                      THE STATE OF SOUTH CAROLINA 

                           In The Supreme Court 


            Jarvis Gibbs, Petitioner,

            v.

            State of South Carolina, Respondent.

            Appellate Case No. 2014-000447


                          ON WRIT OF CERTIORARI



                          Appeal From Kershaw County 

                      James R. Barber, III, Circuit Court Judge 



                                Opinion No. 27630 

                 Submitted February 16, 2016 – Filed April 27, 2016 



                                    AFFIRMED


            Appellate Defender John H. Strom, of Columbia, for
            Petitioner.

            Attorney General Alan M. Wilson and Assistant Attorney
            General Megan Harrigan Jameson, both of Columbia, for
            Respondent.


       JUSTICE BEATTY: A jury convicted Jarvis Gibbs of kidnapping,
entering a bank with the intent to steal, and using a firearm during the commission
of a violent crime. The trial court sentenced Gibbs to an aggregate eighteen years'
imprisonment. The Court of Appeals affirmed. State v. Gibbs, Op. No. 2011-UP-
511 (S.C. Ct. App. filed Nov. 28, 2011). Gibbs subsequently filed an application
for post-conviction relief ("PCR"). After a hearing, the PCR court dismissed his
application with prejudice. This Court granted Gibbs' petition for a writ of
certiorari to review the PCR court's finding that trial counsel was not ineffective in
failing to object to claims of witness intimidation. We affirm.

                        I.     Factual/Procedural History

       On July 25, 2008, at approximately 10:55 a.m., an individual robbed the
First Palmetto Savings Bank in Camden wearing gloves, a white t-shirt, and a ski
mask. Witnesses indicated the individual was a black male approximately six feet,
four inches tall. None of the witnesses were able to state with certainty whether
the man had any noticeable scars or tattoos.1

       Two individuals observed the man fleeing the bank on a bicycle. At this
time, one of the individuals also noticed a four-wheeler in the vicinity of the bank.
Shortly thereafter, the police found a bicycle on the side of a dirt road located in
the general direction in which the man fled. Next to the bicycle were tracks left by
a four-wheeler. The police seized the bicycle.

       That afternoon, Arthur Macklin saw the bicycle in the trunk of a passing
police car. Macklin, believing it was the same bicycle he loaned Gibbs, contacted
his attorney who subsequently contacted the police. Macklin informed the police
that he loaned Gibbs the bicycle earlier that day. He also told police that a local
resident named James Drakeford drove past his house on a four-wheeler that
morning.2

      At approximately 5:00 p.m. that afternoon, police picked Gibbs up for
questioning.3 In his video statement to the police, Gibbs denied robbing the bank.
Gibbs said that morning he woke up and took a shower at a friend's house at 10:30

1
  Due to the quality of the bank's video surveillance, the police were also unable to
determine whether the man had any tattoos or scars.
2
  Drakeford was subsequently charged with conspiracy to commit kidnapping and
entering a bank with intent to steal.
3
  Gibbs is six feet, three inches tall and weighs 220 pounds. At the time of the
robbery, he also had tattoos and scars on his forearms.
or 11:00 a.m. After taking a shower, Gibbs stated he headed to the Dusty Bend
area of Camden to get a haircut at "11:00, 12:30, 1:30." At one point, Gibbs stated
after his haircut, he went to Macklin's to borrow a bicycle for twenty minutes. At
another, Gibbs stated he borrowed the bicycle before the haircut. Gibbs then
provided two different versions about returning the bicycle. In one version, Gibbs
dropped it off by Macklin's fence. In another, he gave the bicycle back in-person.
In both versions, he borrowed the bicycle after 11:30 a.m. Gibbs was subsequently
charged with kidnapping, entering a bank with the intent to steal, and using a
firearm during the commission of a violent crime.

        At trial, the State called Melissa Roberts, an employee of First Palmetto
Savings Bank who was working at the time of the robbery. Roberts testified she
knew Gibbs because they went to the same school together for one or two years
approximately fifteen years before the robbery. She also said she saw Gibbs about
five years before the robbery at her mother-in-law's store. In addition, Roberts
testified that before the bank robbery she had seen Gibbs in the bank standing
around, which she thought was strange because she did not believe he had a
relationship with the bank.4

       Roberts testified that after reviewing the video surveillance of the robbery,
but before the police provided the bank with a suspect, she told the police she
believed Gibbs was the individual who robbed the bank. Roberts based her belief
on Gibbs' "mannerisms and the shape of his body" and the fact that he had been in
the bank prior to the robbery. On cross-examination, however, Roberts conceded
that, at the time she identified Gibbs from the video surveillance, she knew Gibbs
had already been arrested.

      Chad Moore also testified for the State. Moore, who was also being held in
the Kershaw County Detention Center at the same time as Gibbs, testified that
Gibbs confessed to robbing the bank. Specifically, Moore testified that Gibbs told
him: (1) Gibbs rode a bicycle to the bank; (2) he robbed the bank wearing a
toboggan hat, a white t-shirt, blue jeans, and black sneakers; (3) after leaving the
bank, he got on a four-wheeler with "Little James"; (4) Gibbs and "Little James"

4
  Roberts never said how long it had been before the robbery when she saw Gibbs
in the bank. However, Leah Bailey, another bank employee, testified that, earlier
in the week of the robbery, she also saw a man standing around the lobby, which
she too thought was strange because he never completed a bank transaction.
Bailey, however, was unable to identify Gibbs as the individual.
ditched the four-wheeler by a pond in Dusty Bend; and (5) after ditching the four-
wheeler, Gibbs went to get a haircut. According to Moore, the only thing Gibbs
was worried about was someone noticing his scars and tattoos. On July 28, 2008,
Moore relayed this information to the City of Camden Police Department. The
next day, the police recovered the four-wheeler from a pond on Firetower Road in
Dusty Bend.

       Macklin was also called to testify. According to Macklin, Gibbs borrowed
one of his bicycles on the morning of the bank robbery. Ten to twenty minutes
later, Macklin said he noticed police cars riding in the neighborhood. Later that
morning, he recognized the bicycle he loaned Gibbs in a passing police car. The
State then showed Macklin a picture of the bicycle and asked Macklin whether the
picture was of his bicycle. Macklin replied "That's my bike." Shortly thereafter,
Macklin's testimony concerning the bicycle wavered. The following exchange
occurred:

      Q. 	   Is this your bike right here?

      A. 	   Like I told Lieutenant -- Detective Boan, that looks like my bicycle. I
             don't recall the coil being around the seat. And I thought that my bike
             had rubber things where the shocks are on the front.
      ...

      Q. 	   Do you agree that this is the same bike as in the picture?

      A. 	   I'm quite sure that is the same bike in the picture.

      Q. 	   Okay. And your bike was the one that was in the back of the patrol
             car?

      A. 	   Yes, it was.

      Q. 	   And you identified this as your bike in the picture?

      A.     Y
             	 es.

      Q. 	   So this is your bike?

      A. 	   It has got to be.
      Q. 	   So this is the bike that Jarvis Gibbs borrowed from you?

      A.     	Excuse me?

      Q. 	   Is this the bike that Jarvis Gibbs borrowed from you?

      A. 	   As I said, I know my bicycle, but I don't recall the things that -- that
             coil on the seat.

      Q.     O
             	 kay.

      A. 	   And I thought my bicycle had the rubber things on the shock part.

      Q. 	   Okay. But this is your bike right here, right?

      A. 	   That appears to be my bicycle.

      Q. 	   And that bicycle is the one that Jarvis borrowed from you?

      A. 	   I assume that it is.

      Once the State established that the bicycle was the same one Macklin loaned
Gibbs, the State questioned Macklin about what happened to him after he talked
with the police. Macklin testified "some guys jumped on [him] and knocked [him]
out and they were supposed to shoot [him] and kill [him] while [he] was on the
ground." The following exchange occurred:

      A. 	 It was put in the paper what -- the owner of the bicycle said what
           happened.

      Q.     Y
             	 es.

      A. 	   And that might as well say I said what happened.

      Q.     Y
             	 es, uh-huh.

      A. 	   And I asked that whatever I said be confidently kept.

      Q.     	Uh-huh.
      A. 	   But they put it in the paper, and I got hurt behind that.

      Q. 	   And you got assaulted because of that?

      A.     Yes, sir. 


      ...


      Q. 	   Do you know the name -- do you know who did that to you?

      A.     I don't know my assailant. 


      ...


      Q. 	   You didn't want to come [today], did you?

      A. 	   No, sir. I'm afraid for my life.

When the State asked about whether Macklin saw an individual riding a four-
wheeler that morning, the following exchange occurred:

      Q. 	 Okay. Did you give the police a name as to who was on the 4-
           wheeler?

      A. 	   Yes, sir, I did.

      Q. 	   And what name was that?

      A. 	   I told them James Drakeford.

      Q. 	   Okay. Now, you got beat up, right?

      A. 	   Yes, I did.

       On cross-examination, trial counsel asked Macklin if he was sure the bicycle
in the picture was the same bicycle he loaned Gibbs the day of the robbery.
Macklin said he was not sure. Trial counsel then asked Macklin if "Gibbs ever
threatened to hurt [him] in any way?" Macklin responded "No way at all." On re-
cross, trial counsel asked if Macklin had seen Gibbs after the robbery. Macklin
said "Yes." Trial counsel then asked if Gibbs had said anything to him. Macklin
responded "not one thing."

       After the State presented its case, trial counsel called Gibbs to the stand.
Gibbs testified that on the morning of the robbery, he stopped by his "home boy
house" at around 8:45 a.m. Thereafter, Gibbs stated he went to see Macklin to
borrow a bicycle. Ten to fifteen minutes after borrowing the bicycle, at
approximately 10:00 a.m., Gibbs testified he placed the bicycle on Macklin's fence
and then walked to the barber shop. Gibbs said he was in the barber shop for
approximately one hour and that it was around 10:00 a.m. or 11:00 a.m. when he
left. After leaving the shop, Gibbs went to rest in Boykin Park, where the police
later found and arrested him.5

      On cross-examination, Gibbs testified he found out about the robbery while
he was still at the barber shop because people were coming in the shop talking
about it. The State then asked Gibbs how he could have found out about the
robbery if it happened at 10:55 a.m. and he left the barber shop at 10:00 or 11:00
a.m. The State then played portions of his video statement to impeach Gibbs' trial
testimony from the substantially different statement Gibbs provided the police on
the day of the robbery.

      During its closing argument, the State made the following comments, which
Gibbs takes issue with on appeal:

        You know, [Macklin] actually tried to take the Fifth up here on a
        couple of questions. You know, he did not want to be here. Once we
        got done with him, you know, he essentially told the same thing to
        you that he told to [the detective] back on July 25th, 2008. And what
        happened because he talked to [the detective] and told him the
        story? He got beat up. He got knocked out. He said his whole
        face was swole up. He didn't want to be here. He didn't want to
        get beat up again. He didn't want to get hurt. He didn't [want] to
        get killed.

              But guess what? He was here. He told the same story. He
        even said that -- if you remember, I asked him, when I asked him if he
        wanted to be here, do you remember when he said the Sheriff's

5
    Gibbs also denied ever being in the bank or in Roberts' mother-in-law's store.
      Department finally caught up with him to serve him that subpoena to
      be here? 1:30 Monday morning. You know, he was trying not to get
      up there.

       The jury subsequently convicted Gibbs of kidnapping, entering a bank with
the intent to steal, and using a firearm during the commission of a violent crime.
The trial judge sentenced Gibbs to an aggregate eighteen years' imprisonment. The
Court of Appeals affirmed. State v. Gibbs, Op. No. 2011-UP-511 (S.C. Ct. App.
filed Nov. 28, 2011). Gibbs subsequently filed an application for PCR in which he
raised fifteen allegations of ineffective assistance of trial counsel, including:

   a.	 Trial counsel was . . . ineffective for failing to object to a line of
       testimony in which a key witness for the prosecution, Arthur Macklin,
       was allowed to testify that he had been threatened and physically
       assaulted as a consequence of his cooperation with the Applicant's
       prosecution thereby improperly bolstering the witnesses' credibility
       and attacking the Applicant's character where there was not [sic]
       evidence connecting the Applicant to the behavior in question.

   b. Trial counsel was ineffective for neglecting to object to an improper
      and highly inflammatory closing argument in which the State
      emphasized threats to witness Macklin where there was no evidence
      tying the Applicant to any such activity.

       At the hearing, trial counsel explained that he did not object to the testimony
or to the closing argument because he believed Macklin lacked credibility based on
his disposition at trial and because it is well-known in the area that Macklin is a
crack-addict. Trial counsel further testified that he did not object because Macklin
admitted Gibbs did not attack or threaten him in any way. The PCR court
dismissed Gibbs' application with prejudice, concluding, inter alia, Gibbs was not
prejudiced by any of trial counsel's alleged deficiencies. Gibbs appealed.

       This Court granted Gibbs' petition for a writ of certiorari to review the PCR
court's finding that trial counsel was not ineffective in failing to object to claims of
witness intimidation.
                             II.    Standard of Review

      "This Court gives great deference to the PCR court's findings of fact and
conclusions of law." Caprood v. State, 338 S.C. 103, 109, 525 S.E.2d 514, 517
(2000). If there is any evidence of probative value to support the PCR court's
decision, this Court will uphold the decision unless it is controlled by an error of
law. Suber v. State, 371 S.C. 554, 558, 640 S.E.2d 884, 886 (2007).

                                   III.   Discussion

       Gibbs asserts his Sixth Amendment rights were violated when trial counsel
failed to object to claims of witness intimidation. We agree, however, for reasons
discussed below, we find Gibbs was not prejudiced by the violation.

       The Sixth Amendment to the United States Constitution guarantees a
defendant the right to effective assistance of counsel. U.S. Const. amend. VI;
Strickland v. Washington, 466 U.S. 668 (1984); Lomax v. State, 379 S.C. 93, 665
S.E.2d 164 (2008). To overcome the presumption that counsel has rendered
adequate assistance, the defendant must show: (1) counsel's performance was
deficient, falling below an objective standard of reasonableness; and (2) counsel's
deficient performance prejudiced the defendant such that "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, 466 U.S. at 694. However, "no prejudice
occurs, despite trial counsel's deficient performance, where there is otherwise
overwhelming evidence of the defendant's guilt." Smith v. State, 386 S.C. 562,
566, 689 S.E.2d 629, 631 (2010) (citing Rosemond v. Catoe, 383 S.C. 320, 325,
680 S.E.2d 5, 8 (2009)).

      A. Deficient Performance

       Gibbs argues trial counsel's failure to object to both Macklin's testimony and
portions of the State's closing argument was deficient because it allowed the State
to imply, without supporting evidence, that Gibbs intimidated Macklin in an effort
to prevent him from testifying. We agree.

      In State v. Edwards, this Court held that "witness intimidation evidence, if
linked to the defendant, may be admitted to show a consciousness of guilt." 383
S.C. 66, 72, 678 S.E.2d 405, 408 (2009) (emphasis added). Here, there is no
evidence linking Gibbs to the attack on Macklin. Accordingly, the testimony and
the solicitor's closing statements concerning the attack should not have been
admitted. See Mincey v. State, 314 S.C. 355, 358, 444 S.E.2d 510, 511-12 (1994)
(finding impermissible the admission of the solicitor's closing statements
concerning witness intimidation when there was no evidence the defendant
intimidated the witness).

      B. Prejudice

        While we find trial counsel was deficient for failing to object, we
nevertheless affirm the PCR court's decision because there is evidence to support
its finding that Gibbs was not prejudiced by trial counsel's deficiencies.6

      Here, there is overwhelming evidence of Gibbs' guilt. Witnesses testified
the robber was approximately six feet, four inches tall. Gibbs is six feet, three
inches tall. A bank employee, Melissa Roberts, testified she saw Gibbs standing
around inside the bank prior to the robbery. Macklin testified that, shortly before
the bank robbery, he loaned Gibbs the bicycle that was used in the getaway.
Macklin also said he saw James Drakeford on a four-wheeler that morning.
Another individual testified that he saw a four-wheeler in the vicinity of the bank
at the time of the robbery. Moore testified Gibbs told him he committed the
robbery with the assistance of an individual on a four-wheeler nicknamed "Little
James." In addition to corroborating the testimony of other witnesses, Moore was
able to provide the police with additional information, which he obtained from
Gibbs, and which ultimately led to the discovery of the four-wheeler.

       Finally, there is Gibbs' testimony. Gibbs' statement from the day of the
robbery contained a number of inconsistencies regarding where he was that day,
when he was there, and what he was doing. Further, at trial, Gibbs told a
substantially different story than those in his statements to the police. Also, at one
point in his trial testimony, Gibbs unwittingly stated: "I mean, it just so happened
the bicycle that I happened to rode got used to rob a bank, but I didn't rob no bank,
you know what I'm saying."


6
  See Brown v. State, 383 S.C. 506, 517, 680 S.E.2d 909, 915 (2009) (finding that,
while trial counsel's failure to object to the solicitor's closing statement asking the
jury "to speak up for the victim" constituted deficient performance, there was not a
reasonable probability that, despite trial counsel's deficiencies, the outcome would
have been different).
      Based on the evidence presented by the State and Gibbs' contradictory
testimony, we agree with the PCR court that Gibbs was not prejudiced by trial
counsel's deficient performance as there is overwhelming evidence of Gibbs' guilt.

                                 IV.    Conclusion

       In conclusion, we find trial counsel was deficient for failing to object to the
testimony and closing statements concerning witness intimidation. However,
Gibbs was not prejudiced by trial counsel's deficiencies. Accordingly, the decision
of the PCR court is

      AFFIRMED.

      PLEICONES, C.J., KITTREDGE, and HEARN, JJ., concur. FEW, J.,
not participating.
