          THE STATE OF SOUTH CAROLINA 

               In The Supreme Court 


Kenneth Simmons, Petitioner,

v. 


State of South Carolina, Respondent. 


Appellate Case No. 2014-000387 



               ON WRIT OF CERTIORARI



              Appeal from Dorchester County
       Doyet A. Early, III, Post-Conviction Relief Judge


                    Opinion No. 27641 

          Heard March 2, 2016 – Filed June 8, 2016 



         VACATED IN PART AND REMANDED 



Emily C. Paavola, of Justice 360, of Columbia, for
Petitioner.

Attorney General Alan M. Wilson, Deputy Attorney
General John W. McIntosh, Senior Assistant Deputy
Attorney General Donald J. Zelenka, and Senior
Assistant Attorney General Melody J. Brown, all of
Columbia, for Respondent.

Joseph M. McCulloch, Jr., of Columbia, Lori R. Mason,
of Cooley LLP, of Palo Alto, California, Adam S.
             Gerhenson, of Cooley LLP, of Boston, Massachusetts
             and Jennifer Pavane Kenter, of Cooley LLP, of New
             York, New York, for Amicus Curiae The Innocence
             Network. Daniel J. Westbook, of Nelson Mullins Riley
             & Scarborough, of Columbia, Vilia B. Hayes, Charles W.
             Cohen and Casey S. Duffy, all of Hughes Hubbard &
             Reed, LLP, of New York, New York, for Amici Curiae
             ARC of South Carolina, Able SC, SCAAIDD, Protection
             and Advocacy for People With Disabilities, Inc. and
             Family Connection of South Carolina.



JUSTICE KITTREDGE: Petitioner Kenneth Simmons was convicted and
sentenced for the 1996 murder and criminal sexual assault of an 89-year-old
Summerville woman. Petitioner sought post-conviction relief (PCR), which was
granted in part. Because Petitioner is intellectually disabled, the PCR court
vacated Petitioner's death sentence and imposed a sentence of life without parole, a
matter which is not before us. See Atkins v. Virginia, 536 U.S. 304, 321 (2002)
(holding that the Eighth Amendment prohibits the execution of mentally retarded
individuals (citation omitted)). Petitioner additionally sought a new trial on newly
discovered evidence and due process grounds, which the PCR court denied without
discussion. The essence of Petitioner's new-trial claims centers on the allegation
that the State misrepresented at trial the strength of the DNA1 evidence linking
Petitioner to the crimes. The State urges this Court to not reach the merits of
Petitioner's certiorari petition on issue-preservation grounds. Alternatively, the
State recommends the case be remanded to the PCR court for the issuance of a
proper order setting forth findings of fact and conclusions of law. We conclude the
compelling nature of the dispute and the interests of justice warrant the
"extraordinary action" of remanding the case to the PCR court for issuance of a



1
 DNA is the commonly used abbreviation for deoxyribonucleic acid, "the long,
double-strand molecule found in the chromosomes carried in cell nuclei" that
"contains the genetic blueprint for all living organisms." State v. Dinkins, 319 S.C.
415, 417, 462 S.E.2d 59, 60 (1995).
proper order. See Pruitt v. State, 310 S.C. 254, 255 & n.2, 423 S.E.2d 127, 128 &
n.2 (1992) (citations omitted). We commend the State for its alternative
suggestion.

                                          I.

This was a brutal and horrific murder, a fact that does not escape us. From the
beginning, the State relied heavily on the supposed match between Simmons's
DNA and DNA found in semen at the crime scene. As the Solicitor told the jury
during opening statements, the State's evidence against Simmons consisted solely
of statements Simmons made to police and DNA analysis. Regarding the DNA
evidence, the Solicitor told the jury the State would present the testimony of
forensic analysts "that nine out of nine of the locations on DNA molecules that
they compared with the semen in that vaginal swab [taken from the victim]
matched the DNA from Kenneth Simmons'[s] blood."

As the South Carolina Law Enforcement Division (SLED) lacked the ability at the
time to perform the necessary forensic analysis, the State sent the DNA samples to
Lifecodes Corporation (Lifecodes), a private laboratory in Stamford, Connecticut.
There, forensic analysis was performed by Lauren Crane and Dr. Michael Baird.2

2
  We note that Lifecodes and its findings, including Dr. Baird's statistical analysis
based on those findings, have been the subject of considerable litigation in
numerous jurisdictions. See, e.g., Harvey v. State, No. A-7963, 2004 WL 60771, at
*8–11 (Alaska Ct. App. Jan. 14, 2004) (discussing experts who were critical of Dr.
Baird's testimony regarding the statistical significance of DNA test results and
noting that Dr. Baird and Lifecodes "were connected to controversial DNA
testimony that prompted a National Research Council study of DNA evidence—a
study that was critical of certain DNA testing, and that cautioned prosecutors and
defense attorneys against 'over-sell[ing] DNA evidence' or arguing 'that DNA-
typing is infallible'" (alteration in original)); Caldwell v. State, 393 S.E.2d 436,
443–44 (Ga. 1990) (crediting the uncontroverted testimony of a defense expert that
"seriously call[ed] into question Lifecodes'[s] claimed power of identity . . . for the
defendant's DNA identification" because Lifecodes's calculations relied upon
unfounded assumptions); People v. Keene, 591 N.Y.S.2d 733, 741 (Sup. Ct. 1992)
(ruling results from tests performed by Lifecodes to be inadmissible because
"Lifecodes did not substantially perform scientifically accepted tests and
techniques and did not achieve scientifically reliable results"); People v. Castro,
To aid their testimony, the Solicitor displayed a chart he prepared based on his
review of the documentation submitted by Lifecodes, which purported to compare
the victim's and Simmons's DNA with the crime-scene samples at the nine
locations, or loci, that Lifecodes tested.3

When directly asked if Simmons's DNA matched the perpetrator's DNA at all nine
loci tested, Crane responded, "What we found was a mixture of DNA which we
could not eliminate Kenneth Simmons'[s] blood as being a contributor to."4 While
a correct statement, this failed to inform the jury that she was basing that opinion
on only six of the loci tested. At her PCR deposition, Crane admitted the CTT test
results, which looked at the other three loci, were inconclusive and had no
evidentiary value for identifying Simmons. Nonetheless, Baird used the CTT test
results at trial to create a "combined frequency of occurrence" for the genetic
profile developed from the crime scene samples. Dr. Baird thus told the jury that
based on the "nine different genetic tests done in this case," Simmons's genetic
profile, which was found in the samples taken from the victim, occurred in about 1
in 1,280,249,916 white individuals and 1 in approximately 8,000,000 black
individuals.




545 N.Y.S.2d 985, 996–99 & n.15 (Sup. Ct. 1989) (finding the results of DNA
testing performed by Lifecodes to be inadmissible because Lifecodes "failed in its
responsibility to perform the accepted scientific techniques and experiments in
several major respects" and noting that "the population frequencies reported by
Lifecodes in this case are not generally accepted by the scientific community").
3
  The first six loci (LDLR, GYPA, HBGG, D7S8, GC, and HLADOA1) were
analyzed using what is known as a DQ Alpha/Polymarker (DQA/PM) test. The
final three loci (CSF1PO, TPOX, and THO1) were analyzed using what is called a
CTT test.
4
 Crane's trial testimony referenced the chart, even though at the time Crane said
she had "not recently" seen it. During her deposition for these PCR proceedings,
Crane said she had never seen the chart before the trial and admitted testifying off
of it based on the assumption it was correct. It is now conceded that the chart
contained false information.
Then, during its closing argument, the State essentially told the jury it was
impossible for the DNA to have come from anyone other than Simmons: the State
emphasized the supposed nine-for-nine match between Simmons's DNA and the
samples recovered from the victim and noted the frequency of occurrence of
Simmons's genetic profile in the black community was 1 in 8,029,316.

The jury found Simmons guilty on all charges. This Court affirmed Simmons's
murder conviction and death sentence on direct appeal. State v. Simmons, 360 S.C.
33, 36–37, 46, 599 S.E.2d 448, 449, 454 (2004).

                                          II.

Simmons filed an application for PCR on multiple grounds, including an
ineffective assistance of counsel claim related to his trial counsel's failure to
adequately challenge the State's DNA evidence and a claim he was ineligible for
the death penalty because he is "mentally retarded."5 Simmons later amended his
application for PCR, expanding on his ineffective assistance of counsel claim and
adding a newly discovered evidence claim,6 as well as a claim that the State
violated his due process rights by presenting false evidence to the jury and failing
to disclose exculpatory evidence.

The PCR court held multiple hearings. During the course of the PCR proceedings,
it became apparent that the DNA evidence against Simmons was far weaker than
the State had claimed at trial. Simmons presented numerous witnesses to testify to
problems in the State's presentation of the DNA evidence and provided the PCR
court with reports and affidavits from other experts. These experts were consistent

5
 In Atkins, the United State Supreme Court held that the Eighth Amendment
prohibits the execution of mentally retarded individuals. In Franklin v. Maynard,
we held that prisoners sentenced to death pre-Atkins could seek to have their
sentences vacated in PCR proceedings. 356 S.C. 276, 280, 588 S.E.2d 604, 606
(2003). The General Assembly has since replaced the terms "mental retardation"
and "mentally retarded" with "intellectual disability" and "person with intellectual
disability." See Act No. 47, 2011 S.C. Acts 172 (codified as amended in scattered
sections of titles 43–44 of the South Carolina Code).
6
    See S.C. Code Ann. § 17-27-20(A)(4) (2014).
in their identification of numerous problems with the way the State presented the
DNA evidence at Simmons's trial. For example, the affidavit of two of those
experts, Dr. Charlotte Word and Dr. Robin Cotton, identified four "critical
problems": (1) "The chart used to assist with both Dr. Baird's and Ms. Crane's trial
testimony contains data that are completely unsupported by the laboratory notes
and results provided."7 (2) "No credible forensic scientist would report the results
from DNA testing" the way Dr. Baird did.8 (3) Lifecodes failed to utilize "a
critical and required control" for DNA tests.9 (4) "[T]he results generated were
inconsistent across the various tests."10

7
  For one of the samples, even though no CTT test was performed, the chart
indicated the test resulted in a match to Simmons's DNA. For another sample, the
chart indicated the test resulted in a match to Simmons's DNA when the test
actually resulted in a match to only the victim's DNA.
8
  In addition to including the CTT test results in his statistical calculations, which
was inappropriate since those tests did not implicate Simmons, Dr. Baird's
testimony as to the statistical frequency of Simmons's genetic profile was
misleading because it ignored the fact that other genetic profiles were equally
consistent with the crime scene samples. Baird used what are known as single-
source statistics to calculate how rare Simmons's genetic profile is, when according
to the record, he should have used what is known as random match probability to
calculate the frequency of the evidence's profile.
9
  Lifecodes failed to use a reagent blank control, which is used to ensure DNA
samples are not contaminated. Now required, reagent blank controls were strongly
recommended at the time Lifecodes tested the samples in this case. According to
Dr. Word, the reagent blank control has "been essentially a mandatory control in
all forensic testing from day one" and "without it we don't know whether results
are reliable or not."
10
  The DQA/PM tests indicated the presence of DNA from at least two individuals,
while the CTT tests indicated the presence of DNA from a single individual (the
victim). Moreover, gender-typing tests performed on some of the samples
indicated only the presence of female DNA. Despite requesting "[a]ll notes,
memoranda[,] or recordings pertaining to the preparation, execution, results[,] and
outcome of any scientific/DNA experiments conducted by SLED or consulting
laboratories, such as Lifecodes," Simmons never became aware of many of these
The PCR court vacated Simmons's death sentence pursuant to Atkins and
summarily denied the remaining claims, including Simmons's challenge to the
DNA evidence, "as without merit."11 Yet Simmons failed to file a Rule 59,
SCRCP motion, as our issue-preservation rules require.

                                        III.

The State first argues that Simmons's claims are procedurally barred because they
were not raised to the PCR court in a motion to reconsider. We note that although
the State is technically correct, we also believe dismissing the writ of certiorari
would be fundamentally contrary to the interests of justice. As discussed below,
our jurisprudence permits a remand under such extraordinary circumstances.

                                          A.

The State, to its credit, does not deny the obvious—that is, the strength of the
State's DNA evidence against Simmons was misrepresented to the jury. We hasten
to add that our careful review of the voluminous record reveals no evidence of
conscious wrongdoing in the prosecution of this case. We are persuaded that the
misleading chart, and the demonstrative use of it by the State, was the result of
faulty information provided by Lifecodes concerning a complex matter.

"[I]t is established that a conviction obtained through use of false evidence, known
to be such by representatives of the State, must fall under the Fourteenth
Amendment. The same result obtains when the State, although not soliciting false
evidence, allows it to go uncorrected when it appears." Napue v. Illinois, 360 U.S.
264, 269 (1959) (citations omitted); see also Riddle v. Ozmint, 369 S.C. 39, 47–48,

errors at trial because, as Dr. Word and Dr. Cotton concluded after reviewing the
documents provided by Lifecodes, "either there are pages of documentation that
were not provided or significant portions of the testing procedures were not
documented in the notes."

11
  The State filed a motion to alter or amend the PCR court's Atkins ruling pursuant
to Rule 59(e), SCRCP, which the PCR court denied. This Court denied the State's
petition for a writ of certiorari on this issue.
631 S.E.2d 70, 75 (2006) ("The failure to correct false evidence is as reprehensible
as its presentation." (citing Washington v. State, 324 S.C. 232, 235, 478 S.E.2d
833, 834–35 (1996))). In addition, "the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). Alternatively, a
prisoner may be entitled to relief when "there exists evidence of material facts, not
previously presented and heard, that requires vacation of the conviction or sentence
in the interest of justice." S.C. Code Ann. § 17-27-20(A)(4) (2014).

                                         B.

In ruling on an application for PCR, "[t]he [PCR] court shall make specific
findings of fact, and state expressly its conclusions of law, relating to each issue
presented." S.C. Code Ann. § 17-27-80 (2014). The PCR court's general denial of
all claims not specifically addressed in the PCR court's order "does not constitute a
sufficient ruling on any issues since it does not set forth specific findings of fact
and conclusions of law." Marlar v. State, 375 S.C. 407, 409, 653 S.E.2d 266, 266
(2007). To preserve issues for appellate review, "after an order is filed, counsel
has an obligation to review the order and file a Rule 59(e), SCRCP[] motion to
alter or amend if the order fails to set forth the findings and the reasons for those
findings as required by [section] 17-27-80 [of the South Carolina Code] and Rule
52(a), SCRCP." Pruitt, 310 S.C. at 256, 423 S.E.2d at 128.

As noted, we believe the State is technically correct regarding issue preservation.
However, as the State acknowledges, this Court has previously remanded cases
such as this to the PCR court for findings of fact. See, e.g., McCullough v. State,
320 S.C. 270, 272, 464 S.E.2d 340, 341 (1995) ("Although the error was not raised
to and ruled on by the PCR judge, we find it necessary to vacate the order and
remand this matter to the circuit court to issue an order addressing its decision to
dismiss [the PCR applicant's] second application as successive."). Our
jurisprudence has referred to a remand under these circumstances as an
"extraordinary action."12 Pruitt, 310 S.C. at 255 n.2, 423 S.E.2d at 128 n.2. A

12
  The Court in Pruitt said it was taking the extraordinary action of remanding the
case to the PCR court "because [the Court's] opinion in McCray[ v. State, 305 S.C.
329, 408 S.E.2d 241 (1991)] is not being followed." Pruitt, 310 S.C. at 255 n.2,
423 S.E.2d at 128 n.2. In McCray, this Court reminded PCR courts that section
remand under these circumstances must, of course, be granted sparingly and be
reserved for the rarest of cases. We believe this is such a case.

Petitioner requests that we proceed and grant relief today in the form of a new trial,
an invitation we decline. We sit today in an appellate capacity and making
findings of fact de novo would be contrary to this appellate setting. See, e.g., In re
Treatment & Care of Luckabaugh, 351 S.C. 122, 131–34, 568 S.E.2d 338, 342–44
(2002) (vacating and remanding a trial court's ruling because that court's order did
not contain factual findings "sufficient to allow this Court, sitting in its appellate
capacity, to ensure the law is faithfully executed below," and refusing to engage in
the speculation that would be required to uphold the trial court's decision (citations
omitted)). Moreover, a preemptive ruling on the merits would be unfair to the
State, which would be deprived of the opportunity to have this matter fully
resolved by a proper order from the PCR court. In this regard, the State correctly
asserts it should not be foreclosed from the panoply of arguments available to it,
especially related to the prejudice prong in the PCR analysis and the strength of
Petitioner's confession to the crimes. In striking this difficult balance, we believe a
remand is in the best interests of justice. And finally, because of the growing
knowledge of science as it relates to DNA, we grant the PCR court discretion to
permit additional evidence.13

                                         IV.

We therefore remand this matter to the PCR court for proceedings consistent with
this opinion.




17-27-80 "requires the PCR court to 'make specific findings of fact, and state
expressly its conclusions of law, relating to each issue presented.'" McCray, 305
S.C. at 330, 408 S.E.2d at 241 (quoting S.C. Code Ann. § 17-27-80).
13
  We grant this discretion to permit additional evidence with some reservation, for
we, like all involved, are aware of the years of litigation in this case. Thus, this
matter should be expedited, regardless of whether the PCR court allows additional
evidence.
VACATED IN PART AND REMANDED. 


PLEICONES, C.J., BEATTY, HEARN and FEW, JJ., concur. 

