        THE STATE OF SOUTH CAROLINA
             In The Supreme Court

Marion Bowman, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2012-213468


             ON WRIT OF CERTIORARI



             Appeal from Dorchester County
     James E. Lockemy, Post-Conviction Relief Judge


                   Opinion No. 27761
      Heard April 13, 2017 – Filed January 10, 2018


                      AFFIRMED


Chief Appellate Defender Robert M. Dudek and
Appellate Defender David Alexander, both of Columbia,
for Petitioner.

Attorney General Alan M. Wilson, Chief Deputy
Attorney General J. Robert Bolchoz, Deputy Attorney
General Donald J. Zelenka, and Assistant Attorney
General Alphonso Simon, Jr., all of Columbia, for
Respondent.
JUSTICE KITTREDGE: Petitioner Marion Bowman sought post-conviction
relief (PCR) from his sentence of death for the murder of Kandee Martin in
February of 2001. The essence of Petitioner's claim is that trial counsel was
deficient in failing to object to the State's cross-examination of prison-adaptability
expert James Aiken. The PCR court denied Petitioner's application. We issued a
writ of certiorari to review the order of the PCR court. We conclude there is
evidence to support the PCR court's findings, and we affirm.

                                          I.

Around 7:55 p.m. the evening of February 16, 2001, a motorist was traveling down
Nursery Road in the rural, northwestern portion of Dorchester County near the
Orangeburg County line, when he spotted a small, four-door sedan parked
unusually along the shoulder of the road. As the motorist slowed down and pulled
alongside the car to take a look, he noticed that some of the windows were down
and the lights were off, but no one was in sight. Although this struck him as an
odd way to leave a vehicle unattended, he did not investigate further.

Several minutes later, a neighbor who lived on Nursery Road was watching
television in his living room when he heard a loud noise outside. He muted the
television, and within fifteen seconds, he heard three gunshots. Suspecting
someone was night-hunting, the neighbor got in his car and drove in the direction
of the noise to investigate; however, after driving along Nursery Road, he was
unable to find anything unusual. He returned home, continued watching television,
and went to sleep around midnight. Shortly after 3:30 a.m., he was awakened by
what initially sounded like more gunshots. He again got in the car to investigate
down Nursery Road, this time spotting a small, four-door sedan positioned on a
tractor path between the tree line and a field approximately seventy-five feet from
the paved road. The vehicle was engulfed in flames extending almost five feet
around and more than fifteen feet above; no other vehicles or persons were
anywhere in sight. The neighbor immediately returned home and reported the
vehicle fire.1



1
  At trial, the State's arson investigation expert explained the loud noise that
awakened the neighbor was mostly likely the explosion of either a tire or a helium-
filled component of the vehicle's suspension system.
The local fire department responded to the scene. After putting out most of the
fire, firefighters were able to open the trunk of the smoldering car, where they
discovered the scorched remains of a human body. The vehicle's charred license
plate was recovered, and police discovered the car was registered to twenty-one-
year-old Kandee Martin (the Victim) and her mother.2

Arson investigators concluded the fire was intentionally set. The autopsy revealed
the Victim was not burned alive, but rather suffered two fatal gunshot wounds—
one to the head and one to the torso—before her body was placed in the trunk of
her car and set on fire. No projectiles were recovered from the Victim's body;
however, police found six spent .380 shell casings in the middle of Nursery Road
next to a pool of blood, which contained some hair and the back of an earring. A
trail of bloodstained grass and ruffled pine straw led investigators approximately
thirty feet into the woods where they discovered a woman's black dress shoe next
to bloodstained pine straw and branches. Through DNA testing, police identified
the blood on the road, pine straw, and branches as belonging to the Victim, and the
Victim's mother identified the black dress shoe found in the woods as her
daughter's.

Later that morning, Petitioner Marion Bowman was arrested on an outstanding
warrant after police learned he was with the Victim the night before. He was
subsequently indicted for murder and third-degree arson, and shortly thereafter, the
State served upon defense counsel a notice of intent to seek the death penalty. The
case was tried in May 2002, and the following summarizes the State's evidence at
trial.

Less than two weeks before the murder, Petitioner, accompanied by his first cousin
Taiwan Gadson and his childhood friend Travis Felder, purchased a High Point
.380 automatic pistol from "[a] dude in Orangeburg." On the afternoon of the
murder, Petitioner and several others gathered at a friend's house to socialize and
drink alcohol. Petitioner carried his .380 pistol to the party in a brown paper bag,
then stashed it in a 55-gallon drum/fire barrel upon arrival. Shortly thereafter,
Petitioner left the party to pick up some groceries. At some point while he was
gone, Petitioner's first-cousin Hiram Johnson relocated the stashed gun, ostensibly

2
  An x-ray was taken during the autopsy in an attempt to identify the body through
dental records; however, investigators were not able to identify the body except
through a DNA comparison with the Victim's family members.
for safety purposes. According to six different witnesses, Petitioner became
confrontational when he returned and learned his gun had been moved, but
Johnson quickly intervened, explained that he moved the gun, and returned the gun
to Petitioner. After looking over the gun to ensure it was still in working order,
Petitioner tucked the gun in his back pocket.

 Sometime later, Petitioner left the party again to run errands with his sister
Yolanda Bowman (Yolanda) and their cousin, Katrina West. As they drove
through downtown Branchville, they spotted the Victim sitting in her car talking
with a man standing outside the Victim's driver's window. Evidently, the Victim
owed Petitioner some money. Petitioner, who was sitting in the back seat, asked
Yolanda to pull the car over so he could speak to the Victim. Yolanda complied,
and Petitioner rolled down his window and tried to get the Victim's attention. The
Victim was mid-conversation with the man standing outside her car, and she asked
Petitioner to wait a minute. Petitioner then cursed at the Victim and, in front of
three witnesses, said he was going to kill the Victim that evening.3

Around 7:30 p.m. that evening, Petitioner returned to the party with the Victim; the
Victim drove herself and Petitioner in her Ford Escort, a small, four-door sedan.
Gadson got in the car with Petitioner and the Victim, they stole some gas from a
convenience store, and Petitioner directed the Victim to drive out to Nursery Road.
Once they reached Nursery Road, Petitioner instructed the Victim to pull over and
turn off the vehicle lights. The Victim remained in the car while, Petitioner and
Gadson exited the vehicle and began walking down Nursery Road; as they walked,
Petitioner told Gadson he intended to kill the Victim because he believed she was
wearing a wire. A few minutes later, the Victim got out of the car and caught up
with them, she grabbed Petitioner by the elbow and said she was scared because it
was extremely dark outside. Just as the Victim was pleading to leave, the
threesome saw a car coming down the road, so they all ran and hid in the woods
until the car passed.



3
  All three witnesses consistently relayed the general sentiment of Petitioner's
statement; however, there were minor discrepancies regarding the precise wording:
"Fuck waiting a minute, I'm about to kill this bitch"; "Fuck it, that bitch be dead by
dark"; "Fuck that ride. That bitch will be dead by dark fall." At the time of
Petitioner's statement, the sun had not yet set.
The Victim then started walking back down the road with Petitioner following. As
Gadson came out of the woods behind them, he saw Petitioner fire three times at
the Victim. The Victim ran towards Gadson, but turned to face Petitioner and
begged, "Please, [Petitioner], don't shoot me no more. I have a baby to take care
of." Petitioner then fired twice more and the Victim fell to the ground. Gadson
testified he jumped in the car while Petitioner dragged the Victim's body by her
feet into the woods. Petitioner later returned, got into the driver's seat of the
Victim's car, and stated "I shot that bitch in the head. Heard her head hit the
ground." The two then returned to Branchville in the Victim's car, and on the way
back, Petitioner threatened Gadson that if he ever told anyone what happened, he
would blow Gadson's brains out.

Sometime after midnight, Petitioner drove himself, Gadson, Johnson, and Darrien
Williams to a nightclub in the Victim's car. Petitioner stated the car was stolen and
instructed everyone to wear gloves to avoid leaving fingerprints. At the club,
Petitioner attempted to sell the Victim's car with no success. Thereafter, Petitioner
drove the group back to Branchville in the Victim's car; as he drove, he had the
murder weapon sitting in his lap and remarked, "I killed Kandee, heh heh heh."

Shortly after 3:00 a.m., Petitioner knocked on Felder's door and asked Felder to
give him a ride. Felder testified that he got in his own car and followed Petitioner,
who was driving the Victim's car, back to Nursery Road. Petitioner pulled over on
the side of the road and went into the woods for a minute. Then, Felder saw
Petitioner dragging a body out of the woods by the feet. As Petitioner opened the
trunk and put the body inside, Felder recognized the Victim's face by the trunk
light. Petitioner looked back at Felder and said "You didn't think I would do it, did
you? I killed Kandee Martin." Petitioner instructed Felder to reposition his car
while Petitioner drove the Victim's car into a field. Felder watched as Petitioner lit
a fire and tossed it in the car, which immediately became engulfed in flames.
Felder then drove Petitioner back to Branchville and returned to his girlfriend's
house.

When Petitioner was arrested the following day, the Victim's wristwatch was found
in the pocket of the pants Petitioner wore the previous night. A few days later,
Petitioner's wife found the murder weapon stuffed in a couch in the couple's living
room; upon this discovery, she enlisted the help of Petitioner's sisters and father,
who dropped the gun off a bridge into the Edisto River. Petitioner's DNA was
identified in the vaginal swabs taken from the Victim during autopsy.4 The gun
was recovered by a team of divers and the shell casings recovered at the scene
matched the pistol. Additionally, the arson investigator testified that a heavy
petroleum product—not gasoline—was found on Petitioner's pants, but the items
retrieved from the burning car had gasoline on them.

                                        II.

Petitioner proceeded to trial. Although the fact that the Victim had been murdered
was indisputable, the defense theory in the guilt phase was that it was not
Petitioner but some other person who killed her and burned her body. Ultimately,
a jury found Petitioner guilty of murder and arson.

During the sentencing phase of the trial, the State incorporated all of the evidence
introduced in the guilt phase and presented evidence of Petitioner's 1998 third-
degree burglary and petty larceny convictions. The State introduced additional
photographs of the Victim's charred corpse in the trunk of her car and presented
further testimony from the forensic pathologist who performed the autopsy as to
the gruesome condition of the Victim's body. The State also introduced pictures of
the Victim celebrating family occasions and elicited victim-impact testimony from
the Victim's mother and father before resting its case. The State did not present
any evidence during the sentencing phase regarding Petitioner's potential to adapt
to prison or conditions of prison.

Petitioner followed by presenting extensive mitigation evidence, including
testimony of Petitioner's mother and older sister concerning Petitioner's troubled
childhood and abusive upbringing. The defense also presented testimony of Alice
Baughman, an adult education teacher at the Dorchester County Detention Center
where Petitioner was held awaiting trial. Baughman testified Petitioner had
become one of her teaching assistants and had never exhibited any inappropriate
behavior during classes. The defense also presented testimony of two detention
center guards, one of whom described Petitioner as "just as polite as can be." The

4
  It is unclear when or under what circumstances Petitioner and the Victim had
sexual contact. Although no reference was made in front of the jury, the record
suggests that Petitioner may have had sex with the Victim's corpse after he shot
and dragged her into the woods. There is also some indication that Petitioner
provided the Victim with crack in exchange for sex and/or oral sex at a mutual
friend's house on the afternoon of the murder.
other, however, testified that Petitioner occasionally refused to cooperate
"depend[ing] on what kind of day [Petitioner] was having," but that Petitioner had
never become violent or caused her to feel threatened.

Additionally, the defense presented the testimony of forensic social work expert
Jeffrey Youngman, who testified in detail to Petitioner's upbringing. As part of
Youngman's testimony, he educated the jury on many aspects of Petitioner's life,
including being born to a teenage mother, domestic violence between his parents
that eventually led to their divorce, and prolonged and extreme financial hardship.
Moreover, the mitigation evidence included Petitioner's low IQ and difficulties in
school, his family history of alcohol and drug abuse (including his mother's
conviction for drug distribution), his mother's debilitating health issues that
required Petitioner to provide care for her at the age of nine, and Petitioner's
experience selling drugs beginning at age 14. Youngman observed that these
myriad factors combined to undermine Petitioner's ability to develop good
judgment skills. On cross-examination, Youngman explained that people who sell
drugs engage in certain behavior patterns to protect their image and opined "I think
part of this whole process was him protecting his image" as a drug dealer.

Petitioner thereafter presented the testimony of James Aiken, a correctional
consultant who testified about the classification of prisoners and Petitioner's
adaptability to prison. It is counsel's failure to object when Aiken's testimony
transitioned from a discussion of prison adaptability into one about general prison
conditions that lies at the heart of this PCR case.

Aiken opined that Petitioner had adjusted well to prison in the past, and relayed the
security measures at correctional facilities—including gun towers, fences, bars,
concrete structures, constant supervision, and no possibility of parole. Aiken did
not believe Petitioner would pose a risk of future dangerousness. On cross-
examination, the Solicitor elicited testimony from Aiken about the various levels
of security that exist within a prison environment (i.e. minimum, medium,
maximum, and "super max") and that inmates may be assigned to less restrictive
environments within prison as an incentive for their good behavior. Aiken
acknowledged that while in prison, Petitioner would have the ability to move
within the facility, including to perform work duties and access secure outdoor
recreation areas; however, Aiken explained that, due to the seriousness of the
offense of which Petitioner had been convicted, he would never be eligible for
work release and would never be permitted to leave the prison facility.
In response to the Solicitor's question regarding what incentive Petitioner would
have to follow the rules, Aiken explained,

      The incentive that he has is . . . that the management of that prison
      system has authority to ensure that his behavior is appropriate. And
      that's anywhere from sanctioning him . . . [to] using lethal force
      against that individual . . . We are not in the business of motivation
      when you deal with a life without parole [sentence]. Our business is
      incapacitation. We're not preparing you to go anywhere. You're
      going to stay with us as long as you are breathing, so we're not talking
      about trying to prepare you for anything. What we're talking about is
      that we do a good job of keeping you behind bars and behind fences
      and in gun towers for the remainder of your life.

On redirect examination by defense counsel, Aiken gave a more detailed
description of super max confinement and testified that Petitioner would not be
going to a "kiddy camp" or a place where he would be "mollycoddled" or have
"picnic lunches outside the gate." Aiken explained that all inmates are expected to
work to perform cheap labor to reduce the burden on taxpayers and repay society
and reiterated, "I don't care how well he does, he will never get out of that prison."
Nevertheless, Aiken explained that Petitioner could salvage the rest of his young
life and have some redeeming qualities.

On re-cross, the Solicitor attempted to elicit information about how often inmates
generally escape from prison, but defense counsel's objection to this irrelevant
evidence was sustained. Following a curative charge by the judge as to the escape
question, the Solicitor elicited from Aiken testimony about general prison
conditions, asking "what is he adapting to, what is going on there?" Aiken
described the daily routine an inmate would likely have including going to work,
eating meals, and sleeping, cautioning "you have to understand that this is in a
prison environment and this is not in a community environment . . . . It's just like
the police being in your home and writing you up for any violation." Aiken
explained that inmates are under 24-hour supervision and inmates are cited for
administrative violations such as speaking too loudly, being disrespectful, or
disobeying a direct order. Then the Solicitor asked:

      Q. And are there recreational facilities available?

      A. Yes, sir.
      Q. What type of recreational facilities?

      A. An inmate can play basketball, an inmate can exercise, you know,
         on his own, but to understand, again, to give it in a complete
         context as briefly as I can, you're doing it around very dangerous
         predator people.

      Q. My question is related to the recreational facilities and we
         understand prison is dangerous people. In addition to that are
         there libraries they go to, to read books?

      A. Yes, sir. As guaranteed by the constitution.

      Q. Are there movies they can watch?

      A. Yes, sir.

      Q. Television?

      A. In some instances, yes, sir.

      Q. Softball, do they play softball?

      A. I don't know. It's some type of recreation such as that.

      Q. Thank you. That's all I have.

It is counsel's failure to object to this particular prison-conditions exchange upon
which Petitioner's ineffective assistance of counsel claim is based.

Ultimately, the jury found the evidence supported two aggravating factors—the
murder was committed during the commission of a kidnapping and the murder was
committed during the commission of a larceny with the use of a deadly weapon—
and recommended death. The trial judge sentenced Petitioner to death for murder
and ten years for arson.

On direct appeal, Petitioner challenged the admission of Aiken's testimony
regarding general prison conditions. State v. Bowman, 366 S.C. 485, 623 S.E.2d
378 (2005). This Court found that because defense counsel failed to
contemporaneously object to the solicitor's prison-conditions line of questioning,
the issue of its propriety was not preserved for appellate review, and we affirmed
Petitioner's convictions and sentences. In so holding, however, we reminded the
bench and the bar that evidence of general prison conditions is irrelevant to the
jury's determination of whether a defendant should be sentenced to death or life
imprisonment and thus should not be permitted. Id. at 498–99, 623 S.E.2d at 387.

This application for post-conviction relief (PCR) presents the claim that trial
counsel was deficient in not objecting to the State's re-cross examination of Aiken
concerning general prison conditions. The PCR judge denied relief. This appeal
followed.

                                         III.

Petitioner argues defense counsel was deficient in failing to object to the Solicitor's
questioning of defense prison expert Aiken regarding general prison conditions and
that, pursuant to this Court's decision in State v. Burkhart, 371 S.C. 482, 640
S.E.2d 450 (2007), he is relieved of his burden of showing he was prejudiced by
this deficiency. We address these arguments in turn.

"The United States Supreme Court has set forth a two-pronged test to establish
ineffective assistance of counsel by which a PCR applicant must show (1)
counsel's performance was deficient, and (2) the deficient performance prejudiced
the defense." McHam v. State, 404 S.C. 465 473–74, 746 S.E.2d 41, 46 (2013)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984); Holden v. State, 393
S.C. 565, 713 S.E.2d 611 (2011)).

"On certiorari in PCR cases, the Court applies an any evidence standard of
review." McHam, 404 S.C. at 472–73, 746 S.E.2d at 45 (citing Terry v. State, 394
S.C. 62, 66, 714 S.E.2d 326, 328 (2011)). '"This Court will uphold the findings of
the PCR judge when there is any evidence of probative value to support them,' and
it 'will reverse the PCR judge's decision when it is controlled by an error of law.'"
Id. at 473, 746 S.E.2d at 45 (quoting Suber v. State, 371 S.C. 554, 558–59, 640
S.E.2d 884, 886 (2007)).

At the intersection of Petitioner's claims, we find three factors present. First, we
acknowledge the wide path extended to a capital defendant to introduce mitigation
evidence pursuant to the Eighth Amendment to the United States Constitution.
Second, we must recognize our state law that draws a sharp admissibility dividing
line between prison adaptability evidence and general prison condition evidence.
Third, we must consider the practical, strategy decisions made by trial counsel.
The confluence of these factors does not lead to a straightforward, formulaic
response, and as we address these factors, we are mindful of the deferential
standard of review that applies to factual determinations in PCR matters.

                                          A.

Cognizant of the practicalities of an actual death penalty trial, we observe that here,
trial counsel was forced to confront two realities: the gruesome nature of the
murder and the overwhelming evidence of Petitioner's guilt. At the PCR hearing,
counsel testified at length to the mitigation strategy. Part of the mitigation
approach was, of course, a thorough examination of Petitioner's troubled
upbringing and abusive family environment. Counsel also made the strategic
decision to introduce evidence that Petitioner would adapt well to prison, hence the
decision to call Aiken as a witness. Counsel made this decision after much thought
and reflection.

Counsel explained that he put James Aiken on the stand to show that there were
sufficient security measures in prison such that Petitioner would never pose a
threat to society again if Petitioner did not receive the death penalty. Counsel
stated that the strategy was to show the jury that "this is going to be so horrible the
rest of his life that this is going to be sufficient punishment and you don't have to
give him death." Counsel further explained:

      [Y]ou have your academic believers on the subject but I guess I was
      kind of focusing on the fact that since you knew you were going to be
      getting that life without parole charge,[5] you considered in sentencing
      your best shot was to convince this jury that life in prison was going

5
 Just a few months before Petitioner's trial, the United States Supreme Court
decided Kelly v. South Carolina, 534 U.S. 246 (2002), finding that where future
dangerousness is at issue and the jury's only two sentencing alternatives are death
or life imprisonment, due process requires that the jury be informed of the
defendant's parole ineligibility. This Supreme Court decision, and the Legislature's
subsequent codification of the requirement that life without parole be charged in all
death penalty cases, ended the years-long debate over whether capital defendants
were entitled to such a jury charge.
      to be just as bad if not worse for [Petitioner] than giving him the death
      penalty[.] Yes, it is. I'm not trying to be cruel to [Petitioner]. Yes, I
      don't know how long his natural life is going to be but everyday you're
      in a six by eight cell, you can't go get an ice cream cone when you
      want one and you darn sure are not going to enjoy any of the benefits
      of this earth. You are in a cell, you are behind wire and you're living
      with whatever is next door, whatever he's in for next door, and I just
      had a case with a guy, sliced and diced and killed another man in
      prison, 22 year old kid. It is a predatory place. So, yes, paint a
      picture, paint it nasty for them.

When cross-examined about his strategy underlying his decision to put up the
adaptability expert, defense counsel explained:

      [H]ow else do you argue about somebody having a chance to live in
      prison? I mean, I don't argue academically. . . . I want everybody to
      read this record one day and say what are you going to do for the guys
      who are in the pits, who are doing this in action, with the guns
      blazing, you're in there trying to save a young kid's life and all you
      have to work with is trying to convince twelve people he can adapt to
      prison . . . .

Counsel admitted he

      made the calculated decision that it was better to go down the road of
      saying life in prison is so horrible that it is good enough punishment
      for [Petitioner] knowing full well there was a risk that [the Solicitor]
      might come back a little bit and say, "Well, you know, prison ain't as
      bad as all that." . . . [T]his case was kind of on that new frontier, we
      had just recently had the life without parole charges were mandatory
      in every death penalty case, so we're kind of on the frontier in dealing
      with that and how it could be litigated and used by both the State and
      the defense in the sentencing phase of the capital trial.

Counsel explained that, given the testimony he elicited on the issue, he did not see
a valid objection to the solicitor's own limited questioning on prison conditions—
except when the solicitor went outside the scope into questioning about escape, to
which counsel successfully objected. Indeed, it was not until several years after
Petitioner's trial that this Court decided Burkhart, upon which Petitioner's PCR
claim is primarily based.

The PCR court found that counsel's strategy was reasonable under the
circumstances. The PCR court noted counsel is not required to be clairvoyant or
foresee changes in the law subsequent to Petitioner's trial and that counsel testified
he took the calculated risk that he would gain more with his stark portrayal of a
life-without-parole sentence than with no prison-related evidence. See Teamer v.
State, 416 S.C. 171, 183, 786 S.E.2d 109, 115 (2016) (observing "We have never
required an attorney to be clairvoyant or anticipate changes in the law").

Petitioner argues that counsel was deficient for failing to object to Aiken's
testimony since this Court made clear long ago that such evidence was irrelevant.
Petitioner further contends this evidence was "highly prejudicial in the eyes of the
jury" and that counsel's failure to object to it "barred consideration of this winning
issue on petitioner's direct appeal."

Before we review the PCR court's findings under the two-pronged Strickland
analysis, we must first address the constitutional framework surrounding the
admissibility of mitigating evidence in the sentencing phase of a capital case.

                                          B.

"Where the State imposes the death penalty for a particular crime, . . . the Eighth
Amendment imposes special limitations on that process." Payne v. Tennessee, 501
U.S. 808, 824 (1991). In relevant part, a state "'cannot limit the sentencer's
consideration of any relevant circumstance that could cause it to decline to impose
the penalty.'" Id. (quoting McCleskey v. Kemp, 481 U.S. 279, 305–06 (1987)).
"[I]n capital cases the fundamental respect for humanity underlying the Eighth
Amendment requires consideration of the character and record of the individual
offender and the circumstances of the particular offense as a constitutionally
indispensable part of the process of inflicting the penalty of death." Woodson v.
North Carolina, 428 U.S. 280, 304 (1976) (internal citation omitted). "'The
sentencer cannot be precluded from considering, as a mitigating factor, any aspect
of a defendant's character or record and any of the circumstances of the offense
that the defendant proffers as a basis for a sentence less than death.'" McCleskey,
481 U.S. at 304 (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)). In short, the
Eighth Amendment demands that a capital defendant be given wide latitude to
present any relevant evidence of potentially mitigating value that might convince
the jury to impose a sentence of life in prison instead of death.
We begin by acknowledging the unique distinction South Carolina jurisprudence
has drawn between evidence of prison adaptability, which we have held is relevant
and admissible, and evidence of general prison conditions, which we have held is
not. The rationale we have offered for excluding evidence of general prison
conditions is that it does not "bear on a defendant's character, prior record, or the
circumstances of his offense." State v. Koon, 278 S.C. 528, 537, 298 S.E.2d 769,
774 (1982) (affirming the exclusion of evidence of future adaptability to prison life
as irrelevant to the jury's sentencing determination), abrogated by Skipper v. South
Carolina, 476 U.S. 1 (1986) (holding evidence of adjustability to life in prison is
constitutionally relevant), as recognized by Chaffee v. State, 294 S.C. 88, 91, 362
S.E.2d 875, 877 (1987).

Although we have acknowledged it "'is essential that the jury have before it all
possible relevant information about the individual whose fate it must determine,'"
State v. Plath, 281 S.C. 1, 15, 313 S.E.2d 619, 627 (1984) (quoting Barefoot v.
Estelle, 463 U.S. 880 (1983)), we have nevertheless eschewed evidence regarding
the "controlled environment of life imprisonment." Id. (citing Koon, 278 S.C. at
536, 298 S.E.2d at 773). We justified this distinction by reasoning:

      A jury needs to know how a given defendant came to commit a given
      aggravated murder, to include aspects of his background, his character
      and the setting of the crime itself which may explain or even mitigate
      the conduct of which he has been found guilty. A jury does not need
      to know how often he will take a shower or whether or not he will be
      lonely and withdrawn during his tenure at [prison].

Id. at 15, 313 S.E.2d at 627. Although the United States Supreme Court has
characterized this distinction as "elusive" and stated "its precise meaning and
practical significance" are "difficult to assess," we have nevertheless clung to this
division. Skipper, 471 U.S. at 7.

Even as recently as 2007, we have stated that "'determinations as [to] the time,
place, manner, and conditions or execution or incarceration are reserved to
agencies other than the jury.'" State v. Burkhart, 371 S.C. 482, 487–88, 640 S.E.2d
450, 453 (2007) (quoting Plath, 281 S.C. at 15, 313 S.E.2d at 627) (emphasis
omitted). In doing so, we observed this Court has "long held that evidence in the
sentencing phase of a capital trial must be relevant to the character of the
defendant or the circumstances of the crime." Id. at 487, 640 S.E.2d at 453
(emphasis added). The point we have repeatedly emphasized—namely, that only
the character of the defendant and circumstances of the crime are relevant in the
sentencing phase of a capital trial—evolved from cases decided in the wake of the
United States Supreme Court's landmark decision in Furman v. Georgia, 408 U.S.
238 (1972) (two Justices opining that capital punishment was unconstitutional per
se; four Justices opining that it was not; and three Justices declining to reach the
issue, concluding instead that Georgia's statutory scheme was unconstitutional as
applied). The constitutional concerns expressed in Furman were that the system of
imposing the death penalty must be "structured so as to prevent the penalty from
being administered in an arbitrary and unpredictable fashion." California v.
Brown, 479 U.S. 538, 541 (1987) (citing Furman, 408 U.S. at 238).

In response to Furman, most state legislatures—including Georgia's and South
Carolina's—redesigned existing capital sentencing statutory schemes to address the
concerns the Supreme Court expressed in Furman.6 See 1974 Act No. 1109 §§ 1–3
(codified at S.C. Code Ann § 16-3-20); see also 1977 Act. No. 177 (codified at
S.C. Code Ann. §§16-3-20, -25 to-28 (2015)) (setting forth, among other things,
lists of aggravating and mitigating circumstances to guide the jury's individualized
sentencing inquiry; the requirement that at least one statutory aggravating
circumstance be found beyond a reasonable doubt as a prerequisite to the
imposition of the death penalty; and mandatory review by this Court to ensure
proportionality of the death sentence to the facts of the crime and that the death
sentence was not the result of "passion, prejudice, or any other arbitrary factor").

Four years later, the Supreme Court examined Georgia's post-Furman statutory
revisions, and a majority of the Supreme Court concluded that, in the context of
Georgia's new procedural safeguards, "the punishment of death does not invariably
violate the Constitution" and that the procedural mechanisms included in Georgia's
revised statutory scheme satisfied the Eighth Amendment. Gregg v. Georgia, 428
U.S. 153, 169 (1976).

In so holding, the Supreme Court observed that "accurate sentencing information is
an indispensable prerequisite to a reasoned determination of whether a defendant
shall live or die," and specifically noted that in "the determination of sentences,
justice usually requires that there be taken into account the circumstances of the

6
  Gregg v. Georgia, 428 U.S. 153, 179 n.23 (1976) (listing the thirty-five states in
which legislative bodies took action to amend capital sentencing schemes in
response to Furman).
offense together with the propensities of the offender." Gregg, 428 U.S. at 189–90
(emphasis added) (internal quotation marks and citation omitted); accord
Woodson, 428 U.S. at 304 (holding "the Eighth Amendment requires consideration
of the character and record of the individual offender and the circumstances of the
particular offense as a constitutionally indispensable part of the process of
inflicting the penalty of death" (emphasis added) (internal citation omitted)).

In reconciling the constitutional requirement for individualized sentencing
determinations in capital cases with the countervailing requirement that juries not
be given unfettered sentencing discretion to avoid "wholly arbitrary and capricious
action," the Court emphasized the difference between "arbitrary grants of mercy,"
which are perfectly constitutional, and arbitrary impositions of the death penalty,
which are not. Gregg, 428 U.S. at 189, 199–200. Further, the Court flatly rejected
a challenge to the "wide scope of evidence and argument allowed" during the
sentencing phase and found "[s]o long as the evidence introduced and the
arguments made at the [sentencing] hearing do not prejudice a defendant, it is
preferable not to impose restrictions. We think it is desirable for the jury to have
as much information before it as possible when it makes the sentencing decision."
Gregg, 428 U.S. at 203–04 (emphasis added).

Thus, the character of the defendant and the circumstances of the crime are
certainly a part of the individualized sentencing hearing the Eighth Amendment
demands. However, there is nothing in the constitution or federal jurisprudence
that forbids the consideration of anything which might serve as a mitigating
circumstance. Skipper, 476 U.S. at 4 ("[T]he sentencer may not refuse to consider
or be precluded from considering any relevant mitigating evidence" (emphasis
added)); Caldwell v. Mississippi, 472 U.S. 320, 330–31 (1985) (observing a capital
defendant has a constitutional right to the consideration of "'those compassionate
or mitigating factors stemming from the diverse frailties of humankind,'" including
a plea for mercy (quoting Woodson, 428 U.S. at 304)).

Rather, the determination of what evidence is admissible during a capital
sentencing hearing is left to the states, subject of course to the limitations of the
constitution, including the Eighth Amendment. See, e.g., Simmons v. South
Carolina, 512 U.S. 154, 168 (1994) (acknowledging that the federal courts will
generally "defer to a State's determination as to what a jury should and should not
be told about sentencing"). Viewing as a whole both federal and state
jurisprudence on this issue, we believe retaining this state-law distinction serves
the purpose of preventing both the State and the defense from engaging in
immaterial forays into the microscopic details of a defendant's prison experience.
However, in acknowledging this distinction as the general rule applicable in the
vast majority of cases, we also acknowledge that in certain cases the Eighth
Amendment may not forbid but rather require that a defendant be permitted to
present certain relevant evidence in this regard. See State v. Torres, 390 S.C. 618,
624–26, 703 S.E.2d 226, 229–30 (2010) (finding video recording of capital
defendant in prison did not introduce an arbitrary factor into sentencing); Burkhart,
371 S.C. at 488, 640 S.E.2d at 453 (acknowledging that at times there may be
some overlap between evidence of a defendant's adaptability to prison and prison
conditions generally and cautioning that prison conditions evidence should be
"narrowly tailored"). Thus, in reaffirming the rule forbidding evidence of general
prison conditions, we simply note that it is not without exception.

With this background in mind, we turn now to an examination of the particular
prison conditions evidence at issue here.

                                          C.

"It is firmly established that otherwise inadmissible evidence may be properly
admitted when opposing counsel opens the door to that evidence." State v. Page,
378 S.C. 476, 482–83, 663 S.E.2d 357, 360 (Ct. App. 2008) (citations omitted).
Indeed, "[c]onduct that would otherwise be improper may be excused under the
'invited reply' doctrine if the prosecutor's conduct was an appropriate response to
statements or arguments made by the defense." Vaughn v. State, 362 S.C. 163,
169, 607 S.E.2d 72, 75 (2004). "[T]he idea of an invited response is used not to
excuse improper comments, but to determine their effect on the trial as a whole."
Id. "Once the defendant opens the door, the solicitor's invited response is
appropriate so long as it is does not unfairly prejudice the defendant." Ellenburg v.
State, 367 S.C. 66, 69, 625 S.E.2d 224, 226 (2006) (citation omitted). Unless the
State's response is inappropriate or unfairly prejudicial, counsel is not deficient for
failing to object. Id.

As noted, at the PCR hearing, counsel testified his decision to elicit testimony that
Petitioner was not going to a "kiddy camp" and that he would not be
"mollycoddled" was a strategic choice, and counsel acknowledged that he expected
the solicitor to respond with questions about some of the less harsh conditions of
confinement.

In examining the issue, the PCR court noted that most of the cases admonishing
against prison conditions evidence were decided after Petitioner's trial, and
although Plath had been decided prior to Petitioner's trial, this Court held in Plath
that the defense had opened the door to the otherwise inadmissible evidence and
therefore its admission was not reversible error.

       In the case before us, defendants elected to enter the forbidden field of
       social policy and penology. It is neither surprising nor can it be
       deemed prejudicial that the State responded in kind, attempting to
       show through defendants' own witnesses that life imprisonment was
       not the total abyss which they portrayed it to be. . . . The State was
       entitled to make this response.

Plath, 281 S.C. at 15–16, 313 S.E.2d at 627–28. The PCR court also noted the
United States Supreme Court's decision in Kelly v. South Carolina, 534 U.S. 246
(2002), which was decided just months before Petitioner's trial and which held that
due process requires the jury to be informed that a life sentence meant life without
the possibility of parole. This recent legal development influenced counsel's
calculated choice to use the unambiguous "without parole" aspect of that sentence
as part of the mitigation strategy.

Counsel's testimony at the PCR hearing is revealing. He acknowledged the risk of
opening the door to otherwise inadmissible prison condition evidence. Counsel,
however, believed the potential benefit outweighed the risk. It follows that counsel
exercised judgment, as he testified, "in the pits, . . . doing this in action, . . . trying
to save a young kid's life." Simply stated, counsel weighed the benefits to
Petitioner as well as the potential prejudice in deciding whether to present the
testimony of Aiken.

The PCR court carefully evaluated the law and all the circumstances, concluding
that, given the state of the law at the time of Petitioner's trial, counsel was not
deficient in his strategic choice to elicit limited testimony on prison conditions as
part of his strategy to portray life imprisonment as a particularly harsh sentence
and viable sentencing alternative. The PCR court further found that counsel was
not deficient in acquiescing to the solicitor's limited responsive questioning on the
same subject, noting counsel's testimony that he believed the defense would gain
more through a stark portrayal of a life-without-parole sentence than it lost through
any response.

Given all this, is there evidence to support the PCR court's determination that
counsel was not deficient? By myopically considering our state's nuanced and
unique distinction between prison adaptability and general prison condition
evidence, it might appear a finding of deficient representation is warranted.7 While
we acknowledge that a close question is presented, in light of the state of the law at
the time of Petitioner's trial and the narrowly tailored scope of the prison
conditions evidence elicited, we find there is evidence in the record to support the
PCR court's finding. There is evidence that counsel articulated a valid reason for
employing this strategy, and because the State's response was proportional and
confined to the topics to which counsel had opened the door, we affirm the finding
that counsel was not deficient in failing to object to the State's line of questioning.
Ellenburg, 367 S.C. at 69, 625 S.E.2d at 226 (finding counsel is not deficient for
failing to object to evidence where counsel opened the door); Caprood v. State,
338 S.C. 103, 110, 525 S.E.2d 514, 517 (2000) ("Where counsel articulates a valid
reason for employing certain strategy, such conduct will not be deemed ineffective
assistance of counsel.") (citing Stokes v. State, 308 S.C. 546, 419 S.E.2d 778
(1992)); Whitehead v. State, 308 S.C. 119, 122, 417 S.E.2d 529, 531 (1992)
("Courts must be wary of second-guessing counsel's trial tactics; and where
counsel articulates a valid reason for employing certain strategy, such conduct will
not be deemed ineffective assistance of counsel.") (citing Goodson v. United
States, 564 F.2d 1071 (4th Cir. 1977)).

                                          D.

Ordinarily, having found counsel was not deficient, we would not reach the
prejudice prong. This case, however, presents a degree of overlap on the deficient
representation and resulting prejudice prongs, for counsel carefully evaluated the
potential for prejudice in pursuing his strategy. Indeed, woven into the PCR court's
finding of no deficient representation is counsel's calculus of the potential benefits
and risks associated with his strategic decision. We, therefore, turn now to the
issue of prejudice to take the opportunity to correct Petitioner's misreading of our
Burkhart decision.

Shortly after this Court affirmed Petitioner's conviction and sentence on direct
appeal, we decided State v. Burkhart, 371 S.C. 482, 640 S.E.2d 450 (2007), in
which a majority of this Court reversed a death sentence, finding that evidence of

7
 We reiterate that the prison adaptability versus general prison condition
distinction is a creation of state law and is not mandated by the Eighth Amendment
or other constitutional provision.
prison life in general introduced an arbitrary factor into the jury's consideration in
violation of section 16-3-25(C) of the South Carolina Code. In a concurring
opinion, Justice Pleicones went beyond the majority and opined that such statutory
violations were not subject to harmless error analysis and stated "[o]nce improper
evidence of any kind injects an arbitrary factor into the jury's consideration, this
Court cannot uphold the death sentence under § 16-3-25(C)(1)" and "a review for
harmless error is unnecessary because by definition, evidence that implicates an
arbitrary factor is prejudicial." Id. at 490, 640 S.E.2d 454. Although the Court's
lead opinion was silent as to the applicability of harmless error analysis, in the
decade since Burkhart was decided, the Burkhart concurrence has inexplicably
been construed by some as the Court's holding.

In this PCR matter, Petitioner relies on the concurrence in Burkhart, which was a
direct appeal, to argue that prejudice must necessarily be presumed in a PCR
setting whenever a violation of section 16-3-25(C)(1) occurs.

We now clarify Burkhart and flatly reject the suggestion that a violation of section
16-3-25(C)(1) precludes a harmless error analysis in all circumstances. As
previously noted, section 16-3-25(C)(1) was enacted in the wake of Furman and
requires the Court to determine whether a sentence of death "was imposed under
the influence of passion, prejudice, or any other arbitrary factor." The
constitutional concerns this statute was enacted to address relate broadly to the
procedural process through which juries arrive at sentencing conclusions during
the penalty phase of a capital trial—namely, a bifurcated sentencing proceeding
guided by specified aggravating and mitigating factors. Neither the Supreme Court
in Furman nor the South Carolina General Assembly in the wake of Furman
envisioned this statute as requiring this Court to evaluate for arbitrariness every
infinitesimal evidentiary ruling throughout a lengthy death penalty trial.

The parameters of section 16-3-25(C)(1) are broad, and in some cases, the
improper factor may also be a structural error. In such a circumstance, a harmless
error analysis is not permitted. Conversely, a section 16-3-25(C)(1) violation may
be evidence-based and the error's "influence" on the trial (or lack thereof) may be
properly assessed by way of a harmless error analysis. We hold that section 16-3-
25(C)(1) requires reversal of a death sentence only when the death sentence is
influenced by an arbitrary factor; not every irrelevant piece of evidence introduced
during the course of a sentencing proceeding may be viewed as influencing the
jury's decision. Whether improperly admitted evidence influenced the outcome
must be determined on a case by case basis, and where the error is deemed
harmless beyond a reasonable doubt, reversal is not required.

In any event, Burkhart provides no support for Petitioner's claims in this matter, as
this is a PCR claim, which is evaluated under the two-pronged approach of
Strickland v. Washington, 466 U.S. 668 (1984). "When challenging a death
sentence, a petitioner must show that 'there is a reasonable probability that, absent
the errors, the sentencer would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.'" Jones v. State, 332 S.C. 329,
341, 504 S.E.2d 822, 828 (1998) (quoting Waldrop v. Jones, 77 F.3d 1308, 1312
(11th Cir. 1996)).

In this regard, the PCR court found there was "no reasonable probability of a
different result if a few pages of questioning on this issue during a multi-day
sentencing hearing had been excluded." We agree. See Franklin v. Catoe, 346
S.C. 563, 552 S.E.2d 718 (2001) (finding ineffective assistance of counsel claims
based on statutory violations in capital sentencing procedures are subject to both
the deficiency and the prejudice prongs of the Strickland analysis). Because the
evidence of guilt and aggravating factors is overwhelming,8 there is ample
evidence to support the PCR court's determination that Petitioner failed to establish
prejudice. Cf. Humphries v. State, 351 S.C. 362, 376, 570 S.E.2d 160, 168 (2002)
(finding petitioner was not prejudiced by solicitor's improper comments in the
sentencing phase of a capital murder trial where there was strong evidence of guilt
and the petitioner presented a full mitigation case).

Accordingly, we affirm the denial of PCR.


AFFIRMED.

BEATTY, C.J., FEW, JAMES, JJ., and Acting Justice James E. Moore,
concur.




8
  The facts of the crime are especially heinous, as described above. Evidence
pointing to Petitioner as the murderer was overwhelming, including eyewitness
testimony and other evidence linking Petitioner to the murder and arson.
