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Love v. State

Supreme Court of South Carolina

October 2, 2019

Korey Lamar Love, Petitioner,
v.
State of South Carolina, Respondent. Appellate Case No. 2016-002233

          Submitted May 15, 2019

          Appeal from Greenville County Daniel Dewitt Hall, Circuit Court Judge.

         ON WRIT OF CERTIORARI

          E. Charles Grose Jr., of Grose Law Firm, of Greenwood, for Petitioner.

          Attorney General Alan McCrory Wilson and Assistant Attorney General Lindsey Ann McCallister, both of Columbia, for Respondent.

          JAMES JUSTICE.

         In this post-conviction relief (PCR) matter, Korey Lamar Love moved at the outset of his PCR hearing to amend his application for relief to add four additional grounds of ineffective assistance of counsel. This appeal centers upon only one of those additional grounds, specifically that trial counsel was ineffective for failing to object to a portion of the State's closing argument. The State objected to the amendments, and the PCR court denied Love's motion to amend, finding the State would be unfairly prejudiced by allowing Love to amend his PCR application upon such short notice. We granted Love a writ of certiorari to address whether the PCR court erred by not allowing him to amend his application to add the ground concerning the State's closing argument. We reverse the PCR court's denial of Love's motion to amend to add that one ground, and we remand this matter to the PCR court and instruct the PCR court to consider the merits of this additional ground.

         FACTUAL AND PROCEDURAL HISTORY

         On January 27, 2007, at approximately 1:30 a.m., Isaac Bass (Victim) completed his shift at the Greenville Wendy's on Pleasantburg Drive and exited the restaurant through the self-locking back door. Victim was immediately confronted by an armed assailant, who attempted to rob Victim. Victim called for help, and a struggle ensued. Victim broke free from the assailant and attempted to run away; however, the assailant shot Victim in the neck. The assailant and a cohort fled the scene. Victim got to his feet, walked around the side of the Wendy's, and banged on the drive-thru window. Because he was shot in the neck, Victim was unable to call for help. Victim made his way towards the street and flagged down a passing vehicle. The driver saw Victim on the side of the road and observed two men sprinting away from the Wendy's. The driver stopped to provide Victim assistance; however, Victim did not survive.

         Because there was no physical evidence linking the case to any suspect, the case went unsolved for a few years. In 2010, Detective Collis Flavell was assigned to the case. Detective Flavell informed Victim's parents he was working the case, and the community soon became involved in raising reward money and asking people to come forward with information. As a result of these efforts, Detective Flavell received a tip suggesting law enforcement investigate certain members of the Love family.

         Following an investigation, Korey Love was arrested and indicted for murder, attempted armed robbery, possession of a weapon during the commission of a violent crime, and possession of a pistol by a person under the age of eighteen. At trial, the State's case was built upon the testimony of several people who explained Love's involvement in Victim's murder. During the State's closing argument, the State told the jury:

This is your opportunity to do justice in this case under the oath that you have taken. You can be instruments of justice for [Victim]. His death was not the final chapter of his life, this trial is the final chapter of his life.

         Trial counsel did not object to this comment. The jury found Love guilty as indicted. The trial court sentenced Love to concurrent prison terms of fifty years for murder, twenty years for attempted armed robbery, five years for possession of a weapon during the commission of a violent crime, and five years for possession of a pistol by a person under the age of eighteen. The court of appeals dismissed Love's direct appeal following Anders[1] briefing. State v. Love, Op. No. 2014-UP-177 (S.C. Ct. App. filed Apr. 23, 2014).

         Love filed an application for PCR on April 8, 2015, claiming ineffective assistance of both trial and appellate counsel. A PCR hearing was held on February 17, 2016. As the hearing commenced, Love moved to amend his application to add four additional grounds of ineffective assistance of counsel. The following exchange took place:

Love: I have an amended application that I would like to hand up. It adds some matters that were on the record but not included in the original application.
The State: Your Honor, we would object to that. Again, this case has been scheduled for more than a month. I was handed the amendments this morning.
Love: I've marked this as Applicant's Exhibit Number 4, at least as a proffer, and I move to be allowed to amend under the liberal rules of . . . civil procedure that allow amendments, even amendments ...

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