Submitted October 15, 2019
from Chesterfield County John M. Milling, Trial Court Judge
Paul M. Burch, Post-Conviction Relief Judge
Elizabeth Anne Franklin-Best, Blume Norris &
Franklin-Best LLC, of Columbia, for Petitioner.
Attorney General Alan McCrory Wilson, Senior Assistant Deputy
Attorney General Megan Harrigan Jameson, and Assistant
Attorney General Johnny Ellis James Jr., of Columbia, for
the several blatantly improper comments the prosecutor made
in his closing argument to the jury in Oscar Fortune's
murder trial, he claimed, "My job is to present the
truth," and said, "if you look in the . . . Code of
Laws . . . [, I] have to say what the truth is."
"On the other hand," the prosecutor told the jury,
"the defense attorneys' jobs are to manipulate the
truth. Their job is to shroud the truth. Their job is [to]
confuse jurors. Their job is to do whatever they have to
--without regard for the truth." The prosecutor
explained that if he-the prosecutor- believes "somebody
else did the crime," then he must "dismiss
it." "And [if] I know the person has done something
that I think the facts show they're guilty of, then I
can't [dismiss] it. I have to go forward with it."
the prosecutor's improper remarks violated the
defendant's rights under the Due Process Clause. We
reverse the denial of post-conviction relief (PCR), and
remand to the court of general sessions for a new trial.
Facts and Procedural History
State charged Oscar Fortune with murder and possession of a
weapon during the commission of a violent crime in connection
with a shooting in the parking lot of the Huddle House in
Cheraw, South Carolina, on December 23, 2001. Evidence
presented at trial demonstrated both Fortune and the
victim-Anthony Shields- possessed and fired guns. Fortune
claimed Shields shot at him first, and he shot Shields in
in the evening, Fortune's cousin-Sonta McCall-attended a
Christmas party with her friend Iris Gaston. In the early
morning hours after the party ended, McCall called
Fortune-who was at home and in bed-to tell him Shields hit
her in the head with a beer bottle, and Shields' wife
struck Gaston across the back with a bar stool, while they
were at the Christmas party. McCall wanted Fortune to help
her go to the police to take out a warrant on Shields. McCall
told Fortune she was at the Huddle House, and Fortune said he
would meet her there.
girlfriend-Tonette Cash-drove Fortune to the Huddle House.
Fortune testified he saw about eighty to a hundred people
when he arrived there. He got out of Cash's car and spoke
with McCall and Gaston. As they were getting ready to leave,
McCall saw Shields pulling into the Huddle House parking lot.
McCall walked to the front of the Huddle House to
Shields' vehicle. Fortune got back into Cash's car
and asked her to pull around so he could talk to Shields.
getting out of the car the second time, Fortune put
Cash's .38 caliber pistol in his pocket. Fortune
testified he took the gun with him for protection because of
the large crowd of people in the parking lot, most of whom he
did not know. Fortune testified that as he approached
Shields' vehicle, "[Shields] and [McCall] were
arguing, and I asked him what was up and he just shot."
Fortune testified he was within arm's length of Shields
when Shields fired the first shot from the driver's seat
of the vehicle. Fortune testified he fired back,
"Because at that time I was in fear for my life. I mean,
he shot. I was in fear for my life at this time."
jury found Fortune guilty of murder and possession of a
weapon during the commission of a violent crime. The trial
court sentenced Fortune to concurrent prison terms of
thirty-seven years for murder and five years for possession
of a weapon during the commission of a violent crime. The
court of appeals upheld his convictions on direct appeal.
State v. Fortune, Op. No. 2009-UP-259 (S.C. Ct. App.
filed June 1, 2009).
filed an application for PCR. Fortune alleged his trial
counsel was ineffective for failing to request a curative
instruction and for failing to move for a mistrial after the
assistant solicitor's statements in closing argument.
Fortune also claimed the assistant solicitor's misconduct
violated his right to due process and his right to counsel.
court denied Fortune relief. Fortune filed a petition for a
writ of certiorari with this Court, which we transferred to
the court of appeals pursuant to Rule 243(1), SCACR. The
court of appeals granted Fortune's petition. After
briefing, the court of appeals found the "PCR court
failed to address all issues Fortune properly raised"
and did not comply with section 17-27-80 of the South
Carolina Code (2014). That section provides, "The [PCR]
court shall make specific findings of fact, and state
expressly its conclusions of law, relating to each issue
presented." The court of appeals remanded the case to
the PCR court. Fortune v. State, Op. No. 2016-UP-102
(S.C. Ct. App. filed Mar. 2, 2016).
remand, the PCR court again denied Fortune relief, stating,
"The solicitor's remarks, while improper, are not so
prejudicial to [Fortune's] substantial rights so as to
deprive him of a fair trial, especially when combined with
the accompanying objections of trial counsel and the curative
comments of the trial judge." We granted Fortune's
petition for a writ of certiorari.
Fifth and Fourteenth Amendments
Process Clauses in both the Fifth and Fourteenth Amendments
provide that no person may be deprived of liberty
"without due process of law." U.S. Const. amend. V;
id. amend. XIV, § 1. To find whether the
assistant solicitor's comments in closing argument
violated the defendant's due process rights, we must
determine whether the comments were improper, and if so,
whether the improper argument so unfairly prejudiced the
defendant as to deny him a fair trial. See Darden v.
Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91
L.Ed.2d 144, 157 (1986) ("The relevant question is
whether the prosecutors' comments 'so infected the
trial with unfairness as to make the resulting conviction a
denial of due process.'" (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871,
40 L.Ed.2d 431, 437 (1974))); United States v.
Chorman, 910 F.2d 102, 113 (4th Cir. 1990) (stating
"the test for reversible prosecutorial misconduct"
in a prosecutor's closing argument is "the
prosecutor's remarks or conduct must in fact have been
improper, and . . . such remarks or conduct must have
prejudicially affected the defendant's substantial rights
so as to deprive the defendant of a fair trial"
(citation omitted)). As this Court has stated,
Improper comments do not automatically require reversal if
they are not prejudicial to the defendant. On appeal, the
appellate court will view the alleged impropriety of the
solicitor's argument in the context of the entire record
. . . . The appellant has the burden of proving he did not
receive a fair trial because of the alleged improper
argument. The relevant question is whether the
solicitor's comments so infected the trial with
unfairness as to make the resulting conviction a denial of
Simmons v. State, 331 S.C. 333, 338, 503 S.E.2d 164,
166-67 (1998) (citations omitted); see also Vasquez v.
State, 388 S.C. 447, 458, 698 S.E.2d 561, 566 (2010)
("The relevant question is whether the solicitor's
comments [in closing argument] so infected the trial with
unfairness as to make the resulting conviction a denial of
Fortune's trial, the assistant solicitor began his
SOLICITOR: Ladies and gentlemen of the jury, thank you so
much for your time throughout the course of this trial. I
want to start by telling you that we both have jobs here. My
job is to present the truth. In fact if you look in the South
Carolina Code of Laws which mandates what a solicitor's
job is we can't be like a normal attorney is.
A normal lawyer has to advocate on behalf of his client. But
on the other hand the Solicitor can't. We have to say
what the truth is and it's -
counsel objected, arguing "the jury are the finders of
the truth." The trial court ruled,
THE COURT: The jury is the finders of the truth. I think what
he was referring to was there is also an obligation on the
Solicitor's Office beyond simply that of presentation,
but the jury does have the ...