THE STATE OF SOUTH CAROLINA

In The Supreme Court

Benjamin Bannister, Respondent,

v.

State of South Carolina, Petitioner.

ON WRIT OF CERTIORARI

Appeal From Dorchester County

Jackson V. Gregory, Trial Judge

Victor Rawl, Post-Conviction Judge

Opinion No. 24869

Submitted October 21, 1998 - Filed December 14, 1998

REVERSED

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, and Assistant

Deputy Attorney General Teresa A. Knox, all of

Columbia, for petitioner.

Chief Attorney Daniel T. Stacey, of South Carolina

Office of Appellate Defense, of Columbia, for

respondent.

BURNETT, A.J.: We granted the State a writ of certiorari to

review the post-conviction (PCR) judge's grant of a new trial to

respondent. We reverse.

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FACTS

Respondent was indicted on charges of first degree burglary

and assault with intent to commit first degree criminal sexual conduct

(CSC). A jury convicted him of burglary but acquitted him of CSC.

At trial, the State produced evidence on May 30, 1993,

respondent kicked open the front door and entered Unit F-16 of the

Canebrake Apartments. Occupants in the apartment, all young teenagers,

testified respondent stated he was looking for "Gayle" because she had his

money. One occupant told respondent Gayle lived in Unit F-8. One

witness testified, although it was morning, it was dark when respondent

entered her bedroom. Another testified, although it was early morning, he

could see respondent because the kitchen light was on. A patrol officer

testified she was dispatched to the Canebrake Apartments at 5:30 or 6:00

in the morning. She stated, at that time "[i]t was on the verge of not

quite being dark, but it wasn't quite light also."

Shortly after his arrest, respondent gave an oral statement to

a detective which the detective then placed into writing. In relevant part,

the statement provides: at 4:00 a.m. respondent met a woman named

"Gayle" in front of building F of the Canebrake Apartments in order to

purchase crack cocaine. Gayle took $150 from respondent and went inside

the apartments. Respondent waited for forty-five minutes. When she did

not return, he became angry, kicked the door open, and went inside to find

Gayle and get his money back. Children were inside the apartment.

When he went back outside, a little boy told respondent Gayle "wasn't at"

that apartment.

Respondent read the written statement and then signed it.

He was not given a copy of the statement until the morning of trial. At

the beginning of trial, defense counsel waived respondent's right to a

hearing on the voluntariness of the statement.

Respondent testified at trial. He stated on May 30, 1993, at

approximately 2:00 a.m., respondent spoke to Gayle James at a bar. Ms.

James told him she knew where there was crack cocaine. About thirty

minutes to an hour later, respondent and Ms. James left the bar

separately and met at the Canebrake Apartments in front of building F.

Respondent gave Ms. James $150 and she went into Unit F-16. After

waiting thirty to forty-five minutes, respondent became angry. He

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knocked on the door of Unit F-16 several times and then kicked it three or

four times. When he entered the apartment, he yelled for "Gayle," but she

was not inside.

At the PCR hearing, respondent testified he told defense

counsel Ms. James could have corroborated his claim he did not break into

the apartment with the intent to commit a crime therein.1 Rather,

he entered the apartment, believing Ms. James was inside, and intended

to retrieve his money. Ms. James did not testify at the PCR hearing;

however, respondent testified he thought Ms. James would have offered

beneficial testimony.

Defense counsel testified he did not remember if he attempted

to locate Ms. James; he agreed he did not issue a subpoena for the

witness. Defense counsel agreed if Ms. James had testified, her testimony

would have "added a considerable degree of credibility for [respondent's]

story . . . ."

Defense counsel testified he did not remember discussing

respondent's written statement with him or inquiring whether he had

received a copy of the statement. Similarly, he did not remember

discussing whether respondent should waive his right to challenge the

admissibility of his statement. According to defense counsel, there was

never any question as to the voluntariness of respondent's statement.

ISSUES

I. Did the PCR judge err by finding defense counsel was

ineffective for failing to subpoena witness Gayle James?

II. Did the PCR judge err by finding defense counsel was

ineffective for failing to move to suppress respondent's statement?

1S.C. Code Ann. § 16-11-311(A)(Supp. 1997)(first degree burglary

occurs when a person enters a dwelling without consent and with the

intent to commit a crime therein and, among other aggravating

circumstances, the entering occurs in the nighttime. S.C. Code Ann. § 16-

11-311 (A)(3)(Supp. 1997)(emphasis added).

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DISCUSSION

In a post-conviction proceeding, the burden is on the applicant

to prove the allegations in his application. Butler v. State, 286 S.C. 441,

334 S.E.2d 813 (1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 869, 88

L.Ed.2d 908 (1986). As to allegations of ineffective assistance of counsel,

the applicant must show his counsel's performance fell below an objective

standard of reasonableness, and but for counsel's errors, there is a

reasonable probability the result at trial would have been different.

Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); Johnson v. State, 325 S.C. 182, 480 S.E.2d, 733 (1997). A

reasonable probability is a probability sufficient to undermine confidence

in the outcome of the trial. Johnson v. State, supra. This Court must

affirm the findings of the PCR judge if they are supported by any evidence

in the record. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).

The State contends the PCR judge erred by finding defense

counsel ineffective for failing to subpoena Ms. James for trial because

respondent failed to call Ms. James or otherwise properly introduce her

testimony at the PCR hearing. Respondent maintains because the State

did not object when he testified as to what Ms. James would have

testified, his testimony became competent evidence. See State v. White,

215 S.C. 450, 454, 55 S.E.2d 785, 787 (1949)("[e]vidence even though

incompetent, if admitted without objection or motion to strike, will be

given the same probative force as that to which it would be entitled if it

were competent.").

This Court has repeatedly held a PCR applicant must produce

the testimony of a favorable witness or otherwise offer the testimony in

accordance with the rules of evidence at the PCR hearing in order to

establish prejudice from the witness' failure to testify at trial. Pauling v.

State, ___ S.C. __, 503 S.E.2d 468 (1998)(applicant established prejudice

where nurse's notes presented at PCR hearing corroborated lack of

penetration in sexual assault case); Glover v. State, 318 S.C. 496, 458

S.E.2d 538 (1995)(where witnesses applicant claimed could have provided

an alibi defense did not testify at the PCR hearing, he could not establish

any prejudice from counsel's failure to contact these witnesses); Underwood

v. State, 309 S.C. 560, 425 S.E.2d 20 (1992)(where applicant did not offer

witnesses at PCR hearing but merely alleged they would have provided

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him with alibi defense and testified victims had recanted their trial

testimony, he failed to establish prejudice); see also Jackson v. State, 329

S.C. 345, 495 S.E.2d 768 (1998)(applicant failed to establish prejudice from

counsel's failure to investigate criminal backgrounds of victims and

witnesses where he failed to substantiate at PCR hearing that victims and

witnesses had criminal records). "The applicant's mere speculation what

the witnesses' testimony would have been cannot, by itself, satisfy the

applicant's burden of showing prejudice." Glover v. State, supra, S.C. at

498-99, S.E.2d at 540. The State's failure to object to respondent's

testimony as to Ms. James' alleged testimony does not relieve respondent

of the burden of producing and/or offering Ms. James' testimony in

accordance with the rules of evidence.

Assuming Ms. James would have testified as speculated by

respondent, her testimony would have been crucial to the defense as it

would have corroborated respondent's version of the events on the morning

of May 30, 1993. However, since respondent neither produced Ms. James

as a witness nor offered her testimony in some other manner consistent

with the rules of evidence, her "testimony" was purely speculative. The

State's failure to object to this testimony did not relieve respondent of the

burden of either producing Ms. James as a witness or offering her

testimony in some other acceptable manner. Accordingly, respondent

failed to establish prejudice from defense counsel's failure to subpoena Ms.

James. The findings of the PCR judge are not supported by any evidence

of record and,should be reversed. Pauling v. State, supra (where there is

no probative evidence to support the PCR judge's findings, the findings

should not be upheld).

II.

The State contends the PCR judge erred in finding defense

counsel ineffective for failing to challenge the admissibility of respondent's

statement. Respondent contends counsel should have moved to suppress

his statement on the basis he was not given a copy of the statement as

required by statute.2 He argues he was prejudiced because 1) the

2 South Carolina Code Ann. §§ 19-1-80 and 90 (1976) preclude the

examination of any witness in a criminal proceeding about a written

statement formerly given to a government employee unless the witness

was given a copy of the statement at the time it was made.

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statement contained the only evidence that the burglary occurred in the

nighttime and 2) referred to his use of crack cocaine. We disagree.

There is no evidence to support the PCR judge's conclusion

counsel was ineffective for failing to challenge the admissibility of

respondent's statement. Respondent did not establish that if counsel had

moved to suppress the statement on the basis of the statutory violation

there is a reasonable probability the trial judge would have granted the

motion. Respondent was provided with a copy of his statement on the

morning of trial. There is no evidence he did not have adequate time to

review the statement in preparation for trial. State v. Butler , 277 S.C.

452, 290 S.E.2d 1 (1982)(as long as the witness has time to prepare for

trial after receiving a copy of the written statement, the failure to provide

the statement at the time it is made is not reversible error).

Furthermore, admission of the statement was not prejudicial.

Other witnesses testified it was nighttime when respondent broke into the

apartment. One witness testified it was dark in her bedroom; another

testified he could see respondent due to the kitchen light; a patrol officer

stated at the time she arrived on the scene, "[i]t was on the verge of not

quite being dark, but it wasn't quite light also." 12A C.J.S. Burglary § 26

(1980)("'Nighttime' . . . is, as was held at common law, that period

between sunset and sunrise during which there is not daylight enough by

which to discern or identify a man's face, except by artificial light or

moonlight.").

Finally, the reference to respondent's crack cocaine use in his

statement corroborated his defense. Respondent's drug use explained his

reason for meeting Ms. James at the Canebrake Apartments and giving

her money.

There is not a reasonable probability the result of respondent's

trial would have been different had his statement been suppressed.

Strickland v. Washington, supra. The findings of the PCR judge are not

supported by any evidence of record and should be reversed. Pauling v.

State, supra.

REVERSED.

TOAL, MOORE, and WALLER, JJ., concur. FINNEY, C.J.,

dissenting in separate opinion.

p.49

FINNEY, C.J.: I respectfully dissent, and would affirm the grant of post-

conviction relief (PCR) to respondent. We are required to affirm the circuit

court's PCR order if it is supported by any evidence in the record. Pauling

v. State, __S.C.__ , 503 S.E.2d 468 (1998). Where, as in this case, there

was no objection to respondent's testimony nor a motion to strike it, his

testimony was rendered competent and the judge was entitled to consider it

to the extent it was relevant. State v. Frank, 262 S.C. 526, 205 S.E.2d 827

(1974); see also Glover v. State, 318 S.C. 496, 458 S.E.2d 538 (1995)(Waller,

A.J., dissenting). In my opinion, the order's findings regarding defective

representation and resulting prejudice are supported by the evidence. I

would affirm.

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