Fortune v. State, Appellate Case No. 2016-002231

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtJUSTICE FEW
Citation837 S.E.2d 37,428 S.C. 545
Parties Oscar FORTUNE, Petitioner, v. STATE of South Carolina, Respondent.
Decision Date04 December 2019
Docket NumberOpinion No. 27932,Appellate Case No. 2016-002231

428 S.C. 545
837 S.E.2d 37

Oscar FORTUNE, Petitioner,
STATE of South Carolina, Respondent.

Appellate Case No. 2016-002231
Opinion No. 27932

Supreme Court of South Carolina.

Submitted October 15, 2019
Filed December 4, 2019

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.


428 S.C. 547

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 defense attorneys' jobs are to manipulate the truth. Their job is to shroud the truth. Their job is [to] confuse jurors. Their job is to do whatever they have to -- without regard for the truth." The prosecutor explained that if he—the prosecutor—believes "somebody else did the crime," then he must "dismiss it." "And [if] I know the person has done something that I think the facts show they're guilty of, then I can't [dismiss] it. I have to go forward with it."

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.

I. Facts and Procedural History

The State charged Oscar Fortune with murder and possession of a weapon during the commission of a violent crime in

428 S.C. 548

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

837 S.E.2d 39

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, "Because at that time I was in fear for my life. I mean, he shot. I was in fear for my life at this time."

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

428 S.C. 549

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.

II. Fifth and Fourteenth Amendments

The Due Process Clauses in both the Fifth and Fourteenth Amendments provide that no person may be deprived of liberty "without due process of law." U.S. CONST. amend. V ; id. amend. XIV, § 1. To find whether the assistant solicitor's comments in closing argument violated the defendant's due process rights, we must determine whether the comments were improper, and if so, whether the improper argument so unfairly prejudiced the defendant as to deny him a fair trial. See

428 S.C. 550

Darden v. Wainwright , 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144, 157 (1986) ("The relevant question

837 S.E.2d 40

is whether the prosecutors' comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ " (quoting Donnelly v. DeChristoforo , 416 U.S. 637, 643, 94 S. Ct. 1868, 1871, 40 L. Ed. 2d 431, 437 (1974) )); United States v. Chorman , 910 F.2d 102, 113 (4th Cir. 1990) (stating "the test for reversible prosecutorial misconduct" in a prosecutor's closing argument is "the prosecutor's remarks or conduct must in fact have been improper, and ... such remarks or conduct must have prejudicially affected the defendant's substantial rights so as to deprive the defendant of a fair trial" (citation omitted)). As this Court has stated,

Improper comments do not automatically require reversal if they are not prejudicial to the defendant. On appeal, the appellate court will view the alleged impropriety of the solicitor's argument in the context of the entire record .... The appellant has the burden of proving he did not receive a fair trial because of the alleged improper argument. The relevant question is whether the solicitor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.

Simmons v. State , 331 S.C. 333, 338, 503 S.E.2d 164, 166-67 (1998) (citations omitted); see also Vasquez v. State , 388 S.C. 447, 458, 698 S.E.2d 561, 566 (2010) ("The relevant question is whether the solicitor's comments [in closing argument] so infected the trial with unfairness as to make the resulting conviction a denial of due process.").

At Fortune's trial, the assistant solicitor began his closing argument:

SOLICITOR: Ladies and gentlemen of the jury, thank you so much for your time throughout the course of this trial. I want to start by telling you that we both have jobs here. My job is to present the truth. In fact if you look in the South Carolina Code of Laws which mandates what a solicitor's job is we can't be like a normal attorney is.

A normal lawyer has to advocate on behalf of his client. But on the other hand the Solicitor can't. We have to say what the truth is and it's –

Defense counsel objected, arguing "the jury are the finders of the truth." The trial court ruled,

428 S.C. 551
THE COURT: The jury is the finders of the truth. I think what he was referring to was there is also an obligation on the Solicitor's Office beyond simply that of presentation, but the jury does have the burden of deciding what is the truth in this matter.

The assistant solicitor continued,

SOLICITOR: And what that means is that we have something in law that [is] called nolle prosse,[1 ] and [to] nolle

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