Gantt v. State

¶1I respectfully dissent. The post-conviction relief (PCR) judge granted respondent’s application, finding respondent had proven both that his trial counsel’s performance was deficient and that respondent was prejudiced by this deficient performance. The majority and I agree that trial counsel should have objected both to the evidence of respondent’s refusal to comply with the unlawful search warrant, and to the solicitor’s reference to this refusal in his closing argument since “it is clearly established that the state cannot, through evidence or argument, comment on the accused’s exercise of a constitutional right.” Simmons v. State, 308 S.C. 481, 484, 419 S.E.2d 225, 226 (1992). Further, since as the majority ac*190knowledges the evidence of respondent’s guilt was not overwhelming and the case turned on credibility, I would defer to the PCR judge’s finding that respondent was prejudiced by this deficient performance. See, e.g., Burnett v. State, 352 S.C. 589, 576 S.E.2d 144 (2003) (this Court is required to affirm the PCR judge’s findings where they are supported by any evidence of probative value).