THE STATE OF SOUTH CAROLINA In The Court of Appeals

Justin Ryan Hillerby, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2016-001666

ON WRIT OF CERTIORARI

Appeal From Berkeley County Larry B. Hyman, Jr., Circuit Court Judge

Opinion No. 5767 Submitted June 1, 2020 – Filed August 19, 2020

AFFIRMED

Appellate Defender Taylor Da vis Gilliam, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant Attorney General Mark Reynolds Farthing, both of Columbia, for Respondent.

HEWITT, J.: In February 2010, a jury convicted Petitioner of homicide by child abuse. The trial court sentenced him to life imprisonment without the possibility of parole. This court affirmed Petitioner's conviction and sentence on direct appeal. State v. Hillerby , Op. No. 2013-UP-300 (S.C. Ct. App. filed July 3, 2013).Petitioner subsequently filed an applica tion for post-conviction relief (PCR), which the PCR court denied. Petitioner then sought a writ of certiorari, which this court granted as to the issue of whether trial counsel was ineffective for not consulting with a forensic pathologist and presentin g a pathologist's testimony at trial. Hillerby v. State , S.C. Ct. App. Order da ted Feb. 6, 2019.

We affirm the PCR court's denial of relie f. Petitioner made multiple incriminating statements that were introduced at trial. One was so damagi ng trial counsel called it an outright "confession." As the PCR court found, we find there is not a reasonable probability the trial's result woul d be different even if the pathology evidence from the PCR hearing had been part of the original case.

FACTS

This case arises out of the death of a tw enty-two-month-old child (Victim). At the time of the incident, Petitioner was living, on and off, with Victim's mother (Mother), Mother's eight-year-old daughter (Daughter), and a couple who rented a room from Mother. The day before Victim was found deceased in his crib, Mother and Petitioner took Victim and Daughter to the neighborhood pool. They spent that day drinking with friends at the pool.

Two teenagers at the pool that day testif ied Victim was not properly supervised. For example, these teenagers pulled Victim—a toddler—out of the pool on multiple occasions after he jumped in the pool's deep end. On one such occasion, one of teenagers recalled Petitioner saying "you should have just kept him in there." This same witness also observed Petitioner yell at Victim, "yank" Victim's arm, and tell Victim to "stand in the corner because nobody cares about you."

After leaving the pool and returning to Mo ther's house, Mother went out drinking with friends while Petitioner watched Daughter and Victim. Mother left after 7:00
p.m. She testified that Vi ctim was eating in his highch air when she left, he looked fine, and he was acting normally.

The couple renting a room from Mother a rrived home around 7: 00 p.m. and spent the remainder of the evening in their ro om watching television and sleeping. One roommate recalled that Daughter was in he r room when they arrived at the house and that Victim seemed okay but looked e xhausted from being at the pool all day.

Mother arrived home at 1:00 a.m. and wa s intoxicated. She found Petitioner asleep on the couch and then went into her be droom and looked at the baby monitor tocheck on Victim. She did not go into Victim 's room. Mother then went into the roommates' room and argued with them a bout rent before getting into bed with Petitioner and going to sleep. Mother w oke up around 6:15 a.m. the next day to get Daughter ready for school. After Daught er left, Mother went back to sleep.

Mother testified that when she and Petiti oner got out of bed at 10:00 a.m. she realized Victim was not awake. When Mo ther opened the door to Victim's room to check on him, Petitioner told her to let Vi ctim keep sleeping and to leave the door open so Victim could wake up on his own. Mother went to Victim's crib after she noticed something on Victim's face when sh e started to leave Victim's room. She became hysterical after finding Victim cold to the touch and stiff "like a board." Petitioner called 911 and emerge ncy personnel verified Vi ctim was deceased.

Petitioner gave several statements to police. Initially, he denied ever striking Victim. In a second statement, he told pol ice he inadvertently hit Victim's head on a door frame and on the crib when putting Victim to bed and that earlier in the evening Victim's head collided with Petitioner's knee as the boy ran toward Petitioner, causing Victim to fall to the floor.

In his third and final statement to poli ce, Petitioner stated he "smacked" Victim open-handed "a couple of times" after Vi ctim spilled Petitioner's drink. Petitioner said this knocked Victim off his feet and caused Victim to hit his head on the floor. Petitioner told police that Victim looked lik e he was falling asleep after this, so Petitioner put Victim to bed.

Petitioner's third statement to police was sim ilar to a statement he made to Mother during a phone call from jail following his arre st. There, in response to Mother's question about what had ha ppened, Petitioner answered "Baby, I smacked him, I didn't smack him that hard, but when he h it the floor is when, I guess, it started. And, I didn't notice it because I was drunk, I guess. And, I put him on the futon."

At trial, Petitioner denied ever hitting Vic tim and claimed he only told Mother he smacked Victim in order to be consistent with the statement he gave to police. Petitioner testified his statements to po lice were prompted by the officers telling him repeatedly that people did not get in trouble for accidental deaths. One of the officers who questioned Pe titioner admitted, during a Jackson v. Denno hearing, that police told Petitioner this may have been an accident and that he could not get in trouble for an accident. The trial court found Petitioner' s statements were voluntarily, knowingly, and intelligently given.Dr. Nicholas Batalis, the forensic pathol ogist who performed Victim's autopsy, testified that Victim died of "blunt head trauma" and that the manner of death was homicide. Dr. Batalis believed Victim died during a window of two to twelve hours before he was f ound. Dr. Batalis testified Vic tim had twenty-three injuries to his head including twelve bruises on hi s face, two scrapes on his face, and nine injuries to his skull which resulted in hemorrhaging around the brain. Dr. Batalis opined Victim could have been hit with a book or a fist, or could have been pushed against something causing his head to strike a doorway or a desk.

Dr. Batalis did not believe the injuries on Victim's skull could have been sustained by falling down or bumping into things wh ile playing because the injuries were more severe than "normal wear and tear" and because there were so many different impact sites. Dr. Batalis explained that Victim's injuries would have immediately been symptomatic and Victim would ha ve appeared sleepy and groggy.

On cross-examination, trial counsel aske d Dr. Batalis about autopsy photographs showing what appeared to be small areas of circular discoloration on Victim's legs, arms, and torso. Dr. Batalis testified he initially belie ved these were bruises but that he found no fresh blood beneath the ar eas when he cut into them, leading him to believe these marks were instead cau sed by a skin condition or by the body's storage after the Victim's death. Dr. Bata lis explained he did not cut into every one of these marks on Victim's body, but inst ead incised a representative sample and concluded none of the ma rks were bruises.

The jury asked during deliberations to hear the recording of Petitioner's phone call to Mother from jail in which Petitioner adm itted striking Victim. The jury returned a guilty verdict approximately forty minutes later.

At the PCR hearing, Petitioner presente d the testimony of Dr. Michael Myer Baden, a forensic pathologist who formerly worked as the Chie f Medical Examiner of New York City and as the Chief Fore nsic Pathologist for the New York State Police. It does not appear to be cont ested that Dr. Baden 's credentials are impeccable. Dr. Baden tes tified he had performed ove r 20,000 autopsies and was the forensic pathologist charged with rei nvestigating the deaths of President John F. Kennedy, Dr. Martin Luther King Jr., and many other prominent figures. Dr. Baden reviewed Victim's autopsy report, autopsy photographs, X-rays, and Dr. Batalis's trial testimony. Dr. Baden offe red his opinion, to a reasonable degree of medical certainty, that Victim died of more than fifty blunt force impact injuries to the head, face, legs, and back, which he be lieved were caused by a narrow object.Dr. Baden explained that he had seen si milar injuries on babies who had been poked with toys or objects and such injuri es did not occur when an adult "beats up" a child, usually with their hands, fists, or by banging the child against furniture. Dr. Baden explained Victim's injuries re sembled those from "sibling rivalry-type deaths," in which an older child uses a toy or stick to injure a baby. Dr. Baden said he would have expected to find skull fractur es if an adult had beaten Victim as well as injuries to internal organs and broader bruises rather than small blunt force impacts on the whole body. Dr. Baden expl ained that the marks were too narrow to be from a fist or a slap, and he had ne ver seen such injuries in a child who had been abused by an adult.

Dr. Baden disagreed with Dr. Batalis's testimony about the circular areas of discoloration on Victim's body and conclude d that these injuries were, in fact, bruises consistent with Victim being pok ed by a long stick-like object. Dr. Baden believed Dr. Batalis should have cut into all of these ma rks and looked at the tissue under a microscope. Dr. Bade n explained that bruises sometimes do not go deeper than the skin's interior layer and this can only be determined with a microscope. Dr. Baden further testified that the body be ing placed in a cooler "absolutely would not cause" these marks and they were not caused by any skin disease. Dr. Baden opined that an object similar to a paint ro ller found near Victim's crib could have caused Victim's injuries.

Dr. Baden also disagreed with Dr. Batalis regarding the ti me of death, explaining it would have taken at least ei ght hours for Victim's body to develop stiffness. This put the time of death between eight to twelve hours before Victim's body was found rather than two to twelve hours, as Dr. Batalis had testified.

Petitioner also presented the testimony of a private investigator at the PCR hearing who testified that Dr. Batalis was not certi fied in forensic pathology until twelve days before he performed Victim's autopsy.

Petitioner testified that trial counsel claime d he would have an expert look over the medical evidence and Petitione r had indeed wanted counsel to consult with a medical expert. Petitioner's mother also te stified trial counsel said he was going to have a forensic pathologist go over the autopsy report. As the case developed, Petitioner said trial counsel relayed that he had talked to an expert but did not like what the expert said. Petitioner said he was surprised there was no defense expert at trial.Trial counsel consulted an expert but deci ded not to call her as a witness. He consulted Dr. Betsy Gibbs, a pediatrici an who ran a clinic for sexually and physically abused children. Dr. Gibbs w ould have disagreed with Dr. Batalis and testified that the circular marks on Victim 's body were indeed bruises rather than marks from the body being placed in storage or the result of a skin condition. Trial counsel decided against calling Dr. Gibbs after Dr. Gibbs told him she believed Petitioner killed Victim.

Trial counsel acknowledged during the P CR hearing that Dr. Gibbs was not a forensic pathologist and that he did not cons ult with a forensic pathologist. He also acknowledged that Dr. Gibbs had disagreed with the State's expert and believed all of the marks on Victim's body were injuries . Still, trial counsel explained he did not see why that difference of opinion amounted to much because any bruising could have come from Victim being poorly supervised at the pool as well as from Petitioner striking Victim and knocking Victim to the floor.

Trial counsel believed the recorded c onversation between Pe titioner and Mother was what ultimately led to Pe titioner's conviction. Trial c ounsel said "I mean, it's a confession. . . . That's what got him c onvicted." After trial counsel heard the recording he advised Petitione r and Petitioner's mother that Petitioner needed to cut a plea deal. According to trial counsel , Petitioner's mother responded "I didn't pay you to plead this case. We paid you to take this case to go to trial and we want a trial."

The PCR court found trial counsel was not ineffective for failing to consult with a forensic pathologist. The court employed a two-step analysis, but it was not the traditional assessment of deficiency and pr ejudice. Instead of deficiency, the PCR court determined Dr. Baden's testimony was not credible.

The court gave four reasons for its credib ility finding. First, the court noted Dr. Baden never performed an autopsy on Vic tim and relied only on photographs and reports years after the autopsy was pe rformed. Second, the court found Dr. Baden's testimony that Victim's injuries were caused by poking was "simply not plausible based on the evidence in the case ." Third, the court characterized Dr. Baden's opinion that the brui ses were caused by an object such as the paint roller as "based on complete speculation" since "no DNA testing was completed on the paint roller, and there were no witnesses th at the paint roller was ever used in the child's death." Finally, the court found Dr . Baden's testimony that Victim's death could not have occurred with in two hours of his discovery did not materially differ from the testimony the State's expert offere d at trial. The court concluded itsdeficiency analysis by noting that Dr. Ba talis and Dr. Baden both agreed Victim's death was caused by blunt for ce trauma to the head.

As to prejudice, the PCR court found Petitione r failed to prove that the outcome of trial would have been different because he presented "no evid ence whatsoever at the PCR hearing that anyone other than [Petitioner] injured the child." The PCR court also found Petitioner failed to demons trate prejudice because he admitted to smacking Victim in the recorded convers ation with Mother and made a similar statement to law enforcement.

ISSUE ON APPEAL

Whether trial counsel was ineffective in failing to consult with a forensic pathologist and present testimo ny from a forensic pathologist?

ARGUMENTS

Petitioner argues trial counsel was deficient for not consulting with a forensic pathologist or offering any expert testimon y to rebut the State's medical expert. He contends the PCR court erred in failing to address whether this was indeed deficient instead of assessing Dr. Bade n's credibility. Petitioner argues he was prejudiced because without an expert witn ess rebutting Dr. Batalis's testimony, the State's medical evidence went totally unchallenged.

The State argues Petitioner has not shown defi ciency or prejudice. On deficiency, the State argues there is no disputing c ounsel consulted with an expert—Dr. Gibbs—and made a strategic decision to challenge the State's medical evidence with cross-examination after Dr. Gibbs indicated her testimony would not be favorable. On prejudice, the State cont ends there was overwhelming evidence of guilt.

APPLICABLE LAW

"In [PCR] proceedings, the burden of pr oof is on the applicant to prove the allegations in his application." Speaks v. State , 377 S.C. 396, 399, 660 S.E.2d 512, 514 (2008). A reviewing court defers to the PCR court's factual findings and will uphold them "if there is any evidence of probative value to support them." Sellner

v. State , 416 S.C. 606, 610, 787 S.E.2d 525, 527 (2016). We review questions of law de novo

. Id.To receive relief, a PCR applicant must show trial counsel was deficient and that counsel's deficiency caused prejudice. Strickland v. Washington , 466 U.S. 668, 690–93 (1984). Deficiency is judged by wh ether trial counsel failed to provide "reasonably effective assistance" under "prevailing professional norms." Id. at 687–88. There is a strong presumption that counsel was not deficient and exercised reasonable professional judgment. Caprood v. State

, 338 S.C. 103, 109, 525 S.E.2d 514, 517 (2000), abrogated on other grounds by Smalls v. State , 422 S.C. 174, 810 S.E.2d 836 (2018). "Where counsel ar ticulates a valid reason for employing a certain strategy, such c onduct will not be deemed ineffective assistance of counsel." Gilchrist v. State , 350 S.C. 221, 226–27, 565 S.E.2d 281, 284 (2002). However, "strategic choice s made by counsel after an incomplete investigation are reasonable 'only to th e extent that reasonable professional judgment supports the limitati ons on the investigation.'" McKnight v. State , 378 S.C. 33, 45, 661 S.E.2d 354, 360 (2008) (quoting Von Dohlen v. State , 360 S.C. 598, 607, 602 S.E.2d 738, 743 ( 2004)). We must make "e very effort . . . to eliminate the distorting effects of hindsigh t" and we endeavor "to reconstruct the circumstances of counsel's challenged c onduct[] and to evaluate the conduct from counsel's perspective at the time." Strickland , 466 U.S. at 689.

Prejudice is defined as "a reasonable probability that, but for counsel's unprofessional errors, the result of the pr oceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Taylor v. State , 404 S.C. 350, 359, 745 S.E.2d 97, 102 (2013) (quoting Strickland , 466 U.S. at 694). A reasonable probability of a different result does not exist when ther e is overwhelming evidence of guilt. Geter

v. State , 305 S.C. 365, 367, 409 S.E.2d 344, 346 (1991).

We do not have to examine both deficiency and prejudice in every case. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Strickland , 466 U.S. at 697.

ANALYSIS

We begin by noting our concern with th e deficiency examination in the PCR court's order. The key question for de ficiency is whether trial counsel's representation fell below prevailing profe ssional norms. Deficiency does not turn on an expert witness's "credibility." T hough there may well be instances causing a PCR court to reject testimony—even expe rt testimony—as patently unbelievable, the PCR court acknowledged Dr. Bade n's impressive credentials.We nevertheless see sufficient evidence in the record to affirm the PCR court's finding that Petitioner failed to demons trate prejudice. The PCR court found Petitioner failed to demonstrate prejudice be cause he admitted to smacking Victim in a recorded conversation with Mother and made a similar statement to law enforcement. We agree with the PC R court that Petitioner's admissions, in conjunction with the evidence presented at trial, constitute overwhelming evidence of guilt. See Geter , 305 S.C. at 367, 409 S.E.2d at 346 (stating a reasonable probability of a different result does not exist when there is overwhelming evidence of guilt).

As we noted earlier, Petitioner gave a series of statements to law enforcement. He first denied any part in injuring Victim. In his second statement, he claimed he might have done so inadvertently. In his third statement, however, Petitioner admitted striking Victim with an open hand. He admitted to multiple strikes, all over Victim's head, and said the final blow knocked Victim to the ground and caused Victim's head to hit the floor. We acknowledge Petitioner recanted this statement, but that was after he made a similar admission to Mother in a phone call from jail.

The phone call from jail was particularly incr iminating. Victim's mother directly asked Petitioner "what happene d" and Petitioner immediat ely responded that he had "smacked" Victim. On the same call, Petitioner told Mother his third statement to law enforcement—the statem ent admitting intentional strikes all over Victim's head—was "true." Petitioner told Victim's mother he had been assaulted by other inmates after they learned of Petitioner's confession via the news.

As we noted at the beginning, trial counsel testified at the PCR hearing that he believed the recording was the critical piec e of information that led to Petitioner's conviction. Counsel explained he or iginally thought the case was winnable because nobody could offer a solid explanation of how the child died and who could have done it. After he heard the phone call from jail, however, counsel assessed "we're done, we're finished. We got no -- I mean, it's a confession."

It is likely the atmosphere at trial would have been different if a forensic pathologist testified in the way Dr. Baden testified at th e PCR hearing. But saying the atmosphere would be different is not the same as saying there would have been a different result. Petitioner's own statement was that he beat Victim, and thereafter Victim began showing the very symptoms Dr. Batalis said would follow from blunt head trauma. Additionally, there was no evidence presented at trial that Victim's sister was ever hostile to Victim . There was also quite a lot of otherincriminating evidence including the testimony about Petitioner's neglectful and rough supervision at the pool and other witnesses describing Petitioner's behavior as suspicious after Victim 's body was discovered.

We therefore agree with the PCR court and find it is not reasonably likely that the result of the proceedings would have been different even if the pathology evidence from the PCR hearing had been pa rt of the original case.

CONCLUSION

For the foregoing reasons, the PCR court's denial of Petitioner's application is

AFFIRMED. 1

LOCKEMY, C.J., and GEATHERS, J., concur.

1 We decide this case wit hout oral argument pursuan t to Rule 215, SCACR.