Miller v. State

Chief Justice TOAL

dissenting:

I join in Justice Pleicones’ dissent. In my opinion, this evidence does not meet the threshold for third-party guilt.

In my view, testimony that Pauling and Derrick Miller committed other robberies using Pauling’s vehicle and that a similar gun was used in all four robberies is not evidence that is inconsistent with Petitioner’s guilt. State v. Beckham, 834 S.C. 302, 317, 513 S.E.2d 606, 614 (1999) (recognizing that third-party guilt evidence is limited to facts which are incon*118sistent with the defendant’s guilt). Furthermore, I agree with Justice Pleicones that Petitioner failed to show he was prejudiced by trial counsel’s alleged failure to adequately present this evidence. The jury heard testimony from Pauling that she pled guilty to an armed robbery that she committed with Derrick Miller in which she drove the “get-away” vehicle.

Furthermore, in my view, Petitioner failed to show trial counsel was ineffective in failing to call an expert on witness identification. Petitioner did not offer any such expert at his PCR hearing, and thus, he failed to meet his burden of proving prejudice. See Lorenzen v. State, 376 S.C. 521, 530, 657 S.E.2d 771, 776-77 (2008) (holding that the PCR applicant failed to show he was prejudiced by trial counsel’s failure to call an eyewitness identification expert because “it is merely speculative that these allegedly favorable expert witnesses would have aided in his defense.”).

For these reasons, I believe there is evidence to support the PCR court’s findings, and I would affirm the order denying Petitioner relief.

PLEICONES, J., concurs.