Glover v. State

Waller, Justice:

I respectfully dissent. I would affirm the grant of Post Conviction Relief (PCR) to Glover based upon our “any evidence” standard of review.

FACTS

Glover was arrested and charged with the kidnapping and armed robbery of Wayne Cooper (Victim) in Williamsburg County, South Carolina. The crimes in question took place between 7:00-9:00 p.m. on January 22,1991.

Attorney Jerome Askins was appointed to represent Glover; however, he did not learn of his appointment until the Monday before Glover’s Wednesday trial. At that time, Glover gave Askins a list of potential alibi witnesses, claiming he had been in Florida at the time of the crimes.1 Askins was unable *500to locate any favorable alibi witness before trial and requested a continuance, which was denied by the trial court. At trial, the only direct evidence linking Glover to the crimes was the Victim’s testimony. However, as counsel was unable to contact any favorable alibi witnesses prior to trial, Glover put up no defense and was convicted on all counts.

Thereafter, Glover was granted PCR due to the fact that counsel had not met with him until two days prior to trial, thereby giving him insufficient time to contact all potential alibi witnesses.

ISSUE

The sole issue is whether “any evidence” supports the grant of PCR.

DISCUSSION

At PCR, Glover presented the testimony of two alibi witnesses. His aunt, Sandra Jordan, testified she had seen Glover in Florida around 8:00 a.m. on the morning of the crimes.2 His grandfather, Sylvester Jordan, also testified on Glover’s behalf. When questioned if he knew whether his grandson was in Florida when the crimes took place, he stated, “He was in Florida when this took place as they say.”3 Further, Glover testified at PCR that he had given counsel the names of additional alibi witnesses who could have placed him in Florida at the time of the crimes. Specifically, he claimed he was in Florida with his brother-in-law, Willie Palmer at the time the crimes were occurring, that another witness, Ruth Glover, had seen him in Florida at 4:00 or 5:00 p.m. on the day of the crimes, and that Shonda Harris had seen him at 11:00 p.m. that evening in Florida. Counsel for Glover conceded he did not contact any of these alibi witnesses prior to trial but *501maintained that those witnesses he was able to contact were unable to provide an alibi for Glover.

It is apparent that the PCR judge, after hearing counsel’s concession that he had not contacted all potential alibi witnesses, believed the testimony of Glover and his alibi witnesses, and concluded that had all witnesses been contacted, there was a reasonable probability the result would have been different. Where matters of credibility are involved, we give great deference to a judge’s findings, since we lack the opportunity to directly observe the witnesses. Drayton v. Evatt, 312 S.C. 4,430 S.E. (2d) 517 (1993); Solomon v. State, 313 S.C. 526, 443 S.E. (2d) 540 (1994). If we find “any evidence,” we must affirm the ruling of the PCR judge. Grier v. State, 299 S.C. 321, 384 S.E. (2d) 722 (1989). Clearly, under our limited scope of review, there is “any evidence” to support this ruling and we must therefore affirm. “To reverse in this case would be to substitute our judgment of the facts for that of the PCR judge, which would contravene our scope of review in these cases.” Grier v. State, supra.

The majority espouses that a PCR applicant’s mere speculation is insufficient to establish prejudice and, accordingly, the applicant must put forth further evidence to support his claim.4 In doing so, the majority overrules this Court’s prior precedent of Grier v. State, supra. Notwithstanding its holding that the defendant’s testimony is an insufficient basis upon which to affirm the grant of PCR, the majority nonetheless adheres to the rule that counsel’s speculative testimony is a sufficient basis upon which to affirm the grant of PCR. See Martinez v. State, 304 S.C. 39, 403 S.E. (2d) 113 (1991) (counsel’s concession that potential alibi witnesses alleged testimony “may have made a difference” supports grant of PCR). Moreover, counsel’s own testimony has historically been a sufficient basis upon which to affirm the denial of PCR. See e.g. Stokes v. State, 308 S.C. 546, 419 S.E. (2d) 778 (1992); Butler v. State, 286 S.C. 441, 334 S.E. (2d) 813 (1985). In effect, the majority holds that an entire class of citizens, those convicted of a crime, are inherently unreliable witnesses whose sworn testimony is unworthy of belief.

*502I would uphold the “any evidence” standard heretofore applied in this state and affirm the grant of PCR.

Finney, C.J., concurs.

Glover’s original attorney, Public Defender Gordon Jenkinson, had resigned. Glover had previously given a list of potential alibi witnesses to Attorney Jenkinson.

As the majority correctly points out, this testimony, standing alone, is insufficient to establish an alibi for Glover since he had ample time in which to drive to South Carolina.

The majority reads portions of the Grandfather’s testimony to conclude it is insufficient to establish an alibi defense. In my view, the Grandfather’s testimony that Glover was “in Florida when this took place” is sufficient. In effect, the majority weighs the evidence, giving more credence to certain portions of the Grandfather’s testimony than others. This weighing function was for the trial judge who observed the witnesses and heard the testimony. Drayton v. Evatt, — S.C. —, 430 S.E. (2d) 517 (1993).

As noted previously, in my view Glover’s “speculative” testimony is supported by his Grandfather’s testimony that he was in Florida when the crimes were committed.