THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

Wilton Q. Greene, Petitioner, 

v. 

State of South Carolina, Respondent. 

Appellate Case No. 2018-000339 

ON WRIT OF CERTIORARI 

Appeal From Berkeley County 

Michael G. Nettles, Circuit Court Judge 

Opinion No. 5991 

Heard October 12, 2021 – Filed June 21, 2023 

REVERSED AND REMANDED 

Appellate Defender Joanna Katherine Delany, of 

Columbia, for Petitioner. 

Attorney General Alan McCrory Wilson, Senior 

Assistant Deputy Attorney General William M. Blitch, 

Jr., Assistant Attorney General Joshua Abraham 

Edwards, and Assistant Attorney General William Harold 

Ray, all of Columbia, for Respondent. 

MCDONALD, J.: Wilton Q. Greene (Petitioner) argues the post-conviction relief 

(PCR) court erred in finding he received effective assistance of counsel despite 
trial counsel's failure to object to the admission of his prior robbery conviction or 

request a limiting instruction at his trial for armed robbery and kidnapping. We 

reverse and remand. 

Facts and Procedural History 

Petitioner went to the Big Lots in Moncks Corner one morning and purchased three 

grams of crack cocaine. After unsuccessfully trying to resell the drugs, he saw the 

victim, Bing Ho Zhang, as he was leaving the Big Lots parking lot. According to 

Petitioner, "I met with Mr. Bing before. I did business with Mr. Bing. . . . [H]e 

asked me did I have drugs on me. I told him yes. So I asked him could he give me 

a ride."1 

 

Petitioner testified Zhang was initially confused about whether they were going to 

Bojangles or McDonald's.2 

 He claimed Zhang wanted to buy sixty dollars' worth 

of cocaine but did not have enough money, so Petitioner agreed to hold Zhang's 

wallet, which contained Zhang's green card, as collateral until he could pay. 

According to Petitioner, the two men had previously engaged in a similar 

transaction, and he used a knife to cut pieces of the crack cocaine. Petitioner 

explained, "I gave it to Mr. Bing. He hit it and then we started driving." He asked 

Zhang to take him to the bank since Zhang did not seem to know where Bojangles 

was, but Zhang did not understand and responded: "[O]h I get it[,] you want all the 

money. You want all the money." 

At that point, Zhang "started acting a little funny." Petitioner "kept telling him to 

go to the bank. He would keep saying I don't got [sic] no money." Although 

Zhang tried to give him some small bills, Petitioner declined. Instead, Petitioner 

agreed to hold on to Zhang's wallet until he could pay in full. While they were 

driving, Zhang saw a police car and swerved towards it. Petitioner stated, "And as 

soon as he stopped I ran to get the drugs off me; [so] that I could throw the drugs 

off me." When Petitioner saw the police car, he "was thinking about just getting 

1 It is undisputed that Zhang agreed to give Petitioner a ride, and the two men 

drove away in agreement that Zhang would drop him off at a fast food restaurant. 

2 Zhang, who is originally from China, primarily speaks Mandarin. During 

Zhang's testimony, the trial court stopped the proceedings and asked the State to 

find an interpreter, stating: "I don't think he understands what anybody is even 

asking him, okay." 
away from the police because [he] had drugs on [him]." Petitioner admitted he was 

able to toss the drugs before the police arrested him. 

While Zhang testified he agreed to give Petitioner a ride to McDonald's, he 

claimed that on the way, Petitioner pulled a knife, instructed him to go to a bank, 

and took his wallet. Zhang then began looking for a police car and when he saw 

one, he swerved toward it, honking his horn and yelling that he was being robbed. 

According to Zhang, Petitioner "saw the police and just said shit, the bad word, 

and then opened the door and [ran] away." 

Officer Anthony Judy of the Moncks Corner Police Department was on patrol 

when Zhang's car came at him "head on" through the median. Officer Judy 

testified he "locked up the brakes" and jumped out of his car because he feared he 

was being ambushed. The car stopped about five feet in front of Officer Judy's 

patrol car, and the driver, who "had a very wild look in his face," then "bailed out 

yelling he robbed me, he robbed me." A black male passenger exited the car and 

started running toward the Huddle House. After he saw "how frantic the driver 

was[, Officer Judy] realized there definitely was a problem and the black male was 

exiting and leaving the area." So, he returned to his patrol car and began chasing 

Petitioner. Officer Judy was able to cut Petitioner off in a parking lot and a brief 

foot chase ensued until Petitioner fell and dropped a knife. When Officer Judy 

took Petitioner into custody, he found Zhang's wallet and twenty-two dollars in 

Petitioner's pocket. At that point, Petitioner stated, "[T]his is bull. I asked him to 

take me to Bojangles and drop me off by the bank beside it." Petitioner told him 

he was just a "victim of circumstances." The Berkeley County Grand Jury 

subsequently indicted Petitioner for armed robbery and kidnapping. 

At trial, Petitioner observed, "it's my word against his word," and told his trial 

counsel he wanted to testify.

3 

 However, trial counsel noted for the record that 

Petitioner was going to testify "against [his] advice."4 After questioning Petitioner, 

the trial court found he "freely, voluntarily, and intelligently" chose to testify. 

3 At the PCR hearing, trial counsel agreed the case was a "swearing match" 

between Petitioner and Zhang. 

4 Trial counsel further testified Petitioner initially told him the incident arose from 

a drug deal gone bad; however, when he later met with Petitioner to relay a plea 

offer, Petitioner's account differed. 
In response to the trial court's inquiry about Petitioner's prior record, trial counsel 

reported Petitioner had a prior conviction from 2011 for "strong arm robbery."5 

Neither the State nor trial counsel made any argument regarding the admissibility 

(or inadmissibility) of Petitioner's prior conviction. Nevertheless, the trial court 

and trial counsel agreed strong arm robbery "would be an impeachable offense." 

Without further argument or discussion, the trial court advised Petitioner that the 

State could ask him about his prior conviction if he testified. 

Trial counsel testified he attempted to minimize the prejudicial effect of the prior 

conviction by questioning Petitioner about it on direct. At the very end of 

Petitioner's direct examination, trial counsel inquired: 

Q. And you have a conviction? 

A. Yes, sir. 

Q. What's the conviction for? 

A. I pled to strong armed robbery. 

Q. No further questions. 

Prior to the court's jury charge, the parties had a "very informal charge 

conference." There was no limiting instruction addressing Petitioner's prior similar 

conviction, nor was one requested. Before submitting the case to the jury, the trial 

court asked the parties if they had any exceptions to the charge as given. Trial 

counsel responded, "No, Your Honor." 

The jury deliberated for five and a half hours before sending a note asking, "Is 

there a possibility of a lesser included charge?" After receiving an answer in the 

negative, the jury sent another note requesting to rehear (or be provided a copy of) 

Petitioner and Zhang's testimonies, which were replayed for the jury. The jury 

then sent a third note stating, "We would like to see the police report of the 

5 "Common law robbery and 'strong arm' robbery are synonymous terms for a 

common law offense whose penalty is provided for by statute." State v. Rosemond, 

348 S.C. 621, 628, 560 S.E.2d 636, 640 (Ct. App. 2002), aff'd as modified, 356 

S.C. 426, 589 S.E.2d 757 (2003). 
incident and transcript." The trial court replied that because neither the transcript 

nor the police report was admitted into evidence, it could not provide them. 

Finally, the trial court alerted counsel, "[t]he jury sent in a note saying they're 

decided on one charge, deadlocked on another. They [have] voted three times; 

some are unwavering." The court accepted and sealed the verdict on one charge 

and gave an Allen charge6 as to the second. The jury then deliberated another hour 

before finding Petitioner guilty as indicted. At sentencing, Petitioner maintained 

the incident was "a misunderstanding." The trial court sentenced him concurrently 

to twenty years' imprisonment for armed robbery and twenty years for kidnapping. 

Petitioner timely appealed his convictions and sentences, which this court affirmed 

by unpublished opinion in State v. Greene, Op. No. 2015-UP-086 (S.C. Ct. App. 

filed February 25, 2015). Petitioner then filed this action for post-conviction relief. 

The PCR court heard testimony from Petitioner and trial counsel, who explained 

his strategy was to "minimize the selling of drugs." Trial counsel did not know 

why he failed to argue the inadmissibility of Petitioner's prior robbery conviction 

or seek to limit its similarity to the offense for which Petitioner was being tried. 

Trial counsel admitted he has argued in other cases "to change it to just a felony" 

when a defendant's prior convictions are similar to the crime charged. He noted, "I 

know I have done that on other cases. I don't know why I didn't do it on this one." 

PCR counsel agreed trial counsel had control over strategy decisions but noted 

Petitioner's testimony that this was a drug deal gone bad, "flew in the face of [trial 

counsel's] preferred strategy." PCR counsel argued trial counsel was ineffective 

because he failed to object to the admission of Petitioner's prior conviction; failed 

to request that the trial court articulate its basis for finding the prior conviction 

admissible under Rule 609(a)(1), SCRE; and did not request a limiting instruction 

addressing the purpose for which the jury could consider the prior conviction. 

The PCR court denied relief and issued an order of dismissal, finding meritless 

Petitioner's allegation that trial counsel was ineffective in failing to object to the 

admission of the prior robbery conviction. The court noted Petitioner's "prior 

conviction was within the ten-year period allowed under the rules of evidence, and 

its introduction at trial was not objectionable in any manner other than its potential 

prejudice as a similar offense with little probative value." Finding trial counsel 

6 Allen v. United States, 164 U.S. 492 (1896). 
was not deficient, the PCR court stated "there can be no resulting prejudice from 

any alleged deficiency based on the overwhelming evidence against [Petitioner]." 

The order further stated: 

Although the trial judge in the case at hand did not 

explicitly place this balancing test on the record at trial, 

[Petitioner] has not met his burden of showing that the 

trial judge failed to conduct the balancing test. It is 

possible that the trial judge conducted the balancing test 

but did not specifically explain each factor of the test for 

the record. Trial Counsel credibly testified he saw no 

reason to object to the admission of the prior conviction 

at the time of trial. Although he was unsure at the 

evidentiary hearing why he did not make that argument, 

he did not believe at the time of trial that an objection 

was necessary. "[E]ven if an omission is inadvertent, 

relief is not automatic. The Sixth Amendment guarantees 

reasonable competence, not perfect advocacy judged with 

the benefit of hindsight." Yarborough v. Gentry, 540 

U.S. 1, 6 (2003). This Court finds Trial Counsel's failure 

to object [or] to request [a] curative instruction was not 

deficient. 

Standard of Review 

"Our standard of review in PCR cases depends on the specific issue before us." 

Smalls v. State, 422 S.C. 174, 180, 810 S.E.2d 836, 839 (2018). "We defer to a 

PCR court's findings of fact and will uphold them if there is evidence in the record 

to support them." Id. "We review questions of law de novo, with no deference to 

trial courts." Id. at 180–81, 810 S.E.2d at 839. "The admission of evidence 

concerning past convictions for impeachment purposes remains within the trial 

[court's] discretion, provided the [trial court] conducts the analysis mandated by 

the evidence rules and case law." State v. Robinson, 426 S.C. 579, 591, 828 S.E.2d 

203, 209 (2019) (alteration in original) (quoting State v. Dunlap, 346 S.C. 312, 

324, 550 S.E.2d 889, 896 (Ct. App. 2001)). 

Law and Analysis 

The Sixth Amendment to the United States Constitution guarantees criminal 

defendants the right to the effective assistance of counsel. Strickland v. 
Washington, 466 U.S. 668 (1984). "In order to establish a claim for ineffective 

assistance of counsel, the applicant must show that: (1) counsel failed to render 

reasonably effective assistance under prevailing professional norms, and (2) 

counsel's deficient performance prejudiced the applicant's case." Speaks v. State, 

377 S.C. 396, 399, 660 S.E.2d 512, 514 (2008). "A reasonable probability is a 

probability sufficient to undermine confidence in the outcome." Strickland, 466 

U.S. at 694. "Failure to make the required showing of either deficient performance 

or sufficient prejudice defeats the ineffectiveness claim." Id. at 700. 

I. Deficiency and Rule 609(a)(1) 

Petitioner argues the PCR court erred in finding trial counsel provided effective 

assistance despite his failure to object to the admission of Petitioner's prior 

conviction for strong arm robbery because trial counsel testified he did not know 

why he failed to object to the admission of the prior similar conviction.

7 We agree. 

"Rule 609 of the South Carolina Rules of Evidence governs the admissibility of a 

witness's prior convictions for purposes of impeachment." Robinson, 426 S.C. at 

592, 828 S.E.2d at 209. It provides, in pertinent part: 

(a) General Rule. For the purpose of attacking the 

credibility of a witness, 

(1) evidence that a witness other than an accused has 

been convicted of a crime shall be admitted, subject to 

Rule 403, if the crime was punishable by death or 

imprisonment in excess of one year under the law under 

which the witness was convicted, and evidence that an 

accused has been convicted of such a crime shall be 

7 Armed robbery occurs when one commits robbery "while armed with a pistol, 

dirk, slingshot, metal knuckles, razor, or other deadly weapon, or while alleging, 

either by action or words, he was armed while using a representation of a deadly 

weapon or any object which a person present . . . reasonably believed to be a 

deadly weapon." S.C. Code Ann. § 16-11-330. Strong arm robbery is a common 

law crime, which is defined as "the 'felonious or unlawful taking of money, goods, 

or other personal property of any value from the person of another or in his 

presence by violence or by putting such person in fear.'" State v. Gourdine, 322 

S.C. 396, 398, 472 S.E.2d 241, 241 (1996) (quoting State v. Drayton, 293 S.C. 

417, 361 S.E.2d 329, 335 (1987)). 
admitted if the court determines that the probative value 

of admitting this evidence outweighs its prejudicial effect 

to the accused; . . . 

SCRE 609(a)(1). Regarding this rule, our supreme court has explained: 

[U]nder Rule 609(a)(1), when the accused chooses to 

testify during his trial, if the State seeks to introduce 

impeachment evidence that the accused has been 

convicted of a crime punishable by imprisonment for 

more than one year, the evidence is admissible if the 

State establishes the probative value of admitting the 

evidence outweighs its prejudicial effect upon the 

accused. 

Robinson, 426 S.C. at 593, 828 S.E.2d at 210. 

In State v. Colf, our supreme court adopted a five-factor test for trial courts to use 

when weighing whether the probative value of evidence of a defendant's prior 

convictions outweighs its prejudicial effect: 

1. The impeachment value of the prior crime. 

2. The point in time of the conviction and the witness's 

subsequent history. 

3. The similarity between the past crime and the charged 

crime. 

4. The importance of the defendant's testimony. 

5. The centrality of the credibility issue. 

337 S.C. 622, 627, 525 S.E.2d 246, 248 (2000). "These factors are not exclusive; 

trial courts should exercise their discretion in light of the facts and circumstances 

of each particular case." Id. 

"The starting point in the analysis is the degree to which the prior convictions have 

probative value, meaning the tendency to prove the issue at hand—the witness's 

propensity for truthfulness, or credibility." Robinson, 426 S.C. at 597–98, 828 
S.E.2d at 212 (quoting State v. Black, 400 S.C. 10, 21, 732 S.E.2d 880, 886 

(2012)). "The purpose of the impeachment is not to show the witness is a bad 

person but rather to show background facts which impact the witness's credibility." 

Id. at 598, 828 S.E.2d at 213. 

In Robinson, the supreme court ultimately concluded the trial court did not abuse 

its discretion in weighing the impeachment value of the defendant's prior 

convictions: 

Even though Robinson's convictions for strong arm 

robbery and breaking and entering automobiles are not 

crimes involving dishonesty or false statement within the 

meaning of Rule 609(a)(2), that does not rule out the 

existence of impeachment value in each one of these 

prior offenses. The trial court observed, "Simply put, 

convictions for breaking into motor vehicles and 

strong-arm robbery don't imply that the accused was an 

armed burglar, as was alleged in this case, but they do 

imply that the accused is not someone to be trusted—that 

he might not be credible." It was within the trial court's 

discretion to conclude that because Robinson has prior 

convictions for such offenses, he legitimately might not 

be considered credible. 

Id. at 599–600, 828 S.E.2d at 213–14. 

In Petitioner's case, the PCR court explained: 

[Petitioner]'s allegation that Trial Counsel was ineffective 

for failing to request a Rule 609(A), SCRE, balancing 

test for his prior conviction for his prior conviction for 

strong armed robbery is meritless. [Petitioner]'s prior 

conviction was within the ten year period allowed under 

the rules of evidence, and its introduction at trial was not 

objectionable in any manner other than its potential 

prejudice as a similar offense with little probative value. 

However this Court finds Trial Counsel was not deficient 

and there can be no resulting prejudice from any alleged 

deficiency based on the overwhelming evidence against 

[Petitioner]. 
The PCR court recognized the trial court did not specifically articulate the basis for 

its conclusion that Petitioner's prior conviction was admissible, stating, "It is 

possible that the trial judge conducted the balancing test but did not specifically 

explain each factor of the test for the record." We are unable to find support in the 

record for the conclusion that the required balancing occurred because when the 

trial court suggested Petitioner's 2011 strong armed robbery conviction was an 

impeachable offense, trial counsel simply agreed and made no attempt to challenge 

admissibility. Thus, the trial court did not conduct an on-the-record balancing, 

presumably because trial counsel acquiesced to the admission of the prior similar 

conviction. Although trial counsel later testified at the PCR hearing that he 

generally would challenge the admissibility of such a conviction, he could not 

explain why he failed to do so in Petitioner's case, which he admitted was a 

swearing contest. Contra Smith v. State, 386 S.C. 562, 567, 689 S.E.2d 629, 632 

(2010) ("[W]hen counsel articulates a valid reason for employing a certain 

strategy, such conduct will not be deemed ineffective assistance of counsel."). 

 

"The current state of the law does not mandate the trial court make an 

on-the-record specific finding 'as long as the record reveals that the trial judge did 

engage in a meaningful balancing of the probative value and the prejudicial effect 

before admitting a non-609(a)(2) prior conviction under 609(a)(1).'" State v. 

Elmore, 368 S.C. 230, 238–39, 628 S.E.2d 271, 275 (Ct. App. 2006) (quoting State 

v. Scriven, 339 S.C. 333, 341, 529 S.E.2d 71, 75 (Ct. App. 2000)). However, "[a]n 

on-the-record analysis is especially needed when undertaking a balancing that 

involves a prior similar offense under Rule 609(a)(1)." Id. at 239, 628 S.E.2d at 

275. "This is because the 'the danger of unfair prejudice to the defendant from 

impeachment by that prior offense weighs against its admission.'" Id. (quoting 

State v. Dunlap, 353 S.C. 539, 542, 579 S.E.2d 318, 320 (2003)); see also, Green 

v. State, 338 S.C. 428, 434, 527 S.E.2d 98, 101 (2000) (finding trial counsel's 

failure to argue the prejudicial effect of the convictions outweighed their probative 

value constituted ineffective assistance of counsel and prejudiced the defendant). 

"Indeed, the similarity of a prior crime to the crime charged heightens the 

prejudicial value of the crime." Elmore, 368 S.C. at 239, 628 S.E.2d at 275. 

Petitioner argues trial counsel provided ineffective assistance when he failed to 

object to the prior conviction's admissibility because the conviction should have 

been excluded under Rule 609 and Colf. The language of Elmore and Green, 

supra, supports Petitioner's argument. While trial counsel may have believed the 

court was inclined to admit Petitioner's strong arm robbery conviction for 

impeachment purposes, this alone does not render his representation effective. 
Without any objection—or even a request that the trial court perform the required 

Rule 609(a) balancing—we cannot know whether the trial court would have 

admitted the evidence for impeachment purposes. See, e.g., Robinson, 426 S.C. at 

607, 828 S.E.2d at 217 ("In any given case involving the same indicted charges, 

two different trial courts could examine the same prior conviction(s), evaluate the 

same five Colf factors, and perhaps reach opposite conclusions as to the 

admissibility of the prior convictions. In such an instance, it is conceivable that 

under our standard of review, both trial courts would be affirmed. This is the 

nature of our standard of review in Rule 609(a)(1) cases when a trial court weighs 

the probative value of a prior conviction against its prejudicial effect."). In sum, 

we find no evidence in the record to support the PCR court's finding that trial 

counsel rendered reasonably effective assistance in merely acquiescing to the 

admission of Petitioner's prior strong arm robbery conviction. If trial counsel had 

objected or requested that the trial court perform the balancing test on the record, 

this may have made a difference to the trial court's decision. Accordingly, the PCR 

court erred in finding trial counsel's failure to object (or request a balancing 

analysis) was not deficient performance. 

II. Limiting Instruction 

Petitioner next argues the PCR court erred in finding trial counsel provided 

effective assistance where counsel failed to request a limiting instruction so the 

trial court could inform the jury of the limited purpose for which a prior conviction 

may be considered. In Petitioner's view, the lack of such instruction permitted the 

jury to improperly consider the prior conviction as propensity evidence. We agree. 

"Under our system of justice, a conviction must be based upon evidence of the 

offense for which the accused is on trial rather than prior criminal or immoral 

acts." State v. Gore, 283 S.C. 118, 120, 322 S.E.2d 12, 13 (1984). In State v. 

Smalls, our supreme court explained, "where the evidence of other crimes is 

admissible only to impeach an accused when he testifies, the court, particularly on 

request, should instruct the jury that such evidence shall be considered by the jury 

only on the question of the credibility of the accused, and not to show his guilt." 

260 S.C. 44, 47, 194 S.E.2d 188, 189 (1973). There, the supreme court found the 

trial judge's refusal of "a request to instruct the jury that evidence of [the 

defendant's] prior criminal record could only be considered on the issue of his 

credibility as a witness and not upon the question of his guilt" was prejudicial error 

requiring a new trial. Id. at 46, 194 S.E.2d at 189. "Since the jurors were not so 

instructed, they were free to consider the prior convictions for any purpose, 

including the probability that [the defendant] committed the crime because he had 
demonstrated a prior criminal tendency. This was highly prejudicial." Id. at 47– 

48, 194 S.E.2d at 189–90. 

In State v. Bryant, the trial court committed reversible error when it declined to 

give a limiting instruction regarding Bryant's prior convictions for housebreaking, 

conspiracy to commit burglary, and strong arm robbery, which were admitted for 

impeachment purposes in his trial for distribution of crack cocaine. 307 S.C. 458, 

459–61, 415 S.E.2d 806, 807–08 (1992). In reversing the conviction, the supreme 

court noted a prior conviction does not need to be similar to the crime charged for 

a defendant to be entitled to a limiting instruction but recognized "prejudice is even 

more egregious in such cases." Id. at 461, 415 S.E.2d at 808. 

Here, the jury heard Petitioner's testimony regarding his prior robbery conviction 

not once but twice: during Petitioner's case-in-chief and again during deliberations 

after the jury asked to rehear the testimonies of Petitioner and Zhang. In between, 

the trial court charged the jury on kidnapping and armed robbery.8 At no point did 

the trial court provide—because trial counsel did not request—a limiting 

instruction regarding the prior conviction. The similarity between Petitioner's prior 

conviction for strong arm robbery and the armed robbery charge for which he was 

on trial was highly prejudicial, particularly in the absence of a limiting instruction 

addressing impeachment versus propensity. Thus, when we consider trial counsel's 

failure to request a limiting instruction coupled with his failure to object to the 

admissibility of the prior similar conviction in the first instance, we find the PCR 

erred in finding trial counsel's performance was not deficient. 

III. Overwhelming Evidence and Prejudice 

Relying on Smalls v. State, 

9 Petitioner argues the PCR court erred in finding 

overwhelming evidence of guilt where the jury deliberated for over five hours and 

asked to rehear the testimony of Petitioner and Zhang; the jury said it was 

8 We acknowledge Petitioner's own testimony—that this was a drug deal gone 

bad—illustrated for the jury that he was engaging in illegal activity. 

9 422 S.C. at 191, 810 S.E.2d at 845 (holding overwhelming evidence of guilt 

precludes a finding of prejudice only where the evidence provides "something 

conclusive, such as a confession, DNA evidence demonstrating guilt, or a 

combination of physical and corroborating evidence so strong that the Strickland 

standard of 'a reasonable probability . . . the factfinder would have had a reasonable 

doubt' cannot possibly be met."). 
deadlocked on one of the two charges, resulting in an Allen instruction; and trial 

counsel admitted the case was a swearing match between Petitioner and Zhang. 

We agree. 

In Smalls, the State introduced eyewitness testimony identifying Smalls—who was 

on trial for armed robbery—as the perpetrator, testimony from a police officer 

reporting Smalls fled the scene of the crime, and fingerprint evidence establishing 

Smalls handled the weapon used during the robbery. Id. at 179–80, 810 S.E.2d at 

838–39. However, our supreme court held the eyewitness testimony and 

fingerprint evidence were tainted by trial counsel's errors. Id. at 194–95, 810 

S.E.2d at 847. The court explained, "the strength of the [State's] evidence must be 

considered along with the specific impact of counsel's errors." Id. at 194, 810 

S.E.2d at 846. In light of its finding that "Smalls's flight, which is marginally 

probative and thus has little significance in our analysis[,]" the court determined 

"the evidence that is not tainted by counsel's errors does not meet the standard for 

overwhelming evidence we described in Franklin—'no reasonable possibility 

[counsel's errors] contributed in any way to his convictions.'" Id. at 195, 810 

S.E.2d at 847 (quoting Franklin v. Catoe, 346 S.C. 563, 574–75, 552 S.E.2d 718, 

725 (2001)). 

As to overwhelming evidence, the PCR court here summarized: 

At trial, the victim testified about the entire encounter. 

The police officer, who met the victim and [Petitioner] at 

the scene of the crime while it was happening and chased 

[Petitioner] down the street until he tackled and arrested 

him, also testified. The State introduced the knife, which 

[Petitioner] threw away from him as he was being 

chased, right before he was apprehended. Finally, the 

victim's wallet with his identification card was found in 

[Petitioner]'s front pocket as he was arrested and was 

introduced at trial. Accordingly, this Court finds any 

error in admitting this prior conviction had no prejudicial 

effect on the outcome of the trial and [Petitioner] cannot 

meet the second prong of the Strickland test. 

In this case, the jury faced competing stories from Zhang and Petitioner—both of 

whom provided at least arguable explanations for the actions of the parties and the 

physical evidence Officer Judy retrieved at the scene. Zhang's testimony pointed 

to an armed robbery and kidnapping, while Petitioner testified the encounter was a 
drug deal gone bad complicated by a language barrier. Although Officer Judy 

witnessed Petitioner exit Zhang's vehicle and flee after Zhang drove toward his 

patrol car with a "very wild look on his face," Zhang and Petitioner were the only 

witnesses able to testify as to what may have happened inside the car. 

We are not convinced that the probative evidence in the record supports the PCR 

court's finding of overwhelming evidence under the circumstances in this case. 

Because Petitioner and Zhang were the only witnesses to their encounter in the 

vehicle, we cannot say there "is no reasonable possibility [counsel's errors] 

contributed in any way to [Petitioner's] convictions." Martin v. State, 427 S.C. 

450, 456, 832 S.E.2d 277, 280 (2019) (quoting Smalls, 422 S.C. at 191, 810 S.E.2d 

at 845). As evidenced by its request to rehear the testimonies of Zhang and 

Petitioner, its initial deadlock on one count and need for an Allen charge, and its 

inquiry about the possibility of a lesser included offense, the jury clearly struggled 

with the evidence and with who was telling the truth. See, e.g., Martin, 427 S.C. at 

457, 832 S.E.2d at 280 (noting that in Lounds v. State, 380 S.C. 454, 458–59, 463, 

670 S.E.2d 646, 648, 651 (2008), the court found "a jury's questions during 

deliberations—asking to rehear testimony and jury charges—indicated they were 

struggling with several aspects of witnesses' accounts"). For these reasons, we find 

erroneous the PCR court's overwhelming evidence and prejudice findings. 

Conclusion 

Accordingly, we reverse the PCR court's finding that trial counsel provided 

effective assistance and remand this matter for a new trial. 

REVERSED AND REMANDED. 

WILLIAMS, C.J., and, LOCKEMY, A.J., concur.