Background
George Smith was tried in 2009 in Clarendon County. A decade later, in 2019, he filed a motion for a new trial under Rule 29(b) of the South Carolina Rules of Criminal Procedure, arguing that his trial counsel had a conflict of interest: counsel had also represented the victim’s brother in a separate matter. Smith characterized this as “after-discovered evidence” warranting a new trial. The circuit court denied the motion, and Smith appealed.
The Court’s Holding
The Court of Appeals affirmed on both grounds raised by the circuit court’s ruling.
Untimeliness. Rule 29(b), SCRCrimP, provides that a motion for a new trial based on after-discovered evidence “must be made within one (1) year after the date of actual discovery of the evidence by the defendant or after the date when the evidence could have been ascertained by the exercise of reasonable diligence.” The court held Smith’s 2019 motion was untimely. The information underlying the claimed conflict—that trial counsel represented the victim’s brother in a separate matter—was available at the time Smith went to trial in 2009. More significantly, Smith demonstrated at his 2014 post-conviction relief (PCR) hearing that he already knew about this information at that point. He nevertheless waited until 2019 to file his motion for new trial—more than one year after his 2014 PCR testimony established actual knowledge. The motion was time-barred.
No actual conflict of interest. Even setting aside the timeliness problem, the court held Smith failed to demonstrate that trial counsel had an actual conflict of interest. Under South Carolina law, “[t]he mere possibility defense counsel may have a conflict of interest is insufficient to impugn a criminal conviction.” State v. Gregory, 364 S.C. 150, 152–53 (2005). An actual conflict of interest arises when a defense attorney “places himself in a situation inherently conducive to divided loyalties”—that is, when the attorney owes duties to another party whose interests are adverse to those of the defendant. To obtain relief based on a per se Sixth Amendment violation, the defendant must show that counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer’s performance.” State v. Sterling, 377 S.C. 475, 479 (2008) (quoting Strickland v. Washington, 466 U.S. 668, 692 (1984)). Smith made no such showing. The fact that trial counsel represented the victim’s brother in an unrelated matter did not establish that counsel’s loyalties were divided in the course of Smith’s representation, nor that this relationship adversely affected counsel’s performance at Smith’s trial.
Key Takeaways
- South Carolina’s one-year limitations period for after-discovered evidence motions under Rule 29(b) runs from the date the defendant actually discovered the evidence or when it could have been discovered through reasonable diligence; a motion filed years after the defendant’s own testimony demonstrates knowledge of the alleged evidence is untimely.
- A defense attorney’s representation of a separate client with some connection to the defendant’s case does not automatically create an actual conflict of interest; the defendant must show that the attorney’s duties to the other client were adverse to the defendant’s interests and that the conflict actually affected the attorney’s performance.
- The mere possibility of a conflict is insufficient to establish a Sixth Amendment violation; prejudice is presumed only when the defendant demonstrates that counsel actively represented conflicting interests and that the conflict adversely affected the representation.
Why It Matters
After-discovered evidence motions under Rule 29(b) are subject to a strict one-year discovery rule, and Smith illustrates that the clock starts running when the defendant gains actual knowledge—not when he decides to act on it. Critically, prior sworn testimony (here, the 2014 PCR hearing) can be used against a defendant to establish the date of actual discovery, making it difficult to argue years later that the same information was “after-discovered.” Defendants and their counsel should be attentive to the one-year window from the moment any potential after-discovered evidence is identified, regardless of whether PCR or other collateral proceedings are concurrently pending.
On the conflict-of-interest issue, the case reaffirms that South Carolina does not apply a per se disqualification rule whenever defense counsel has any professional relationship with someone connected to the victim. The focus is on whether that relationship placed the attorney in a position of divided loyalty that concretely affected the representation—a demanding standard that is not satisfied by showing a single concurrent representation in an unrelated matter. Defendants raising Sixth Amendment conflict claims should be prepared to identify specific ways in which the alleged conflict distorted counsel’s strategy or advice.