                    THE STATE OF SOUTH CAROLINA
                         In The Supreme Court

            Vladimir W. Pantovich, Respondent,

            v.

            State of South Carolina, Petitioner.

            Appellate Case No. 2017-000280


                         ON WRIT OF CERTIORARI



                        Appeal from Georgetown County
                     George C. James, Jr., Circuit Court Judge


                             Opinion No. 27915
                  Heard March 27, 2019 – Filed August 7, 2019


                                   AFFIRMED


            Attorney General Alan McCrory Wilson and Assistant
            Attorney General Johnny Ellis James, Jr., both of
            Columbia, for Petitioner.

            Appellate Defender David Alexander, of Columbia, for
            Respondent.


JUSTICE HEARN: In this post-conviction relief (PCR) matter, we examine South
Carolina's longstanding good character charge as we determine whether the PCR
court erred when it found appellate counsel for Respondent Vladimir Pantovich
ineffective for failing to raise a meritorious issue on direct appeal. The PCR court
granted relief based on appellate counsel's failure to argue that the trial court erred
by refusing to give such a charge, which counsel had requested at trial. While we
agree that a portion of the charge Pantovich requested is improper, we nonetheless
affirm because of the retrospective nature of PCR review.

              FACTUAL AND PROCEDURAL BACKGROUND
       Pantovich killed his former girlfriend, Sheila McPherson, with a baseball bat
during an argument in his home. He hit her with the bat more than ten times,
breaking ribs, damaging internal organs, and causing lacerations on her head that
exposed her bare skull. Pantovich wrapped her dead body in a blanket, tied it with
a rope, obscured her head with a garbage bag, and put the body and the bat in the
trunk of his car. He then left his home in Georgetown County and drove toward his
son's home in Taylorsville, North Carolina. On the way, he called his son to reveal
what he had done. The son alerted law enforcement, and an officer stopped
Pantovich as he approached Taylorsville. McPherson's body was still in the trunk in
the same condition.

       The State charged Pantovich with murder. At trial in 2008, he admitted he
beat McPherson to death, but claimed he did so in self-defense. Pantovich explained
McPherson physically abused him throughout their years-long relationship. Four
days before he killed her, he and McPherson got into an argument and she left him.
Two days later, Pantovich talked to her on the phone and told her he no longer
wished to see her. He testified that on the evening of the killing, he came home from
work around 6:00 p.m. to find McPherson in his house. She had drugs in her
possession, and the toxicology report later showed she had several in her system.
Pantovich told her to leave, but McPherson refused and unplugged the phone so he
could not call the police. Thereafter, McPherson grabbed a fireplace poker and
stabbed a hole in Pantovich's dinner tray while he sat in a reclining chair eating.
McPherson then attacked him with the poker. Pantovich stated he was scared and
tried to protect himself, so he backed toward the door to his garage and grabbed one
of two baseball bats he kept there. He recalled blocking McPherson with one hand
and using the other to hit her with the bat.

        After Pantovich testified, he presented five character witnesses: Andy Seifert,
a friend and former employer; Christine McCune, a friend of more than ten years;
Maureen Moans, a friend of almost ten years; Debbie Crisman, Pantovich's ex-
girlfriend; and Tammy Eschman, his former next-door neighbor. They generally
testified he was kind, caring, and good with children. Several also reported
witnessing McPherson act violently towards Pantovich, but they never saw him react
in kind.

      Pantovich submitted a written request for the trial court to charge the jury as
to how it may interpret and use evidence of his good character. The written charge
request stated:

         An accused, when charged with a crime, has the right of proving his
         general good character. He may introduce evidence of his good
         character which is inconsistent with the crime charged against him.

         Evidence of the general good character of the accused is for the purpose
         of showing the improbability that the defendant would have committed
         the crime charged. The good character of the accused is like all other
         evidence in the case and is entitled to such effect and weight as you, the
         jury, may determine.

         Good character evidence alone may create a reasonable doubt as to the
         commission of the crime charged.1 Thus, under some circumstances, a
         person might be entitled to a verdict of not guilty when his good
         reputation is taken into consideration even though a verdict of guilty
         might be authorized without the evidence of good character.

       In response, the State requested a "more balanced" charge that would allow
the jury to decide whether evidence constituted good character. After all evidence
had been presented, the trial court provided a copy of its proposed jury charge, which
made no mention whatsoever of good character. Pantovich reiterated his request,
but the trial court denied it. The jury found him guilty of the lesser-included offense
of voluntary manslaughter, and the trial court sentenced him to eighteen years in
prison.

      Appellate counsel filed a brief with the court of appeals pursuant to Anders v.
California, 386 U.S. 738 (1967), and State v. Williams, 305 S.C. 116, 406 S.E.2d
357 (1991). Appellate counsel did not mention the trial court's denial of Pantovich's
request to charge the jury on good character. The court of appeals dismissed the
appeal. State v. Pantovich, Op. No. 2011-UP-275 (S.C. Ct. App. filed June 8, 2011).

       Pantovich subsequently filed this PCR action alleging appellate counsel was
ineffective for failing to brief the trial court's refusal to give the requested jury

1
    We refer to this portion of the instruction as the "good character alone" charge.
charge. The PCR court initially found Pantovich failed to prove prejudice because
he alleged no irregularity in the court of appeals' Anders procedure. We reversed,
finding that to demonstrate prejudice "the applicant must show . . . but for appellate
counsel's errors, the result of the appeal would have been different." Pantovich v.
State, Op. No. 2015-MO-052 (S.C. Sup. Ct. filed Aug. 26, 2015).

       On remand, the PCR court found appellate counsel ineffective and granted
Pantovich a new trial. The court found that, because Pantovich presented evidence
of his good character, controlling precedent required the trial court to give the "good
character alone" charge to the jury. The PCR court determined the error prejudiced
Pantovich because there was a reasonable probability the charge would have
impacted the jury's consideration of whether he was without fault in bringing on the
difficulty and rejected the State's arguments regarding harmless error. We granted
the State's petition for a writ of certiorari.

                            STANDARD OF REVIEW
      This Court affords deference to a PCR court's findings of fact, but reviews
questions of law de novo. Smalls v. State, 422 S.C. 174, 180, 810 S.E.2d 836, 839
(2018). We will reverse if the PCR court's ruling is controlled by an error of law.
Jordan v. State, 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013).

       To prove appellate counsel was ineffective, a petitioner must first show
counsel's performance was deficient, meaning it fell below an objective standard of
reasonableness. See Strickland v. Washington, 466 U.S. 668, 688 (1984). The
petitioner must then show prejudice by demonstrating that, but for counsel's
deficient performance, there is a reasonable probability the result of the appeal
would have been different. Id. at 694. A Strickland inquiry is retrospective, seeking
to determine whether counsel was ineffective at the time of the alleged error. Id. at
689.

                                   DISCUSSION
       Pantovich argues the PCR court's decision should be affirmed because the trial
court was and is required to give the charge he requested when a defendant presents
evidence of his good character. The State argues the "good character alone" charge
is an unconstitutional comment on the facts, the charge given adequately covered
the law, and any error was harmless.

      The law in effect during the relevant time period—2011 and a short time
thereafter—supported the PCR court's decision. In State v. Green, 278 S.C. 239,
294 S.E.2d 335 (1982), we stated, "[g]enerally, where requested and there is
evidence of good character, a defendant is entitled to an instruction to the effect that
evidence of good character and good reputation may in and of itself create a doubt
as to guilt . . . ." 278 S.C. at 240, 294 S.E.2d at 335 (citing State v. Lyles, 210 S.C.
87, 92, 41 S.E.2d 625, 627 (1947)). In State v. Lee-Grigg, 387 S.C. 310, 692 S.E.2d
895 (2010), we cited Green and reversed the defendant's conviction, stating "the trial
court erred when it refused to give such a charge." 387 S.C. at 317, 692 S.E.2d at
898. The court of appeals had also reversed a defendant's conviction based on the
trial court's refusal to charge the jury that "evidence of good character . . . may in
and of itself create a doubt as to the guilt that should be considered by you . . . ."
State v. Harrison, 343 S.C. 165, 170, 539 S.E.2d 71, 73 (Ct. App. 2000).

       The modern trend, however, has cast doubt upon the validity of charges
instructing juries on how to interpret and use evidence. See State v. Belcher, 385
S.C. 597, 600, 685 S.E.2d 802, 803 (2009) (placing significant restrictions on "the
[longstanding] practice for trial courts in South Carolina . . . to charge juries in any
murder prosecution that the jury may infer malice from the use of a deadly weapon").
Since Belcher, we have found error in charging the jury that "actual knowledge of
the presence of drugs is strong evidence of intent to control its disposition or use"
because doing so "is improper as an expression of the judge's view of the weight of
certain evidence," State v. Cheeks, 401 S.C. 322, 328-29, 737 S.E.2d 480, 484
(2013); we have eliminated charging the jury that a sexual assault victim's testimony
need not be corroborated, State v. Stukes, 416 S.C. 493, 499-500, 787 S.E.2d 480,
483 (2016); we have held "the trial court shall not provide a limiting instruction or
otherwise comment to the jury" on how it should interpret and use evidence of a
defendant's suicide attempt, State v. Cartwright, 425 S.C. 81, 93, 819 S.E.2d 756,
762 (2018); and we have extended Belcher to eliminate from all trials any charge
that the jury may infer malice from the use of a deadly weapon, State v. Burdette,
Op. No. 27910 (S.C. Sup. Ct. filed July 31, 2019) (Shearouse Adv. Sh. No. 31 at 8).

       The State asks us to hold the "good character alone" charge is similarly
impermissible because it is an unconstitutional comment on the facts. While we
agree that this charge is improper, we do not reverse given this case's procedural
posture. Fundamentally, a collateral review proceeding is ill-suited for announcing
a new rule of substantive law pertaining to an underlying trial; appellate courts are
to do so only in the rarest of circumstances.2 This is especially true in a retrospective


2
 See Teague v. Lane, 489 U.S. 288, 316 (1989) ("[H]abeas corpus cannot be used
as a vehicle to create new constitutional rules of criminal procedure unless those
PCR analysis under Strickland, which seeks to determine whether counsel was
ineffective at the time of the alleged error. Just as we do not require attorneys to be
clairvoyant in anticipating changes to the law,3 we do not hold the PCR court erred
in the face of what was—at the relevant time—clear and binding authority as
expressed in Lee-Grigg and Green: a jury instruction on good character was
warranted when a defendant introduced evidence thereof at trial. We cannot expect
our circuit courts to divine future refinements in appellate jurisdiction—only to
apply the prevailing law to the facts of a case before them.

       The dissent contends, however, that the real inquiry is prejudice. We agree
that there has been a trend to prohibit jury charges instructing juries on how to
interpret and use evidence, beginning with Belcher in 2009 and developing in
Cheeks, Stukes, and Cartwright. However, the overwhelming weight of the
precedent facing the appellate court on this issue in 2011 provided that failure to
give the "good character alone" charge was reversible error. We do not agree with
the dissent's conclusion that Pantovich fails to show prejudice because the appellate
court would have extended the Belcher principle to good character charges at that
time, especially given that this Court had upheld the precise charge just one year
earlier in Lee-Grigg—a post-Belcher decision. Likewise, we are unable to presume
that a hypothetically-granted petition for certiorari in 2013 would have resulted in
the opinion envisioned by the dissent, as the "trend" at that time consisted of Belcher,
a contrary decision in an on-point case in Lee-Grigg, and Cheeks.

       The dissent posits that affirmance produces a strange result: we are granting
Pantovich relief, yet for all intents and purposes, the "good character alone" charge
is dead in South Carolina. However, this ignores that the State actually agreed to a
general charge on good character. While trial counsel requested the now-
problematic "good character alone" charge, the State suggested a "more balanced
charge" that would allow the jury to consider whether evidence constituted good
character. Despite the State's acquiescence, the trial court did not mention good
character at all in its charge, which would have made appellate counsel's chances of
success on this issue even more probable. On remand, we believe Pantovich is
entitled to a non-offending good character charge—for example, the first two
paragraphs of the one he originally requested—if he introduces the requisite

rules would be applied retroactively to all defendants on collateral review . . . .")
(emphasis in original).
3
    Teamer v. State, 416 S.C. 171, 183, 786 S.E.2d 109, 115 (2016).
evidence. See United States v. Akinsanya, 53 F.3d 852, 856 (7th Cir. 1995) (holding
that, instead of a requested "good character alone" charge, the trial court properly
instructed the jury: "The defendant has introduced evidence of his character. More
specifically, the defendant has introduced reputation and/or opinion evidence about
his truthfulness, honesty and law-abidingness. You should consider character
evidence with and in the same manner as all the other evidence in the case.").

        Finally, we disagree with the State's contentions regarding the adequacy of
the charge given and harmless error. The instruction included nothing regarding
good character, despite the "good character alone" charge being warranted at the
time of trial when a defendant produced such evidence. As to harmlessness, we
agree with the PCR court that there was a reasonable probability of success on appeal
because the jury could have considered evidence of Pantovich's peaceable character
in deciding whether he brought on the difficulty of the incident. While the State
argues a good character charge is inappropriate where a defendant admits to having
killed a victim, if the defendant was acting in self-defense—and therefore, legally
justified in his actions—we fail to see how a jury should be precluded from
information that they can consider such evidence in deciding whether he did.

                                 CONCLUSION
      Viewing the propriety of the PCR court's decision based on the state of the
law during the relevant timeframe—not as it has evolved today—we AFFIRM.

AFFIRMED

BEATTY, C.J., KITTREDGE, J., and Acting Justice Aphrodite K. Konduros,
concur. FEW, J., dissenting in a separate opinion.
JUSTICE FEW: I wholeheartedly agree with the majority's holding the "good
character evidence alone" charge is improper and must never be given. I join
the majority's directive that this charge must not be given in South Carolina
courts in the future.
I disagree with the majority on two points. My disagreement would require us
to reverse the PCR court, and thus I dissent. First, I would not remand for a
new trial in which Pantovich will not get the good character evidence alone
charge, the denial of which was the sole basis of the PCR court's decision. The
majority makes a compelling argument the PCR court was correct under our
precedent at the time the decision was made. However, it is my belief that if a
direct appeal on the validity of the "good character evidence alone" charge had
progressed to this Court on a petition for certiorari from the State, the case
would have come to this Court during the timeframe in which the "trend" the
majority acknowledges was in full swing. In my opinion, even if the court of
appeals had reversed the conviction as the PCR court found reasonably likely,
this Court would not have allowed that ruling to stand. I also believe
remanding for a new trial—under the circumstance that Pantovich will not get
on remand the charge for which he gets the remand—is, as the majority
understates, "a strange result." For these two reasons, I would hold Pantovich
suffered no prejudice.
Second, I do not believe a trial judge should give any guidance to a jury on
how to use evidence of good character. Rather, I would hold that trial lawyers
should be given the sole authority to suggest to the jury how the jury should
use the evidence. I disagree with the majority's statement, "Pantovich is
entitled to a non-offending good character charge—for example, the first two
paragraphs of the one he originally requested." In my opinion, the trial judge
correctly refused to give any of the charge Pantovich requested.
Pantovich received a fair trial, and even though the majority disagrees with me
on the question of whether the trial court should give any guidance on how a
jury should use evidence of good character, I would find Pantovich suffered no
prejudice.
To the majority's explanation that the "good character evidence alone" charge
is improper, I respectfully add these thoughts:
In State v. Green, 278 S.C. 239, 294 S.E.2d 335 (1982), we stated, "Generally,
where requested and there is evidence of good character, a defendant is entitled
to an instruction to the effect that evidence of good character and good
reputation may in and of itself create a doubt as to guilt . . . ." 278 S.C. at 240,
294 S.E.2d at 335 (citing State v. Lyles, 210 S.C. 87, 92, 41 S.E.2d 625, 627
(1947)). We affirmed the defendant's conviction, however, because we found
"the error, if any," was harmless. 278 S.C. at 240, 294 S.E.2d at 335. In State
v. Lee-Grigg, 387 S.C. 310, 692 S.E.2d 895 (2010), we quoted the statement
from Green and reversed the defendant's conviction, stating "the trial court
erred when it refused to give such a charge." 387 S.C. at 317, 692 S.E.2d at
898. The court of appeals has also reversed a defendant's conviction based on
the trial court's refusal to charge the jury that "evidence of good character . . .
may in and of itself create a doubt as to the guilt that should be considered by
you." State v. Harrison, 343 S.C. 165, 170, 539 S.E.2d 71, 73 (Ct. App. 2000).
On the face of these cases, it appears the trial court erred in this case by refusing
Pantovich's requested charge, and therefore, appellate counsel's failure to brief
the issue was prejudicial and deficient performance. However, upon closer
examination of these cases and the line of decisions upon which they are based,
I would conclude our statement in Green was not then and is not now a correct
statement of law. In light of that conclusion, I would find Pantovich failed to
prove prejudice, and the PCR court erred by granting him a new trial. See
Garren v. State, 423 S.C. 1, 12, 813 S.E.2d 704, 710 (2018) (to obtain PCR,
the applicant must prove counsel's performance was deficient, and the deficient
performance prejudiced him) (citing Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).
The applicable line of decisions begins in 1886 with State v. Barth, 25 S.C.
175 (1886). In Barth, the trial court charged the jury that character evidence
is useful "only in doubtful cases." 25 S.C. at 177. We held "it was misleading
and erroneous to charge the jury . . . 'the law . . . limit[s] the effect of good
character to doubtful cases.'" 25 S.C. at 181. We stated,
             it is the privilege of the accused, in all cases where
             character is admissible, to put in evidence his good
             character without regard to the other proofs in the case,
             and it is for the jury to consider it in connection with
            the other evidence, and determine what force and
            effect it should have.
25 S.C. at 177. Barth sets forth the rule that trial courts may not charge the
jury in such a way as to limit the jury's interpretation or use of evidence of the
defendant's good character. We made no suggestion in Barth the trial court
should charge the jury that it may use "good character evidence alone" as a
basis for finding reasonable doubt.
In 1924 in State v. Hill, 129 S.C. 166, 123 S.E. 817 (1924), the defendant
appealed his conviction on the ground the trial court improperly charged the
jury to limit its use of evidence of his good character. 129 S.C. at 170, 123
S.E. at 818. We found the charge did not impose such a limit. We stated,
            Evidence of the defendant's good reputation for peace
            and good order is strongly persuasive of his good
            character in that respect, and is offered for the very
            purpose stated by the Circuit Judge, to show the
            improbability that the defendant would have
            committed or did commit the crime charged.
Id. (citing 30 C.J. 170). We did not hold, however, this language should be
charged to the jury. There is certainly no support in Hill for the trial court to
charge the jury "good character evidence alone" may give rise to reasonable
doubt.
In 1947 in Lyles, relying on Barth and Hill, we addressed the defendant's claim
the trial court should have explained to the jury it may consider evidence of his
good character. We stated,
            There can be no doubt of the right of appellant to put
            in evidence his good character and it was "for the jury
            to consider it in connection with the other evidence,
            and determine what force and effect it should have."
            The good reputation of the accused, if proved, may be
            taken into consideration by the jury in determining
            whether or not he committed the crime charged.
Lyles, 210 S.C. at 92, 41 S.E.2d at 627 (first quoting Barth, 25 S.C. at 177;
then citing Hill, 129 S.C. at 170, 123 S.E. at 818). Under Lyles—if it were not
clear from Barth and Hill—it is clear a jury may consider evidence of a
defendant's good character in all cases, not just "doubtful cases." However,
there is nothing in Lyles suggesting this language should be charged to the jury.
Certainly Lyles gives no support for a jury charge that "good character
evidence alone" may give rise to reasonable doubt.
Nevertheless, in Green in 1982, relying on Lyles, this Court made the statement
that "a defendant is entitled to an instruction to the effect that evidence of good
character and good reputation may in and of itself create a doubt." 278 S.C. at
240, 294 S.E.2d at 335. We did not reverse the conviction, however, finding
"the error, if any, could not reasonably have affected the result and is properly
regarded as harmless." 278 S.C. at 240, 294 S.E.2d at 335.
The first time any South Carolina court reversed a conviction on the basis of
the trial court's refusal to give the "good character evidence alone" charge was
the court of appeals' decision in Harrison in 2000. In Harrison, the defendant
was convicted of simple possession of cocaine. 343 S.C. at 167, 539 S.E.2d at
72. Defense counsel "argu[ed] the court failed to issue a requested charge that
evidence of good character and good reputation may in and of itself create a
doubt as to the defendant's guilt." 343 S.C. at 169, 539 S.E.2d at 73. The court
of appeals analyzed the same line of cases we discussed above—from Barth to
Hill to Lyles to Green—343 S.C. at 170-73, 539 S.E.2d at 73-75, and held
"[t]he trial court erred in failing to give the requested charge." 343 S.C. at 173,
539 S.E.2d at 75.
In Lee-Grigg, this Court also found "the trial court erred when it refused to
give such a charge," and affirmed the court of appeals' decision to grant the
defendant a new trial. 387 S.C. at 317, 692 S.E.2d at 898.
In this case, our prejudice analysis should focus on whether Pantovich has
proven that but for appellate counsel's deficiency, "the result of [his] appeal
would have been different." Ezell v. State, 345 S.C. 312, 314, 548 S.E.2d 852,
853 (2001). This requires us to reconsider whether the "good character
evidence alone" portion of the requested charge should ever be given to the
jury. See State v. Marin, 404 S.C. 615, 620, 745 S.E.2d 148, 151 (Ct. App.
2013) ("[T]here is no error of law in refusing to give a specific request to
charge where . . . the charge requested is an incorrect statement of law . . . ."),
aff'd as modified on other grounds, 415 S.C. 475, 783 S.E.2d 808 (2016).
To begin this reconsideration, there is no underlying constitutional or statutory
principle of law that requires the "good character evidence alone" charge.
Other than the decisions discussed above, there is no basis in law for charging
a jury that "good character evidence alone" may form the basis for reasonable
doubt. If anything, charges like this—instructing juries on how to interpret and
use facts—run afoul of our constitutional prohibition against circuit courts
charging juries on the facts. "Judges shall not charge juries in respect to
matters of fact, but shall declare the law." S.C. CONST. art. V, § 21.
There are, of course, many jury charges that are valid—despite no
constitutional or statutory basis—because they are based on a sound
interpretation of applicable case law. However, as demonstrated in the
discussion above, the "good character evidence alone" jury charge requested
in this case is actually based on a misinterpretation of law. Neither Barth, Hill,
nor Lyles say anything about giving such a charge to the jury. Nevertheless, in
Green, this Court mistakenly relied on Lyles, which in turn relied on Barth and
Hill, in making the statement "evidence of good character . . . may in and of
itself create a doubt" must be charged. 278 S.C. at 240, 294 S.E.2d at 335.
The court of appeals then misinterpreted all of the cases when it reversed the
defendant's conviction in Harrison. 343 S.C. at 173, 539 S.E.2d at 75. By the
time this Court decided Lee-Grigg, our misstatement in Green had been
repeated so many times we apparently accepted it without a meaningful
inquiry. Cf. State v. Rayfield, 369 S.C. 106, 119, 631 S.E.2d 244, 251 (2006)
(Pleicones, J., dissenting in part) ("Some principles of law, however, are not to
be charged to a jury."), majority opinion overruled by State v. Stukes, 416 S.C.
493, 499, 787 S.E.2d 480, 483 (2016) (holding the jury charge then Associate
Justice Pleicones objected to being given should no longer be given because
"it is not within the province of the court to express an opinion to the jury on
its view of the facts"); see also State v. Grant, 275 S.C. 404, 407, 272 S.E.2d
169, 171 (1980) ("The impression is sometimes gained that any language from
an appellate court opinion is appropriate for a charge to any jury, but this is not
always true.").
The "good character evidence alone" charge has been addressed in other states
and in federal courts. Many of these courts once required the charge to be
given, relying on an 1896 opinion from the Supreme Court of the United States,
Edgington v. United States, 164 U.S. 361, 17 S. Ct. 72, 41 L. Ed. 467 (1896),
and other nineteenth century state cases.4 In Edgington, as in Barth, the
defendant challenged the trial court's limitation on the jury's use of evidence of
the defendant's good character. 164 U.S. at 365, 17 S. Ct. at 73, 41 L. Ed. at
471. The trial court charged, "If your mind hesitates on any point as to the
guilt of this defendant, then you have the right and should consider the
testimony given as to his good character." 164 U.S. at 364-65, 17 S. Ct. at 73,
41 L. Ed. at 471. Counsel objected, "We except to that part of the charge in
stating the effect of good character, the defendant claiming that it should not
be forced only in doubtful cases." 164 U.S. at 365, 17 S. Ct. at 73, 41 L. Ed.
at 471. Like this Court did in Barth ten years earlier, the Supreme Court of the
United States found it was error to limit the jury's consideration of evidence of
the defendant's good character. The Supreme Court stated,
             Whatever may have been said in some of the earlier
             cases, to the effect that evidence of the good character
             of the defendant is not to be considered unless the
             other evidence leaves the mind in doubt, the decided
             weight of authority now is that good character, when
             considered in connection with the other evidence in
             the case, may generate a reasonable doubt.
164 U.S. at 366, 17 S. Ct. at 73-74, 41 L. Ed. at 471. The Supreme Court was
not saying, however, this should be charged to the jury. Rather, the Court was
saying—as we said in Barth—the trial court should not restrict the jury's use
of evidence of the defendant's good character to "doubtful cases." See Barth,
25 S.C. at 181; see also United States v. Burke, 781 F.2d 1234, 1240 (7th Cir.
4
  See, e.g., Jupitz v. People, 34 Ill. 516, 521 (1864) (holding that "in all criminal
cases whether the case is doubtful or not, evidence of good character is admissible
on the part of the prisoner"); People v. Garbutt, 17 Mich. 9, 24, 27 (1868) (finding
the trial court's limitation on the jury's use of evidence of the defendant's good
character was error because it "surround[ed] the jury with arbitrary rules as to the
weight they shall allow to evidence which has properly been placed before them").
1985) ("The [Edgington] Court was trying to put an end to instructions that had
disfavored character evidence by telling the jury not to consider the evidence
unless it first found the case close.").
To this day, some courts hold the "good character evidence alone" charge must
be given if requested and supported by the evidence. See, e.g., State v. Hobbs,
705 S.E.2d 147, 149 (Ga. 2010) (relying on a line of decisions traceable to
Jupitz, and holding a trial court must "explain how good character evidence
could generate reasonable doubt sufficient to acquit"); People v. Lyles, 905
N.W.2d 199, 204 (Mich. 2017) (relying on a standard jury instruction derived
from Garbutt, and finding the trial court erred in not charging, "Evidence of
good character alone may sometimes create a reasonable doubt").
Respectfully, those decisions are based on a misinterpretation of nineteenth
century cases—like Edgington and Barth—that were intended to prohibit trial
courts from limiting the jury's use of evidence of good character, not to enable
the jury to find reasonable doubt based on "good character evidence alone."
In Burke, the Seventh Circuit reconsidered what it conceded was its
misinterpretation of Edgington, and eliminated the requirement of the "good
character evidence alone" jury charge, overruling United States v. Donnelly,
179 F.2d 227 (7th Cir. 1950). The Burke court's explanation of how the
Donnelly court misinterpreted Edgington is particularly useful in explaining
that the "good character evidence alone" charge must not be given. Referring
to the Edgington Court's statement, "The circumstances may be such that an
established reputation for good character . . . would alone create a reasonable
doubt,"5 781 F.2d at 1240, the Burke court stated,
               It is a mistake to lift language out of a passage such as
               this and insert it in a jury instruction. Language in
               judicial opinions is not meant to be given undigested
               to a jury. Legal terms are hard enough for lawyers to
               understand; ripped from their context and presented to
               lay deciders, passages from opinions may do nothing
               but confound. It is always necessary for the judge to
               put the thought in language that those who see the
5
    Edgington, 164 U.S. at 366, 17 S. Ct. at 74, 41 L. Ed. at 471.
            inside of a court only once in a lifetime can
            understand.
781 F.2d at 1240. The court continued,
            Edgington did not suggest that the instruction should
            say that character evidence be considered in a special
            way by the jury; to the contrary it quoted at length
            from and cited cases holding that character evidence
            should simply be considered with other evidence.
            Edgington told the federal courts to eliminate
            differences in the treatment of character and other
            evidence, not to create new differences.
781 F.2d at 1241. The Seventh Circuit went on to explain that every federal
circuit has repudiated the "good character evidence alone" charge, stating,
"Every other court of appeals that has spoken on the question has concluded
that such an instruction gives undue weight to character evidence. . . . Today
we join the other courts of appeals. We overrule Donnelly and affirm the
conviction." 781 F.2d at 1237; see also 781 F.2d at 1241 n.3 ("collect[ing]
illustrative cases [from every circuit] in a note").
In Barth, Hill, and Lyles, we clarified the jury must consider evidence of a
defendant's good character in all cases, not just those where the State's proof is
otherwise "doubtful." The clear consequence of these holdings is that—in
some cases—evidence of a defendant's good character alone may legitimately
cause the jury to find reasonable doubt and acquit. It is correct under the law,
therefore, that good character evidence alone may give rise to reasonable
doubt. However, the mere fact a statement is correct under the law does not
require it to be charged to the jury. This statement is applicable to this case
because it addresses a point of fact. The applicable principle of law is simply
that the jury must consider all the evidence in all cases. It is up to the trial
lawyer—not the trial court—to address the point of fact: whether good
character evidence alone gives rise to reasonable doubt in any given case. See
Marin, 404 S.C. at 623, 745 S.E.2d at 153 ("The role of the trial court is to
charge the jury correctly based on the evidence presented at trial. The lawyers
bear the responsibility to argue how a point of law affects the jury's
interpretation of the evidence." (citation omitted)).
As the majority explains, this Court began in 2009 what has become a clear
trend to forbid jury charges that instruct juries on how to interpret and use
evidence. I am pleased we now extend that trend to evidence of a defendant's
good character, and I join the majority's prohibition that trial courts must not
charge the jury that "good character evidence alone" may give rise to
reasonable doubt.
