        THE STATE OF SOUTH CAROLINA
             In The Supreme Court

Oscar Fortune, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2016-002231



            ON WRIT OF CERTIORARI



            Appeal from Chesterfield County
           John M. Milling, Trial Court Judge
      Paul M. Burch, Post-Conviction Relief Judge


                 Opinion No. 27932
 Submitted October 15, 2019 – Filed December 4, 2019


                      REVERSED


Elizabeth Anne Franklin-Best, Blume Norris & Franklin-
Best LLC, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Senior Assistant
Deputy Attorney General Megan Harrigan Jameson, and
Assistant Attorney General Johnny Ellis James Jr., of
Columbia, for Respondent.
JUSTICE FEW: Among the several blatantly improper comments the prosecutor
made in his closing argument to the jury in Oscar Fortune's murder trial, he claimed,
"My job is to present the truth," and said, "if you look in the . . . Code of Laws . . . [,
I] have to say what the truth is." "On the other hand," the prosecutor told the jury,
"the defense attorneys' jobs are to manipulate the truth. Their job is to shroud the
truth. Their job is [to] confuse jurors. Their job is to do whatever they have to --
without regard for the truth." The prosecutor explained that if he—the prosecutor—
believes "somebody else did the crime," then he must "dismiss it." "And [if] I know
the person has done something that I think the facts show they're guilty of, then I
can't [dismiss] it. I have to go forward with it."

We find the prosecutor's improper remarks violated the defendant's rights under the
Due Process Clause. We reverse the denial of post-conviction relief (PCR), and
remand to the court of general sessions for a new trial.

      I.     Facts and Procedural History

The State charged Oscar Fortune with murder and possession of a weapon during
the commission of a violent crime in connection with a shooting in the parking lot
of the Huddle House in Cheraw, South Carolina, on December 23, 2001. Evidence
presented at trial demonstrated both Fortune and the victim—Anthony Shields—
possessed and fired guns. Fortune claimed Shields shot at him first, and he shot
Shields in self-defense.

Earlier in the evening, Fortune's cousin—Sonta McCall—attended a Christmas party
with her friend Iris Gaston. In the early morning hours after the party ended, McCall
called Fortune—who was at home and in bed—to tell him Shields hit her in the head
with a beer bottle, and Shields' wife struck Gaston across the back with a bar stool,
while they were at the Christmas party. McCall wanted Fortune to help her go to
the police to take out a warrant on Shields. McCall told Fortune she was at the
Huddle House, and Fortune said he would meet her there.

Fortune's girlfriend—Tonette Cash—drove Fortune to the Huddle House. Fortune
testified he saw about eighty to a hundred people when he arrived there. He got out
of Cash's car and spoke with McCall and Gaston. As they were getting ready to
leave, McCall saw Shields pulling into the Huddle House parking lot. McCall
walked to the front of the Huddle House to Shields' vehicle. Fortune got back into
Cash's car and asked her to pull around so he could talk to Shields.
Before getting out of the car the second time, Fortune put Cash's .38 caliber pistol in
his pocket. Fortune testified he took the gun with him for protection because of the
large crowd of people in the parking lot, most of whom he did not know. Fortune
testified that as he approached Shields' vehicle, "[Shields] and [McCall] were
arguing, and I asked him what was up and he just shot." Fortune testified he was
within arm's length of Shields when Shields fired the first shot from the driver's seat
of the vehicle. Fortune testified he fired back, "Because at that time I was in fear for
my life. I mean, he shot. I was in fear for my life at this time."

The jury found Fortune guilty of murder and possession of a weapon during the
commission of a violent crime. The trial court sentenced Fortune to concurrent
prison terms of thirty-seven years for murder and five years for possession of a
weapon during the commission of a violent crime. The court of appeals upheld his
convictions on direct appeal. State v. Fortune, Op. No. 2009-UP-259 (S.C. Ct. App.
filed June 1, 2009).

Fortune filed an application for PCR. Fortune alleged his trial counsel was
ineffective for failing to request a curative instruction and for failing to move for a
mistrial after the assistant solicitor's statements in closing argument. Fortune also
claimed the assistant solicitor's misconduct violated his right to due process and his
right to counsel.

The PCR court denied Fortune relief. Fortune filed a petition for a writ of certiorari
with this Court, which we transferred to the court of appeals pursuant to Rule 243(l),
SCACR. The court of appeals granted Fortune's petition. After briefing, the court
of appeals found the "PCR court failed to address all issues Fortune properly raised"
and did not comply with section 17-27-80 of the South Carolina Code (2014). That
section provides, "The [PCR] court shall make specific findings of fact, and state
expressly its conclusions of law, relating to each issue presented." The court of
appeals remanded the case to the PCR court. Fortune v. State, Op. No. 2016-UP-
102 (S.C. Ct. App. filed Mar. 2, 2016).

On remand, the PCR court again denied Fortune relief, stating, "The solicitor's
remarks, while improper, are not so prejudicial to [Fortune's] substantial rights so as
to deprive him of a fair trial, especially when combined with the accompanying
objections of trial counsel and the curative comments of the trial judge." We granted
Fortune's petition for a writ of certiorari.
      II.    Fifth and Fourteenth Amendments

The Due Process Clauses in both the Fifth and Fourteenth Amendments provide that
no person may be deprived of liberty "without due process of law." U.S. CONST.
amend. V; id. amend. XIV, § 1. To find whether the assistant solicitor's comments
in closing argument violated the defendant's due process rights, we must determine
whether the comments were improper, and if so, whether the improper argument so
unfairly prejudiced the defendant as to deny him a fair trial. See Darden v.
Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144, 157 (1986)
("The relevant question is whether the prosecutors' comments 'so infected the trial
with unfairness as to make the resulting conviction a denial of due process.'"
(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871, 40 L.
Ed. 2d 431, 437 (1974))); United States v. Chorman, 910 F.2d 102, 113 (4th Cir.
1990) (stating "the test for reversible prosecutorial misconduct" in a prosecutor's
closing argument is "the prosecutor's remarks or conduct must in fact have been
improper, and . . . such remarks or conduct must have prejudicially affected the
defendant's substantial rights so as to deprive the defendant of a fair trial" (citation
omitted)). As this Court has stated,

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

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

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

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

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

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

The assistant solicitor continued,

             SOLICITOR: And what that means is that we have
             something in law that [is] called nolle prosse,[1] and [to]
             nolle prosse a person that has been indicted for a crime or

1
  "Nolle prosse" is a shortened version of the archaic Latin term "nolle prosequi." In
plain, modern English, the term means "to have (a case) dismissed." Nolle prosequi,
BLACK'S LAW DICTIONARY (11th ed. 2019). In the era of our legal history when
lawyers and judges used Latin, the term was commonly understood to mean what
the assistant solicitor meant here. See, e.g., State v. Gulden, 13 S.C.L. (2 McCord)
524, 525 (1823) (stating "a nolle prosequi is usually predicated on a [belief] on the
part of the prosecuting officer, that the evidence is insufficient to support the
prosecution"). When the use of the term fell out of favor, it became necessary for
us to define it. See State v. Gaskins, 263 S.C. 343, 347, 210 S.E.2d 590, 592 (1974)
("A Nolle prosequi is a formal entry on the record by the prosecuting officer by
which he declares he will not prosecute the case further.").
             charged with a crime. After further investigation
             somebody else did the crime where you can dismiss it and
             nolle prosse is the notif[ication] in which we dismiss the
             case.

             And [if] I know the person has done something that I think
             the facts show they're guilty of, then I can't nolle prosse it.
             I have to go forward with it. And as I said my job is to
             show the truth. On the other hand, the defense attorneys'
             jobs are to manipulate the truth. Their job is to shroud the
             truth. Their job is [to] confuse jurors. Their job is to do
             whatever they have to -- without regard for the truth -- to
             get a not guilty verdict.

Defense counsel again objected. The trial court ruled, "I don't think that their job is
to defraud the court or the jury and to that extent I sustain the objection."

The PCR court found the remarks were "improper." We find they were absolutely
inexcusable. The assistant solicitor told the jury he has a statutory duty to screen
cases, he suggested he had already determined Fortune was guilty, and he claimed
he would have dismissed the case if he determined otherwise.

Courts have universally condemned comments like this. Over eighty years ago,
addressing prosecutorial misconduct not unlike the assistant solicitor's closing
argument in this case, the Supreme Court of the United States admonished
prosecutors to uphold the integrity of the State in prosecuting crimes.

             The [prosecutor] is the representative not of an ordinary
             party to a controversy, but of a sovereignty whose
             obligation to govern impartially is as compelling as its
             obligation to govern at all; and whose interest, therefore,
             in a criminal prosecution is not that it shall win a case, but
             that justice shall be done. As such, he is in a peculiar and
             very definite sense the servant of the law, the twofold aim
             of which is that guilt shall not escape or innocence suffer.
             He may prosecute with earnestness and vigor—indeed, he
             should do so. But, while he may strike hard blows, he is
             not at liberty to strike foul ones. It is as much his duty to
             refrain from improper methods calculated to produce a
             wrongful conviction as it is to use every legitimate means
             to bring about a just one.

Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321
(1935); see also State v. Northcutt, 372 S.C. 207, 222, 641 S.E.2d 873, 881 (2007)
("Solicitors are bound to rules of fairness in their closing arguments . . . ."); State v.
Linder, 276 S.C. 304, 312, 278 S.E.2d 335, 339 (1981) ("While the solicitor should
prosecute vigorously, his duty is not to convict a defendant but to see justice done."
(citations omitted)).

The Supreme Court has condemned a prosecutor's closing argument in which he
suggests to the jury his "personal impression[]" the defendant is guilty.

             [S]uch comments can convey the impression that evidence
             not presented to the jury, but known to the prosecutor,
             supports the charges against the defendant and can thus
             jeopardize the defendant's right to be tried solely on the
             basis of the evidence presented to the jury; and the
             prosecutor's opinion carries with it the imprimatur of the
             Government and may induce the jury to trust the
             Government's judgment rather than its own view of the
             evidence.

United States v. Young, 470 U.S. 1, 18-19, 105 S. Ct. 1038, 1048, 84 L. Ed. 2d 1,
14-15 (1985).

Courts have also condemned the specific misconduct in this case, when the
prosecutor invokes his duty to dismiss unfounded cases and boasts of his
responsibility to prosecute defendants the prosecutor knows to be guilty. In Devine
v. United States, 403 F.2d 93 (10th Cir. 1968), the prosecutor told the jury in his
closing argument, "If I had any idea that these people were innocent, I would dismiss
this case." 403 F.2d at 96. The Tenth Circuit condemned the misconduct.

             It cannot be doubted that statements expressing an
             advocate's personal belief in the merits of the case are to
             be deplored as constituting conduct beyond the scope of
             legitimate argument. Furthermore, when such statements
             are made by a representative of the Government they
             acquire additional significance because of the position of
             public trust occupied by the speaker.

Id.

In United States v. Garza, 608 F.2d 659 (5th Cir. 1979), "the prosecutor in his closing
argument . . . sought personally . . . to bolster the Government's case by indicating
that it would not have been brought, and he would not personally have participated,
if Garza's guilt had not already been determined." 608 F.2d at 661. The Fifth Circuit
condemned the prosecutor's misconduct.

             It is particularly improper, even pernicious, for the
             prosecutor to seek to invoke his personal status as the
             government's attorney or the sanction of the government
             itself as a basis for conviction of a criminal defendant.

608 F.2d at 663.

Our own Court has condemned this type of misconduct. In State v. Thomas, 287
S.C. 411, 339 S.E.2d 129 (1986), "the solicitor told the jury the case had already
been examined by a magistrate and a grand jury, and a preliminary hearing had been
held." 287 S.C. at 412, 339 S.E.2d at 129. We stated,

             We have repeatedly condemned closing arguments that
             lessen the jury's sense of responsibility by reference to
             preliminary determinations of the facts.
             ...

             These statements to the jury are improper because they
             inject an arbitrary factor into jury deliberations. The
             danger is that a juror might be persuaded to rely on the
             opinion of others instead of exercising his independent
             judgment as to the facts. "Jurors are simply not to consider
             the opinions of neighbors, officials or even other juries."
             We caution solicitors that arguments of this kind can rarely
             be harmless.
287 S.C. at 412-13, 339 S.E.2d at 129 (quoting State v. Smart, 278 S.C. 515, 526,
299 S.E.2d 686, 693 (1982)) (collecting cases).

If the misconduct in Thomas was not identical to the assistant solicitor's misconduct
in this case, the misconduct in State v. Woomer, 277 S.C. 170, 284 S.E.2d 357
(1981), was identical. The solicitor argued,

             You know, the initial burden in this case was not on you
             all. It was on me. I am the only person in the world that
             can decide whether a person is going to be tried . . . . I
             mean I had the same thing you all did. I had to make up
             my mind in regards to this and under the law, if there is
             any question about it, you ask the judge, I have to make
             the first decision as to whether or not a person is going to
             be tried . . . .[2]

277 S.C. at 175, 284 S.E.2d at 359. We condemned the "solicitor's personal opinion
[being] explicitly injected into the jury's deliberations as though it were in itself
evidence." Id.3




2
 Woomer was a death penalty case and the solicitor's improper argument occurred
during the penalty phase. 277 S.C. at 174, 284 S.E.2d at 359.
3
  See also United States v. Smith, 814 F.3d 268, 274-75 (5th Cir. 2016) (finding it
"impermissible" for the prosecutor to state that the government had no incentive to
prosecute Smith unless he were in fact guilty); Cargle v. Mullin, 317 F.3d 1196,
1218 (10th Cir. 2003) (improper for prosecutor to state that the government does not
prosecute innocent people); State v. Duke, 358 So. 2d 293, 294 (La. 1978) (finding
"clearly improper" prosecutor's remarks stating, "my job is to convict people that I
feel are guilty. And that's exactly what I'm doing. I've nol-prossed many, many
cases. I've dismissed cases"); People v. Fuerback, 214 N.E.2d 330, 332 (Ill. App.
Ct. 1966) (finding prejudicial error because the prosecuting attorney, in reply to
defendant's closing argument, stated he would have "nolled" the case if he did not
think the defendant was guilty).
The assistant solicitor in this case also improperly characterized the role of defense
counsel. We find this misconduct is also inexcusable. After claiming his role "to
show the truth," the assistant solicitor told the jury,

             On the other hand the Defense attorneys' jobs are to
             manipulate the truth. Their job is to shroud the truth.
             Their job is [to] confuse jurors. Their job is to do whatever
             they have to -- without regard for the truth -- to get a not
             guilty verdict.

Courts have universally condemned this type of statement by a prosecutor. As the
United States Court of Appeals for the Ninth Circuit has stated,

             [It is not] accurate to state that defense counsel, in general,
             act in underhanded and unethical ways, and absent specific
             evidence in the record, no particular defense counsel can
             be maligned. Even though such prosecutorial expressions
             of belief are only intended ultimately to impute guilt to the
             accused, not only are they invalid for that purpose, they
             also severely damage an accused's opportunity to present
             his case before the jury. It therefore is an impermissible
             strike at the very fundamental due process protections that
             the Fourteenth Amendment has made applicable to ensure
             an inherent fairness in our adversarial system of criminal
             justice. Furthermore, such tactics unquestionably tarnish
             the badge of evenhandedness and fairness that normally
             marks our system of justice and we readily presume
             because the principle is so fundamental that all attorneys
             are cognizant of it. Any abridgment of its sanctity
             therefore seems particularly unacceptable.

Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir. 1983) (per curiam); see also United
States v. Ollivierre, 378 F.3d 412, 420 (4th Cir. 2004) ("emphasiz[ing] the
importance of ensuring that prosecutors refrain from impugning, directly or through
implication, the integrity or institutional role of their brothers and sisters at the bar
who serve as defense lawyers"), opinion vacated on other grounds by 543 U.S. 1112,
125 S. Ct. 1064, 160 L. Ed. 2d 1050 (2005); United States v. Vaccaro, 115 F.3d
1211, 1218 (5th Cir.1997) (finding prosecutor's statement that defense lawyers
"muddle the issues" is "clearly improper"); United States v. Friedman, 909 F.2d 705,
709 (2d Cir. 1990) (improper for prosecutor to argue that defense counsel would
"make any argument he can to get that guy off"); United States v. McLain, 823 F.2d
1457, 1462-63 (11th Cir. 1987) (reversing conviction under plain error standard in
part because prosecutor repeatedly stated that defense counsel "intentionally
misle[d] the jurors and witnesses and . . . [lied] in court"), overruled on other
grounds by United States v. Lane, 474 U.S. 438, 106 S. Ct. 725, 88 L. Ed. 2d 814
(1986).

Our own Court has also condemned similar remarks. See State v. Parker, 391 S.C.
606, 614 n.3, 707 S.E.2d 799, 803 n.3 (2011) ("It is generally improper for the
prosecutor to accuse defense counsel of fabricating a defense or to otherwise
denigrate defense counsel." (citation omitted)).

We next must determine whether the improper argument so unfairly prejudiced the
defendant as to deprive him of a fair trial. Chorman, 910 F.2d at 113; Simmons, 331
S.C. at 338, 503 S.E.2d at 166-67; see also Randall v. State, 356 S.C. 639, 642, 591
S.E.2d 608, 610 (2004) (stating outside the PCR context, "Improper comments do
not require reversal if they are not prejudicial to the defendant"); State v. Durden,
264 S.C. 86, 93, 212 S.E.2d 587, 590-91 (1975) (stating outside the PCR context,
"The test of granting a new trial for alleged improper closing argument of counsel is
whether the defendant was prejudiced to the extent that he was denied a fair trial").

Before we conduct this prejudice analysis, we first address three arguments the State
makes to justify or excuse the assistant solicitor's misconduct. First, the State seeks
to justify the remarks on the ground they were invited by improper closing argument
by the defense attorney. We have reviewed the defense attorney's closing argument,
and we do not find it to be improper. Even if it had been improper, the State's remedy
is not to retaliate, but to object, which the State did not do. See CRIMINAL JUSTICE
STANDARDS FOR THE PROSECUTION FUNCTION 3-6.8(b) (Am. Bar Ass'n 2018) ("If
the prosecutor believes the defense closing argument is or was improper, the
prosecutor should timely object and request relief from the court, rather than respond
with arguments that the prosecutor knows are improper."). In addition, "the idea of
an invited response is used not to excuse improper comments, but to determine their
effect on the trial as a whole." Vaughn v. State, 362 S.C. 163, 169, 607 S.E.2d 72,
75 (2004) (citing Young, 470 U.S. at 11-12, 105 S. Ct. at 1044, 84 L. Ed. 2d at 9-
11). There is no argument a defense attorney could make that could justify the
improper remarks by the assistant solicitor in this case.
Second, the State seeks to excuse the improper remarks on the basis the evidence
against Fortune was overwhelming. There is no dispute Fortune shot and killed
Shields. Fortune testified at trial and admitted he shot Shields multiple times. This
case, however, turned on the question of self-defense. The evidence of who shot
first was hotly disputed. The State pointed to no element of self-defense where it
presented overwhelming evidence the element did not exist. See State v. Williams,
427 S.C. 246, 250, 830 S.E.2d 904, 906 (2019) (stating it is "the State's burden to
persuade the jury beyond a reasonable doubt that at least one element of [self-]
defense does not exist").

The State did present the testimony of a forensic pathologist that one of the gunshots
caused a contact wound, meaning the muzzle of Fortune’s pistol was in contact with
Shields' skin when the pistol was fired. While this and other evidence is strong proof
for the State, we disagree the evidence against Fortune was overwhelming. See
Smalls v. State, 422 S.C. 174, 191, 810 S.E.2d 836, 845 (2018) (stating in the context
of an ineffective assistance claim, "for the evidence to be 'overwhelming' such that
it categorically precludes a finding of prejudice . . . the evidence must include
something conclusive, such as a confession, DNA evidence demonstrating guilt, or
a combination of physical and corroborating evidence so strong that the [second
prong of] Strickland . . . cannot possibly be met." (citing Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984))).

Third, as is almost always the case in PCR cases, Fortune's attorneys at trial, on
direct appeal, and in PCR did not do a perfect job preserving all issues. Nevertheless,
we find Fortune's claim that the assistant solicitor's misconduct violated his due
process rights is squarely before us. Subsection 17-27-20(A) of our Post-Conviction
Procedure Act provides,

             Any person who has been convicted of, or sentenced for,
             a crime and who claims . . . the conviction or the sentence
             was in violation of the Constitution of the United States or
             the Constitution or laws of this State . . . may institute . . .
             a proceeding under this chapter to secure relief.

S.C. Code Ann. § 17-27-20(A) (2014). As we have repeatedly explained, in most
instances, a PCR claim is properly presented as a Sixth Amendment claim for
ineffective assistance of counsel. In Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d
742 (2000), for example, we stated,

             In a direct appeal, the focus generally is upon the propriety
             of rulings made by the circuit court in response to a party's
             motions or objections. In PCR, the focus usually is upon
             alleged errors made by trial or plea counsel. Therefore,
             when asserting the erroneous admission of evidence, a
             violation of a constitutional right, or other errors in a
             proceeding, the applicant generally must frame the issue
             as one of ineffective assistance of counsel.

338 S.C. at 363, 527 S.E.2d at 747; see also Drayton v. Evatt, 312 S.C. 4, 9, 430
S.E.2d 517, 520 (1993) ("Issues that could have been raised at trial or on direct
appeal cannot be asserted in an application for post-conviction relief absent a claim
of ineffective assistance of counsel." (citing Hyman v. State, 278 S.C. 501, 502, 299
S.E.2d 330, 331 (1983))); Hyman, 278 S.C. at 502, 299 S.E.2d at 331 ("The appellant
argues also that sentencing for both crimes violated the prohibition on double
jeopardy. She made no objection on this point at trial and may present it now only
to support a claim of ineffective representation, not as a separate ground for relief.");
Cummings v. State, 274 S.C. 26, 28, 260 S.E.2d 187, 188 (1979) ("At trial,
respondent failed to object to the imposition of the sentence and, therefore, waived
the right to have that sentence reviewed on direct appeal, or to raise such issue on
Post-Conviction absent an allegation of ineffective assistance of counsel.").

Subsection 17-27-20(B) supports the explanation we made in these cases. The
subsection provides, "This remedy is not a substitute for nor does it affect any
remedy incident to the proceedings in the trial court, or of direct review of the
sentence or conviction." S.C. Code Ann. § 17-27-20(B) (2014). In most
circumstances, therefore, to be properly presented in a PCR action, a claim must be
based on ineffective assistance of counsel.

In some circumstances, however, an inmate may present a claim for PCR based on
constitutional violations other than ineffective assistance of counsel. Subsection 17-
27-20(A) specifically provides this, "Any person who has been convicted of . . . a
crime and who claims . . . the conviction . . . was in violation of the Constitution . . .
may institute . . . a proceeding under this chapter to secure relief."
We find this is one of those cases. Fortune's trial counsel made a general objection
to the assistant solicitor's improper comments, and, when the trial court did not
address the full extent of the assistant solicitor's misconduct in its ruling, counsel did
not press the issue. To the extent the trial court ruled, it sustained counsel's
objections. Nothing, therefore, was subject to direct review. To the extent the trial
court did not rule, and counsel did not insist on a more specific ruling, the claim
would be cognizable under the Sixth Amendment for ineffective assistance of
counsel. The full extent and effect of the assistant solicitor's misconduct in this case,
however, is now subject to review only in a claim for a Fifth and Fourteenth
Amendment due process violation. Under these circumstances, we find this is one
of the cases we contemplated in Al-Shabazz and other cases in which a claim not
based on ineffective assistance of counsel is cognizable for PCR.

Turning squarely now to whether the assistant solicitor's misconduct prejudiced
Fortune, we find our discussion so far leaves little need for further analysis. As we
cautioned in State v. Thomas, "arguments of this kind can rarely be harmless." 287
S.C. at 413, 339 S.E.2d at 129. The PCR court, however, focused on "the . . .
objections of trial counsel and the curative comments of the trial judge" in finding
the assistant solicitor's misconduct was not a due process violation. We focus on the
same two points to support our judgment that the assistant solicitor's misconduct was
a due process violation.

First, defense counsel's objections to the improper argument missed the most
important issue. Counsel stated in his first objection, "the jury are the finders of the
truth." The role of the jury, however, was not the issue that arose from the assistant
solicitor's misconduct. Rather, the assistant solicitor's misconduct was to
misrepresent his own role, improperly claiming for himself the responsibility to
decide truth, as though his opinions as to what happened "were in itself evidence."
Woomer, 277 S.C. at 175, 284 S.E.2d at 359. To the extent defense counsel's first
objection had any focus, it focused the trial court away from the misconduct (that
was the issue) to the role of the jury (which was not the issue). In his second
objection, defense counsel said only, "Objection." Counsel failed to bring the trial
court's attention to the fact the assistant solicitor just told the jury he already
reviewed the evidence and would have dismissed the case if he didn't believe Fortune
to be guilty. Our first point in support of our judgment that the assistant solicitor's
remarks denied Fortune a fair trial is that defense counsel's objections almost
completely missed the issue on which he should have focused.
Second, the trial judge's "curative" instruction actually exacerbated the assistant
solicitor's misconduct. The trial court stated, "I think what he was referring to was
there is also an obligation on the Solicitor's Office beyond simply that of
presentation." (emphasis added). The assistant solicitor had just told the jury he had
an obligation "to present the truth," and the trial court responded by telling the jury
yes, in fact, the solicitor does have "an obligation . . . beyond simply that of
presentation." Then, immediately after the trial court's validation of the solicitor's
"obligation" to be truthful, the assistant solicitor proceeded to inform the jury that,
in fulfilling that obligation, if "I know the person has done something that I think the
facts show they're guilty of, then I can't [dismiss the case]. I have to go forward with
it."

Then, when the assistant solicitor represented to the jury that defense lawyers
"manipulate" and "shroud" the truth, and "do whatever they have to -- without regard
for the truth," the trial court stated only, "I don't think that their job is to defraud the
court or the jury." This weak and barely responsive statement served as much to
bless the assistant solicitor's misconduct as it did to correct it. The trial court's
"curative" instruction in this case enhanced—not mitigated—the prejudicial impact
of the assistant solicitor's misconduct.

Whether this assistant solicitor's closing argument was improper—in light of the
long history of courts condemning the same misconduct—is an easy question. The
PCR court found it was improper, and we wholeheartedly agree. Whether the
assistant solicitor's misconduct violated Fortune's due process rights is a tougher
judgment call. In State v. Thomas in 1986—twenty years before Fortune's 2006
trial—we granted the defendant a new trial because—in our judgment—the
solicitor's similarly improper closing argument required it. 287 S.C. at 412-13, 339
S.E.2d at 129. We cautioned solicitors not to engage in misconduct of this sort
because we recognized the extent to which it endangers the due process rights of
criminal defendants.4 287 S.C. at 413, 339 S.E.2d at 129. Today, we make the same
judgment call. The assistant solicitor's misconduct in his closing argument requires
that Oscar Fortune be granted a new trial.

4
  We did not specifically mention "due process" or the Fifth or Fourteenth
Amendment in Thomas, an armed robbery case. 287 S.C. at 412, 339 S.E.2d at 129.
Our reasoning, however, was clearly centered there. See id. (citing, for example,
State v. Sloan, 278 S.C. 435, 440, 298 S.E.2d 92, 94-95 (1982) (finding the solicitor's
closing argument was a "violation of the Fifth Amendment")).
      III.   Sixth Amendment

Fortune argues the assistant solicitor's improper remarks infringed upon his Sixth
Amendment right to counsel. See Ollivierre, 378 F.3d at 420 ("[T]he Sixth
Amendment's right to counsel mandate[s] a prosecutor to refrain from such attacks
against defense counsel . . . . Any comment by the prosecution that disparages a
defendant's decision to exercise his Sixth Amendment right to counsel is thus
improper."); Bruno, 721 F.2d at 1195 (stating the prosecutor's "insidious attacks on
Bruno's exercise of his constitutional right to counsel and his attacks on the integrity
of defense counsel were error"); United States v. McDonald, 620 F.2d 559, 564 (5th
Cir. 1980) (prosecutor's reference that defense counsel was present when agents
arrived to conduct a search in defendant's home improperly inferred defense counsel
"acted illegally or unethically," and that defendant "would not have gotten a lawyer
unless he was guilty" and therefore "penalized [the defendant] for exercising his
Sixth Amendment right to counsel").

Because we grant Fortune a new trial based on a Fifth and Fourteenth Amendment
due process violation, we find it unnecessary to decide whether the assistant
solicitor's remarks impugning the integrity of defense counsel were a separate Sixth
Amendment violation. However, the decisions cited in this section support our
judgment that the assistant solicitor's misconduct sufficiently prejudiced Fortune to
deny him a fair trial. As the Fifth Circuit stated,

             Comments that penalize a defendant for the exercise of his
             right to counsel and that also strike at the core of his
             defense cannot be considered harmless error. The right to
             counsel is so basic to all other rights that it must be
             accorded very careful treatment. Obvious and insidious
             attacks on the exercise of this constitutional right are
             antithetical to the concept of a fair trial and are reversible
             error.

McDonald, 620 F.2d at 564; see also Bruno, 721 F.2d at 1194 (finding prosecutor's
improper remarks implying "defense counsel in criminal cases are retained solely to
lie and distort the facts and camouflage the truth" were not harmless).
In his original PCR application, Fortune also alleged a Sixth Amendment ineffective
assistance of counsel violation in several respects dealing with the assistant
solicitor's improper closing argument. As we mentioned before, Fortune's various
attorneys did not perfectly preserve all issues for our review. In this case, we need
not decide whether Fortune's ineffectiveness claims are preserved because we
reverse on other grounds. But see Love v. State, ___ S.C. ___, ___, 834 S.E.2d 196,
200 (2019) ("There are situations where the interests of justice require PCR courts
to be flexible with procedural requirements before PCR applicants suffer procedural
default on substantial claims." (quoting Mangal v. State, 421 S.C. 85, 99, 805 S.E.2d
568, 575 (2017))).

      IV.    Conclusion

The assistant solicitor's improper statements to the jury during closing argument
infected Fortune's trial with such a high degree of unfairness as to make his
conviction a denial of due process. We reverse the order of the PCR court denying
Fortune relief and remand to the court of general sessions for a new trial.

REVERSED.

BEATTY, C.J., KITTREDGE, HEARN and JAMES, JJ., concur.
