                     THE STATE OF SOUTH CAROLINA 

                          In The Supreme Court 


            Russell Earley, Respondent,

            v.

            State of South Carolina, Petitioner.

            Appellate Case No. 2014-001566


                            Appeal from Sumter County 

                 George C. James, Jr., Post-Conviction Relief Judge 



                              Opinion No. 27672 

              Submitted February 16, 2016 – Filed October 19, 2016 



                                   REVERSED


            Attorney General Alan Wilson and Assistant Attorney
            General Daniel Gourley, both of Columbia, for
            Petitioner.

            Tommy A. Thomas, of Irmo, for Respondent.


JUSTICE KITTREDGE: This is a post-conviction relief (PCR) matter.
Respondent Russell Earley was convicted of criminal solicitation of a minor and
sentenced to eight years in prison. After withdrawing his direct appeal,
Respondent filed a PCR application. The PCR court granted Respondent relief.
We reverse and reinstate Respondent's conviction and sentence.
                                         I. 


Respondent's criminal charge arose from an encounter with a fourteen-year-old
male (Victim) outside a public restroom at Walmart in Sumter in November 2008.
On the evening of the incident, the Victim visited Walmart with his grandmother,
who had promised to buy him some headphones. The Victim and his grandmother
went in separate directions when they entered the store—the Victim headed for the
electronics department while his grandmother went to pick up a few grocery items.

After separating from his grandmother, the Victim stopped to use the restroom
before shopping for headphones; as he entered the restroom, he noticed
Respondent following him. The Victim stated he felt uncomfortable because
Respondent stood in the restroom watching the Victim use the urinal. The Victim
testified Respondent thereafter followed him out of the restroom, pointed to the
Victim's genitals, and offered the Victim oral sex, which the Victim declined in no
uncertain terms. The Victim immediately reported the incident to Walmart
security, and multiple witnesses testified the Victim was visibly upset after the
incident.

As the Victim relayed the incident to store employees, a Walmart security officer
spotted Respondent heading toward an exit and noticed a "steady pace about
[Respondent's] step."1 Respondent had not purchased anything and was leaving
the store alone. The security officer immediately called law enforcement, followed
Respondent out of the store, and watched him get into his vehicle and leave the
parking lot. Within minutes, a police officer stopped Respondent's vehicle
approximately half a mile from Walmart. Respondent was identified as the
perpetrator and was arrested.

There were no witnesss to the incident, and nothing was captured on Walmart
surveillance video. In an effort to undermine the Victim's character and thus his
story at trial, defense counsel sought to introduce a cartoon image obtained from
the Victim's Facebook page referencing marijuana use; however, the trial court



1
 The security officer stated Respondent was not running but explained
Respondent's step was "not just your general [way of] casually" leaving the store.
denied the motion, finding the cartoon from the Victim's Facebook page was not
admissible. The trial court did, however, find that Respondent's 2003 federal
conviction for bank robbery would be admissible as impeachment evidence.2

At trial, Respondent testified in his own defense, and defense counsel questioned
Respondent about his federal bank robbery conviction on direct examination in a
strategic effort to mitigate its prejudicial impact. According to Respondent, he ate
dinner with friends on the evening of his encounter with the Victim, and after
dinner, the group went to Walmart in search of a birthday gift for a friend's son.
After failing to locate the desired item, Respondent testified the group decided to
try another store, and he stopped by the restroom before leaving Walmart.
Respondent admitted encountering the Victim in the restroom; however,
Respondent denied propositioning the Victim and being attracted to young boys.

Essentially, the theory of his defense was that the Victim fabricated the whole
story and the motivation for doing so was that Respondent had caught the Victim
trying to shoplift CDs. According to Respondent, he was already in the restroom
using the urinal when the Victim entered the restroom. Respondent testified the
Victim kept both his hands in the front pocket of his sweatshirt and was acting
nervous. Respondent testified he heard "tearing up plastic, like opening CDs," and
on his way out of the restroom, Respondent passed by the Victim, who was
standing by the sinks, and said "hey, I wouldn't be doing that, I wouldn't be
stealing."3 However, Respondent admitted that he never actually saw the Victim
attempting to steal any merchandise; rather, Respondent assumed the Victim was
stealing CDs because he thought heard plastic rustling in the Victim's sweatshirt
pocket.



2
  We are aware of this Court's opinion in State v. Broadnax, 414 S.C. 468, 779
S.E.2d 789 (2015), upon which the dissent relies. However, the issue of whether
the trial court conducted a balancing test pursuant to Rule 609(a)(1), SCRE, before
determining this federal bank robbery conviction was admissible as impeachment
evidence is not an issue before the Court.
3
 Although Respondent admitted being aware that the Walmart security officer
followed him out the store, he offered no explanation for why he did not report the
Victim's purported theft at that time.
The issue in this PCR matter involves a line of questioning during the State's cross-
examination of Respondent. Specifically, the State had evidence that Respondent
posted the message "See ya" on the Victim's Facebook wall the week before trial,
despite having been ordered after his arrest not to have any contact with the minor
Victim. The State's theory was that by posting such a message, Respondent was
attempting to intimidate or threaten the Victim on the eve of trial. See State v.
Edwards, 383 S.C. 66, 72, 678 S.E.2d 405, 408 (Ct. App. 2009) (holding that
"witness intimidation evidence, if linked to the defendant, may be admitted to
show a consciousness of guilt"). It is undisputed that the State did not provide
defense counsel with a copy of Respondent's Facebook post "See ya" prior to trial.

Initially, Respondent was unaware the State had a copy of the message he posted
on the Victim's Facebook page and denied having any contact with the Victim
since the incident in the Walmart bathroom four years earlier. However, once the
State confronted Respondent with a copy of the message, Respondent admitted
contacting the Victim and explained he did so "[be]cause his time will come."
Defense counsel did not object or otherwise alert the trial court that the State had
failed to disclose the "See ya" Facebook posting prior to trial. In response to the
Solicitor's questions about his bank robbery conviction, Respondent volunteered
that he had been convicted of not one, but nine bank robberies. Respondent's
testimony concluded shortly thereafter, and the defense rested without presenting
any other evidence.

Immediately thereafter, the trial court invited counsel to place upon the record the
substance of several side-bar conversations that took place off the record during
the defense presentation. At that time, defense counsel stated:

      [Defense Counsel]: I understand Your Honor's ruling on the side bar,
         but our position was that while my client testified[,] Mr.
         [Solicitor] had asked him about going on to [the Victim's]
         Facebook page and leaving a message. And obviously, Judge,
         what we had talked about before was the [marijuana cartoon] that
         we had gotten off of [the Victim's] Facebook page and printed a
         copy. We talked about that earlier in trial, and it was our intent to
         talk about that in response to Mr. [Solicitor's] question about the
         Facebook page.
      The Court: And I ruled that you not—that I was not allowing you to
         put in the information you got off of the [V]ictim's Facebook
         about smoking marijuana, whatever.

      [Defense Counsel]: And Judge, I wanted to make sure—I was not
         going to offer it into evidence, but I wanted to ask my client what
         did he find on the Facebook page.

      The Court: Yeah, I would have allowed you to get into anything
         regarding him leaving a message on [the Victim's] Facebook
         page, but not any other information that he might have come
         across on the Facebook so that's why I ruled that you do not
         introduce that, okay?

(emphasis added).

The jury returned a guilty verdict, and the trial court sentenced Respondent to eight
years in prison. A direct appeal was timely filed but subsequently dismissed upon
Respondent's motion to withdraw his appeal. Thereafter, Respondent filed a PCR
application, in which his only legal or factual allegation was the general statement
"ineffective assistance of counsel." Respondent's PCR application included no
further details regarding his legal claims or any facts which supported his asserted
ground for relief. Specifically, neither Respondent's PCR application nor his
testimony at the PCR hearing referred, in any way, to his "See ya" Facebook
posting or the word "mistrial."

At the beginning of the PCR hearing, Respondent's PCR attorney summarized for
the PCR court the ineffective assistance of counsel claims Respondent wished to
assert; however, this summary likewise made no reference to the Facebook
comment or the word "mistrial."4 Indeed, the Facebook posting was not mentioned


4
  This summary of ineffective assistance of counsel claims included counsel's
failure to adequately prepare for trial; failure to review the State's discovery with
Respondent; failure to adequately discuss a plea offer with Respondent; failure to
interview and call as witnesses Respondent's friends who were with him at
Walmart just before the incident; failure to effectively cross-examine the Victim;
and failure to adequately advise Respondent regarding his decision whether to
until defense counsel brought it up during questioning by the State's attorney about
his efforts to prepare for trial. In response to a question about why the defense did
not interview or call as witnesses Respondent's friends who were with him at
Walmart around the time of the incident, counsel explained that Respondent's
friends' testimony would not have been helpful since none of Respondent's friends
were present at the restroom when the solicitation was alleged to have taken place,
and in dismissing the impact of his failure to interview and call those witnesses,
counsel testified that he believed the turning point of the trial was the evidence that
Respondent contacted the victim on Facebook—not the lack of defense witnesses.

After hearing trial counsel's testimony on direct examination that he was surprised
to learn of the Facebook posting, Respondent's PCR attorney raised, for the first
time, the issue of Rule 5, SCRCrimP, during cross-examination:

      Q. Now, you filed a Rule 5?

      A. I did.

      Q. Was this contact or this [Facebook] statement, do you think it was
         exculpatory? [Did the State] have an obligation to provide this
         information to you prior to trial?

      A. Well, I guess they could have shared it with me.

      Q. Could it have been potentially a Rule 5 violation?

      A. Come to think of it, it's a statement or alleged statement by my
         client.

Defense counsel testified that he did not receive a copy of the "See ya" message
Respondent posted on the Victim's Facebook wall in response to the defense's Rule
5, SCRCrimP request and that Respondent "didn't tell me anything about it."
Accordingly, defense counsel was "totally unaware" that Respondent had contacted
the victim via Facebook prior to the trial. Defense counsel explained:


testify at trial and the ramifications of his prior criminal record. The PCR court
denied relief on all these grounds.
      We had the case set for trial in front of Judge Young. And Judge
      Young . . . saw [Respondent] in the courtroom and said, hey, you
      know, I got a conflict. I can't do this. And that's what caused it to get
      continued to the next week . . . . We had done some—one of the
      assistan[ts] in my office had done some [] research. . . . And we
      discovered that this [Victim] had a Facebook page. And it had on
      there some character. And it says, "I smoke weed all day." So we
      thought, hey, you know, maybe this is something we could eventually
      [use to] impeach this [Victim's] character. So we had it in preparation
      for the trial . . . .

      And, of course, when [the trial] got continued, I had told [Respondent]
      about that and showed him, look at this thing we found on this
      [Victim]'s Facebook page. Anyway, I said, well, [Respondent], we'll
      get back together next week. It looks like . . . they're going to call it
      for trial next week and we'll be prepared for it. . . .

      What did happen and I was totally unaware of this is that
      [Respondent] had had some communication with the [Victim] during
      . . . the week between when it got continued . . . and I didn't know
      that he had done this. And, of course, what actually happened is, he
      sent this communication to the [Victim] and evidently the [Victim]
      turned around and gave it to [the Solicitor].

Defense counsel testified that he believed, up until that point on cross-examination,
the trial was going well for his client:

      I thought on direct, I thought [Respondent] was coming across very
      well with the jury. You know, . . . [he] had this conviction in Federal
      Court . . . but it wasn't . . . something that I thought would hurt him in
      this situation, get it out so the jury would understand. And the fact
      that he had pled to that showed that he had taken responsibility for
      that. . . . I didn't think the [Victim] came across as a star witness or
      [was] as sound and [a]s believable as you would like as a prosecutor.
Although defense counsel acknowledged that the evidence of Respondent's
intimidating Facebook post was "going to come out just like [Respondent's] bank
robbery conviction came out" had the State disclosed it before trial, counsel
testified:

      Obviously, [my trial strategy] would have changed because then I
      would have known it was coming. . . . if I had known about it, I would
      have brought it out as a part of my direct questioning to [Respondent].
      So that would have taken the sting out of it . . . .

Ultimately, the PCR court granted relief, finding the State should have disclosed
the "See ya" Facebook posting in response to Respondent's motion pursuant to
Rule 5(a)(1)(A), SCRCrimP, because the Facebook posting was a "statement"
made by the defendant, the existence of which was known to the State. The PCR
court further found the statement was relevant for both impeachment and witness
intimidation purposes. Relying on State v. Lawton, 382 S.C. 122, 675 S.E.2d 454
(Ct. App. 2009), the PCR court concluded the statement was "material to the
preparation" of the defense, and counsel was therefore deficient for failing to move
for a mistrial based on the Rule 5 violation. Specifically, the PCR court found
"there was no practical way for the [Respondent] to avoid testifying, because if he
did not testify, the only story the jury would have heard was the victim's relatively
uncontracticted testimony"; nevertheless, the PCR court found the Facebook
posting was material to the preparation of the defense because, had it been
disclosed, "trial counsel would have counseled [Respondent] how to respond to the
question of whether he'd had any contact with the victim." As to prejudice, the
PCR court found a curative instruction would have been insufficient to redress the
prejudice resulting from the State's failure to disclose the Facebook posting. In
fact, the PCR court essentially ruled that the trial court would have been compelled
 as a matter of law to grant a mistrial.5 This Court issued a writ of certiorari to
review the PCR court's order.

                                          II.

The State argues the PCR court erred in granting relief because the Facebook
posting was not subject to disclosure under Rule 5, SCRCrimP, and alternatively,
that the PCR court erred in finding a mistrial would have been required as a matter
of law given the facts of this case. Specifically, the State argues that because the
PCR court found that Respondent would have had to take the stand to rebut the
State's evidence at trial regardless of his prior knowledge about the State's evidence
of the comment, disclosure of the comment was immaterial to his defense strategy.
Even assuming the Facebook posting was subject to disclosure under Rule 5,
SCRCrimP, and that counsel was deficient for failing to move for a mistrial based
on the State's nondisclosure, we find that the PCR court committed an error of law
in holding that a mistrial would have been mandated as a matter of law.




5
  The dissent contends the PCR judge's findings about prejudice were actually an
exercise of discretion and points out the words "'as a matter of law' do not, at any
point, appear in the PCR order." What the dissent fails to point out or appreciate
are the actual words that do appear in the PCR order: the PCR court found "the
analysis of the [prejudice] prong must include an analysis of the question of
whether the trial judge would have been required to grant a motion for a mistrial,"
and the PCR court ultimately concluded "the trial judge would have been
compelled, upon proper motion, to grant a mistrial"; that "[a] curative instruction
would not have been sufficient to cure the prejudice"; and that "the applicant has
established that a mistrial would have to have been granted if trial counsel had
objected to the discovery violation and moved for a mistrial." (emphasis added).
These findings clearly support our view that the PCR court ruled that the trial court
would have had only one choice—to grant a mistrial. Moreover, even Respondent
acknowledges in his brief, "the PCR Court found Respondent was prejudiced
because had Trial Counsel objected and moved for a mistrial, the Trial Court
would have been required to grant a mistrial." (emphasis added). Thus, we reject
the suggestion that the PCR court viewed its decision on prejudice as involving an
exercise of discretion.
"'A convicted defendant's claim that counsel's assistance was so defective as to
require reversal of a conviction has two components.'" Walker v. State, 407 S.C.
400, 404, 756 S.E.2d 144, 146 (2014) (quoting Strickland v. Washington, 466 U.S.
668, 687 (1984)). "The defendant must first demonstrate that counsel was
deficient and then must also show the deficiency resulted in prejudice." Id. at 404–
05, 756 S.E.2d at 146. "To satisfy the first prong, a defendant must show counsel's
performance 'fell below an objective standard of reasonableness.'" Id. at 405, 756
S.E.2d at 146 (quoting Franklin v. Catoe, 346 S.C. 563, 570–71, 552 S.E.2d 718,
722 (2001)). To prove prejudice resulting from counsel's failure to move for a
mistrial, an applicant must demonstrate that, had counsel moved for a mistrial, the
trial court's denial of the motion would have amounted to an abuse of discretion.
Cf. Morris v. State, 371 S.C. 278, 283, 639 S.E.2d 53, 56 (2006) (finding PCR
applicant met his burden of proving he suffered prejudice under Strickland as a
result of counsel's failure to request a continuance where the applicant
demonstrated the trial court's refusal of the continuance would have amounted to
an abuse of discretion); accord Weinn v. State, 281 S.W.3d 633, 641 (Tex. Ct.
App. 2009) ("The failure of appellant's counsel to request a mistrial could only be
termed an act of ineffective assistance of counsel if a mistrial should have been
granted."). Where there is no support for the PCR court's conclusion, reversal
thereof is proper. See Johnson v. State, 325 S.C. 182, 187–88, 480 S.E.2d 733,
735–36 (1997) (reversing the grant of PCR where counsel did not object or seek a
mistrial in response to the solicitor's statement during closing that "the defendant
has not put up a defense, he's not testified" and finding there was no evidence the
accused was deprived of a fair trial because the trial court instructed the jury that it
was not to consider the accused's failure to testify in any way and could not use it
against the accused).

Rule 5, SCRCrimP, requires disclosure of evidence by the State, including
statements by the defendant:

      Upon request by a defendant, the prosecution shall permit the
      defendant to inspect and copy or photograph: any relevant written or
      recorded statements made by the defendant, or copies thereof, within
      the possession, custody or control of the prosecution, the existence of
      which is known, or by the exercise of due diligence may become
      known, to the attorney for the prosecution . . . .
Rule 5(a)(1)(A), SCRCrimP. "The rule, of course, is intended to enable a
defendant to obtain prior to trial any of his own statements relevant to the crime
charged against him so that he will be able to prepare properly to face the evidence
that may be introduced against him at trial." United States v. Gleason, 616 F.2d 2,
24 (1979) (discussing the underlying purpose of the similar federal rule).

"[W]here a party fails to comply with Rule 5, the court may order the
noncomplying party to permit inspection, grant a continuance, prohibit
introduction of the nondisclosed evidence, or enter such order as it deems just
under the circumstances." State v. Kerr, 330 S.C. 132, 150, 498 S.E.2d 212, 221
(Ct. App. 1998) (citing Rule 5(d)(2), SCRCrimP; State v. Trotter, 322 S.C. 537,
542, 473 S.E.2d 452, 4585 (1996)). "Sanctions for noncompliance with disclosure
rules are within the discretion of the trial judge and will not be disturbed absent an
abuse of discretion." Id. (citing State v. Davis, 309 S.C. 56, 63, 419 S.E.2d 820,
825 (Ct. App. 1992)). Moreover, the trial court also has the prerogative to waive
the disclosure requirements "for good cause shown." Rule 5(g), SCRCrimP ("The
court may, for good cause shown, waive the requirements of this rule.").

When the actions of the Solicitor rise to the level of prosecutorial misconduct, the
question of whether a mistrial is warranted "'is determined by (1) the cumulative
effect of such misconduct; (2) the strength of the properly admitted evidence of the
defendant's guilt; and (3) the curative actions taken by the court.'" State v. Inman,
395 S.C. 539, 565, 720 S.E.2d 31, 45 (2011) (quoting United States v. Anwar, 428
F.3d 1102, 1112 (8th Cir. 2005)). "The power of the court to declare a mistrial
should be used with the greatest caution and for plain and obvious causes." State v.
Johnson, 334 S.C. 78, 89, 512 S.E.2d 795, 801 (1999) (citing State v. Crim, 327
S.C. 254, 257, 489 S.E.2d 478, 479 (1997)). "The granting of [a] motion for a
mistrial is an extreme measure which should be taken only where an incident is so
grievous that prejudicial effect can be removed in no other way." State v.
Patterson, 337 S.C. 215, 227, 522 S.E.2d 845, 851 (Ct. App. 1999). "Instead, the
trial judge should exhaust other methods to cure possible prejudice before aborting
a trial." Id.

In his order granting relief, the PCR court relied heavily upon Lawton, a decision
in which the court of appeals found reversible error in the admission of a letter
Lawton sent his ex-wife from jail, which stated "I know that my story is full of
lies" and which the State failed to disclose under Rule 5, SCRCrimP, prior to trial.
In Lawton, defense counsel immediately objected to the introduction of and
questioning about the letter based on the State's failure to disclose it during
discovery. The trial court overruled defense counsel's objection, finding that the
letter was being used only for impeachment purposes, and therefore it was not
"relevant" within the meaning of Rule 5, SCRCrimP, and did not fall within the
scope of materials the State was obligated to disclose. On direct appeal, the court
of appeals reversed, finding the letter was "relevant" within the meaning of Rule
5(a)(1)(A), even if the letter impacted only the defendant's credibility, and
therefore, the letter should have been disclosed by the State prior to trial. The
court of appeals further reasoned that "[d]isclosure of the letter was clearly
material to the preparation of Lawton's defense because it likely would have
affected his decision to testify," and because there was "a reasonable probability
[the defendant] would not have testified had he known the State possessed such
strong impeachment evidence," the court of appeals concluded Lawton was
prejudiced by trial court's error in admitting the undisclosed statement. Id. at 127–
28, 675 S.E.2d at 457.

Here, although the PCR court properly found Respondent's undisclosed Facebook
posting was relevant for the purposes of witness intimidation, the PCR court
nevertheless erred in concluding the posting had impeachment value prior to trial.
Unlike the statement in Lawton—"my story is full of lies"—Respondent's
statement in this case—"See ya"—is not impeaching on its face. Indeed, there is
nothing in the message "See ya" that inherently calls into question Respondent's
credibility. Rather, the impeachment value of the "See ya" statement in this case
did not arise until Respondent denied contacting the Victim during his trial
testimony. See Gleason, 616 F.2d at 24 (finding, in bank fraud prosecution, that
defendant's handwritten notes on agendas and financial statements were not
"relevant" within the meaning of the similar federal criminal discovery rule, and
thus subject to disclosure by the prosecution, because those documents "became
relevant for impeachment purposes only after [the defendant] testified on direct
that he did not personally keep acquainted with the bank's day-to-day operations").
Nevertheless, even absent any inherent impeachment value, the probative value of
the "See ya" statement as evidence of witness intimidation was apparent to the
State prior to trial, and therefore, this statement was "relevant" and should have
been disclosed by the State under Rule 5, SCRCrimP.6 See Edwards, 383 S.C. at

6
  We note the precedent that "where evidence is equally available to the accused,
the obligation on the part of the State to furnish such evidence to the accused is
relieved." Anderson v. Leeke, 271 S.C. 435, 439, 248 S.E.2d 120, 122 (1978);
72, 678 S.E.2d at 408 (holding that "witness intimidation evidence, if linked to the
defendant, may be admitted to show a consciousness of guilt").

That being said, the State's nondisclosure does not, a fortiori, mandate the
conclusion that trial counsel was deficient in failing to seek a mistrial on that basis.
As to the deficiency prong of the Strickland analysis, a PCR applicant must show
that trial counsel's performance fell below an objective standard of reasonableness.
In discussing this issue, the PCR court borrowed the "materiality" analysis from
Lawton and found counsel was deficient in failing to seek a mistrial because
knowledge that the State possessed the "See ya" Facebook posting was material to
the preparation of Respondent's defense. In so finding, the PCR court
acknowledged that "there was no practical way for [Respondent] to avoid
testifying" at trial, yet the PCR court nevertheless concluded the Facebook posting
was "material to the preparation of [Respondent]'s defense" because if defense
counsel had been made aware of the posting before trial, "counsel would have
counseled [Respondent] about not denying its existence." In other words, although
the nondisclosure did not, as a practical matter, impact Respondent's decision
whether to testify, the PCR court found it nevertheless materially undermined
Respondent's ability to prepare to meet the charges against him because defense
counsel was denied the opportunity to advise Respondent not to lie about having
made the Facebook posting. This was error.

First, there is no evidence in the record that the nondisclosure of Respondent's "See
ya" statement had any impact (much less a material impact) upon Respondent's
trial preparation or his decision to testify; thus, there is no evidence in the record to
support the PCR judge's finding that the nondisclosure was material to the
preparation of Respondent's defense. Moreover, it was an error of law for the PCR
court to rely upon the "materiality" or prejudice analysis from Lawton to guide its
analysis of the first prong of the Strickland framework. Indeed, Lawton dealt only

accord United States v. Meregildo, 920 F.Supp.2d 434, 445 (S.D.N.Y. 2013)
(explaining that in the context of evidence the government failed to disclose during
the criminal discovery process, "there is no remedy for a defendant who possesses
or has access to the information he claims was withheld"). However, because there
is no evidence in the record as to the relevant social media privacy settings and
whether or to what extent Respondent had access to his Facebook posting after
making it, we decline the State's invitation to address this issue.
with the existence and prejudicial impact of a trial court error on direct appeal and
provides no logical basis for evaluating whether counsel's failure to seek a mistrial
as redress for a Rule 5 violation fell below reasonable professional norms in this
PCR matter. Although this Court has held the "presumption of adequate
representation based on a valid trial strategy disappears when . . . there was no trial
strategy in mind" in failing to object to improper evidence, Smith v. State, 386 S.C.
562, 568, 689 S.E.2d 629, 633 (2010), the claim at issue here is not that counsel
rendered deficient performance in failing to object to the State's use of the
undisclosed Facebook statement. Rather, the claim at issue is that counsel was
deficient in failing to move for a mistrial based on the State's use of the "See ya"
statement that was not disclosed under Rule 5, SCRCrimP.

At the PCR hearing, there was simply no evidence or discussion about the issue of
a mistrial or the factors used to evaluate whether a Solicitor's actions constitute
prosecutorial misconduct sufficient to justify a mistrial. Indeed, the word
"mistrial" does not appear in the PCR transcript, nor is it included in Respondent's
PCR application or in Respondent's post-hearing memorandum of law. Rather,
trial counsel's testimony at the PCR hearing reveals that counsel believed that up
until the disputed line of questioning, the trial was progressing favorably for
Respondent, that defense counsel wished to impeach the Victim's character with
the marijuana cartoon obtained from Facebook, and that Respondent was anxious
to reach a resolution of the charges against him. All of these factors weigh against
seeking a mistrial and could be construed as valid, strategic reasons why trial
counsel did not seek such a sanction in response to the State's discovery violation;
nevertheless, we ultimately need not resolve the issue of deficiency because, in any
event, the PCR court committed an error of law as to the prejudice prong of the
Strickland analysis.

Even assuming that counsel was deficient for failing to move for a mistrial based
on the State's nondisclosure, we conclude the PCR court's order was controlled by
an error of law. Specifically, we hold the PCR court incorrectly found a mistrial
was the only remedy available to cure the prejudice resulting from the State's non-
disclosure of the Facebook posting. In reaching this conclusion, the PCR court
acknowledged the granting of a mistrial is "a serious and extreme measure," one
within the trial court's discretion. The PCR court nevertheless concluded that "the
trial judge would have been compelled, upon proper motion, to grant a mistrial."
This was error in two respects. First, the PCR court ignored the other sanctions
available to the trial court to remedy nondisclosure, and secondly, the PCR court
focused myopically on the impeachment value of the Facebook posting and
ignored its probative value as to witness imtimidation.

Moreover, in evaluating whether a mistrial would have been granted, the PCR
court narrowly considered the prejudicial impact to Respondent's credibility—
prejudice which resulted from Respondent's lack of candor on the stand rather than
from the State's failure to disclose the existence of the witness intimidation
evidence. This was error, for Respondent was under oath when he denied having
contacted the Victim, and the prejudice resulting from his failure to be truthful
cannot be fully attributed to the State or otherwise operate as an automatic benefit
to Respondent by mandating a mistrial as the only option.7 See State v. Needs, 333
S.C. 134, 152 n.11, 508 S.E.2d 857, 866 n.11 (1998) (finding a party may not
complain about an error induced by the party's own conduct (citing State v.
Stroman, 281 S.C. 508, 513, 316 S.E.2d 395, 399 (1984); State v. Epes, 209 S.C.
246, 271, 39 S.E.2d 769, 780 (1946))).

We further note that Respondent volunteered on cross-examination that he had
been convicted of bank robbery nine times, not the single conviction that was
discussed prior to his testimony. Surely, when evaluating the entirety of the
evidence and the alleged prejudice to Respondent from his denial of his Facebook
"See ya" comment, it is essential to consider all of the impeachment evidence. The
error of the PCR court is illustrated by the PCR court's paradoxical finding that



7
  The dissent suggests "an equally plausible reading is that Respondent did not
intentionally lie, or withhold truth on the witness stand, but rather, merely provided
an inartful response to an imprecise question." There was, of course, nothing
imprecise about the question or the answer, and trial counsel so conceded. Trial
counsel, according to the PCR order, acknowledged Respondent "was caught in a
blatant lie." Moreover, we note the logical inconsistency in the positions taken by
the dissent as to Respondent's denial about having contacted the Victim;
specifically, the dissent urges that this denial undermined Respondent's credibility
to a degree great enough to warrant a mistrial, yet, that it also was "an inartful
response to an imprecise question." To the extent Respondent's denial was merely
"an inartful response," then it logically follows that it could not have undermined
Respondent's credibility to a degree sufficient to justify the mistrial the dissent
claims was necessary.
Respondent's "credibility was arguably substantially undermined when he
volunteered on cross-examination that he had been convicted of nine bank
robberies instead of just one."

Turning to the issue of whether a mistrial would have been required to redress the
Rule 5 violation, we find the prejudice attributable to the State's nondisclosure to
be incremental under the facts of this case and would not have compelled the trial
court to declare a mistrial. Had counsel brought the nondisclosure to the trial
court's attention, it would have been within the trial court's discretion to determine
the appropriate redress, if any. Moreover, there is no evidence the State withheld
Respondent's Facebook posting in bad faith or that the nondisclosure could not
have been cured by other, less drastic means, such as a brief recess or a curative
instruction. Accordingly, it was error for the PCR court to conclude a mistrial
would have been manifestly necessary had trial counsel so moved. See State v.
Williams, 386 S.C. 503, 510, 690 S.E.2d 62, 65 (2010) (finding the trial court
committed no error in capital murder proceeding in not declaring a mistrial and
giving an Allen charge after jury revealed it was divided nine to three in favor of
death sentence); Green v. State, 351 S.C. 184, 193, 569 S.E.2d 318, 323 (2002)
(finding counsel was not deficient in deciding not to request a mistrial after the
jury inquired about the accused's failure to testify based on counsel's belief that the
jury selected was favorable to the accused and finding there was no evidence of
prejudice where nothing was presented to demonstrate the accused would be in a
significantly better position upon retrial); State v. Beckham, 334 S.C. 302, 309–10,
513 S.E.2d 606, 609–10 (1999) (finding defendant, who was accused of murdering
his wife, was not entitled to a mistrial where a witness referred to wife's visit to a
battered women's center); State v. Anderson, 322 S.C. 89, 90–94, 470 S.E.2d 103,
104–06 (1996) (finding no error in failing to declare a mistrial where, in murder
prosecution, the State's witness identified defendant in court and addressed him,
"Why, [defendant]? Why did you do it?. . . He didn't have to take her life."); State
v. Craig, 267 S.C. 262, 265–66, 227 S.E.2d 306, 308 (1976) (finding no abuse of
discretion in trial court's refusal to declare a mistrial where the solicitor stated in
front of the jury, "I'm not up here to give this defendant a Baby Ruth, I'm up here
to put him in the electric chair"); see also United States v. Martinez, 455 F.3d
1127, 1130–31 (10th Cir. 2006) (affirming a federal trial court's refusal to declare a
mistrial based on the government's violation of the similar federal rule, explaining
that a court should "impose the least severe sanction that will accomplish prompt
and full compliance" with discovery rules and observing that a cautionary
instruction, a continuance, or exclusion of the evidence are "preferred remedies"
over "the drastic remedy of mistrial" (quotation marks and citations omitted)).

Because the trial court would not have been compelled to declare a mistrial, we
find the PCR court committed an error of law in finding the outcome of
Respondent's trial would have been different had trial counsel moved for a mistrial
based on the State's failure to disclose the Facebook posting. Absent a showing of
prejudice as required by Strickland, it was error to grant relief.

                                        III.

We reverse the PCR court's order granting relief and reinstate Respondent's
conviction and sentence.


REVERSED.

BEATTY and HEARN, JJ., concur. PLEICONES, C.J., dissenting in a
separate opinion. FEW, J., not participating.
CHIEF JUSTICE PLEICONES: I respectfully dissent. Like the majority, I
assume the State violated Rule 5, SCRCrimP, when it impeached Respondent with
evidence it failed to disclose prior to trial. However, unlike the majority, I believe
the PCR judge applied the correct standard of law in assessing whether the State's
Rule 5 violation warranted a mistrial. Further, because I believe there is probative
evidence in the record to support the PCR judge's findings of fact and conclusions
of law, I would affirm the order granting Respondent relief. See McCray v. State,
317 S.C. 557, 559, 455 S.E.2d 686, 687 (1995) ("When there is evidence to
support the findings and conclusions of the PCR judge, this Court will affirm those
findings and conclusions.").

The majority states the PCR judge erred when he found a mistrial was the only
remedy available to cure the prejudice resulting from the State's non-disclosure of
the Facebook posting as a matter of law.8 I read the order differently. Throughout
his order, the PCR judge correctly articulated that the decision to grant or deny a
motion for mistrial is within the trial judge's discretion and that a mistrial should
only be granted "when the prejudice can be removed in no other way." This is a
correct statement of law. See State v. Herring, 387 S.C. 201, 216, 692 S.E.2d 490,
498 (2009) ("[W]hether to grant or deny a mistrial is within the discretion of the
trial court and will not be reversed on appeal absent an abuse of discretion. The
grant of a motion for a mistrial is an extreme measure which should be taken only
where an incident is so grievous that the prejudicial effect can be removed in no
other way.") (citations omitted).

After correctly stating the legal standard for a mistrial, the PCR judge evaluated
the facts specific to this case, including: the timing of the State's introduction of the
undisclosed evidence; the strength of the State's overall case against Respondent;
and the importance of Respondent's trial testimony to his defense. Based on these
facts, the PCR judge concluded that: if trial counsel had moved for a mistrial when
the State impeached Respondent with undisclosed evidence, the trial judge would
have found the prejudice resulting from the State's misconduct could not have been
removed by a curative instruction and the trial judge would have granted the
motion. This conclusion by the PCR judge is not a decision controlled by a
misapprehension of the standard applied by a trial judge in considering a motion

8
  The majority states the PCR judge ruled the trial court would have been
compelled as a matter of law to grant a mistrial; however, the words "as a matter of
law" do not, at any point, appear in the PCR order.
for a mistrial. Rather, it is nuanced application of the law expected of a PCR judge
vested with authority to assess the merits of PCR claims pursuant the Strickland
standard. 9

Further, I disagree with the majority's application of the two prongs of a Stickland
analysis to the facts of this case. I disagree with the majority's assertion that the
"quantum of prejudice the PCR judge should have considered was the extent to
which Respondent was deprived of the opportunity to reduce the prejudice of the
Facebook comment by strategically addressing it on direct examination."
Assessing this "quantum of prejudice" is only pertinent in determining whether the
State violated Rule 5, which, in turn, is relevant to the determination of whether
trial counsel was deficient. The majority assumes, and I agree, that when the State
introduced the Facebook posting at trial without having disclosed it prior to trial,
trial counsel should have recognized the State's Rule 5 violation and acted
accordingly. The PCR judge found that trial counsel was deficient for failing to do
so, and, in my opinion, there is evidence in the record to support this finding. See
McCray, supra.

As for the Strickland prejudice prong, it is the effect trial counsel's failure to move
for a mistrial had on Respondent's trial at the time the State's Rule 5 violation
became apparent, after which the PCR judge was required to determine whether
Respondent had been prejudiced. And not, as the majority concludes, how trial
counsel would have addressed the Facebook posting on direct examination had the
State properly disclosed the evidence prior to trial.

In determining whether there was a reasonable probability trial counsel's
deficiency affected the outcome of Respondent's case, I differ with the majority's
interpretation of the record. The majority concludes Respondent committed
perjury on the witness stand. After reading the colloquy, which the majority

9
  Indeed, as the majority states, "Had counsel objected, it would have been within
the trial court's discretion to determine the appropriate redress, if any." That is
correct. However, in a PCR action, it is the PCR judge who must determine how
the trial judge would have exercised his or her discretion had counsel objected at
trial. See e.g. Morris v. State, 371 S.C. 278, 283, 639 S.E.2d 53, 56 (2006) (where
this Court found Morris was prejudiced by trial counsel's deficient performance in
failing to move for a continuance because "the refusal of the continuance would
have amounted to an abuse of discretion").
describes as demonstrating "lack of candor on the stand," I am convinced an
equally plausible reading is that Respondent did not intentionally lie, or withhold
truth on the witness stand, but rather, merely provided an inartful response to an
imprecise question. The fact that the State chose to characterize this response as a
lie throughout the remainder of Respondent's testimony and in closing argument
does not make it so. Moreover, in my opinion, it is not for this Court to determine
on appellate review that Respondent committed perjury. It is the fact-finder's role,
and solely the fact-finder, to determine the truth or falsity of a witness' testimony.
See State v. Kromah, 401 S.C. 340, 358, 737 S.E.2d 490, 500 (2013) (stating "the
assessment of witness credibility is within the exclusive province of the jury. . . ")
(citations and alterations omitted).

Accordingly, I do not believe the PCR judge committed an error of law in
considering the effect the State's impeachment evidence had on the jury's
perception of Respondent's credibility. This is exactly the quantum of prejudice
that should be considered in assessing whether there was a reasonable probability
that trial counsel's deficient performance affected the outcome of Respondent's
trial. Moreover, this case amounted to a pure swearing contest. The jury was
asked to determine which story was true: the victim's, that Respondent
propositioned him, or Respondent's, that he did not proposition the victim, but
rather, confronted the victim about his shoplifting. There were no other witnesses
to the interaction between the victim and Respondent by the Wal-Mart restroom.
Accordingly, I would affirm the PCR judge's finding that Respondent's credibility
was essential to his defense and the paramount issue for the jury to determine.
Further, I believe there is evidence in the record to support the PCR judge's finding
that, absent the Rule 5 violation, the credibility of Respondent's testimony would
not have been called into question in such a devastating way.10 Thus, pursuant to

10
   I note the majority references Respondent's nine bank robberies as a reason why
the introduction of the Facebook posting caused only "incremental" prejudice to
Respondent. However, we recently held that robbery is not a crime in the nature of
crimen falsi, which "bear[s] upon a witness's propensity to testify truthfully." See
State v. Broadnax, 414 S.C. 468, 476, 779 S.E.2d 789, 793 (2015). Accordingly, it
is questionable whether Respondent's admission to committing nine bank robberies
should even bear upon the analysis of whether Respondent's credibility was
damaged by trial counsel's failure to move for a mistrial.

Further, even if it were proper to consider the effect of Respondent's bank
our scope of review, I would uphold the PCR judge's finding of Strickland
prejudice. See McCray, supra.

Finally, I am also troubled by the policy implication of the majority's opinion. The
majority's proposed Strickland analysis essentially creates a new rule of law: as
long as the State uses incriminating evidence it has withheld in violation of Rule 5
to successfully convince a jury the defendant's testimony is not credible, the
defendant cannot argue he or she was prejudiced. By deflecting blame to the
defendant for the State's Rule violation, the majority's opinion undermines both the
goal of Rule 5 and the role of the State in criminal prosecutions. As the Court of
Appeals explains, the purpose of Rule 5 is to ensure the criminal defendant's right
to a fair trial:

            [Rule 5] is [not] designed to displace the adversary
            system as the primary means by which truth is
            uncovered, but rather to ensure that a miscarriage of
            justice does not occur. Furthermore, the prosecutor's role
            transcends that of an adversary because he is the
            representative not of an ordinary party to a controversy,



robberies in analyzing how Respondent's credibility was affected by the
introduction of the Facebook posting, I would still affirm the PCR judge's finding
that Respondent was prejudiced by trial counsel's deficient performance. See
McCray, supra. During Respondent's testimony, Respondent informed the jury
that he pleaded guilty to the bank robberies because he committed them, while, in
contrast, Respondent did not plead guilty to the charge for which he was on trial
because he did not commit the crime. Thus, the effect of the bank robbery
convictions on the veracity of Respondent's testimony was negligible. Further, in
my opinion, the State's introduction of the undisclosed Facebook posting in a way
that confused Respondent and created the opportunity for the State to characterize
Respondent as an adult who lies about his social-media contact with a minor victim
was manifestly more damaging to Respondent's credibility during a trial for
criminal solicitation of a minor than Respondent's past bank robberies.
Accordingly, there is evidence in the record to support the finding that, if trial
counsel had moved for a mistrial when the State's Rule 5 violation became
apparent, there is a reasonable probability the trial judge would have granted the
motion. See Strickland, supra.
             but of a sovereignty whose interest in a criminal
             prosecution is not that it shall win a case, but that justice
             shall be done.

State v. Kennerly, 331 S.C. 442, 454, 503 S.E.2d 214, 220 (Ct. App. 1998)
(internal citations omitted) (internal quotation marks and alterations omitted).

There is probative evidence in the record to support the PCR judge's conclusion a
reasonable probability exists that a mistrial would have been granted had trial
counsel moved for one. Therefore, the PCR judge's determination that Respondent
is entitled to relief must be upheld on review. See McCray, supra. To do anything
else disregards the great deference afforded to PCR judges' findings of facts and
conclusions of law and condones the State's action of withholding incriminating,
discoverable evidence from the defense until the moment when introducing that
evidence will have its most devastating effect.

Accordingly, I would affirm the PCR judge's order granting Respondent relief.
