Wednesday’s Decisions from the South Carolina Court of Appeals

sccourtofappeals  On Wednesday, February 11, 2015, the South Carolina Court of Appeals published two opinions:   Freiburger v. State and State v. Rivers.

In Freiburger v. State, Edward Freiburger was indicted in 2001 and convicted for the 1961 murder of Columbia taxi driver, John Orner.   Orner died from a gunshot wound in late February of 1961.  Freiburger was arrested in early March 1961 for hitchhiking.  At the time of his arrest, a .32 caliber Harrington & Richardson revolver was found on Freiburger.  Because it was suspected that this gun had been used in Orner’s murder, it was given to Columbia officials conducting Orner’s murder investigation.

Ballistic tests were conducted on Freiburger’s gun and the gun of another local, Alonzo Dreher.  The tests were inconclusive.  At the time, then Chief of S.L.E.D., J.P. Strom, wrote a letter to then FBI director, J.Edgar Hoover, noting that the ballistic results were inconclusive.

In 2000, Columbia police re-opened the case.  While some continued to argue that the ballistic results were not conclusive, the State hired John Cayton, an expert, to testify at Freiburger’s trial that Freiburger’s gun was used to kill Orner.  Freiburger’s counsel did not introduce Strom’s letter, and Freiburger was convicted.

Freiburger filed an application for post conviction relief (PCR), arguing ineffective assistance of counsel and other items.  The PCR court denied his application but the Court of Appeals reversed as to the ineffective assistance of counsel claim.  It remanded the case to the court of general sessions for a new trial.

The Court noted that in order to prevail on an ineffective assistance of counsel claim, Freiburger had to satisfy the two prong test from Strickland v. Washington.  He needed to show:  “…(1) trial counsel ‘failed to render reasonably effective assistance under a professional norm…’ and (2) there is a reasonable probability, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Examining the evidence and the transcript, the Court of Appeals concluded that Freiburger satisfied both prongs of the test.  Freiburger’s defense attorneys could have “…effectively used the letter to benefit the defense.”  The evidence against Freiburger was circumstanial and thus weak.  Thus the Court reasoned that there was a “…reasonable probability that the jury would have had reasonable doubt as to whether [Freiburger] was guilty of murder if trial counsel had introduced the letter at trial.”

In State v. Rivers, the Court of Appeals affirmed the decision of the lower court.  Rivers was convicted of homicide by child abuse after his four-month old son died of asphyxiation.  At the trial court, Rivers filed a motion to exclude collateral evidence of child abuse injuries discovered during an autopsy of the child’s body.  Rivers’ motion was to exclude “…evidence of extraneous injuries…that occurred prior to the victim’s death….”  At a pretrial hearing, Rivers’ motion was denied.  He was then convicted.

Rivers’ appealed his conviction, arguing that the collateral evidence of child abuse should not have been admitted as there was no evidence that tied Rivers to these injuries.

The Court of Appeals denied Rivers’ appeal, noting that “[i]n order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial [court.]  Issues not raised and ruled upon in the trial court will not be considered on appeal.”  The Court examined the record and concluded that Rivers never raised the issue as to whether there was evidence connecting him to the victim’s injuries.  Since it was not raised at the trial court, it was not preserved on appeal.

About Lisa Smith-Butler

Associate Professor of Law Charleston School of Law 385 Meeting St., Suite 322B Charleston, S.C. 29403 843.377.2144
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