Hutto v. State

Chief Justice TOAL.

In this case, we granted a writ of certiorari to review the court of appeals’ decision affirming the post-conviction relief (PCR) judge’s denial of relief. We affirm.

Factual/Procedural Background

Tommy Hutto (Petitioner) broke into a 91-year old woman’s home, cutting his arms and hands on the glass in the back door. Once inside, Petitioner sexually assaulted and robbed the victim. After he left her home, the victim notified the police, but Petitioner was neither identified nor caught at that time. About a month later, Ronnie Bends, Petitioner’s probation agent from a previous conviction, went to Petitioner’s home on a routine visit. Agent James Harris accompanied *247Agent Bends. During the visit, Agent Harris noticed the cuts on Petitioner’s arms.

Hubert Nimau, the officer investigating the assault and robbery, received a tip about the crime from a crime watcher’s newspaper article. Investigator Nimau questioned other officers, asking if they had seen anyone with cuts on his arms and hands. Investigator Nimau asked Agent Bends, who then called Agent Harris into his office to describe the injuries he had observed on Petitioner.

After receiving the information from both Agent Harris and the crime watcher’s tip, Investigator Nimau included Petitioner’s photograph in a photographic line-up shown to the victim. The victim identified Petitioner’s photograph as the man who broke into her house. Based on the victim’s identification, Investigator Nimau obtained a warrant for Petitioner’s blood. DNA samples taken from the crime scene matched Petitioner’s blood.

Petitioner was convicted of armed robbery, first degree criminal sexual conduct, and first degree burglary. At trial, Agent Harris had testified about the cuts he observed on Petitioner’s arms and hands. Petitioner applied for PCR, arguing that his trial counsel was ineffective for failing to move to suppress Agent Harris’s testimony based on S.C.Code Ann. § 24-21-290 (2007 & Supp.2008), which provides:

All information and data obtained in the discharge of his official duty by a probation agent is privileged information, is not receivable as evidence in a court, and may not be disclosed directly or indirectly to anyone other than the judge or others entitled under this chapter to receive reports unless ordered by the court or the director.

The PCR judge denied Petitioner’s request and the court of appeals affirmed.

Standard op Review

In post-conviction proceedings, the burden of proof is on the applicant to prove the allegations in his application. Butler v. State, 286 S.C. 441, 442, 334 S.E.2d 813, 814 (1985). On appeal, 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, 119, 386 S.E.2d 624, 626 (1989).

*248Law/Analysis

Courts use a two-pronged test in evaluating allegations of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cherry v. State, 300 S.C. 115, 117, 386 S.E.2d 624, 625 (1989). To establish ineffective assistance of counsel, the applicant must show: (1) counsel’s representation was deficient, as measured by an objective standard of reasonableness, and (2) applicant was prejudiced by counsel’s performance, such that there is a reasonable probability the outcome of the trial would have been different absent the deficiency. Id. at 117-18, 386 S.E.2d at 625.

I. Deficient Performance

Petitioner argues that trial counsel’s performance was deficient in that he failed to move to suppress Agent Harris’s testimony under section 24-21-290. We disagree.

Petitioner contends that this statute makes all information gathered during the execution of the probation agent’s duties privileged information. However, we find the legislature did not intend this statute to have such a broad application that it would cover anything the probation agent sees when visiting his client. We agree with the court of appeals’ interpretation and believe that the statute’s purpose is to foster open lines of communication between the probation agent and client. We do not believe the legislature intended the statute to cover physical observations, such as the one made in this case, that anyone could have made when encountering Petitioner. The information obtained was not reliant upon the probation agent/ client relationship. Preventing a probation officer from reporting what he sees during his visit to his client, as the State argues, could mean that he would be unable to report evidence of a crime he sees in his client’s home. Such a result is neither intended by the legislature nor necessary to further the goals of the statute.

II. Prejudice

Even if counsel’s performance were deficient, Petitioner was not prejudiced.

*249Petitioner argues that both Agent Harris’s trial testimony and his disclosure of Petitioner’s cuts to Investigator Nimau violated the privilege contained in section 24-21-290. Petitioner further contends that trial counsel’s allegedly deficient performance in not knowing the statute allowed the presentation at trial of testimony and evidence that was not properly admissible, without which there would be no evidence linking Petitioner to the crime. We address each of'.these arguments in turn.

A. Trial Testimony

To show prejudice, a defendant must demonstrate there is a reasonable probability the result of the trial would have been different absent trial counsel’s deficient performance. Id. at 117-18, 386 S.E.2d at 625. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Johnson v. State, 325 S.C. 182, 183, 480 S.E.2d 733, 735 (1997). No prejudice occurs, despite deficient performance, when there is overwhelming evidence of guilt. Rosemond v. Catoe, 383 S.C. 320, 325, 680 S.E.2d 5, 8 (2009).

Assuming that trial counsel’s performance had been deficient for failing to suppress Agent Harris’s testimony, Petitioner suffered no prejudice because even without Agent Harris’s testimony there was overwhelming evidence of Petitioner’s guilt. First, the victim identified Petitioner’s photograph as showing the man who assaulted and robbed her. Second, based on the victim’s identification, the police obtained a search warrant for Petitioner’s blood. Third, the DNA obtained from Petitioner’s blood sample matched the DNA from blood taken from the crime scene. There can be no reasonable probability that a jury confronted with this body of evidence would have returned anything other than a guilty verdict.

Because the victim’s identification and the results of the DNA testing constitute evidence, in the face of which, no reasonable jury would find Petitioner not guilty, Petitioner cannot show that the outcome of his trial - reasonably might have been different if Agent Harris’s testimony were excluded. Therefore, Petitioner was not prejudiced by counsel’s failing to move to suppress Agent Harris’s testimony under section 24-21-290.

*250 B. Disclosure to Investigator Nimau

Petitioner argues: (1) section 24-21-290 was violated when Agent Harris told Investigator Nimau about the cuts on Petitioner’s arms and hands; and (2) that this statutory-exclusion applies to both the victim’s identification of Petitioner in the final photographic line-up and the DNA evidence because they only could be obtained by a violation of the privilege created by the statute in question. We disagree.

While we do not believe Agent Harris’s disclosure violates the statute, assuming arguendo there was a violation, such violation would not warrant the exclusion of the evidence obtained from the information disclosed. Section 24-21-290 only creates a statutory privilege and does not implicate a constitutional right; therefore, the exclusionary rule does not apply. See State v. Chandler, 267 S.C. 138, 143, 226 S.E.2d 553, 555 (1976) (“[E]xclusion of evidence should be limited to violations of constitutional rights and not to statutory violations .... ”).

Further, Agent Harris’ disclosure was not the sole piece of information that led to the victim’s identification and the subsequent DNA evidence. The crimewatchers tip was also relied upon in including Petitioner’s photograph in the line-up. The victim’s identification and the DNA evidence are pieces of evidence independent from Agent Harris’ disclosure because his disclosure was not the only source that led to the evidence. Thus, they are in no way infected by the alleged statutory privilege issue and are properly admissible.

Conclusion

For these reasons, we affirm the court of appeals’ decision denying Petitioner post-conviction relief.

WALLER, KITTREDGE, JJ., and Acting Justice JAMES E. MOORE, concur. PLEICONES, J., dissenting in a separate opinion.