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 fourwheeler, 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. Yes. 

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. Okay. 

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. Yes. 

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

Q. Yes, 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 fourwheeler 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 recross, 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.