Prosecutor’s ‘improper’ comments lead to S.C. man’s murder conviction being overturned

Oscar Fortune was convicted of murder in a 2001 case. The court found comments made by an assistant solicitor during closing arguments were “improper.”
Updated: Dec. 26, 2019 at 5:27 PM EST
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COLUMBIA, S.C. (WIS) - The South Carolina Supreme Court has ruled to overturn the 2006 murder conviction of a Chesterfield County man after it found comments made by an assistant solicitor during closing arguments “improper.”

The state charged Oscar Fortune, 51, with murder and possession of a weapon during the commission of a violent crime in connection with a shooting that took place in the parking lot of the Huddle House in Cheraw on Dec. 23, 2001.

According to court documents, evidence presented at trial by both prosecutors and defense attorneys showed both Fortune and the victim, Anthony Shields, were in possession of a gun at the time of the shooting.

During the closing arguments of the case, an assistant solicitor, who is not named in the opinion, told the jury, “My job is to present 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.”

Fortune claims self-defense in the deadly shooting, arguing Shields fired at him first.

A jury found him guilty of murder in 2006 and he was sentenced to 37 years in prison.

More than 10 years later, the South Carolina Supreme Court found the prosecutor’s comments violated Fortune’s rights under the Due Process Clause. The court reversed the conviction as a result.

According to prosecutors, on the night of the shooting, Fortune’s cousin, Sonta McCall, called him after she left a Christmas party with her friend. Fortune, the evidence showed, was at home and in bed when McCall called. She told Fortune that Shields hit her in the head with a beer bottle and hit her friend with a bar stool at the Christmas party. McCall wanted Fortune to help her go to police to press charges against Shields.

Fortune agreed to meet McCall at the Huddle House and had his girlfriend drive him. He testified to seeing 80 to 100 people when he arrived. When he got out of the car he said he spoke with his cousin and her friend.

As they were getting ready to leave, she saw Shields pull back into the parking lot. As his cousin walked toward Shields’ car, Fortune had his girlfriend drive him around so he could speak with Shields. Before getting out of the car a second time, Fortune put his girlfriend’s .38 caliber pistol in his pocket. He would later testify he took the gun for protection because of the large crowd of people in the parking lot.

Fortune testified as he got closer to Shields’ vehicle, Shields was arguing with McCall.

“I asked him what was up and he just shot,” Fortune testified.

He went on to testify he was within arm’s length of Shields when Shields fired the first shot from the driver’s seat of his car.

“(I fired back) because at that time I was in fear for my life. I mean, he shot," Fortune testified. “I was in fear for my life at this time.”

The jury found Fortune guilty and the court of appeals upheld the conviction on direct appeal. He then filed for post-conviction release (PCR), “alleging his trial attorney 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,” according to the court’s ruling.

The appeal was denied by the PCR court, after which Fortune appealed that decision to the court of appeals. It granted the petition, sending the appeal back to the PCR court. Once again, it denied the appeal, ruling “the solicitor’s remarks, while improper, (we)re not so prejudicial to his 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.”

Ultimately, Fortune and his Columbia-based attorney, Elizabeth Franklin-Best, appealed the case to the state Supreme Court. On Dec. 4, it handed down its opinion.

“I knew I had rights, constitutional rights that were violated during the trial,” Fortune said during a phone interview with WIS from the Turbeville Correctional Facility. “I didn’t understand why the jury came back with a verdict of murder.”

His attorney says the assistant solicitor’s comments may have prevented the jury from trusting Fortune’s testimony on the stand.

“The jury either had to believe him or not believe him and so when the prosecutor got up there and told everyone these guys are telling you lies, it really gave the jury license to disregard his testimony,” Franklin-Best said.

Fortune said he immediately knew something was wrong during closing arguments, but didn’t know exactly what.

“It took 13 years of studying in the law library to find out what my constitutional rights are and how they were violated,” he said.

He added: “I’m looking forward to clearing my name, you know. I’m looking for my day in court to show the world that I’m not a convicted murderer -- which I’m not anymore -- but that I’m not a murderer period. I only defended myself, which every person has a right to do.”

Franklin-Best said at some point in the near future, Fortune will be removed from SCDC and taken to Chesterfield County, where he will face another bond hearing for the same charges. From there, the solicitor can decide to retry the case, reach a plea deal, or dismiss the case altogether.

“To have a prosecutor tell the jury, ‘this is how things go, criminal defense attorneys are unreliable, they’re lying to you,’ that really goes against the presumption of innocence and is completely contrary to our entire criminal justice system,” she said.

Fortune’s reversal is the second murder conviction to be overturned in South Carolina in the last three years.

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