Cooper v. State

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Tommie Cooper,        Petitioner,

v.

State of South Carolina,        Respondent.

ON WRIT OF CERTIORARI

Appeal From Horry County
John L. Breeden, Jr., Post-Conviction Judge

Memorandum Opinion No. 2003-MO-001
Submitted November 21, 2002 - Filed January 13, 2003

AFFIRMED

Assistant Appellate Defender Robert M. Pachak, of Columbia, for Petitioner.

Attorney General Charles M. Condon; Chief Deputy Attorney General John W. McIntosh; Chief of Capital and Collateral Litigation Donald Zelenka; Assistant Deputy Attorney General Allen Bullard; and

Assistant Attorney General Douglas E. Leadbitter, all of Columbia, for Respondent.

JUSTICE PLEICONES:  Petitioner was convicted of trafficking in two kilos of cocaine and received a mandatory twenty-five year sentence.  We granted a writ of certiorari to review an order denying petitioner’s post-conviction relief (PCR) application.  We find competent evidence in the record to support the PCR judge’s finding that trial counsel was not ineffective, and therefore affirm.

FACTS

Undercover freelance narcotics agent Ridge made contact with petitioner’s brother, Nelson, who expressed interest in purchasing a quantity of cocaine.  Ridge told Nelson he had five kilos available for $18,000 each, and gave Nelson his beeper number.  Nelson indicated he knew some people who could probably “move” this amount of cocaine.

Nelson followed up by contacting Ridge.  A series of phone calls between Nelson and Ridge were recorded.  The recording was played for the jury.  As a result of these calls, a meeting was set for Friday at Briarcliffe Mall.

Ridge was given five kilos of police department-owned cocaine for the meeting.  He was equipped with a recording device, and video surveillance was arranged.  Nelson and petitioner arrived at the prearranged meeting.  Petitioner wanted to rent a motel room and “quality test” the cocaine there before completing the deal.  Ridge declined, and the transaction was not consummated.  An audiotape and a videotape of this encounter were played for the jury.  Ridge returned the five kilos of cocaine to the police.

The following Sunday petitioner telephoned Ridge to discuss going forward with the sale.  Ridge called his police supervisor, who approved a meeting between Ridge and petitioner.  Petitioner met Ridge at a McDonald’s that afternoon.  Ridge agreed to meet with petitioner later that Sunday evening at which time petitioner was supposed to give Ridge $90,000 in exchange for the five kilos.  Ridge did not have police permission to arrange this deal, nor did he have access to any cocaine.  Ridge packaged five kilos of flour to look like cocaine.  He met petitioner at the mall Sunday evening and they swapped “dope” for cash.  Petitioner’s cash package for Ridge had only slightly more than $36,000, rather than the full $90,000 due for the five kilos of “cocaine”.

Petitioner called Ridge several times Sunday night and left messages threatening to kill him.  Ridge told the police about the transaction and gave them petitioner’s money.  On Tuesday, Officer Fowler called a number and spoke with a man who identified himself as petitioner.  Officer Fowler, operating undercover as “Ron,” offered petitioner two kilos of cocaine for the $36,000 already paid to Ridge.  Ron/Fowler called petitioner again on Thursday as they had arranged, and followed up with another call that afternoon.  During these Thursday calls, Ron/Fowler and petitioner arranged for the two kilos of cocaine to be picked up from a parked vehicle in a mall parking lot.  The drugs were to be left in a cooler.  Recordings of the Tuesday and Thursday phone calls between Ron/Fowler and petitioner were played for the jury.

About twenty minutes after the second Thursday call, a white van pulled up beside the parked vehicle and the van’s driver retrieved the cooler.  The police arrested this man, petitioner’s codefendant Taft.  Taft had directions to the parking lot scribbled on the back of an envelope.  The envelope was addressed to petitioner’s wife at their residence in Florence.

Petitioner did not testify at trial.  Taft did, and claimed that a female acquaintance asked him to retrieve shrimp from a vehicle in a parking lot.  He agreed, and shortly thereafter found the envelope with directions stuck in the door of his rented room.  He followed the directions on the envelope, and was arrested.  Taft testified he did not know petitioner, and was simply doing a favor for the female acquaintance (and for a share of the shrimp).  He was acquitted.

ISSUES

1)    Whether trial counsel was ineffective in failing to argue the proper ground for the admission of certain testimony?

2)    Whether trial counsel was ineffective in advising that petitioner could be impeached by a prior conviction?

LAW

To prevail on an ineffective assistance claim, a post-conviction relief applicant must demonstrate both deficient performance by his attorney and resulting prejudice.  Prejudice in this context means a reasonable probability that had the deficient performance not occurred, the result of the trial would have been different.  Bruno v. State, 347 S.C. 446, 556 S.E.2d 393 (2001).  The PCR judge’s findings must be upheld if supported by any competent evidence in the record.  Id.

ANALYSIS

1.     Admission of Testimony

At trial, petitioner called two witnesses who testified that numerous people overheard the second of the Thursday calls between Ron/Fowler and petitioner arranging for the pick-up of the 2 kilos of cocaine.  Specifically, they testified petitioner conducted that call on a speakerphone located on his front porch during a neighborhood BBQ.  Petitioner proffered, but was not allowed to present, testimony from these two witnesses that after hanging up, petitioner said he knew that the caller was a police officer trying to set him up, and that he was “just playing around” with them.

Petitioner contends that this evidence would have been admitted had his attorney argued the correct rule of evidence.  Specifically, petitioner contends his statement was admissible as a “present sense impression” under Rule 803 (1), SCRE.  We agree that trial counsel was deficient in failing to argue this rule, and that had the statements been offered pursuant to it, they should have been admitted.

Petitioner bears the burden of proving not only that trial counsel erred, however, but also that the error prejudiced petitioner.  Petitioner failed to meet his burden of proving that had his “set-up” statement been admitted, there was a reasonable probability that petitioner would have been acquitted.  In our view, the audiotapes of the phone conversations between Nelson and Ridge arranging the first meeting, the audio and video tapes of petitioner at that meeting negotiating for the five kilos, the subsequent deal between Ridge and petitioner, the tapes of the phone calls between Ron/Fowler and petitioner that resulted in the agreement to transfer two kilos of real cocaine for the five kilos of flour, and the fact that the directions to the drugs were written on an envelope addressed to petitioner’s wife, constitute overwhelming evidence that petitioner trafficked in at least two kilos of cocaine.  We agree with the PCR judge that petitioner has not shown that he was prejudiced by the exclusion of his “set-up” statement.  Bruno v. State, supra. 

2.     Impeachment

Approximately eight years before this trial, petitioner had been convicted of assault and battery of a high and aggravated nature (ABHAN).  Trial counsel advised petitioner that if petitioner testified at this drug trial, he could be impeached by his prior conviction.  Petitioner contends this advice constituted ineffective assistance of counsel.  We disagree.

ABHAN carries a sentence in excess of one year, and petitioner’s conviction was less than ten years old.  Accordingly, petitioner would have been subject to impeachment by this prior conviction unless the trial judge had determined that the prejudice from it outweighed its probative value.  Rule 609, SCRE.  The evidence supports the PCR judge’s finding that trial counsel was not ineffective in advising petitioner that if he testified, this ABHAN conviction might be used to impeach him.  Bruno v. State, supra.

CONCLUSION

The evidence supports the PCR judge’s finding that trial counsel was not ineffective.  Accordingly, the PCR order is

AFFIRMED.
TOAL, C.J., MOORE, WALLER and BURNETT, JJ., concur.