Smith v. State

Chief Justice TOAL,

dissenting.

I respectfully dissent. In my view, the PCR court’s denial of Petitioner’s application should be affirmed.

The PCR court’s ruling should be upheld if it is supported by any evidence of probative value in the record. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). In my view, trial counsel’s performance was not deficient. Nonetheless, even if it was deficient, Petitioner suffered no prejudice.

In my opinion, the PCR court correctly found that trial counsel articulated a valid trial strategy consistent with his failure to object to the inadmissible hearsay testimony at issue. This finding is supported by trial counsel’s testimony and should be affirmed. See Watson v. State, 370 S.C. 68, 73, 634 S.E.2d 642, 644 (2006) (holding that where trial counsel articulates “a valid reason for failing to object to ... hearsay testimony,” he has not performed deficiently with respect to the lack of objection).

Nonetheless, even if trial counsel’s performance was deficient, Petitioner suffered no prejudice. In my view, the State presented overwhelming evidence of Petitioner’s guilt.2 Therefore, it is not reasonably probable that the result of Petitioner’s trial would have been different absent counsel’s alleged deficient performance. See Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625 (holding that a PCR applicant has shown prejudice where he is able to show “a reasonable probability *571that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”).

For these reasons, I would affirm the PCR court’s denial of Petitioner’s application.

. First, the State presented evidence that showed the victim was a 12 year old girl that had sexual intercourse. Second, a nurse practitioner and physician who examined the victim testified that the intercourse was not consensual. Third, the victim positively identified Petitioner as her attacker. Fourth, the DNA profile developed from material collected during an examination of the victim was a 1 in 1600 match to Petitioner.