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 O F 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 Kathri ne 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 (P CR) case, we agree with the court of appeals' finding that trial counsel was deficient, but disag ree 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 Gre en were closing the Bojangles restaurant on Elmw ood Avenue in Columbia when a m an 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 ou t 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 doo r 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 l eft 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 outs ide the gate.

Two fingerprint experts later examined the shotgun and determin ed 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 robbe ry of the Bojangles. Gray testified Smalls "dropped the child" and "began running." Another officer found Smalls l ater 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 day s after the robbery, Green identified Smalls. Lightner, however, could not identify Smalls, but did narrow the suspects down to two p eople, 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 St ate introduced the fact Lightner narrowed the suspects down to Smalls and one other per son. Investigator Gray identified Smalls as the person who dropped the child and ran when he was asked about the robbery. Both fi ngerprint experts testified on e of the fingerprints on the shotgun belonged to Smalls. The jury convicted Smalls of a rmed 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-UP

315 (S.C. Ct. App. filed May 13, 2004).Smalls filed an application for PCR alleging he received ineffe ctive assistance of

counsel. The PCR court first held a hearing in 2007. The cour t held the record open to allow PCR counsel time to investigate the circumstances unde r 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 th e trial court and trial

counsel. 1 The PCR court denied relief.

We transferred Smalls' petition fo r 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 co unsel's performance was deficient regarding the carj acking 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 iss ue 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 cou rts. 2 Sellner , 416 S.C.

1 The PCR court did not make a ruling on the misrepresentation i ssue and neither party briefed the issue to the c ourt of appeals or this Court.

2 In numerous cases, this Court has incorrectly stated an appell ate 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 appeal s 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 sugge st 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 applican t must show

"counsel's representation fell be low an objective standard of r easonableness."

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, 69 3 (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 w as admissible as

evidence of Green's bias. Second, trial counsel did not object to the State's question to Investigator Mead suggesting Sm alls burglarized someone's ho me to obtain the shotgun. Third, trial counsel did not challenge the State's statement during opening that the police saw Smalls l eaving 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 wh ether Green's prior convictions w ould be admissible to impeach him under Rule 609 of the South Carolina Rules of Ev idence. The trial

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

without owner's consent, and possession of a stolen motor vehic le 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 Gr een's carjacking charge had bee n 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 evid ence, 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 test ing bias ." State v.

Brown , 303 S.C. 169, 171, 399 S.E.2d 59 3, 594 (1991). Our courts ha ve followed the "general rule" that "'anythi ng 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 Carolin a 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 tr ial 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 mean ingless in this appeal.

When a conference takes place off the record, it is trial couns el'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 seei ng his client in chains on the record, and thus failing to adequately preserve the issu e 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 exam ination of the witness or by evidence otherwise adduced.").

In Sims , decided three months before Smalls' trial, we discussed the u se 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 po ssibility [the witness with pending charges] would give biase d testimony in an effort to ha ve 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 t o attempt to crossexamine Green with evidence of these charges, but erroneously b elieved the State's dismissal of the charges elimina ted the tendency of the evidenc e 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 cha rge 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 f aced a carjacking charge that was dismissed on the morning of trial was strong evidence of Green's b ias, and counsel's failure to c ross-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, how ever, until the PCR

trial was reconvened in 2012. Gr een testified he had been in j ail awaiting trial on the carjacking charge in the we eks before Smalls' trial. Green explained that on two occasions the solicitor brought him to the courthouse and "aske d [him] to be a cooperating witness and testify ag ainst Mr. Smalls." According to Green, he told the solicitor he did not want to cooperate because "I didn't wa nt anything to do with it." Recalling his conversation with the solicitor, Green test ified, "He was like if I didn't come . . . to participate in the trial that my charge wa sn't going to go anywhere. . . . Like I still was going to be charged with the [carjackin g]." 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 tri al, and Green testified against Smalls. PCR counsel asked Green at the 2012 hearing, "Would you have testified in the case agai nst Stephen Smalls if you had no t 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 ca rjacking charge, she would have demonstrated that the State dismissed a charge that carried up to twenty years in prison 4 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 rev iew alleged error of the exclu sion of testimony unless a proffer of testimony is properly made on the record"). In ei ther 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 coop eration. 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 w itness may well be determinative of guilt or innoc ence,' nondisclosure of a promis e 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 hand ling the carjacking charge.

B. Prior Burglary

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

trial counsel cross-examined I nvestigator 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 or iginally came from?

A: Yes, sir.

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

stolen from the defenda nt'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 bu rglarized somebody else's house," and the answer "That's correct," did not serve a ny legitimate purpose. Rather, it was an improper effo rt to introduce evidence that Sm alls committed

another crime. See Rule 404(b), SCRE ("Evidence of other crimes, wrongs, or actsis not admissible to prove the character of a person in order t o show action in conformity therewith."). In add ition, the State did not presen t clear and convincing evidence Smalls committed the prior burglary; in fact, Mead adm itted 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 c ounsel 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 im portant 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 stor e." The court of appeals stated, "We hold trial counsel was deficient for failin g 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 49 9, 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. Howev er, the simple fact trial counsel does not respond to an incorrect statement made d uring opening does

not render trial counsel's perfo rmance deficient. Under certain circumstances, it may be reasonable for trial counsel to simply ignore the misstateme nt. 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 th e statement; or perhaps the circumstances of the trial—as perceived by trial counsel—un fold in such a way that pointing out the misstatement would no longer be beneficia l.

Initially, we are not convinced there is no evidence in the rec ord 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, sayingthat they were running behind or chasing – trying to chase a su spect from the business itself. They had indicat ed 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 assistan t solicitor's statement. In add ition, the PCR court did not make any specific findings as to whether ignoring the misst atement 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 meri t to this claim, opening statements are not evidence, and the jury was told several time s by the judge and the attorneys to base their verd ict on the evidence only."

With no findings by the PCR court, and in light of the testimon y of Potash and Green, we simply cannot say trial counsel was deficient for not addres sing 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 professio nal judgment" and

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

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 presen ted 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 t rial 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). A s the Supreme Court of the United States explained in Strickland , "the question is whether there is a reasonable probability that, absent the errors, the factfinde r 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 sufficie nt 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 app licant has proven prejudice, the PCR court should consider the specific impact c ounsel'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 698-9 9 (explaining that the court must analyze how individual errors of counsel af fect the important factual findings in a particular case). In addition, the PCR c ourt should consider the strength of the State's case in light of all the evidence prese nted 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 o f the evidence before the jury."). In general, the stronger the evidence presented b y 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 (sta ting "a verdict . . . only weakly supported by the record is more likely to hav e been affected by

errors than one with overwhe lming record support").

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

Geter v. State , 305 S.C. 365, 409 S.E.2d 344 (1991 ), for example, we held cou nsel was deficient for not objecting to repeated references to Geter 's time previously spent in jail. 305 S.C. at 367, 409 S.E.2d at 345-46. We then exami ned 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 re asonable probability

the result of the trial would ha ve 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 (1 994), we found counsel deficie nt 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 t he sexual assau lt occurred. 31 4 S.C. at 247-48, 442 S.E.2d at 605-06. However, we f ound "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 h ave been different had counsel accepted the alibi charge." 314 S.C. at 248, 442 S.E.2 d 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 inadmissibl e prior consistent statements did not prejudice app licant "given that the witnesse s' testimon[y] on direct provided overwhelming evid ence that sexual abuse did in fact occur").

Ordinarily, the existence of "overwhelming evidence" does not a utomatically 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 obj ecting when the State in closing "improperly inject[ed] parole considerations into th e 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 again st the strength of the State's case on the point in question, and found Simmons ha d 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 s olicitor's comments were confined to facts established during trial" and "were limited a nd 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 over whelming evidence of Petitioner's guilt." Id. We held, after balancing these and other considerations, "we

do not believe there was a reas onable probability that the resu lt of the trial would

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

Simmons and Smith illustrate the proper considerat ion of the strength of the Sta te's case in the PCR court's analysis of prejudice: it is one signif icant factor the court must consider—along with the specific impact of counsel's error and other relevant considerations—in determining wh ether the applicant has met his burden of proving prejudice. In this case, however, neither the PCR court nor th e court of appeals appears to have considered the specific impact of counsel's err or. 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 b ar 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 i mpact of that error, weheld, "No prejudice occurred in the guilt phase as the State pr esented 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 separat ely 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 p resented, 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 cat egorically 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 ev idence demonstrating guilt, or a combination of physical and corrobora ting 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 eviden ce." 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 durin g the guilt phase of his capital trial, and did not object to the trial court's fail ure to obtain a waiver of that right. 5 346 S.C. at 571, 552 S.E.2d at 723. As to the prejudice pron g, we described the "overwhelming" evidence in detail and stated, "Based on a r eview 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 vi ctim's body, the

victim's blood on Franklin's pants, Franklin's bloody palm prin t 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 perso nal closing argument

5 See S.C. Code Ann. § 16-3-28 (2015) (requiring that "in any crimin al trial where the maximum penalty is death . . . , the defendant and his coun sel 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 overw helming: (1) Green identified Smalls during a photographic lineup; (2) Lightner was able to narrow the suspec ts 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 Inv estigator Gray, who approached Smalls and told him he was the subject of an armed r obbery investigation. 415 S.C. at 501-02, 783 S.E.2d at 822.

We begin our review of the evidence with Lightner, who testifie d he "spent a good bit of time with this person" and he "saw him pretty well." Th e fact Lightner could only narrow it down to two people in the photographic lineup un dermines—not supports—the notion of overwhe lming evidence. In addition, Inv estigator Mead

testified that when he showed Li ghtner the lineup, Lightner "st ated that if he had to pick a particular one, he would sa y [the other person]," not Sm alls.

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 hi gh 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." 27 5 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 Cou rt 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 convicti on through false or mistaken i dentification" (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 identific ation cases the court should instruct the jury that the burden of proving the identit y 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 th e court of appeals' finding the State's evidence (including evidence of flight) mer ely 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 h e saw the unmarked police car ap proaching" merely "raise[s] a suspicion of guilt" (emphasis in original)). Smalls' flight has little significance in the analysis of whether the State presented ove rwhelming evidence.

Smalls' fingerprint on the shotgun is the strongest evidence of Smalls' guilt. If the fingerprint experts correctly ide ntified the fingerprint, it co nclusively proves Smalls handled the shotgun at some point.

Finally, we turn to Green. In his closing argument, the solici tor stated, "The first piece of evidence I want to talk about is Eugene Green." The s olicitor then argued two points to support Green's credibility. First, as to his tr ial testimony, the solicitor stated, "Eugene Green put his hand on this Bible, faced that ma n 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 pro of beyond a reasonable doubt by itself."

Second, the solicitor belittled the significance of Green's pri or convictions in assessing Green's credibility. " You don't think it took guts f or 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 possessi on 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. T hat'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 "prese nted 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 cons idered along with the specific impact of counsel's errors. When potentially stro ng 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 a ttribute 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 sugges tion of an innocent explanation for the fingerprint by improperly introducing evide nce Smalls committed an uncharged and unproven burglary, impugning his cha racter in violation of Rule 404(b). Trial counsel's failure to object en abled the State to make this improper explanation.

As to Green, the State's emphasis on his identification of Smal ls 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-examin ed him on the carjacking charge, and Green tes tified 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 imprope r accusation that Smalls stole the shotgun, we are left with only Lightner's inability t o identify Green, which

undermines the notion of overwhelm ing evidence, and Smalls' fli ght, which is marginally probative and thus has little significance in our an alysis. 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, 71 1 (2012) (stating "we [have] observed that 'the annals of criminal law a re 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 i nherently 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' indiv idual claims of deficient performance must be analyzed separately to determine whether either of

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

different without counsel's error. Although the PCR court found overwhelming evidence precluded a finding of prejudice, it did not make spec ific findings whether

counsel's error as to the carjacking charge or prior burglary p rejudiced 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 t he PCR court for findings, and sta ting, "We sit today in an appell ate capacity and making findings of fact de novo would be contrary to this appel late setting"). In this case, however, we find it is not n ecessary to remand to the PCR court, and we have conducted the prejudice analysis ourselves. After balancing tr ial counsel's errors— failing to cross-examine Green on the dismissal of his carjacki ng 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 err ors significantly "undermine confidence in the outcome of the trial," Rutland , 415 S.C. at 577, 785 S.E.2d at 353, and leave "a reas onable probability that, but fo r 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 se ssions for a new trial.

KITTREDGE, Acting Chief Justice, HEARN, JAMES, JJ., and Acting Justice Arthur Eugene Morehea d, III, concur.