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Simmons v. State

Supreme Court of South Carolina

June 8, 2016

Kenneth Simmons, Petitioner,
State of South Carolina, Respondent. Appellate Case No. 2014-000387

         Appeal from Dorchester County Doyet A. Early, III, Post-Conviction Relief Judge

          Emily C. Paavola, of Justice 360, of Columbia, for Petitioner.

          Attorney General Alan M. Wilson, Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Donald J. Zelenka, and Senior Assistant Attorney General Melody J. Brown, all of Columbia, for Respondent.

          Joseph M. McCulloch, Jr., of Columbia, Lori R. Mason, of Cooley LLP, of Palo Alto, California, Adam S. Gerhenson, of Cooley LLP, of Boston, Massachusetts and Jennifer Pavane Kenter, of Cooley LLP, of New York, New York, for Amicus Curiae The Innocence Network. Daniel J. Westbook, of Nelson Mullins Riley & Scarborough, of Columbia, Vilia B. Hayes, Charles W. Cohen and Casey S. Duffy, all of Hughes Hubbard & Reed, LLP, of New York, New York, for Amici Curiae ARC of South Carolina, Able SC, SCAAIDD, Protection and Advocacy for People With Disabilities, Inc. and Family Connection of South Carolina.



         Petitioner Kenneth Simmons was convicted and sentenced for the 1996 murder and criminal sexual assault of an 89-year-old Summerville woman. Petitioner sought post-conviction relief (PCR), which was granted in part. Because Petitioner is intellectually disabled, the PCR court vacated Petitioner's death sentence and imposed a sentence of life without parole, a matter which is not before us. See Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding that the Eighth Amendment prohibits the execution of mentally retarded individuals (citation omitted)). Petitioner additionally sought a new trial on newly discovered evidence and due process grounds, which the PCR court denied without discussion. The essence of Petitioner's new-trial claims centers on the allegation that the State misrepresented at trial the strength of the DNA[1] evidence linking Petitioner to the crimes. The State urges this Court to not reach the merits of Petitioner's certiorari petition on issue-preservation grounds. Alternatively, the State recommends the case be remanded to the PCR court for the issuance of a proper order setting forth findings of fact and conclusions of law. We conclude the compelling nature of the dispute and the interests of justice warrant the "extraordinary action" of remanding the case to the PCR court for issuance of a proper order. See Pruitt v. State, 310 S.C. 254, 255 & n.2, 423 S.E.2d 127, 128 & n.2 (1992) (citations omitted). We commend the State for its alternative suggestion.


         This was a brutal and horrific murder, a fact that does not escape us. From the beginning, the State relied heavily on the supposed match between Simmons's DNA and DNA found in semen at the crime scene. As the Solicitor told the jury during opening statements, the State's evidence against Simmons consisted solely of statements Simmons made to police and DNA analysis. Regarding the DNA evidence, the Solicitor told the jury the State would present the testimony of forensic analysts "that nine out of nine of the locations on DNA molecules that they compared with the semen in that vaginal swab [taken from the victim] matched the DNA from Kenneth Simmons'[s] blood."

         As the South Carolina Law Enforcement Division (SLED) lacked the ability at the time to perform the necessary forensic analysis, the State sent the DNA samples to Lifecodes Corporation (Lifecodes), a private laboratory in Stamford, Connecticut. There, forensic analysis was performed by Lauren Crane and Dr. Michael Baird.[2] To aid their testimony, the Solicitor displayed a chart he prepared based on his review of the documentation submitted by Lifecodes, which purported to compare the victim's and Simmons's DNA with the crime-scene samples at the nine locations, or loci, that Lifecodes tested.[3]

         When directly asked if Simmons's DNA matched the perpetrator's DNA at all nine loci tested, Crane responded, "What we found was a mixture of DNA which we could not eliminate Kenneth Simmons'[s] blood as being a contributor to."[4] While a correct statement, this failed to inform the jury that she was basing that opinion on only six of the loci tested. At her PCR deposition, Crane admitted the CTT test results, which looked at the other three loci, were inconclusive and had no evidentiary value for identifying Simmons. Nonetheless, Baird used the CTT test results at trial to create a "combined frequency of occurrence" for the genetic profile developed from the crime scene samples. Dr. Baird thus told the jury that based on the "nine different genetic tests done in this case, " Simmons's genetic profile, which was found in the samples taken from the victim, occurred in about 1 in 1, 280, 249, 916 white individuals and 1 in approximately 8, 000, 000 black individuals. Then, during its closing argument, the State essentially told the jury it was impossible for the DNA to have come from anyone other than Simmons: the State emphasized the supposed nine-for-nine match between Simmons's DNA and the samples recovered from the victim and noted the frequency of occurrence of Simmons's genetic profile in the black community was 1 in 8, 029, 316.

         The jury found Simmons guilty on all charges. This Court affirmed Simmons's murder conviction and death sentence on direct appeal. State v. Simmons, 360 S.C. 33, 36–37, 46, 599 S.E.2d 448, 449, 454 (2004).


         Simmons filed an application for PCR on multiple grounds, including an ineffective assistance of counsel claim related to his trial counsel's failure to adequately challenge the State's DNA evidence and a claim he was ineligible for the death penalty because he is "mentally retarded."[5] Simmons later amended his application for PCR, expanding on his ineffective assistance of counsel claim and adding a newly discovered evidence claim, [6] as well as a claim that the State violated his due process rights by presenting false evidence to the jury and failing to disclose exculpatory evidence.

         The PCR court held multiple hearings. During the course of the PCR proceedings, it became apparent that the DNA evidence against Simmons was far weaker than the State had claimed at trial. Simmons presented numerous witnesses to testify to problems in the State's presentation of the DNA evidence and provided the PCR court with reports and affidavits from other experts. These experts were consistent in their identification of numerous problems with the way the State presented the DNA evidence at Simmons's trial. For example, the affidavit of two of those experts, Dr. Charlotte Word and Dr. Robin Cotton, identified four "critical problems": (1) "The chart used to assist with both Dr. Baird's and Ms. Crane's trial testimony contains data that are completely unsupported by the laboratory notes and results provided."[7] (2) "No credible forensic scientist would report the results from DNA ...

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