Ingle v. State

Justice BURNETT:

(Dissenting).

I respectfully dissent. The issue before the Court is whether there is any probative evidence which supports the PCR judge’s finding counsel was effective. In my opinion, there is evidence which supports the PCR judge’s finding and, therefore, we must affirm. Anderson v. State, 342 S.C. 54, 535 S.E.2d 649 (2000) (if there is any probative evidence to support the findings of the PCR judge, those findings must be upheld).

First, I disagree with the majority’s conclusion trial counsel was deficient for eliciting Dr. Baker’s hearsay testimony. On occasion we have deemed counsel deficient for failing to object to hearsay testimony. We have not, however, held counsel is always ineffective for failing to object to hearsay testimony. See Caprood v. State, 338 S.C. 103, 525 S.E.2d 514 (2000). Instead, as with other assertions of trial strategy, we consider the particular circumstances of the case. See Solomon v. State, 347 S.C. 635, 557 S.E.2d 666 (2001) (court considers reasonableness of trial strategy on case-by-case basis). Where trial counsel articulates a valid reason for employing certain trial strategy, he will not be deemed ineffective. Roseboro v. State, 317 S.C. 292, 454 S.E.2d 312 (1995).

Here, trial counsel explained he intentionally elicited the hearsay testimony from Dr. Baker because he wanted the jury to hear from the expert that the victim only alleged petitioner had assaulted her. Trial counsel suggested the testimony implied there was no proof the victim had been assaulted. Under the circumstances of this ease where it was questiona*476ble whether the victim had been assaulted, this was reasonable trial strategy.2 Accordingly, counsel was not ineffective. Id. I would affirm.

Furthermore, while I agree with the majority that counsel was deficient in failing to object to Detective Williams’ hearsay testimony, I nonetheless conclude petitioner failed to establish prejudice. Hearsay testimony which corroborates the victim’s testimony as to the details of the sexual assault or identification of the perpetrator is prohibited. Dawkins v. State, 346 S.C. 151, 551 S.E.2d 260 (2001); Jolly v. State, 314 S.C. 17, 443 S.E.2d 566 (1994). Detective Williams’ testimony was cumulative to that of Dr. Baker’s; it did not simply corroborate the victim’s testimony. Accordingly, petitioner failed to establish prejudice. Because the PCR judge’s findings are supported by the evidence of record, I would affirm. Anderson v. State, supra.

Second, I agree with the majority’s conclusion trial counsel’s strategy in asking Afify whether she and petitioner had engaged in sexual intercourse without first interviewing her was unreasonable. I conclude, however, that petitioner was not prejudiced by counsel’s deficient performance. Had trial counsel not asked Afify on direct examination whether she and petitioner had sex the morning of the alleged assault, there is not a reasonable probability the outcome of trial would have been different. At petitioner’s trial, the State called Afify in reply and questioned her about having sex with petitioner the morning of the alleged assault. The State would have called Afify in reply even if she had not testified as a defense witness.3 Contrary to the majority’s conclusion, there is probative evidence in the record which supports the PCR judge’s *477conclusion petitioner was not prejudiced. Based on this Court’s limited scope of review, I would affirm. Id. 4

TOAL, C.J., concurs.

. The defense suggested the victim had not been molested. Petitioner articulated a plausible theory concerning the presence of the semen on the victim's shorts. Further, he suggested the victim had a motive to accuse him of misconduct. Two witnesses testified the victim was in their company after the alleged assault, did not mention the incident, and acted "normally.” Moreover, even though the victim told Afify about the alleged assault on the same day as the incident, Afify did not report the crime until ten days later, after a neighbor reported the incident to DSS. For a portion of this ten day period, Afify took her family to the beach for a vacation.

. At the PCR hearing, trial counsel stated petitioner desired to testify.

. In addition, petitioner claims counsel "absolutely destroyed” his theory of defense by eliciting testimony from the forensic serologist that semen could not have been transferred from the bed sheets to the victim's shorts. The Court granted petitioner review of four questions raised in the petition for a writ of certiorari. None of the questions raised in the petition address trial counsel’s examination of the forensic serologist. Accordingly, this issue is not preserved for appeal. McCray v. State, 317 S.C. 557, 455 S.E.2d 686 (1995) (issue not raised in petition for a writ of certiorari but presented in brief is not preserved for appeal).