, 362 S.C. at 169, 607 S.E.2d at 75.

Here, we find trial counsel's closing argument did not invite the solicitor to
repeatedly assert that the State's witnesses all believed Victim's version of events
after their "face to face, eye to eye" interviews with him. Rather, trial counsel's
presentation pointed out inconsistencies in the stories, which could do no more
than invite the solicitor to point out the contradictory aspects of Victim's story and
the other witnesses' testimony.

Moreover, some of the solicitor's statements regarding Victim's credibility
were not only damaging to Tappeiner, but misrepresented the evidence adduced at
trial, such as the solicitor's statement that the rape crisis counselor personally
interviewed Victim, and that she is someone "who can detect when someone is
making something up or if there is nothing there." The rape crisis counselor never
testified in front of the jury that she interviewed Victim herself.6 Rather, she only
answered the solicitor's hypothetical questions about why a child victim might
delay reporting. Thus, the solicitor's statements were clearly improper and
objectionable. See Matthews, 350 S.C. at 276, 565 S.E.2d at 768 ("Vouching for a
witness based on outside material conveys the impression to the jury that the
solicitor has evidence not presented to the jury but known by the prosecution
which supports conviction."). Accordingly, we find there is evidence in the record
to support the PCR court's finding that trial counsel was deficient in failing to
object to the solicitor's repeated vouching for Victim's credibility.

Further, the solicitor's remarks regarding whether the jurors would want
Tappeiner babysitting their children or relatives improperly appealed to the jurors'
emotions, rather than the evidence in the record. Cf. Brown, 383 S.C. at 512, 517,
680 S.E.2d at 912, 915 (finding the solicitor improperly appealed to the jurors'
emotions during closing argument when telling them to "speak up" for the child
victim and "make sure that the perpetrator is punished"). Thus, we further find
there is evidence in the record to support the PCR court's finding that trial counsel
was deficient in failing to object to the solicitor's emotional appeal at the
conclusion of its closing arguments.

6
At best, during cross-examination, trial counsel had her read from her "report"
that Victim testified that he yelled during the attack, but that no one heard him.
However, it was never explained to the jury what this report was, or whether she
had created it by actually talking to Victim herself.
 The PCR court found neither of these deficiencies prejudiced Tappeiner,
although it did not specify its reasoning, merely stating that the other evidence in
the record supported Tappeiner's conviction. Indeed, in determining prejudice, we
frequently consider whether there is other direct or circumstantial evidence
supporting the conviction, notwithstanding trial counsel's deficient performance.
See Brown, 383 S.C. at 518, 680 S.E.2d at 916 (finding that the solicitor's improper
appeal to the jury's emotions was not prejudicial in light of the fact that there were
four unrelated, adult witnesses to the defendant's rape of the child victim, as well
as other direct evidence that a rape occurred); Simmons, 331 S.C. at 338, 503
S.E.2d at 166 (stating that appellate courts must consider the impropriety of the
solicitor's argument in the context of the entire record, including whether there is
overwhelming evidence of the defendant's guilt).

Here, as the parties freely admitted during trial, the case was entirely
dependent on a credibility determination between the prosecution's witnesses and
the defense's witness. Given the dearth of evidence beyond Victim's assertions, we
cannot say evidence of Tappeiner's guilt was overwhelming. Therefore, we find
that but-for the improper vouching for Victim's credibility, there is a reasonable
likelihood the outcome of the trial would have been different, and Tappeiner was
thus prejudiced by trial counsel's failure to object. Cf. State v. Jennings, 394 S.C.
473, 480, 716 S.E.2d 91, 94–95 (2011) ("There was no physical evidence presented
in this case. The only evidence presented by the State was the children's accounts
of what occurred and other hearsay evidence of the children's accounts. Because
the children's credibility was the most critical determination of this case, we find
the admission of the written reports was not harmless."); Dawkins, 346 S.C. at 157
n.7, 551 S.E.2d at 263 n.7 ("This strategy [of improperly corroborating Victim's
version of events] was inappropriate especially given the fact there was no
overwhelming evidence that petitioner sexually abused Chambless.").7

7
See also, e.g., Vaughn, 362 S.C. at 170, 607 S.E.2d at 75 ("Here, if not for the
lack of evidence, we might agree that the solicitor was merely responding to the
petitioner's argument." (emphasis added)); Matthews, 350 S.C. at 276–77, 565
S.E.2d at 768 ("The solicitor's summation led the jury to believe the government
corroborated the witness'[s] testimony before trial and found it credible. The
solicitor did not support this vouching with anything within the record, such as
corroboration by other witnesses or physical evidence. The solicitor improperly
vouched for the witness." (emphasis added)); cf. State v. Chavis, 412 S.C. 101,
110–11, 771 S.E.2d 336, 341 (2015) (finding a witness's bolstering of the child
victim's testimony harmless because there were witnesses to and physical evidence
 Similarly, given the lack of physical evidence, the solicitor's emotional plea
that Tappeiner was a bad actor and could not be trusted to watch the jurors' own
family members is reasonably likely to have had a substantially stronger impact
than would be the case in a trial where there was additional, independent evidence
of the defendant's guilt. See, e.g., Brown, 383 S.C. at 518, 680 S.E.2d at 916
(finding the improper appeal to the jurors' emotions was not prejudicial when
other, overwhelming evidence supported the child victim's assertion that she was
raped by the defendant).8 As a result, we find it likely the emotional plea,
particularly in conjunction with the solicitor's improper vouching for Victim's
credibility, swayed the jurors' view of the facts and resolution of the contradictions
in the witnesses' testimonies.

Accordingly, we find there is no evidence in the record to support the PCR
court's conclusion that Tappeiner was not prejudiced by trial counsel's failures to
object during the State's closing arguments. To the contrary, the solicitor's
repeated vouching for Victim's credibility and her emotional plea to the jurors was
incredibly prejudicial to Tappeiner because there was no other evidence beyond
Victim's testimony of the events that allegedly occurred that August evening. We
therefore reverse the PCR court's finding that trial counsel's failure to object during
closing arguments was not prejudicial, and grant Tappeiner a new trial due to
ineffective assistance of counsel.9

of the rape, and therefore the case did not turn solely on the child victim's
credibility (citations omitted)).
8
Moreover, the emotional plea was the very last thing the jury heard before
beginning its deliberations, and connected the jurors personally to the alleged
abuse in the case. Thus, the comment was likely at the forefront of the jurors'
minds when beginning their discussions.
9
Tappeiner raises two other issues on appeal, including whether the PCR court
erred in failing to find prejudice in trial counsel's failure to object to the State's
references to Tappeiner's suppressed confession, and whether the PCR court erred
in failing to find trial counsel ineffective for failing to adequately prepare and
present a defense on Tappeiner's behalf. However, because the closing argument
issues are dispositive, we decline to address the remaining issues on appeal. Futch
v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999).
 CONCLUSION

Based on the foregoing, we reverse the PCR court and grant Tappeiner a
new trial.

REVERSED.

PLEICONES, C.J., BEATTY, KITTREDGE and FEW, JJ., concur.