THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

Stephen Smalls, Petitioner, 

v. 

State of South Carolina, Respondent. 

Appellate Case No. 2016-001079 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal from Richland County 

Henry F. Floyd, Trial Court Judge 

J. Ernest Kinard Jr., Post-Conviction Relief Judge 

Opinion No. 27764 

Heard November 14, 2017 – Filed February 7, 2018 

REVERSED

Appellate Defender Kathrine Haggard Hudgins, of 

Columbia, for Petitioner. 

Attorney General Alan McCrory Wilson and Assistant 

Attorney General Jessica Elizabeth Kinard, both of 

Columbia, for Respondent. 

JUSTICE FEW: In this post-conviction relief (PCR) case, we agree with the court 

of appeals' finding that trial counsel was deficient, but disagree that the State

presented overwhelming evidence of guilt that precluded a finding of prejudice 

under the second prong of Strickland v. Washington. We find the evidence was not 

overwhelming, and reverse the court of appeals' finding that counsel's errors resulted 

in no prejudice. 
 

 

 

I. Facts and Procedural History 

At almost midnight on May 21, 2000, Jim Lightner and Eugene Green were closing 

the Bojangles restaurant on Elmwood Avenue in Columbia when a man charged in 

the door wielding a shotgun. The man forced Lightner to the back of the restaurant

to open the safe. When they went to the back, Green escaped out the front door and 

ran across Elmwood to a gas station to call the police. While Green was on the 

phone with police, he saw the man walk out the side service door of the Bojangles 

carrying the shotgun in one hand and a white bag in the other. The man walked out 

of a wooden gate near the back of the parking lot just as a police cruiser pulled up to 

the front of the Bojangles. Green told the police to "make a left at the Lizard's 

Thicket," which would take the officer to where the man exited the wooden gate. 

When Green saw the cruiser make the left, he said "you got him." Although the 

officers were unable to find the suspect at that time, they did find a twelve-gauge 

pump-action shotgun and a white bag containing $1,900 just outside the gate. 

Two fingerprint experts later examined the shotgun and determined that one of 

several prints on the gun belonged to Smalls. After securing a warrant for Smalls'

arrest, Investigator Joe Gray drove to Smalls' house. When he saw Smalls walking 

down a nearby street carrying a child in his arms, Gray stepped out of his vehicle 

and asked Smalls about the robbery of the Bojangles. Gray testified Smalls "dropped 

the child" and "began running." Another officer found Smalls later that evening

hiding in bushes a few blocks away. 

Investigator Paul Mead prepared a photographic lineup that he presented to Lightner. 

Investigator Gray presented the same lineup to Green. Four days after the robbery,

Green identified Smalls. Lightner, however, could not identify Smalls, but did 

narrow the suspects down to two people, one of whom was Smalls.

At trial in May of 2002, the State introduced Green's pretrial identification of Smalls. 

Green testified and identified Smalls in the courtroom. The State introduced the fact 

Lightner narrowed the suspects down to Smalls and one other person. Investigator 

Gray identified Smalls as the person who dropped the child and ran when he was

asked about the robbery. Both fingerprint experts testified one of the fingerprints on 

the shotgun belonged to Smalls. The jury convicted Smalls of armed robbery, and 

the trial court sentenced him to twenty-five years in prison. The court of appeals 

dismissed his appeal in an unpublished opinion. State v. Smalls, Op. No. 2004-UP315 (S.C. Ct. App. filed May 13, 2004). 
 

 

 

 

 

 

 

 

Smalls filed an application for PCR alleging he received ineffective assistance of 

counsel. The PCR court first held a hearing in 2007. The court held the record open 

to allow PCR counsel time to investigate the circumstances under which the State 

dismissed a carjacking charge against Green on the morning of Smalls' trial. The 

hearing was not reconvened until 2012. The PCR court described the issue regarding

the carjacking charge as not only one of ineffective assistance of counsel, but also 

whether "the State was deceptive" in representations made to the trial court and trial 

counsel.1 The PCR court denied relief. 

We transferred Smalls' petition for a writ of certiorari to the court of appeals pursuant 

to Rule 243(l) of the South Carolina Appellate Court Rules, and the court of appeals

granted the petition. The court of appeals then found trial counsel's performance 

was deficient regarding the carjacking charge and in two other instances. Smalls v. 

State, 415 S.C. 490, 498-501, 783 S.E.2d 817, 820-22 (Ct. App. 2016). However,

the court of appeals found "there was no prejudice resulting from trial counsel's 

deficient performance because the State presented overwhelming evidence of

[Smalls'] guilt." 415 S.C. at 501, 783 S.E.2d at 822. Smalls filed a petition for a

writ of certiorari, which we granted. 

II. Standard of Review 

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

defer to a PCR court's findings of fact and will uphold them if there is evidence in

the record to support them. Sellner v. State, 416 S.C. 606, 610, 787 S.E.2d 525, 527 

(2016) (citing Jordan v. State, 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013)). We 

review questions of law de novo, with no deference to trial courts.2 Sellner, 416 S.C. 

1 The PCR court did not make a ruling on the misrepresentation issue and neither

party briefed the issue to the court of appeals or this Court. 

2 In numerous cases, this Court has incorrectly stated an appellate court "gives great

deference to the PCR court's . . . conclusions of law." See, e.g., Porter v. State, 368 

S.C. 378, 383, 629 S.E.2d 353, 356 (2006). The court of appeals repeated our 

misstatement, quoting Porter. Smalls, 415 S.C. at 496, 783 S.E.2d at 820. We 

clarify that appellate courts review questions of law de novo, with no deference to 

trial courts. While we uphold the analysis and result of the following decisions, we 

now direct that none of these decisions should be read to suggest an appellate court 

gives any deference to a PCR court's conclusions of law: Gonzales v. State, 419 S.C. 

2, 10, 795 S.E.2d 835, 839 (2017); Gibbs v. State, 416 S.C. 209, 218, 785 S.E.2d 

455, 459 (2016); McHam v. State, 404 S.C. 465, 473, 746 S.E.2d 41, 45 (2013); 
 

 

at 610, 787 S.E.2d at 527 (citing Jamison v. State, 410 S.C. 456, 465, 765 S.E.2d 

123, 127 (2014)). 

III. Deficient Performance 

To prove trial counsel's performance was deficient, an applicant must show 

"counsel's representation fell below an objective standard of reasonableness." 

Williams v. State, 363 S.C. 341, 343, 611 S.E.2d 232, 233 (2005) (citing Strickland 

v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. E. 2d 674, 693 

(1984)). The court of appeals held trial counsel's performance fell below this 

standard as to three separate instances. First, trial counsel did not effectively argue 

that the existence and dismissal of Green's carjacking charge was admissible as 

evidence of Green's bias. Second, trial counsel did not object to the State's question 

to Investigator Mead suggesting Smalls burglarized someone's home to obtain the 

shotgun. Third, trial counsel did not challenge the State's statement during opening 

that the police saw Smalls leaving the Bojangles. 

Hyman v. State, 397 S.C. 35, 42, 723 S.E.2d 375, 378 (2012); Holden v. State, 393 

S.C. 565, 573, 713 S.E.2d 611, 615 (2011); Edwards v. State, 392 S.C. 449, 455, 

710 S.E.2d 60, 64 (2011); Robinson v. State, 387 S.C. 568, 574, 693 S.E.2d 402, 405 

(2010); Kolle v. State, 386 S.C. 578, 589, 690 S.E.2d 73, 79 (2010); Terry v. State, 

383 S.C. 361, 371, 680 S.E.2d 277, 282 (2009); Jones v. State, 382 S.C. 589, 595,

677 S.E.2d 20, 23 (2009); Davie v. State, 381 S.C. 601, 608, 675 S.E.2d 416, 420 

(2009); Miller v. State, 379 S.C. 108, 115, 665 S.E.2d 596, 599 (2008); Lomax v. 

State, 379 S.C. 93, 100, 665 S.E.2d 164, 167 (2008); Harris v. State, 377 S.C. 66, 

73, 659 S.E.2d 140, 144 (2008); Lorenzen v. State, 376 S.C. 521, 529, 657 S.E.2d 

771, 776 (2008); Smith v. State, 375 S.C. 507, 515, 654 S.E.2d 523, 528 (2007); 

Watson v. State, 370 S.C. 68, 71, 634 S.E.2d 642, 643 (2006); Porter, 368 S.C. at 

383, 629 S.E.2d at 356; Simpson v. Moore, 367 S.C. 587, 595, 627 S.E.2d 701, 705 

(2006); Bright v. State, 365 S.C. 355, 358, 618 S.E.2d 296, 298 (2005); Winns v. 

State, 363 S.C. 414, 417, 611 S.E.2d 901, 903 (2005); Dempsey v. State, 363 S.C. 

365, 368, 610 S.E.2d 812, 814 (2005); Sellers v. State, 362 S.C. 182, 187, 607 S.E.2d 

82, 84 (2005); Magazine v. State, 361 S.C. 610, 615, 606 S.E.2d 761, 763 (2004);

Huggler v. State, 360 S.C. 627, 632, 602 S.E.2d 753, 756 (2004); Green v. State, 

351 S.C. 184, 192, 569 S.E.2d 318, 322 (2002); Caprood v. State, 338 S.C. 103, 109,

525 S.E.2d 514, 517 (2000). 
 

 

 

 

 

 

A. Dismissal of Green's Carjacking Charge 

During a pretrial hearing on the morning of trial, the solicitor asked the trial court to 

make preliminary rulings on whether Green's prior convictions would be admissible 

to impeach him under Rule 609 of the South Carolina Rules of Evidence. The trial 

court ruled Green's convictions for distribution of crack cocaine, use of vehicle 

without owner's consent, and possession of a stolen motor vehicle were admissible. 

Trial counsel then asked about the pending carjacking charge, "He has a pending

charge, Your Honor, but I don't know if I am allowed to go into that." The solicitor 

informed the trial court that Green's carjacking charge had been dismissed that 

morning. Apparently not recognizing that the dismissal of the charge was potentially 

stronger evidence of bias than the charge itself, trial counsel raised no further 

argument on the issue, and did not ask the trial court to make a ruling as to whether 

counsel would be permitted to use the carjacking charge or its dismissal to impeach 

Green.3

Evidence of a witness's bias can be compelling impeachment evidence, and for that 

reason "considerable latitude is allowed" to defense counsel in criminal cases "in the 

cross-examination of an adverse witness for the purpose of testing bias." State v. 

Brown, 303 S.C. 169, 171, 399 S.E.2d 593, 594 (1991). Our courts have followed

the "general rule" that "'anything having a legitimate tendency to throw light on the 

accuracy, truthfulness, and sincerity of a witness may be shown and considered in 

determining the credit to be accorded his testimony,'" so that "'on cross-examination, 

any fact may be elicited which tends to show interest, bias, or partiality' of the 

witness." State v. Brewington, 267 S.C. 97, 101, 226 S.E.2d 249, 250 (1976) 

(quoting 98 C.J.S. Witnesses §§ 460, 560a). "Rule 608(c) [of the South Carolina 

Rules of Evidence] 'preserves [this longstanding] South Carolina precedent.'" State 

v. Sims, 348 S.C. 16, 25, 558 S.E.2d 518, 523 (2002) (quoting State v. Jones, 343 

S.C. 562, 570, 541 S.E.2d 813, 817 (2001) and citing Brewington, 267 S.C. at 101, 

3 At the PCR trial, trial counsel testified she argued to the trial court in chambers that 

she should be allowed to impeach Green with the fact the charge was dismissed, and

the trial court ruled she could not. Such a conference is meaningless in this appeal.

When a conference takes place off the record, it is trial counsel's duty to put the

substance of the discussion and the trial court's ruling on the record. See Foye v. 

State, 335 S.C. 586, 590, 518 S.E.2d 265, 267 (1999) (finding trial counsel was 

deficient for failing to place his argument about the jury seeing his client in chains 

on the record, and thus failing to adequately preserve the issue for appeal). 
 

 

 

 

 

 

226 S.E.2d at 250). See Rule 608(c), SCRE ("Bias, prejudice or any motive to

misrepresent may be shown to impeach the witness either by examination of the 

witness or by evidence otherwise adduced."). 

In Sims, decided three months before Smalls' trial, we discussed the use of pending 

charges as evidence of bias to impeach a State's witness. 348 S.C. at 23-26, 558 

S.E.2d at 522-23. We stated, "There was the substantial possibility [the witness with 

pending charges] would give biased testimony in an effort to have the solicitor 

highlight to his future trial judge how he had cooperated . . . ." 348 S.C. at 25, 558 

S.E.2d at 523. In this case, the fact Green faced charges for carjacking is evidence

of his bias for the reasons we explained in Sims. In most circumstances, a trial court 

would admit evidence of the charge. See State v. Dial, 405 S.C. 247, 256, 746 S.E.2d 

495, 499-500 (Ct. App. 2013) (recognizing trial courts have wide discretion in

admitting evidence of bias). Smalls' counsel not only failed to attempt to crossexamine Green with evidence of these charges, but erroneously believed the State's

dismissal of the charges eliminated the tendency of the evidence to show Green's

bias. If the mere existence of the charge made it likely Green would give biased 

testimony, as we explained in Sims, the dismissal of the charge made the likelihood 

of bias manifest—because Green actually received the benefit he hoped the solicitor 

would provide in exchange for his cooperation. 

The fact Green faced a carjacking charge that was dismissed on the morning of trial

was strong evidence of Green's bias, and counsel's failure to cross-examine him on

this point fell well below the "objective standard of reasonableness" by which we 

judge the performance of counsel. Williams, 363 S.C. at 343, 611 S.E.2d at 233. 

The magnitude of counsel's deficiency did not become clear, however, until the PCR 

trial was reconvened in 2012. Green testified he had been in jail awaiting trial on 

the carjacking charge in the weeks before Smalls' trial. Green explained that on two 

occasions the solicitor brought him to the courthouse and "asked [him] to be a 

cooperating witness and testify against Mr. Smalls." According to Green, he told 

the solicitor he did not want to cooperate because "I didn't want anything to do with

it." Recalling his conversation with the solicitor, Green testified, "He was like if I

didn't come . . . to participate in the trial that my charge wasn't going to go anywhere.

. . . Like I still was going to be charged with the [carjacking]." Then, "a couple of 

days before" Smalls' trial, according to Green, he was released on a personal

recognizance bond. The charge was dismissed the morning of trial, and Green

testified against Smalls. PCR counsel asked Green at the 2012 hearing, "Would you 

have testified in the case against Stephen Smalls if you had not been told that your 

carjacking charge would not be dismissed if you didn't," and he responded, "No. 

Because I didn't want anything to do with it." 
If trial counsel had attempted to cross-examine Green on the carjacking charge, she 

would have demonstrated that the State dismissed a charge that carried up to twenty 

years in prison4 on the morning of trial in an apparent effort to secure Green's 

favorable testimony. If the trial court ruled against her, she was required to make a 

proffer. See State v. Schmidt, 288 S.C. 301, 303, 342 S.E.2d 401, 402-03 (1986) 

(stating "this Court will not review alleged error of the exclusion of testimony unless 

a proffer of testimony is properly made on the record"). In either circumstance, it is

reasonably possible Green would have admitted—as he did at the PCR trial—the 

State made him a deal that handsomely rewarded him for his cooperation. Even if

Green did not admit that, trial counsel should have forced the solicitor to disclose 

the terms of any deal he made with Green. See State v. Hinson, 293 S.C. 406, 408, 

361 S.E.2d 120, 120 (1987) ("'When the reliability of a given witness may well be 

determinative of guilt or innocence,' nondisclosure of a promise of immunity made 

to that witness is a violation of due process." (quoting Giglio v. United States, 405 

U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104, 108 (1972))). The court of 

appeals was correct to find trial counsel was deficient in handling the carjacking 

charge. 

B. Prior Burglary 

In an effort to show an innocent explanation for Smalls' fingerprint on the shotgun, 

trial counsel cross-examined Investigator Mead as follows, 

Q: Was the gun stolen? Had it been stolen? 

A: It was. 

. . . . 

Q: How long before had that gun been stolen? 

A: It was taken in a burglary of the individual's 

residence. The gun was reported stolen on August 

28, 1999. 

. . . . 

 

4

 S.C. Code Ann. § 16-3-1075(B)(1) (2015). 
Q: So a little less than a year before this occurred? 

A: Yes, ma'am. 

Q: Do you know if that case was ever solved? 

A: To my knowledge, no. 

The State responded on redirect, 

Q: Investigator Mead, first with regards to the shotgun,

you were asked where it originally came from?

A: Yes, sir. 

Q: To make it perfectly clear, [the shotgun] wasn't 

stolen from the defendant's house in 1999? 

A: No, it was not. 

Q: He burglarized somebody else's house? 

A: That's correct. 

Q: So is there any reason why his fingerprint would be 

on this weapon – 

A: Not that I know of, sir. 

Q: – other than he robbed the Bojangles? 

A: That's correct.

The State's overall line of questioning on redirect appears to have been offered for 

the legitimate purpose of refuting defense counsel's suggestion of an innocent 

explanation for the fingerprint. However, the question, "He burglarized somebody 

else's house," and the answer "That's correct," did not serve any legitimate purpose. 

Rather, it was an improper effort to introduce evidence that Smalls committed

another crime. See Rule 404(b), SCRE ("Evidence of other crimes, wrongs, or acts 
 

 

 

 

is not admissible to prove the character of a person in order to show action in 

conformity therewith."). In addition, the State did not present clear and convincing 

evidence Smalls committed the prior burglary; in fact, Mead admitted the case was

unsolved. See State v. Smith, 300 S.C. 216, 218, 387 S.E.2d 245, 247 (1989) 

(holding "proof of prior bad acts must be clear and convincing"). The court of 

appeals correctly ruled trial counsel was deficient in failing to object. 

C. Opening Statement 

In his opening statement, the assistant solicitor told the jury, 

Mr. Green ran out of the store when he was left alone up 

front, across the street, and called 911. The Columbia 

Police Department responded. Mr. Smalls ultimately took 

off out of the store with over $1,900 in a plastic bag with 

the shotgun. The police saw him as he was leaving the 

store. He ended up getting away that night, but he ended 

up leaving behind some very important pieces of evidence. 

He left behind that shotgun, he also left behind the money, 

in his quest to get away. 

The court of appeals found trial counsel was deficient for failing to challenge the 

State's comment, "The police saw him as he was leaving the store." The court of 

appeals stated, "We hold trial counsel was deficient for failing to challenge the

State's comments either by objecting or by pointing out during the closing arguments 

that the State failed to prove this assertion." 415 S.C. at 499, 783 S.E.2d at 821. 

We certainly agree with the court of appeals that these are two of the options counsel 

has to deal with a misstatement by the State in opening. However, the simple fact

trial counsel does not respond to an incorrect statement made during opening does 

not render trial counsel's performance deficient. Under certain circumstances, it may

be reasonable for trial counsel to simply ignore the misstatement. Such a decision 

could be based on counsel's assessment the point is minor and inconsequential; 

perhaps it is debatable whether there is evidence to support the statement; or perhaps 

the circumstances of the trial—as perceived by trial counsel—unfold in such a way

that pointing out the misstatement would no longer be beneficial. 

Initially, we are not convinced there is no evidence in the record that supports the 

assistant solicitor's statement. When crime scene investigator Jim Potash was asked 

where he found the shotgun, he testified, "I was directed there by the officers, saying 
that they were running behind or chasing – trying to chase a suspect from the 

business itself. They had indicated to me that they saw the person throw or dispose

of on the right-hand side going through a fenced area a plastic bag." Green's

testimony that he told the officers to intercept the suspect at Lizard's Thicket also

appears to support the assistant solicitor's statement. In addition, the PCR court did 

not make any specific findings as to whether ignoring the misstatement was

deficient. Rather, the PCR court appears to have denied relief on this point only on 

the basis of no prejudice. The court stated, "There is no merit to this claim, opening 

statements are not evidence, and the jury was told several times by the judge and the 

attorneys to base their verdict on the evidence only." 

With no findings by the PCR court, and in light of the testimony of Potash and Green, 

we simply cannot say trial counsel was deficient for not addressing this remark in 

the State's opening that was never mentioned again. See Stone v. State, 419 S.C. 

370, 380, 798 S.E.2d 561, 566 (2017) (stating "the law requires we presume counsel 

rendered adequate assistance and exercised reasonable professional judgment" and 

"the Strickland test . . . requires that [the applicant] prove" otherwise (citing 

Strickland, 466 U.S. at 690, 687, 104 S. Ct. at 2066, 2064, 80 L. Ed. 2d at 695, 693)). 

We agree with the court of appeals' finding that Smalls proved trial counsel was 

deficient in two respects. 

IV. Prejudice—Overwhelming Evidence of Guilt 

We turn now to the second prong of Strickland—prejudice. The State argues Smalls

failed to prove prejudice in this case because the State presented overwhelming 

evidence of Smalls' guilt. We disagree. 

To satisfy the prejudice prong, an applicant must demonstrate "there is a reasonable

probability that, but for counsel's errors, the result of the trial would have been 

different." Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 596 (2007) (citing 

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). As the Supreme

Court of the United States explained in Strickland, "the question is whether there is 

a reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt." 466 U.S. at 695, 104 S. Ct. at 2068-69, 80 L. Ed. 

2d at 698. "A reasonable probability is a probability sufficient to undermine 

confidence in the outcome of the trial." Rutland v. State, 415 S.C. 570, 577, 785 

S.E.2d 350, 353 (2016) (citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.

Ed. 2d at 698). 
 

 

 

 

 

In determining whether the applicant has proven prejudice, the PCR court should 

consider the specific impact counsel's error had on the outcome of the trial. See 

Strickland, 466 U.S. at 695-96, 104 S. Ct. at 2069, 80 L. Ed. 2d at 698-99 (explaining 

that the court must analyze how individual errors of counsel affect the important 

factual findings in a particular case). In addition, the PCR court should consider the 

strength of the State's case in light of all the evidence presented to the jury. See 

generally Jones v. State, 332 S.C. 329, 333, 504 S.E.2d 822, 824 (1998) ("In 

deciding whether Jones was prejudiced, we must bear in mind the strength of the

government's case . . . ," and "we must consider the totality of the evidence before 

the jury."). In general, the stronger the evidence presented by the State, the less 

likely the PCR court will find the applicant met his burden of proving prejudice. See 

Strickland, 466 U.S. at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699 (stating "a verdict 

. . . only weakly supported by the record is more likely to have been affected by 

errors than one with overwhelming record support"). 

In this context, this Court has used the phrase "overwhelming evidence of guilt." In

Geter v. State, 305 S.C. 365, 409 S.E.2d 344 (1991), for example, we held counsel

was deficient for not objecting to repeated references to Geter'stime previously spent 

in jail. 305 S.C. at 367, 409 S.E.2d at 345-46. We then examined the strength of 

the State's case as part of our consideration of prejudice. We found, "In light of the 

overwhelming evidence of petitioner's guilt . . . we find no reasonable probability

the result of the trial would have been different had counsel's performance not been 

deficient in this regard." 305 S.C. at 367, 409 S.E.2d at 346. Similarly, in Ford v. 

State, 314 S.C. 245, 442 S.E.2d 604 (1994), we found counsel deficient for declining

the trial court's offer to give the jury an alibi charge after Ford testified he was at a 

nightclub, not the place where the sexual assault occurred. 314 S.C. at 247-48, 442 

S.E.2d at 605-06. However, we found "overwhelming evidence of Ford's guilt"—

including DNA evidence showing Ford's semen on the victim's clothing—and thus 

"no reasonable probability that the result of the trial would have been different had

counsel accepted the alibi charge." 314 S.C. at 248, 442 S.E.2d at 606. See also 

Huggler v. State, 360 S.C. 627, 634-35, 602 S.E.2d 753, 757 (2004) (finding 

counsel's deficient performance in not objecting to inadmissible prior consistent 

statements did not prejudice applicant "given that the witnesses' testimon[y] on 

direct provided overwhelming evidence that sexual abuse did in fact occur"). 

Ordinarily, the existence of "overwhelming evidence" does not automatically

preclude a finding of prejudice. In Simmons v. State, 331 S.C. 333, 503 S.E.2d 164 

(1998), for example, we found counsel was deficient for not objecting when the State 

in closing "improperly inject[ed] parole considerations into the jury's sentencing 

decision" and otherwise misstated the law regarding sentencing. 331 S.C. at 338-
39, 503 S.E.2d at 167. Despite finding the evidence of Simmons' guilt was 

"overwhelming," we balanced the impact of counsel's error against the strength of 

the State's case on the point in question, and found Simmons had proved prejudice. 

We explained, 

[B]ecause the issue is whether the solicitor's improper 

argument prevented the jury from fairly considering [its 

sentencing options], the overwhelming evidence of 

petitioner's guilt does not eliminate the reasonable 

probability that the result of the trial would have been 

different had trial counsel objected to portions of the

solicitor's closing argument. 

331 S.C. at 340, 503 S.E.2d at 167. 

In Smith v. State, 375 S.C. 507, 523-24, 654 S.E.2d 523, 532 (2007), we first 

examined counsel's error—failure to object to improper closing argument—to assess 

its impact on the jury's determination of guilt, stating "the solicitor's comments were 

confined to facts established during trial" and "were limited and did not recur 

throughout his argument." 375 S.C. at 523, 654 S.E.2d at 532. We then considered 

the strength of the State's case and found "there was also overwhelming evidence of

Petitioner's guilt." Id. We held, after balancing these and other considerations, "we 

do not believe there was a reasonable probability that the result of the trial would 

have been different." 375 S.C. at 524, 654 S.E.2d at 532. 

Simmons and Smith illustrate the proper consideration of the strength of the State's

case in the PCR court's analysis of prejudice: it is one significant factor the court 

must consider—along with the specific impact of counsel's error and other relevant 

considerations—in determining whether the applicant has met his burden of proving 

prejudice. In this case, however, neither the PCR court nor the court of appeals 

appears to have considered the specific impact of counsel's error. Rather, both courts

used what they considered "overwhelming evidence of guilt" as a categorical bar 

that precluded a finding of prejudice, without the necessity of separately considering 

the impact of counsel's error. 

In rare cases, using "overwhelming evidence" as a categorical bar to preclude a

finding of prejudice is not error. We did it, for example, in Rosemond v. Catoe, 383 

S.C. 320, 680 S.E.2d 5 (2009). In Rosemond, we found trial counsel deficient for 

making inappropriate comments to the jury in the guilt phase of a capital trial. 383 

S.C. at 325, 680 S.E.2d at 8. Without analyzing the specific impact of that error, we 
 

 

 

 

held, "No prejudice occurred in the guilt phase as the State presented overwhelming 

evidence of guilt: Rosemond's confession and the murder weapon, which Rosemond 

helped the police locate. Further, in his confession, Rosemond admitted to planning 

the murder of his girlfriend." Id. We also did it in Harris v. State, 377 S.C. 66, 659 

S.E.2d 140 (2008), in which we agreed "with the State's assertion" that "Harris was

unable to show prejudice . . . due to the overwhelming evidence supporting Harris's 

guilt." 377 S.C. at 79, 659 S.E.2d at 147. We did not separately consider the specific 

impact of counsel's error. See also Christenson v. Ault, 598 F.3d 990, 997 (8th Cir. 

2010) (stating, "When there is overwhelming evidence of guilt presented, it may be 

impossible to demonstrate prejudice," and, "Based on the trial record, demonstrating 

prejudice resulting from the alleged ineffective assistance would be impossible in 

this case."). 

However, for the evidence to be "overwhelming" such that it categorically precludes 

a finding of prejudice—as we found it did in Rosemond and Harris—the evidence 

must include 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. In Franklin v. Catoe, 

346 S.C. 563, 552 S.E.2d 718 (2001), although we discussed the specific impact of 

counsel's error, we also discussed what is "overwhelming evidence." 346 S.C. at 

574-75, 552 S.E.2d at 724-25. The error was that trial counsel did not advise 

Franklin of his right to make a personal closing argument during the guilt phase of 

his capital trial, and did not object to the trial court's failure to obtain a waiver of that 

right.5

 346 S.C. at 571, 552 S.E.2d at 723. As to the prejudice prong, we described 

the "overwhelming" evidence in detail and stated, "Based on a review of the 

evidence presented, we can find no evidence whatsoever the jury would have 

rendered a different verdict had the error not been made." 346 S.C. at 574, 552 

S.E.2d at 724. That evidence included Franklin's DNA on the victim's body, the 

victim's blood on Franklin's pants, Franklin's bloody palm print on the murder

weapon, and the fact it was "impossible to believe a reasonable juror could find the

violent brutality of this murder to be the result of consensual sex, as Franklin 

claimed." Id. The "overwhelming" nature of the evidence led us to conclude "there 

is no reasonable possibility Franklin's failure to make a personal closing argument 

5 See S.C. Code Ann. § 16-3-28 (2015) (requiring that "in any criminal trial where

the maximum penalty is death . . . , the defendant and his counsel shall have the right 

to make the last argument"). 
 

 

 

 

to the jury during the guilt phase of his trial contributed in any way to his 

convictions." 346 S.C. at 574-75, 552 S.E.2d at 725. 

In this case, the court of appeals relied on the following evidence in reaching its 

conclusion the evidence was overwhelming: (1) Green identified Smalls during a 

photographic lineup; (2) Lightner was able to narrow the suspects down to two—

one of whom was Smalls—during a photographic lineup; (3) Smalls' fingerprint was 

on the shotgun; and (4) Smalls dropped a child and ran from Investigator Gray, who 

approached Smalls and told him he was the subject of an armed robbery 

investigation. 415 S.C. at 501-02, 783 S.E.2d at 822. 

We begin our review of the evidence with Lightner, who testified he "spent a good 

bit of time with this person" and he "saw him pretty well." The fact Lightner could 

only narrow it down to two people in the photographic lineup undermines—not 

supports—the notion of overwhelming evidence. In addition, Investigator Mead

testified that when he showed Lightner the lineup, Lightner "stated that if he had to 

pick a particular one, he would say [the other person]," not Smalls. 

Next, Smalls dropped the child and fled from Investigator Gray. Evidence of flight 

is evidence of guilt, but we have been hesitant to assign it high probative value. In 

fact, in State v. Grant, 275 S.C. 404, 408, 272 S.E.2d 169, 171 (1980), we stated 

"evidence of flight tends to be only marginally probative." 275 S.C. at 408, 272 

S.E.2d at 171 (quoting State v. Jefferson, 524 P.2d 248, 251 (Wash. App. 1974));6

6

 In Jefferson, the State of Washington court of appeals quoted United States v. 

Robinson, 475 F.2d 376, 384 (D.C. Cir. 1973), which cited United States v. Telfaire, 

469 F.2d 552, 557-58 (D.C. Cir. 1972), which, in turn, this Court has cited on

numerous occasions for the danger of mistaken eyewitness identification. See, e.g., 

Speaks v. State, 377 S.C. 396, 399, 660 S.E.2d 512, 514 (2008) (stating the Telfaire 

jury charge "was designed to focus the attention of the jury on the identification issue 

and minimize the risk of conviction through false or mistaken identification" 

(quoting State v. Jones, 344 S.C. 48, 60, 543 S.E.2d 541, 547 (2001))); State v. 

Simmons, 308 S.C. 80, 84, 417 S.E.2d 92, 94 (1992) (citing Telfaire and 

"admonish[ing] the trial bench that in single witness identification cases the court 

should instruct the jury that the burden of proving the identity of the defendant rests

with the state"); State v. Motes, 264 S.C. 317, 326, 215 S.E.2d 190, 194 (1975) 

(citing Telfaire and discussing the need to "focus[] the attention of the jury on the 

necessity for a finding that the testimony identified defendant as the offender beyond 

a reasonable doubt").
 

 

 

 

 

 

see also State v. Ballenger, 322 S.C. 196, 200, 470 S.E.2d 851, 854 (1996) (on 

review of the denial of a directed verdict motion, reversing the court of appeals' 

finding the State's evidence (including evidence of flight) merely raised a suspicion 

of guilt,7 and stating flight is "at least some evidence") (emphasis added); Ballenger, 

322 S.C. at 201, 470 S.E.2d at 855 (Finney, C.J., dissenting) (criticizing the majority 

because the fact "he ran when he saw the unmarked police car approaching" merely 

"raise[s] a suspicion of guilt" (emphasis in original)). Smalls' flight has little 

significance in the analysis of whether the State presented overwhelming evidence. 

Smalls' fingerprint on the shotgun is the strongest evidence of Smalls' guilt. If the 

fingerprint experts correctly identified the fingerprint, it conclusively proves Smalls 

handled the shotgun at some point. 

Finally, we turn to Green. In his closing argument, the solicitor stated, "The first 

piece of evidence I want to talk about is Eugene Green." The solicitor then argued 

two points to support Green's credibility. First, as to his trial testimony, the solicitor 

stated, "Eugene Green put his hand on this Bible, faced that man who shoved a 

shotgun in his chest, and told you under oath, no doubt about it, that's the man who

robbed the Bojangles; no doubt about it whatsoever. That's proof beyond a 

reasonable doubt by itself." 

Second, the solicitor belittled the significance of Green's prior convictions in 

assessing Green's credibility. "You don't think it took guts for Eugene Green to get 

up on this witness stand, and take an oath, and testify?" Then, referring specifically 

to Green's prior convictions for drug distribution and possession of a stolen motor 

vehicle, the solicitor argued, 

You think he was proud . . . ? But you heard about that 

because [Green] had the guts to take that witness stand and 

face the man that put a shotgun in his face. . . . And 

because he had a drug problem seven years ago and a 

possession of stolen vehicle, are we going to make it 

alright to shove a shotgun in his chest? . . . And how does 

that affect his credibility . . . ? Not at all, not at all. That's 

7 See State v. Ballenger, 317 S.C. 364, 368, 454 S.E.2d 355, 357 (Ct. App. 1995), 

rev'd, 322 S.C. 196, 470 S.E.2d 851 (1996) (finding the State "presented evidence 

. . . which may raise a suspicion of . . . guilt, but . . . not . . . any direct or

circumstantial evidence"). 
 

 

 

proof beyond a reasonable doubt, Eugene Green's 

testimony. 

As we have explained, the strength of the evidence must be considered along with 

the specific impact of counsel's errors. When potentially strong evidence such as 

the fingerprint and Green's identification is tainted by a significant error of counsel, 

it should not be considered as part of "overwhelming evidence" that precludes a

finding of prejudice. Here, the importance we are willing to attribute to the 

fingerprint on the shotgun is affected by counsel's failure to object to the State's 

improper question and Investigator Mead's inadmissible answer. Although the 

existence of the fingerprint would have been admitted into evidence even without 

counsel's error, the State chose to respond to counsel's suggestion of an innocent 

explanation for the fingerprint by improperly introducing evidence Smalls 

committed an uncharged and unproven burglary, impugning his character in 

violation of Rule 404(b). Trial counsel's failure to object enabled the State to make 

this improper explanation. 

As to Green, the State's emphasis on his identification of Smalls as its "first piece of

evidence" must be balanced against counsel's failure to impeach Green with 

compelling evidence of bias. If trial counsel had cross-examined him on the 

carjacking charge, and Green testified as he did in the second PCR hearing, his 

credibility before the jury would have been severely damaged. We do not believe 

the jury could have heard about the dismissal of the charge without seriously

questioning the credibility of everything Green said, including his pre-trial 

identification of Smalls as the man who committed the robbery.8

Eliminating Green's tainted testimony and identification from consideration, and 

considering the fingerprint in light of the solicitor's improper accusation that Smalls 

stole the shotgun, we are left with only Lightner's inability to identify Green, which 

undermines the notion of overwhelming evidence, and Smalls' flight, which is 

marginally probative and thus has little significance in our analysis. We find the 

8 Also, eyewitness identification evidence is not conclusive. See Perry v. New 

Hampshire, 565 U.S. 228, 245, 132 S. Ct. 716, 728, 181 L. Ed. 2d 694, 711 (2012) 

(stating "we [have] observed that 'the annals of criminal law are rife with instances 

of mistaken identification'" (quoting United States v. Wade, 388 U.S. 218, 228, 87 

S. Ct. 1926, 1933, 18 L. Ed. 2d 1149, 1158 (1967))); State v. Liverman, 398 S.C. 

130, 140, 727 S.E.2d 422, 427 (2012) (citing Perry for the proposition that 

"eyewitness evidence is inherently imperfect"); see also supra note 4. 
 

 

 

 

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." 346 S.C. at 574-75, 

552 S.E.2d at 725. 

Because we find the evidence is not overwhelming, Smalls' individual claims of 

deficient performance must be analyzed separately to determine whether either of

them gives rise to a reasonable probability the result of the trial would have been 

different without counsel's error. Although the PCR court found overwhelming 

evidence precluded a finding of prejudice, it did not make specific findings whether 

counsel's error as to the carjacking charge or prior burglary prejudiced Smalls. See 

Rule 52(a), SCRCP ("In all actions tried upon the facts without a jury . . . , the court 

shall find the facts specially and state separately its conclusions of law thereon

. . . ."); Hall v. Catoe, 360 S.C. 353, 364-65, 601 S.E.2d 335, 341 (2004) (repeating 

our previous directive that PCR courts comply with Rule 52(a) (quoting Pruitt v. 

State, 310 S.C. 254, 256, 423 S.E.2d 127, 128 (1992))). 

Ordinarily, the PCR court should make findings of fact on this issue, not us. See 

Simmons v. State, 416 S.C. 584, 593, 788 S.E.2d 220, 225 (2016) (remanding to the 

PCR court for findings, and stating, "We sit today in an appellate capacity and

making findings of fact de novo would be contrary to this appellate setting"). In this 

case, however, we find it is not necessary to remand to the PCR court, and we have 

conducted the prejudice analysis ourselves. After balancing trial counsel's errors—

failing to cross-examine Green on the dismissal of his carjacking charge and failing 

to object to evidence Green committed a burglary to obtain the shotgun—against our 

perception of the strength of the State's case, we find the errors significantly 

"undermine confidence in the outcome of the trial," Rutland, 415 S.C. at 577, 785 

S.E.2d at 353, and leave "a reasonable probability that, but for counsel's errors, the 

result of the trial would have been different," Ard, 372 S.C. at 331, 642 S.E.2d at

596. 

V. Conclusion 

We agree with the court of appeals' finding that trial counsel was deficient in two 

instances. However, we REVERSE the court of appeals' finding that the evidence 

of guilt is overwhelming, and find counsel's errors prejudiced Smalls. We remand 

to the court of general sessions for a new trial. 

KITTREDGE, Acting Chief Justice, HEARN, JAMES, JJ., and Acting Justice 

Arthur Eugene Morehead, III, concur.