Fishburne v. State

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Derrick Fishburne, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2016-002385

ON WRIT OF CERTIORARI

Appeal from Colleton County
Edgar W. Dickson, Circuit Court Judge

Opinion No. 27911
Submitted June 17, 2019 – Filed July 31, 2019

REMANDED

Tristan Michael Shaffer, of Tristan M. Shaffer Attorney at
Law, of Chapin, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Benjamin Hunter Limbaugh, both of
Columbia, for Respondent.

JUSTICE JAMES: This case stems from the post-conviction relief (PCR) court's
denial of relief to Derrick Fishburne. Because the PCR court's order contains no
findings of fact as to one of Fishburne's primary PCR claims, we remand this matter
to the PCR court for the PCR court to issue an order setting forth adequate findings
of fact and conclusions of law regarding Fishburne's unaddressed PCR claim. In
doing so, we again stress that PCR orders must be prepared in compliance with
section 17-27-80 of the South Carolina Code (2014) and Rule 52(a) of the South
Carolina Rules of Civil Procedure.

FACTUAL AND PROCEDURAL BACKGROUND
During the early morning hours of April 10, 2009, law enforcement responded
to a 911 call reporting a shooting at Spirits Lounge in Walterboro. A patrol officer
arrived on scene and observed a man (Victim) lying in a pool of blood on the
pavement outside the front of the club. Victim was transported to the hospital, but
he did not survive. An autopsy determined Victim's cause of death was six gunshot
wounds.

During law enforcement's investigation, two eyewitnesses identified
Fishburne as the shooter. These eyewitnesses first identified Fishburne by name and
subsequently identified him in a lineup. Law enforcement arrested Fishburne when
he appeared at the local courthouse for roll call in an unrelated matter. Fishburne
gave law enforcement a statement in which he denied being at the club on the night
of the murder, claiming to have stayed the night at his girlfriend's house. This was
not the truth. Fishburne's girlfriend told law enforcement he left her house around
12:45 a.m. (before the shooting occurred) and did not return until approximately
3:00 a.m. (after the shooting occurred). Another witness, Jarrod Frazier, testified he
saw Fishburne at the club and thought Fishburne might have left before the shooting,
but was not sure. In his written statement to law enforcement, Frazier stated he saw
Fishburne leaving the club's parking lot in an SUV about 10-15 minutes before the
shooting occurred. Frazier admitted on cross-examination he gave the exculpatory
written statement to law enforcement so Fishburne "could get a bond."

Fishburne was indicted for murder and possession of a weapon during the
commission of a violent crime. At trial, Fishburne's trial counsel said the following
during his opening statement to the jury—all relevant to one of Fishburne's
underlying PCR claims:

I think the evidence will show that [law enforcement] made a decision
that before the morning was out, once they had the name Derrick
Fishburne, once they had that name, they had their guy. I think the
evidence will show they picked him up from roll call on Friday, the
next day. He was already in court. He might qualify as a usual suspect.
He was an easy guy for them to get, because he was in court anyway.
They picked him up from roll call on April the 10th, and they took him
back to the Sheriff's Office Annex and they interviewed him. Now,
 because he had involvement with them before, I think the evidence will
show he said, "I wasn't there." I think the evidence will show that
there's a long video tape and you will have a chance to look at that.

He said, "I'm not saying anything," pretty much. "I wasn't there. I don't
know what you're talking about." And at the end of the interview, they
arrested him. One of the things he told me was, "I was at my girlfriend's
house all night. I was at Lorinda Williams' -- Penny Williams' house,"
and I think the evidence will show that they went and checked with
Penny, that he was not there. That he had, in fact, left the house at some
time during a time when he could have been at the club, and I think the
evidence will show from different witnesses, I think the State will be
able to prove that he was, in fact, at the club. But they arrested him
before they checked that out. I think the evidence will show that he was
arrested at the end of that interview and they didn't check out Penny's
story until later. It didn't check out. He told a lie.

Further, during closing arguments, Fishburne's trial counsel argued:

[Fishburne] was rounded up and the testimony of Detective Williams
was that they picked him up from roll call. He is one of the usual
suspects. He had been at roll call, so he already had some trouble. They
knew him. They took him from here and took him down to the station
and Detective Williams told you, he was already under arrest at that
time. He was under arrest for murder and it really didn't matter what
he said.

One of the things also, what Detective Johnson said in the tape that you
got to see is that [Fishburne's] brother is in prison. This is not a pretty
fact, but it's the truth of the matter. The Fishburnes had trouble; it's a
fact. So what does that mean to [Fishburne]? What does that mean to
anybody being rounded up and taken down to the Sheriff's Office to get
a statement? Do you think you're going to get a fair trial? He was
already under arrest and it -- yeah, they checked out his story and it
didn't check out, but if he was already under arrest, it didn't matter.

The jury convicted Fishburne as indicted. The trial court sentenced Fishburne
to concurrent prison terms of forty years for murder and five years for possession of
a weapon during the commission of a violent crime. The court of appeals dismissed
Fishburne's direct appeal following Anders1 briefing. State v. Fishburne, Op. No.
2012-UP-363 (S.C. Ct. App. filed June 20, 2012).

Fishburne filed an application for PCR, and his hearing was held on October
27, 2014. Prior to the commencement of the hearing, Fishburne specified his alleged
grounds for relief: (1) ineffective assistance of counsel for trial counsel's failure to
properly investigate potential alibi witnesses and (2) ineffective assistance of
counsel for trial counsel introducing other bad act evidence into the trial and
characterizing him as one of the "usual suspects." The State objected to the
amendment because Fishburne did not "enumerate these allegations with specificity
in his application." After Fishburne explained he had alerted the State to these
specific allegations over a year ago via email, the PCR court permitted the
amendment.

Trial counsel testified Fishburne's statement to law enforcement that he was
not at the club was problematic because the State had several witnesses who would
testify Fishburne was indeed at the club. Trial counsel testified Fishburne explained
law enforcement had harassed him in the past and that he did not think law
enforcement would believe his side of the story anyway. Trial counsel explained his
decision to refer to Fishburne as a "usual suspect" as follows:

Trial Counsel: Well, I had to -- I tried to find a way to explain why he
lied to the police. You know, you've got somebody that has you leaving
the scene before this happens, so why would you deny that you're there?
And you know, you don't need to do that; and it's a lie, and it's an
unnecessary lie. And so, how do you explain that? You've got to give
the jury -- in my -- my strategy, you've got to give the -- you can't --
juries don't like lies, whether the police tell them or the defendants tell
them or whether witnesses tell them, and you've got to explain it,
somehow. And that was my way to explain why he would lie about
being in the club.

PCR Counsel: Okay. It's safe to say that that's sort of a double-edged
sword. Is that --

Trial Counsel: Yes, it's a risk.

PCR Counsel: Okay.

1
See Anders v. California, 386 U.S. 738 (1967).
 Trial Counsel: There's no doubt. I mean, you -- you want to present
some evidence that, you know, somebody doesn't trust the police, then
you have to show prior involvement with the police, which, normally,
you work to try not to do. But, yeah, it's a risk. But I don't know how
-- but you've got to explain a lie.

Trial counsel admitted he did not pursue additional alibi witnesses that could
have testified to Fishburne leaving the club before the shooting. Trial counsel
testified he strategically decided to not present additional alibi witnesses to say
Fishburne left the club over an hour before the shooting because he already had a
witness he believed would testify that Fishburne left shortly before the shooting.

Other than trial counsel, Fishburne was the only witness at the PCR hearing.
He testified he was at the club that evening but left prior to the shooting. He testified
he gave trial counsel the names of multiple alibi witnesses and that trial counsel
failed to contact them. None of these purported alibi witnesses were present at the
PCR hearing.

The PCR court denied Fishburne relief in a written order. After setting forth
the procedural history of Fishburne's case and reciting the Strickland2 standard, the
PCR court set forth findings of fact and conclusions of law on Fishburne's claim trial
counsel failed to call alibi witnesses. However, there is no discussion at all of
Fishburne's claim arising from trial counsel's mention of Fishburne being at roll call
for another criminal charge and trial counsel's characterization of Fishburne as a
"usual suspect." Fishburne did not file a Rule 59(e), SCRCP motion asking the PCR
court to rule on this issue. We granted Fishburne's petition for a writ of certiorari to
address whether his case should be remanded to the PCR court to make sufficient
findings of fact as mandated by statute.

DISCUSSION
In ruling on a PCR application, "[t]he [PCR] court shall make specific findings
of fact, and state expressly its conclusions of law, relating to each issue presented."
S.C. Code Ann. § 17-27-80 (2014). The South Carolina Rules of Civil Procedure
apply to PCR matters. See id.; Rule 71.1(a), SCRCP. Rule 52(a) provides in

2
See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984) (providing a PCR
applicant claiming ineffective assistance of counsel must show (1) counsel's
performance was deficient and (2) counsel's deficiency prejudiced the applicant to
the extent "there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different").
pertinent part, "In all actions tried upon the facts without a jury . . . , the court shall
find the facts specially and state separately its conclusions of law thereon." Rule
52(a), SCRCP. "The PCR court's general denial of all claims not specifically
addressed in the PCR court's order 'does not constitute a sufficient ruling on any
issues since it does not set forth specific findings of fact and conclusions of law.'"
Simmons v. State, 416 S.C. 584, 592, 788 S.E.2d 220, 225 (2016) (quoting Marlar
v. State, 375 S.C. 407, 409, 653 S.E.2d 266, 266 (2007)).

We agree with Fishburne that the PCR court erred by not making any findings
of fact or conclusions of law regarding his ineffective assistance of counsel claim
for trial counsel's reference to him being at roll call to answer to another criminal
charge and his characterization of Fishburne as a "usual suspect." Over the years,
we have issued numerous opinions addressing a PCR court's failure to make
adequate findings of fact and conclusions of law regarding duly raised issues. In
McCray v. State, the PCR court dismissed the applicant's claims of ineffective
assistance of counsel without making any findings of fact on the specific allegations
raised. 305 S.C. 329, 330, 408 S.E.2d 241, 241 (1991). We reversed and remanded,
holding: "The PCR court's conclusions regarding ineffective assistance are
insufficient for appellate review and fail to meet the standard set forth in [section
17-27-80]." Id.

In Pruitt v. State, the applicant raised several claims for relief in his PCR
application and presented evidence regarding those claims during the PCR hearing.
310 S.C. 254, 255, 423 S.E.2d 127, 127-28 (1992). The PCR court's order did not
address the applicant's claims. We vacated the PCR court's order denying relief and
remanded the matter to the PCR court to hold a new hearing. We noted, "[W]e are
not abandoning the general rule that issues must be raised to, and ruled on by, the
post-conviction judge to be preserved for appellate review. The extraordinary action
we take today is necessary only because our opinion in McCray is not being
followed." Id. at 255 n.2, 423 S.E.2d at 128 n.2. We further explained:

We take this opportunity to express our concern with the increasing
number of orders in PCR proceedings that fail to address the merits of
the issues raised by the applicant. Not only does this deprive the parties
of rulings on the issues raised, but it makes review by the appellate
court more difficult and ultimately increases the work load of all
involved where, as in this case, a new hearing is required to secure the
rulings which should have been made initially. Counsel preparing
proposed orders should be meticulous in doing so, opposing counsel
should call any omissions to the attention of the PCR judge prior to
issuance of the order, and the PCR judge should carefully review the
 order prior to signing it. Even after an order is filed, counsel has an
obligation to review the order and file a Rule 59(e), SCRCP, motion to
alter or amend if the order fails to set forth the findings and the reasons
for those findings as required by § 17-27-80 and Rule 52(a), SCRCP.

Id. at 255-56, 423 S.E.2d at 128; see also McCullough v. State, 320 S.C. 270, 272,
464 S.E.2d 340, 341 (1995) ("Although the error was not raised to and ruled on by
the PCR judge, we find it necessary to vacate the order and remand this matter to the
circuit court to issue an order addressing its decision to dismiss [the applicant's]
second application as successive."); Bryson v. State, 328 S.C. 236, 236-37, 493
S.E.2d 500, 500 (1997) (vacating the order of dismissal and remanding to the PCR
court to make specific findings of fact and conclusions of law for each issue properly
raised by the applicant).

In Humbert v. State, the applicant argued he received ineffective assistance of
counsel when trial counsel allowed him to appear at trial while wearing a jail
uniform, shackles, and an identification bracelet bearing his mug shot. 345 S.C. 332,
334, 548 S.E.2d 862, 863 (2001). The PCR court did not rule specifically as to
whether trial counsel was ineffective for proceeding to trial while the applicant was
wearing shackles and the identification bracelet. Id. at 337, 548 S.E.2d at 865.
Because the applicant did not file a Rule 59(e) motion requesting a ruling on these
issues, we held the issues were not preserved for review. Id.

In Marlar v. State, the applicant raised several issues to the PCR court, and
the PCR court's order failed to specifically address any of the issues raised by the
applicant. 375 S.C. 407, 408, 653 S.E.2d 266, 266 (2007). The applicant did not
file a Rule 59(e) motion but petitioned for a writ of certiorari, arguing the PCR
court's order was inadequate and that his case should be remanded for specific
findings of fact. The court of appeals vacated the PCR court's order and remanded
the matter for a new hearing, stressing the need for the PCR court to make specific
findings of fact and conclusions of law as to each issue raised in the PCR application.
In doing so, the court of appeals rejected the State's argument that none of the
applicant's allegations were preserved because of the applicant's failure to make a
Rule 59(e) motion to alter or amend the judgment to include specific findings of fact
and conclusions of law. The court of appeals reasoned that this Court, in the past,
had remanded PCR actions to the PCR court for specific rulings, despite the fact
there were no Rule 59(e) motions filed.

We reversed the court of appeals' decision, explaining:
 The cases this Court remanded for specific findings were unique cases
in which the Court attempted to remind circuit court judges and parties
that: (1) specific findings of fact and conclusions of law were required;
and (2) a Rule 59(e) motion must be filed if issues are not adequately
addressed in order to preserve the issues for appellate review. Although
the cases apparently have not accomplished the Court's goal, they do
not change the general rule that issues which are not properly preserved
will not be addressed on appeal.

Id. at 410, 653 S.E.2d at 267. We held that because the applicant failed to make a
Rule 59(e) motion asking the PCR court to make specific findings of fact and
conclusions of law on his allegations, the issues were unpreserved, and the court of
appeals erred by addressing the merits of the issues and remanding the case to the
PCR court. Id.

In Simmons v. State, the PCR court vacated the applicant's death sentence but
summarily denied all of his remaining claims, including a challenge to DNA
evidence, finding the claims to be "without merit." 416 S.C. 584, 591, 788 S.E.2d
220, 224 (2016). Although the applicant failed to file a Rule 59(e) motion to request
a ruling on the summarily denied issues, we noted "that although the State is
technically correct [(in arguing the applicant's claims were not preserved)], we also
believe dismissing the writ of certiorari would be fundamentally contrary to the
interests of justice. . . . [O]ur jurisprudence permits a remand under such
extraordinary circumstances." Id. We emphasized remands should be granted
"sparingly" and should be "reserved for the rarest of cases." Id. at 593, 788 S.E.2d
at 225. We remanded the matter to the PCR court for a new hearing on the DNA
claim. Id. at 593-94, 788 S.E.2d at 225.

Last year, we issued an order holding the PCR court erred by signing an
inadequate PCR order and by denying the applicant's Rule 59(e) motion. See Reese
v. State, 425 S.C. 108, 111, 820 S.E.2d 376, 378 (2018). Citing numerous cases, we
noted, "This is not the first time this Court has raised concerns over orders . . . that
do not comply with section 17-27-80 and Rule 52(a)." Id. at 109-11, 820 S.E.2d at
377-78. We vacated both PCR orders and remanded the case to the PCR court for
the entry of "a new PCR order that complies with the law." Id. at 111, 820 S.E.2d
at 378.

The State argues Fishburne's failure to file a Rule 59(e) motion precludes
appellate review. See Marlar, 375 S.C. at 410, 653 S.E.2d at 267 (providing "a Rule
59(e) motion must be filed if issues are not adequately addressed" in the PCR order).
We acknowledge the validity of the State's preservation argument, and we
acknowledge our prior decisions have been somewhat inconsistent as to whether a
Rule 59(e) motion is required to preserve an applicant's request to remand to the
PCR court for the consideration of particular issues in which the PCR court failed to
make sufficient findings of fact and conclusions of law. If this were a generic civil
action, we would likely be quick to accept the State's preservation argument.
However, because the United States Constitution's Sixth Amendment guarantee to a
defendant's right to effective assistance of counsel is engrained in PCR cases, we
cannot continue to permit a party's procedural shortcoming—such as the failure to
file a Rule 59(e) motion—to prevent this Court from remanding claims of ineffective
assistance of counsel when the PCR court's order does not comply with section 17-
27-80.

We do not place the blame on a single party below for an insufficient PCR
order. The preparation and finalization of a PCR order is often a collaborative effort.
We recognize the prevailing party often prepares a proposed order for the PCR court.
See Hall v. Catoe, 360 S.C. 353, 365, 601 S.E.2d 335, 341 (2004) ("[I]t is common
practice for judges to ask a party to draft a proposed order for the sake of
efficiency."). When counsel for either side prepares the proposed order, the order
must include findings of fact and conclusions of law as to all issues raised by an
applicant. A copy of the proposed order should be transmitted to opposing counsel.
Opposing counsel should promptly review the proposed order and alert preparing
counsel and the PCR court as to any deficiencies in the proposed order. Because the
PCR judge will ultimately be signing the order, the PCR judge must carefully review
the proposed order to ensure it includes appropriate findings of fact and conclusions
of law as to all issues raised. Once a proposed order is finalized, signed by the PCR
judge, filed, and served upon the parties, the parties should thoroughly review the
final order to make sure all issues raised were adequately addressed as required by
section 17-27-80 and Rule 52(a); if they were not, a timely Rule 59(e) motion should
be filed, requesting the PCR court to address the appropriate issues. When these
steps are ignored on the front end, we find ourselves having to remand a case, as we
do today.

In remanding to the PCR court, we do not dictate the conclusions the PCR
court should reach. We simply require the PCR court to set forth appropriate
findings of fact and conclusions of law, whatever they may be. As we stated almost
thirty years ago in Pruitt, "We are confident that in the future all those involved in
post-conviction matters will do everything in their power to ensure that remands
such as the one we order today will no longer be necessary." 310 S.C. at 256, 423
S.E.2d at 128.

CONCLUSION
 We remand to the PCR court for the issuance of a supplemental order setting
forth findings of fact and conclusions of law on the PCR ground that was not
addressed in the original order. The supplemental PCR order shall be entered within
forty-five days of this Court's mailing of the remittitur. Following the issuance of
the supplemental PCR order (and a ruling on any post-hearing motions that may
thereafter be filed), the aggrieved party may serve and file a new notice of appeal.

REMANDED.

BEATTY, C.J., KITTREDGE and FEW, JJ., concur. HEARN, J., concurring
in a separate opinion in which JAMES, J., concurs.
JUSTICE HEARN: I concur but write separately to emphasize the importance of
filing a Rule 59(e) motion to preserve an issue for appellate review. I caution the
bench and the bar not to read our decision as relaxing this requirement in the PCR
context. Our rules do not expressly carve out any such exception, and therefore,
appellate courts should avoid selectively applying them in PCR. Although we have
overlooked the lack of a Rule 59(e) motion in the past, as the majority discusses,
those decisions clearly represent extraordinary circumstances. Our issue
preservation requirements are well-settled and serve to enable both parties to raise
issues and allow courts an opportunity to rule on them. Herron v. Century BMW,
395 S.C. 461, 465, 719 S.E.2d 640, 642 (2011). Fairness dictates that we apply these
rules in a consistent manner, departing from this approach only in exceptional
circumstances—lest the exception swallow the general rule. While the wisdom of
foregoing the need to file a Rule 59(e) motion to preserve an issue in PCR is not
before us, if there is a sentiment to abandon this procedural requirement, then the
appropriate course is to submit a proposed rule change to the General Assembly for
its approval.

I agree that PCR implicates the Sixth Amendment, as it is the avenue for
challenging such alleged constitutional violations that occurred at trial. However, I
do not believe this fact alone requires us to address an issue that is clearly
unpreserved. PCR is a creature of statute and governed by the Uniform Post-
Conviction Procedure Act. See Robertson v. State, 418 S.C. 505, 513, 795 S.E.2d
29, 33 (2016) ("The South Carolina Legislature enacted the Uniform Post-
Conviction Procedure Act to govern all aspects of PCR . . . ."). It is this statutory
scheme that affords the right to counsel in PCR, not the constitution. See Turner v.
State, 384 S.C. 451, 456 n.5, 682 S.E.2d 792, 794 n.5 (2009) ("[T]he right to PCR
counsel arises from Rule 71.1, SCRCP, and not from the constitution."). While we
certainly apply Sixth Amendment principles in PCR,3 because the statute affords this
right, I do not believe it is inherently unfair to follow our issue preservation rules
uniformly. Accordingly, in most instances where a party fails to file a Rule 59(e)
motion when required to do so, we will find the issue unpreserved and decline to
address the merits. Nonetheless, I join the majority because it is necessary once again
to remind the State, opposing counsel, and the circuit court of the need for orders
that contain specific findings of fact and conclusions of law.

3
See, e.g., Hilton v. State, 422 S.C. 204, 208, 810 S.E.2d 852, 854 (2018) (noting
the Prince and Faretta framework apply in a PCR setting where the applicant sought
to waive his statutory right to counsel).
JAMES, J., concurs.