Criminal Practice – Post-Conviction Relief – Ineffective Assistance of Counsel – Failure to Call a Witness

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PCR court improperly found that respondent established prejudice and erred in holding that a witness’ name being on the indictment constituted a structural error.

PCR court’s order granting respondent’s application for post-conviction relief is reversed.

In this post-conviction relief action, petitioner the State of South Carolina sought review of an order granting respondent James L. Carrier’s PCR application on the ground of ineffective assistance of counsel. The State argued the PCR court erred in finding respondent’s trial counsel was ineffective in failing to present evidence to support a motion to quash respondent’s indictment.

On appeal, we had to determine whether the PCR court erred in finding that respondent was entitled to PCR due to trial counsel’s failure to call a witness during a motion to quash and whether the PCR court erred as a matter of law in finding an incorrect name being listed on respondent’s indictment amounted to a structural error requiring a new trial.

The PCR court erred in concluding that the erroneous listing of a witness’ name on the indictment constituted a structural error. We find no authority declaring a misnomer on an indictment to be a structural error as a matter of law. This meant we must look to the categories in Weaver to consider whether a misnamed witness on an indictment is a structural error. The first Weaver category encompasses violations of rights designed to protect some interest of the defendant other than his interest against an erroneous conviction. The classic example of such a right is the right to testify at one’s own criminal trial, which when exercised “usually increases the likelihood of a trial outcome unfavorable to the defendant” and thus is designed to protect an interest other than the interest against an erroneous conviction. Here, the right to an indictment, as well as the right to a grand jury, are rights designed to protect against erroneous convictions. This means they are not the sort of right covered by the first Weaver category.

Looking to the second category, which encompasses errors that result in effects too difficult to measure, the effects of this error are not fatally difficult to measure. The trial court could have modified the indictment pursuant to its powers under section 17-19-100 of the South Carolina Code (2017) or the State could have simply obtained another indictment had the trial court seen it fit to quash one or both of them. Despite the misnomer, the trial proceeded in the exact same fashion as it would have without it.

Finally, the third category includes errors that “always result in fundamental unfairness.” Weaver, 582 U.S. at 296. The wrong name of a presenting witness listed on the indictment did not create any fundamental unfairness for respondent, who challenged the fairness of his trial solely because of the erroneous listing of the witness and on no other basis of unfairness or impropriety in the trial process. Although the State’s error departed from the statutory requirements governing indictments, it did not create any unfairness for respondent throughout the trial.

The PCR court erred in finding that the witness’ name being on the indictment constituted a structural error.

The State contested the PCR court’s alternative finding that even if the error was not structural and prejudice could not be presumed, the flawed indictment still prejudiced respondent. We agree with the State for three reasons: the indictment was legally sufficient as a matter of law, notwithstanding the misnomer; an amendment to the indictment was likely more appropriate than quashing; and the State likely would have obtained another indictment if the trial court had chosen to quash it.

We find that respondent failed to show a reasonable probability that the outcome of his trial would have been different had his trial counsel supported the motion to quash the indictment with evidence. Therefore, his ineffective-assistance-of-counsel claim must fail. The PCR court erred in concluding that respondent established prejudice.

Reversed.

Carrier v. State of South Carolina (Lawyers Weekly No. 011-079-23, 12 pp.) (John D. Geathers, J.) Appealed from Greenwood County. Attorney General Alan McCrory Wilson and Assistant Attorney General Zachary William Jones, both of Columbia, for petitioner; Appellate Defender Lara Mary Caudy, of Columbia, for respondent. South Carolina Court of Appeals