STATE OF SOUTH CAROLINA. IN THE COURT OF COMMON PLEAS COUNTY OF Horry Kimberly Renee Poole, SCDC# 262497 CIVIL ACTION COVERSHEET Plaintiff(s) ) D vs. ) ) State of South Carolina D Defendant(s) ) Submitted By: Charles Grose SC Bar # Address: 404 Main Street, Greenwood, SC 29646 ‘Telephone # Fax: 864-538-4405 Other: charles@groselawfirm.com ‘es nor supplements the filing and service of pleadings or other papers as required by la. This form is required forthe use of the Clerk of Court forthe purpose of docketing. TC must be filed oyt gompletely, signed, fund dated. A copy of this coversheet mast be served onthe defendant(s) along withthe Summons and Complaint. DOCKETING INFORMATION (Check all that apply) EO ane Lie ¥4f Action is Judgment/Settlement do not complete — 22." a4 (JURY TRIAL demanded in complaint. 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SCCA / 234 (03/2016) Page 2 of 2THE STATE OF SOUTH CAROLINA) INTHE COURT OF COMMON PLEAS. ) FOR THE FIFTEENTH JUDICIAL CIRCUIT COUNTY OF HORRY ) ) Case No. 2017-CP-26-_ Kimberly Renee Poole, SCDC# 262497, ) Applicant, ) Se = i) iomRelief vs. >) E ) ) State of South Carolina, ) Respondent.) ) Pursuant to the Uniform Post-Convietion Relief Act, S.C. Code Ann. § 17-27-10 et, seg., the applicant, Kimberly Renee Poole, submits the following application for post-conviction relief:! 1) Ms, Poole is confined at the Leath Correctional Institution, 2) The Honorable Edward B. Cottingham, Presiding Judge, Court of Generals Sessions, Horry County, imposed sentence. 3) The co-defendant is John Boyd Fraizer. 4) The indictment number is 1999-GS-26-02250, charging murder and common law criminal conspiracy. Warrant numbers F-387618 for armed robbery F-387456 for obstruction of Justice were dismissed without the prosecution obtaining an indictment. 5) On November 13, 1999, Judge Cottingham sentenced Ms. Poole to life imprisonment without the possibility of parole for murder and five years of imprisonment for common law criminal conspiracy. The sentences are consecutive. 6) _ Judge Cottingham imposed the sentences following a plea of not guilty and a trial by jury. ' This pleading is based on Form 5, Revised 3/2003, which can be found on the South Carolina Judicial Department website.7) Ms, Poole appealed the convictions and sentences. 8) Ms. Poole appealed her convictions and sentences to the South Carolina Court of Appeals. The Court of Appeals denied Ms. Poole’s appeal in Unpublished Opinion Number 2002- UP-029 on January 16, 2002 and denied her petition for rehearing en banc on March 21, 2002. The South Carolina Supreme Court denied Ms, Poole’s petition for writ of certiorari on November 6, 2002, The Supreme Court of the United States denied Ms. Poole petition for writ of certiorari on March 24, 2003, Poole v. South Carolina, Case No. 02-8850. 9) Not applicable because Ms, Poole appealed. 10) Grounds for Relief: a) There is evidence of material facts not previously presented and heard that requires vacation of the convietion or sentence. S.C. Code Ann. § 17-27-45(C). b) Ms. Poole was denied the right to effective assistance of counsel, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, §§ 3 and 14 of the South Carolina Constitution. 11) Supporting facts a) The following facts have not been previously presented and heard: i, _ Expert testimony about false confessions. ii, Expert testimony regarding eyewitness identification. iii, Third party guilt evidence: a. The police failed to pursue Bruce Wolford as a possible suspect. Bruce Wolford had maliciously installed peAnywhere on Ms. Poole’s home computer, Bruce Wolford had installed pcAnywhere, and thus had total control over Ms. Poole’s home computer for at least 6 months prior to the incident on June 9", This enabled Bruce Wolford to stalk and to track Ms. Poole for 6 months. This new evidence of Bruce Wolford criminally stalking and keeping tabs on Ms. Poole would support him being a possible suspect. Upon information and belief, Bruce Wolford disappeared in early June.iv. vi vii, b. Tonya Atwood Grubbs was a person of interest because of the information she knew about the crime, that was not publically disclosed, when the police interviewed her, Upon information and belief, Tonya Atwood Grubbs quit the Silver Fox in early June. c. Law enforcement’s failure of the police to investigate the stolen vehicle report of Robert Cummings. Ms. Poole suffered from a childhood of emotional, sexual and physical abuse. Expert testimony would have helped the jurors understand the police interrogation of Ms. Poole and would have been relevant for the jury to understand certain decisions and situations in Ms. Poole’s marriage. Without this vital information of Ms. Poole’s childhood of emotional, sexual, and physical abuse, the jury was left to believe that Ms. Poole was of sound mind, when in fact she was emotionally vulnerable to coercion by the police and vulnerable to exploitation by sexual predators in her marriage (Danny Shrewsbury, one of the 3 men she had an affair with, is now a registered sex offender). Ms. Poole’s childhood emotional, sexual, and physical abuse was also relevant mitigation to be considered for sentencing which would have spared her from a life without parole sentence The following items of evidence should be examined: a. Forensic examination of the hard drive to recover deleted data, to find out when this data was deleted and to look for possible correlations of logins and acts on the computer associated with and that could be contributed to Bruce Wolford; lence near the crime scene; b. DNA testing of cigarette butt entered into e c. DNA testing of a hair fiber found on the decedent; 4. Comparison of the recovered bullet fragment straiton mark against known and unsolved crime database; and ¢. Analysis and inspection of key found near Brent’s wallet. ‘That the co-defendant was ultimately sentenced to thirty years. Even under the prosecution’s theory of the case, Ms. Poole did not kill her husband. The Supreme Court of the United States consistently recognizes not being the actual killer as mitigation.b) icial. See Strickland ‘Trial counsel’s performance was both unreasonable and pre} v, Washington, 466 U.S. 668 (1984). Counsel’s acts or omissions included, but are not limited to, the following: i, Defense counsel received many crucial discovery items from the Solicitor’s office in the two weeks leading up to trial. For reference, Ms. Poole’s trial began on November 8, 1999, The importance of these items and the sheer volume of these items, coupled with the inadequate time to properly and thoroughly review these items before trial, which rendered the defense unprepared and ineffective. As a result, the defense was at an unfair disadvantage throughout trial. Examples include: a) On October 25, 1999, 14 days before trial, the defense received Supplement D which contained 21 items totaling 558 pages, 2 security camera tapes and 40 photographs; b) On October 26, 1999, 13 days before trial, the defense received Supplement E which contained 14 items totaling 140 pages. These 14 items were transcribed witness statements from 14 people, ©) Sometime between October 26, 1999 and November 4, 1999, the defense counsel received Supplement F which contained 8 items totaling 40 pages; d) Sometime between October 26, 1999 and November 4, 1999, the defense counsel received 18 items totaling 67 pages; e) On November 4, 1999, 4 days before trial, the defense received 9 aerial photographs; and £) On November 4, 1999, 4 days before trial, the defense received 18 written letters totaling 92 pages. Public Defender Orrie West met with Ms. Poole only once before trial. This one ‘meeting was not to inform, but to instruct and demand, Ms. Poole to take the plea deal of 30 years which required Ms. Poole to admit to something she did not do {admission of conspiracy and murder) and required Ms. Poole to provide information on something she did not know (the location of the gun). Orrie West was unwilling to provide her client with a proper defense from the beginning, as evidenced by her actions during the one time she met with Ms. Poole. This negligence and lack of interest to defend subsequently resulted in providing her client with inadequate and ineffective counsel before and during trial.iii, iv. vi vii Defense counsel neglected to challenge the detective’s testimony that Ms. Poole was not a suspect until after her arrest for Obstruction of Justice the night of June 13", The defense counsel failed to present evidence from the 5:13am June 10" interview/interrogation, at which time Ms. Poole was never informed of her Miranda rights and was interrogated as a suspect, It is clearly evident that the Reid Interrogation Technique was used during this 5:13am June 10" encounter. By not presenting this evidence, the jury had no reason to doubt the detective's testimony, when in fact the detectives misled the jury. With this evidence being neglectfully omitted, the jury was deprived the chance to view the detectives as untrustworthy. This was critical information for the jury to know that could have made a significant impact by initiating jurors to question the police investigation as a whole (their tunnel vision from the beginning, the improper influence of the Poole family on the investigation) and should have been brought up at trial Defense counsel neglected to challenge the John Boyd Frazier day planner evidence presented at trial, John Boyd Frazier had marked all significant dates, from not just Ms, Poole, but from other friends and family as well. Other anniversary and birthday dates were populated in the day planner. Therefore, having the anniversary date for Ms. Poole marked, among the many other anniversary dates marked, was not unusual and the jury was left in the dark and presumed to believe there was significance for John Boyd Frazier to have marked Ms. Poole’s anniversary in his day planner, when in fact it was not significant for him to have done this. Defense counsel neglected to support Marie Summey’s receipt evidence with pictures of the clothes that Ms, Poole purchased for Brent in the weeks before their vacation. The prosecution’s objection (because they couldn’t tellidistinguish that the clothes were purchased for Brent and not Ms. Poole) was left to stand because the defense was inadequate in preparing the required proof that Ms, Poolespent that large sum of money on clothes for her husband in the weeks before their vacation. This objection left to stand rendered the defense witness (Marie Summey) ineffective in arguing that her daughter did not want Brent killed because her daughter had recently spent thousands of dollars on clothes for her husband a few weeks before the vacation. Defense counsel neglected to present evidence (email/letier) that Brent Poole was looking forward to this upcoming vacation and that it was his idea, as Ms. Poole had always maintained, to have relations outdoors sometime during the vacation. This evidence was important to present to the jury to challenge the prosecution's theory that it was Ms. Poole °s idea to have relations outdoors to lure her husband Brent Poole as part of the plan and that it was solely Ms. Poole’s idea to go on this vacation to Myrtle Beach, and that Brent Poole was an unwilling and uninterested participant, By not presenting this crucial evidence to the jury, the jury was led to believe the prosecution’s version of events and intentions without a reasonable and believable alternative explanation as to why they would have relations outdoors. Defense counsel neglected to present evidence that could challenge the prosecution’s theory that Ms. Poole lured Brent Poole to an isolated spot to beviii ix, xi xii. xiii, killed, The beach towel to be used for relations was purchased on their way back to the hotel, after their night out, at 10:52pm. This evidence would have supported a defense argument that their relations on the beach was a spontaneous act and not a pre-planned act, that fulfilled Brent's expressed desire (evidence through the email/letter before the vacation) to have relations outdoors. Being that they would be leaving the next day, this would be the final available night for his request to be fulfilled. This was a spontaneous, last minute purchase, and if it were part of the plan to lure Brent Poole with relations, this beach towel purchase would not have been made last minute, that Ms. Poole would have purchased this before they went out, or brought this along on their night out, as part of the plan. It would have made more sense, as this was the most important element to the plan, to have this already prepared to bring along on their night out. Defense counsel neglected to challenge the prosecution theory by presenting evidence to the jury that the $50 cash ATM withdrawal the night of the crime (withdrawn to pay the babysitter) was in fact missing and not found in Brent Poole’s recovered wallet. This negligent omission lead the jury to believe that there was no money stolen, that the wallet was found intact and that therefore no legitimate robbery occurred, in line with the prosecution’s theory that this event was pre~ planned. Defense counsel neglected to question the condition that Brent Poole’s wallet was found and to question why it was found soaking wet as it did not rain in North Myrtle Beach from June 9" (night of the crime) through July 5" (day wallet was found). This could tie-in to the shoddy and mishandled police investigation argument. ‘The defense counsel neglected to argue that if this was pre-planned, that it made more sense to keep Brent Poole in the semi-secluded and private wooded area past 82™ Ave until the murder could occur. Ms. Poole had the means to extend and prolong their relations in this spot if this was in fact pre-planned. And that the crime occurred on their way walking back to the hotel after relations. And that after they noticed someone following behind them they actually sped up their walking pace. Defense counsel neglected to present evidence to the jury that Bill Poole and the Poole family had improperly influenced the direction of the police investigation, as evidenced in the 5:13am June 10" interrogation (interrogated after Detective Altman spoke by phone to the Poole family), that the Poole family harbored anger and resentment towards Ms, Poole before the death of their son because of her previous affairs, and that the Poole family blamed Ms. Poole for the moral choices their son had wanted and made. Defense counsel never presented evidence that the decedent wanted Ms. Poole to work as a stripper and to have affairs with other men, when such evidence significantly undercut the prosecution theory of the case. Defense counsel neglected to argue and challenge the methods used by the police from their investigation to crime scene. This was essential to argue that the policexiv. Xv, xvi xvii. mishandled and made errors in their investigation, in securing the crime scene and gathering evidence, in interviewing witnesses, and that the MBPD was under enormous public pressure to find the assailant. All of this contributed to the police having tunnel vision and focusing on Ms. Poole and her ex-boyfriend as the easiest answer- that the police had tunnel vision from the very beginning and colluded by changing accounts and descriptions of what happened to fit their theory. Defense counsel neglected to challenge the prosecution witnesses, the Bollows, her neighbors, to explain why Ms. Poole would have agreed to their offer to watch the house and to have a spare house key made which would let them have unhindered and unsupervised access to her house (while Ms. Poole was away staying at her parent’s house) if she was involved in Brent Poole’s murder and had something to hide, Ms. Poole had only stopped by the house a few times to get clothes and other essentials but had left the house largely intact and had left their computer there too. The defense counsel also failed to bring up evidence that the Bollows had recently, only 2 to 3 weeks before, filed for bankruptey and may have had an ulterior motive (reward money) to paint Ms. Poole in a bad light, The jury was uninformed that the Bollows had recently filed for bankruptcy, and that they were in financial distress and therefore had no alternate reason as to why the Bollows would come forward, besides being concerned citizens. Defense counsel neglected to challenge the prosecution’s notion that because Ms. Poole was not fully unpacked that she must have had no intentions of staying. The defense could have brought up examples of how it can take people a couple months to fully unpack after moving, and Ms. Poole had moved up to three different times in a2 week span, So her not being fully unpacked yet within a few days, or even a few weeks, was well within being normal, The defense counsel neglected to properly cross examine James Bollow, the neighbor, having the jury mislead to believe that the check Ms. Poole was looking for in the mail after the crime was for a large sum of money, when in fact it was for a much smaller sum, which east Ms, Poole in a bad light to the jurors. By failing to correct James Bollow’s testimony, the jury was improperly reinforced to believe the prosecution’s theory that Ms. Poole was after large sums of money, the life insurance, and this consequently harmed Ms. Poole’s character in the eyes of the jury. The defense counsel neglected to present evidence that would support the argument that Ms. Poole only moved in the John Boyd Frazier as a temporary living solution until she could find a place of her own. This evidence was that John Boyd Frazier rented a storage unit on May Ist, around the same time Ms. Poole had moved out, so that she could store her property in this storage unit. After Ms. Poole moved back in with Brent they both went to this storage unit to retrieve her household items. It ‘was important for the defense to show that Ms. Poole was not permanently living with, and had no intentions of permanently staying with John Boyd Frazier. This ‘was important information that the jury should have known and with its omission, they were falsely led to believe that Ms, Poole’s motive for staying with John Boyd Frazier was to pursue and/or to keep a romantic relationship with himxviii xix, XX. 12) The defense counsel neglected to object to the extended trial days, depriving Ms. Poole of adequate defense counsel during her trial, Because of the extended trial days, the trial was unnecessarily accelerated which prohibited and hindered the defense counsel from properly preparing for the next day’s events. The defense and not the prosecution had more to lose and had more at risk (the life of their ‘presumed innocent’ client), and thus unfair. The defense counsel neglected to present evidence and argue that Ms. Poole made reservations at the Carolina Winds and when they arrived, their reserved room was not yet ready, and so they accepted the hotel’s offer of a different room that was ready. If this crime was pre-planned with John Boyd Frazier, Ms. Poole would not have deviated, or at least resisted the change from their previously reserved room. It was well within Ms, Poole’s means to delay and to wait until the previously reserved room was made ready The defense counsel neglected to argue and challenge the babysittet’s version of events on the night they left to go out (around 8pm June 9"). The babysitter got lost finding the correct hotel and arrived 15 minutes late. This was their anniversary night and of course Ms. Poole was excited and antsy to leave and spend some alone time with her husband, Any parent of a two year old will attest to looking forward to when the child is put to bed for some alone time. This is normal. By not having this argument the jury was more inclined to believe the testimony that Ms. Poole was in a hurry to leave (not disputed), but without a reasonable explanation, more inelined to accept the prosecution’s theory that it was because Ms. Poole was on a rushed conspiracy timeline as the reason, Defense counsel failed to present evidence that Ms. Poole and the decedent changed plans from one restaurant to another restaurant, which contradicted the prosecution timeline and theory of conspiracy. Prior to filing this application for post-conviction relief, Ms. Poole filed the following actions for collateral relief: a) On November 5, 2003, Ms. Poole filed a petition for writ of habeas corpus in the United States District Court for the District of South Carolina. Poole v. Leath Correctional, et al., Civil Action Case No. 0:03-cv-03499-RBH. On September 1, 2006, the Honorable Bristow Marchant, United States Magistrate, recommended that the State's motion for summary judgment be granted. On January 31, 2007, the Honorable R. Bryan Harwell, United States District Court Iudge, granted the State's motion for summary judgement and dismissed the petition, On July 31, 2007, the United States Court of Appeals for the Fourth Circuit dismissed Ms. Poole’s appealb) On February 1, 2008, Ms. Poole filed an application for post-convietion relief, ease number 2008-CP-26-00916, On February 17, 2009, the Honorable Larry B. Hyman, Jr. denied Ms. Poole’s application for post-conviction relief. The Court of Appeals denied Ms. Poole’s appeal. 13) Please see number 12 above for the nature, locations of courts, dispositions, dates of disposition, and citations (when know) for the prior actions for collateral relief. 14) _ None of the grounds set forth in number 10 have been presented to this or any other Court, State or Federal, in any petition, motions, or application. Although some arguments about third party guilt have been considered previously, the specific matters set forth in paragraph 11 have not been considered before now. 15) Not applicable because none of the set forth in number 10 have been presented to this or any other Court, State or Federal, in any petition, motions, or application. 16) The grounds set forth in paragraph 10 have not been presented before because Ms. Poole did not become aware of these grounds until aftet she received significant portions of tral counsel’s file 17) Prior representation: a) Isaac Diggs, 1700 Oak Street, Suite D, Myrtle Beach, SC 29577, represented Ms. Poole at trial, on appeal to the South Carolina Court of Appeals, on her petition for writ of certiorari to the South Caroline Supreme Court, on her petition for writ of certiorari to the ‘Supreme Court of the United States, on her petition for writ of habeas corpus in the United States District Court, in her appeal to the Fourth Circuit, in her application for post-conviction relief, and in the appeal of her application for post-conviction relief to the South Carolina Court of Appeals.Mr. Diggs was disbarred in North Carolina on June 9, 2016 and South Carolina on September 28, 2016. Matter of Diggs, 418 S.C. 229, 792 S.E.2d 219 (2016) b) The undersigned counsel assisted Ms. Poole in preparing this application for post- conviction relief. 18) Please see number 17 above for the name, address, and proceedings for Mr. Poole’s prior representation, 19) Ms, Poole respectfully requests this Court to order a new trial or, in the alternative, anew sentencing hearing. 20) Ms, Poole is not under the sentence of any other court that she has not challenged. Respectfully Submitted, E. Charles Grose, Jr. S.C. Bar Number 66063 ‘The Grose Law Firm, LLC 404 Main Street Greenwood, SC 29646 (864) 538-4466 (864) 538-4405 (fax) Email: charles@groselawfirm.com Pro Bono Attorney for the Applicant Kimberly Renee Poole 10STATE OF SOUTH CAROLINA ) ) VERIFICATION COUNTY OF RICHLAND a 1, Kimberly Rene Poole, being duly sworn upon my oath, depose and say that I have subscribed to the foregoing application; that I know the contents thereof; that it includes every ground known to me for the vacating, setting aside or correcting the conviction and sentence attacked in this application; and that the matters and allegations therein set forth are true. . Kimberly Rene Pogl Sworn to and subscribed before me Le this 3° day of 74 » 2017 NOTARY FOR SOUTH CAROLINA My Commission Expires: 9/3//202F