Fortune v. State
Citation | 837 S.E.2d 37,428 S.C. 545 |
Decision Date | 04 December 2019 |
Docket Number | Opinion No. 27932,Appellate Case No. 2016-002231 |
Court | United States State Supreme Court of South Carolina |
Parties | Oscar FORTUNE, Petitioner, v. STATE of South Carolina, Respondent. |
Elizabeth Anne Franklin-Best, Blume Norris & Franklin-Best LLC, of Columbia, for Petitioner.
Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General Megan Harrigan Jameson, and Assistant Attorney General Johnny Ellis James Jr., of Columbia, for Respondent.
Among the several blatantly improper comments the prosecutor made in his closing argument to the jury in Oscar Fortune's murder trial, he claimed, "My job is to present the truth," and said, "if you look in the ... Code of Laws ... [, I] have to say what the truth is." "On the other hand," the prosecutor told the jury, The prosecutor explained that if he—the prosecutor—believes "somebody else did the crime," then he must "dismiss it."
We find the prosecutor's improper remarks violated the defendant's rights under the Due Process Clause. We reverse the denial of post-conviction relief (PCR), and remand to the court of general sessions for a new trial.
The State charged Oscar Fortune with murder and possession of a weapon during the commission of a violent crime in connection with a shooting in the parking lot of the Huddle House in Cheraw, South Carolina, on December 23, 2001. Evidence presented at trial demonstrated both Fortune and the victim—Anthony Shields—possessed and fired guns. Fortune claimed Shields shot at him first, and he shot Shields in self-defense.
Earlier in the evening, Fortune's cousin—Sonta McCall—attended a Christmas party with her friend Iris Gaston. In the early morning hours after the party ended, McCall called Fortune—who was at home and in bed—to tell him Shields hit her in the head with a beer bottle, and Shields' wife struck Gaston across the back with a bar stool, while they were at the Christmas party. McCall wanted Fortune to help her go to the police to take out a warrant on Shields. McCall told Fortune she was at the Huddle House, and Fortune said he would meet her there.
Fortune's girlfriend—Tonette Cash—drove Fortune to the Huddle House. Fortune testified he saw about eighty to a hundred people when he arrived there. He got out of Cash's car and spoke with McCall and Gaston. As they were getting ready to leave, McCall saw Shields pulling into the Huddle House parking lot. McCall walked to the front of the Huddle House to Shields' vehicle. Fortune got back into Cash's car and asked her to pull around so he could talk to Shields.
Before getting out of the car the second time, Fortune put Cash's .38 caliber pistol in his pocket. Fortune testified he took the gun with him for protection because of the large crowd of people in the parking lot, most of whom he did not know. Fortune testified that as he approached Shields' vehicle, "[Shields] and [McCall] were arguing, and I asked him what was up and he just shot." Fortune testified he was within arm's length of Shields when Shields fired the first shot from the driver's seat of the vehicle. Fortune testified he fired back,
The jury found Fortune guilty of murder and possession of a weapon during the commission of a violent crime. The trial court sentenced Fortune to concurrent prison terms of thirty-seven years for murder and five years for possession of a weapon during the commission of a violent crime. The court of appeals upheld his convictions on direct appeal. State v. Fortune , Op. No. 2009-UP-259, 2009 WL 9528956 (S.C. Ct. App. filed June 1, 2009).
Fortune filed an application for PCR. Fortune alleged his trial counsel was ineffective for failing to request a curative instruction and for failing to move for a mistrial after the assistant solicitor's statements in closing argument. Fortune also claimed the assistant solicitor's misconduct violated his right to due process and his right to counsel.
The PCR court denied Fortune relief. Fortune filed a petition for a writ of certiorari with this Court, which we transferred to the court of appeals pursuant to Rule 243(l), SCACR. The court of appeals granted Fortune's petition. After briefing, the court of appeals found the "PCR court failed to address all issues Fortune properly raised" and did not comply with section 17-27-80 of the South Carolina Code (2014). That section provides, "The [PCR] court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented." The court of appeals remanded the case to the PCR court. Fortune v. State , Op. No. 2016-UP-102, 2016 WL 817110 (S.C. Ct. App. filed Mar. 2, 2016).
On remand, the PCR court again denied Fortune relief, stating, "The solicitor's remarks, while improper, are not so prejudicial to [Fortune's] substantial rights so as to deprive him of a fair trial, especially when combined with the accompanying objections of trial counsel and the curative comments of the trial judge." We granted Fortune's petition for a writ of certiorari.
Simmons v. State , 331 S.C. 333, 338, 503 S.E.2d 164, 166-67 (1998) (citations omitted); see also Vasquez v. State , 388 S.C. 447, 458, 698 S.E.2d 561, 566 (2010) ().
At Fortune's trial, the assistant solicitor began his closing argument:
Defense counsel again objected. The trial court ruled, "I don't think that their job is to defraud the court or the jury and to that extent I sustain the objection."
The PCR court found the remarks were "improper." We find they were absolutely inexcusable. The assistant solicitor told the jury he has a statutory duty to screen cases, he suggested he had already determined Fortune was guilty, and he claimed he would have dismissed the case if he determined otherwise.
Courts have universally condemned comments like this. Over eighty years ago, addressing prosecutorial...
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