Criminal Practice – Attorneys – Constitutional – Ineffective Assistance – Evidence – Prior Inconsistent Statements – Failure to Impeach

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Rutland v. State (Lawyers Weekly No. 010-018-16, 8 pp.) (Costa Pleicones, C.J.) (John Few, J., not participating) Appealed from Lexington County (L. Casey Manning, Post-Conviction Relief Judge) S.C. S. Ct.

Holding: A prosecution witness’ testimony was crucial to the state’s case, yet defense counsel failed to question the witness about her prior inconsistent statements (which tended to exonerate petitioner); under these circumstances, defense counsel provided ineffective assistance.

We reverse the denial of post-conviction relief (PCR).

Facts

Petitioner and his girlfriend – the victim’s estranged wife – were visiting a pet-grooming business when the victim entered. According to petitioner and his girlfriend, the victim pointed a gun, first at his estranged wife, and then at petitioner. Petitioner shot and killed the victim.

According to her original statements, Bow Wow Boutique employee Kimberly Kestner saw the victim pull a gun before he was shot. However, at trial, she testified that she never saw the victim possess a gun, although she did see a handgun lying on the floor after the victim had been shot.

Although Kestner had told a newspaper reporter and the police that the victim was armed, defense counsel did not question her about these prior inconsistent statements. Petitioner was convicted of murder, possession of a firearm during the commission of a violent crime, and pointing a firearm.

Analysis

The PCR judge found that, although trial counsel was deficient in failing to cross-examine Kestner as to her prior inconsistent statements, petitioner failed to prove prejudice. In denying petitioner’s application, the PCR judge relied on petitioner’s failure to present Kestner as a witness at the PCR hearing and to produce extrinsic evidence as to her prior inconsistent statements.

The PCR judge was incorrect in finding that petitioner failed to produce extrinsic evidence of Kestner’s statements at the PCR hearing. Petitioner produced both a copy of Kestner’s statement to law enforcement and affidavits from individuals attesting to having heard Kestner say the victim was armed at the time of the shooting.

Had trial counsel discredited Kestner’s testimony by raising the prior inconsistent statements on cross-examination, Kestner’s credibility would have suffered. Since she was the only disinterested, objective witness to the shooting, there is a reasonable probability the outcome of the trial would have been different had trial counsel impeached Kestner.

In his closing argument, the solicitor relied heavily on Kestner’s trial testimony. Additionally, during deliberations, the jury asked whose fingerprints were on the handgun found on the floor near the victim. Furthermore, our finding that trial counsel’s deficient performance undermines confidence in the outcome of petitioner’s trial is supported by the jury’s struggle to reach a unanimous verdict on all indictments in the case.

Reversed.