Criminal Practice – Collateral Injury Evidence – Extreme Indifference Beyond a Reasonable Doubt

Listen to this article

Respondent failed to demonstrate a reasonable likelihood that excluding collateral injury evidence would have changed the jury’s verdict and failed to satisfy Strickland’s prejudice prong.

We reversed the decision of the court of appeals.

We issued a writ of certiorari to review the award of post-conviction relief (PCR) to Respondent Mitchell Rivers. Rivers was tried and convicted of Homicide by Child Abuse following the death of his four-month-old adoptive child (Victim). At Rivers’ trial, the State introduced evidence of Victim’s prior injuries that were unrelated to Victim’s death. Rivers’ attorney at trial (Trial Counsel) objected pretrial but failed to renew that objection during trial, leaving the issue unpreserved on appeal. Following his direct appeal, Rivers filed a PCR application claiming ineffective assistance of counsel. The PCR court denied relief, finding Rivers was not prejudiced by Trial Counsel’s error. The court of appeals reversed, holding Rivers was prejudiced by those errors.

Rivers argued that the collateral injury evidence constituted improper propensity evidence that, if excluded, could reasonably have led to a different result at trial. We disagreed. To establish prejudice, a PCR applicant must show “a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.” There is no reasonable probability of a different result if the evidence of guilt is overwhelming. We first note that “an issue that was raised on direct appeal but found to be unpreserved may be raised in the context of a PCR claim alleging ineffective assistance of counsel.” Because there can be no prejudice where the merits of an issue would have been resolved against the PCR applicant, “an examination of the merits of the issue is appropriate in analyzing the prejudice prong in [a] PCR claim.” However, at oral argument, the State conceded that we need not determine whether the evidence was admissible. Thus, we did not reach whether the collateral injury evidence was admissible under Rule 404(b) of the South Carolina Rules of Evidence as res gestae evidence, or as Battered Child Syndrome evidence.

As to whether excluding the collateral injury evidence would have affected the jury’s verdict, we found no reasonable probability that it would have. Rivers testified that he found Victim unresponsive and performed CPR until the child began wheezing and regained color. Despite Victim’s history of severe respiratory issues and recent hospitalization, Rivers placed Victim face down in a playpen without seeking medical assistance or informing anyone and then went outside to do yard work. When Victim stopped breathing again, Rivers—who admitted he did not know CPR—had to be guided by 911 operators in his efforts to resuscitate Victim. Victim’s autopsy confirmed that Victim died of asphyxiation. Rivers’ awareness of Victim’s medical history, Victim’s need for CPR, Rivers’ inability to perform CPR, and Rivers’ failure to seek assistance after Victim resumed wheezing demonstrated a conscious disregard for the risk of Victim’s death. Thus, even assuming the jury accepted Rivers’ version of events, his actions established extreme indifference beyond a reasonable doubt. Moreover, the jury could have found Rivers’ testimony non-credible and reached an even more unfavorable conclusion as to what happened on the morning of Victim’s death.

Reversed.

Rivers v. State of South Carolina (Lawyers’ Weekly No. 010-034-25, 10 pp.) (Letitia H. Verdin, J.) Appealed from Chesterfield County (Roger E. Henderson, Post-Conviction Relief Judge) Attorney General Alan McCrory Wilson and Assistant Attorney General Brian Hollis Gibbs, both of Columbia, for Petitioner; Appellate Defender Jessica M. Saxon, of Columbia, for Respondent. South Carolina Supreme Court