Leading off the edition is an odd little opinion by the Supreme Court in Oregon v. Guzek. The opinion seems to offer a little something for everyone, save those who would want to "reject all Eighth Amendment residual-doubt claims." The opinion is unusually nuanced seemingly holding that a State may exclude evidence that concerns only whether the guilt phase verdict was correct but does not exclude "newly discovered" evidence of innocence as well as evidence as to how he committed the crime. Also notable is that more than Chief Justice Roberts refusing to join in the concurrence by Justice Scalia is that he apparently awarded the writing of the majority opinion to the the Court's biggest death penalty skeptic.

Four wins are also noted. Possibly the most significant of the four is the holding of the South Carolina Supreme Court in Hughes v. State. The Court agreed with arguments set forth by the Center for Capital Litigation's Teresa Norris that Hughes was not mentally competent to waive his right to pursue post-conviction relief. It seems Hughes didn't understand the nature of the PCR proceeding which he wanted to waive and lacks the ability to rationally communicate with his lawyer.

The Court of Appeals in Maryland in Abeokuto v. State vacates the sentence imposed, unfortunately there is not a majority opinion but rather two plurality opinions. In one of the plurality opinions "members of the Court [ ] vacate the sentencing because the record did not demonstrate a knowing and voluntary waiver of the jury sentencing right because the trial court, in view of the relatively long passage of time since the competency determination proceeding, failed to inquire anew into Abeokuto’s medication state and consider its impact on his ability to give a knowing and voluntary waiver when the facts of the case raised that issue." The other plurality opinion would reverse "the sentence and the imposition of the death penalty on the grounds that the Maryland death penalty statute violates due process and is therefore unconstitutional because the statute requires that aggravating circumstances outweigh mitigating circumstances only by a preponderance of the evidence rather than the standard of beyond a reasonable doubt."

The Eighth Circuit in Weaver v. Bowersox vacates a sentence of death due to comments by the prosecutor in closing argument. According to the majority opinion the prosecutor’s impermissible comments include comparing jurors to soldiers, and recounting a scene from the movie Patton, where George C. Scott says that killing during war is justified when you "reach over and put your hand in the pile of goo that a moment before was your best friend’s face;" informing jurors that he was the top law enforcement officer in the county, with authority to decide which cases were eligible for the death penalty;" telling jurors that they needed to send the right message to "the scum of the world": the "drug dealers, dope peddlers, and the hitmen they hire to do their dirty deeds," and that the right message was not life in prison because death is "the only message they are going to understand." Eric W. Butts and Phillip Horwitz won the writ. Rob Loblaw at Decision of the Day has more. Briefs available here.

The final win noted is Simpson v. Moore. The State was less than forthcoming with evidence relating to Simpson's armed robbery conviction. The armed robbery was the "statutory aggravating circumstance urged by the State as a ground for imposing the death penalty." Since the robbery conviction was vacated a new trial on the armed robbery charge must be had, and if a conviction had, a new sentencing on life and death. Russel Ghent, John Blume & Sheri Johnson were on the "win."

The news of the week remains lethal injection. California postponed indefinitely the execution of Michael Morales amid a court battle over the state's method of lethal injection and the role doctors may play in the death chamber. Morales was to be executed early Tuesday but two anesthesiologists refused to take part, saying that it was "medically unethical" to be required to give the executioner advice if something went wrong. The state had hoped to find replacement doctors to attend the rescheduled execution but had to postpone the lethal injection indefinitely Tuesday evening. The district court's orders in Morales' case from this week are available relating to the clarification of the protocol here & here.

In the other news of the week, Florida death row prisoner John Robert Ballard was "acquitted" Thursday by a unanimous decision of the Florida Supreme Court, which ordered his conviction overturned due to a lack of evidence connecting him to the crime after serving more than 3 years on death row. An interesting poll is out this week on the death penalty looking at how it compares in USA, UK & Canada, including demographic breakdown of political affiliation, age, and gender breakdowns are provided.

As always thanks for reading. - k

Archived on the net at http://capitaldefenseweekly.com/archives/060220.htm

Pending Executions

March

15 Tommie Hughes (Texas)

17 Patrick Moody (North Carolina)

22 Robert Salazar Jr. (Texas)

28 Raymond Martinez (Texas)

29 Kevin Kincy (Texas)

More Execution information

SCOTUS

Oregon v. Guzek, 2006 U.S. LEXIS 1818 (2/22/2006) State possesses authority to exclude the evidence concerns only whether, not how, he committed the crime.

In Favor of Life & Liberty

Weaver v. Bowersox, 2006 U.S. App. LEXIS 3653 (8th Cir 2/16/2006) Relief granted on prosecutor's inflammatory closing.

Abeokuto v. State, 2006 Md. LEXIS 73 (Md 2/13/2006) The Court of Appeals in Maryland vacates the sentences and directs a new sentencing hearing. Two plurality opinions are noted. In one "members of the Court would vacate the sentencing because the record did not demonstrate a knowing and voluntary waiver of the jury sentencing right because the trial court, in view of the relatively long passage of time since the competency determination proceeding, failed to inquire anew into Abeokuto’s medication state and consider its impact on his ability to give a knowing and voluntary waiver when the facts of the case raised that issue." In the other plurality opinion would reverse "the sentence and the imposition of the death penalty on the grounds that the Maryland death penalty statute violates due process and is therefore unconstitutional because the statute requires that aggravating circumstances outweigh mitigating circumstances only by a preponderance of the evidence rather than the standard of beyond a reasonable doubt."

Hughes v. State, 2006 S.C. LEXIS 44 (S.C. 2/13/2006) From the Court provided squib, "Petitioner filed a post-conviction relief (PCR) application, but later sought to waive his right to pursue PCR and further appeals. The Supreme Court, after extensively reviewing Petitioner’s mental status as shown in the record and in hearings before the circuit court and Supreme Court, held Petitioner was not mentally competent to waive the right to pursue PCR under the standard set forth in Singleton v. State, 313 S.C. 75, 437 S.E.2d 53 (1993). The Supreme Court concluded Petitioner does not understand the nature of the PCR proceeding which he wishes to waive the right to pursue; nor does he possess sufficient capacity or ability to rationally communicate with his lawyer. The Supreme Court remanded the case for further proceedings."

Simpson v. Moore, 2006 S.C. LEXIS 46 (S.C. 2/13/2006) Reversible error occurred when the State withheld exculpatory evidence relating to Simpson's armed robbery conviction. Since the conviction for armed robbery is tossed and it served as "a statutory aggravating circumstance urged by the State as a ground for imposing the death penalty" the sentence of death must be vacated.

Favoring Death

Robinson v. Polk,, 2006 U.S. App. LEXIS 3454 (4th Cir 2/14/2006) Bible use upheld in the penalty phase that resulted in a death verdict including a "court bailiff [who] provided a Bible to a deliberating juror, who then read aloud to his fellow deliberating jurors a passage concerning the Biblical mandate of 'an eye for an eye." The Court split 2-1.

Shuffield v. State, 2006 Tex. Crim. App. LEXIS 365 (Tex. Crim. App. 2/15/2006) Defendant argued, inter alia, that the trial court erred in ruling that he failed to make a prima facie showing that the State had exercised its peremptory strikes with a discriminatory purpose against four venire members. The court of appeals disagreed. None of the prosecutors' explanations reflected an inherently discriminatory intent. Defendant attempted to rebut the State's reasons with statistical calculations and a comparison with other jurors. In his comparative analyses, defendant discussed the allegedly disparate treatment of venire members who shared only one isolated issue or view in common with a struck venire member. Defendant did not raise or discuss any disparate treatment of any venire member who shared a combination of reasons. The trial court found that the State's explanations were race neutral and not pretexts for racial strikes. The trial court's findings were supported by the record and were not clearly erroneous.

Seibert v. State, 2006 Fla. LEXIS 260 (FL 2/16/2006) Relief denied on "claims that (1) the trial court erred in denying his motion to suppress evidence discovered and statements made as a result of the nonconsensual, warrantless entry and search by the police of his apartment; (2) the trial court erred in denying his motion for a mistrial after the State improperly attempted to introduce evidence of his collateral criminal activity; (3) the trial court erred in denying his motion for mistrial after the State asked questions of a police detective that improperly bolstered the credibility of another suspect’s alibi; (4) the death sentence is disproportionate; (5) the trial court erred in denying a mistrial following a prosecutorial comment concerning an irrelevant criminal activity; and (6) Florida’s capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584 (2002)."

State v. Rogers, 2006 Tenn. LEXIS 123 (Tenn. 2/17/2006) (dissent) Relief denied on claims including: "1) whether the trial court erred in failing to suppress Rogers' statements to law enforcement officers; 2) whether the trial court erred in supplementing the appellate record with mental health and social services records pertaining to the victim's brother, Jeremy Beard; 3) whether the trial court violated Rogers' constitutional rights by limiting cross examination of Jeremy Beard; 4) whether the trial court committed harmful error in its instruction defining "intentionally"; 5) whether the evidence is insufficient to support the convictions for first degree murder, kidnapping, and rape; 6) whether the evidence is insufficient to support the aggravating circumstances; and 7) whether the sentence of death is disproportionate or invalid under the mandatory review of Tennessee Code Annotated section 39-13-206(c)(1)." (dissent on proportionality)

Morales v. Hickman, 2006 U.S. App. LEXIS 3996 (9th Cir 2/19/2006) Stay denied on lethal injection challenge.

Morales v. Ornoski, 2006 U.S. App. LEXIS 3997 (9th Cir 2/19/2006) Stay denied on a second or successive petition.

Selected excerpts from this Edition's Cases

Oregon v. Guzek, 2006 U.S. LEXIS 1818 (2/22/2006) State possesses authority to exclude the evidence concerns only whether, not how, he committed the crime.

As our discussion in Part II, supra, makes clear, the federal question before us is a narrow one. Do the Eighth and Fourteenth Amendments grant Guzek a constitutional right to present evidence of the kind he seeks to introduce, namely new evidence that shows he was not present at the scene of the crime. That evidence is inconsistent with Guzek's prior conviction. It sheds no light on the manner in which he committed the crime for which he has been convicted. Nor is it evidence that Guzek contends was unavailable to him at the time of the original trial. And, to the extent it is evidence he introduced at that time, he is free to introduce it now, albeit in transcript form. Ore. Rev. Stat. § 138.012(2)(b) (2003). We can find nothing in the Eighth or Fourteenth Amendments that provides a capital defendant a right to introduce new evidence of this kind at sentencing.

We cannot agree with the Oregon Supreme Court that our previous cases have found in the Eighth Amendment a constitutional right broad enough to encompass the evidence here at issue. In Lockett v. Ohio, supra, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973, a plurality of this Court decided that a defendant convicted of acting in concert with others to rob and to kill could introduce at the sentencing stage evidence that she had played a minor role in the crime, [*13] indeed, that she had remained outside the shop (where the killing took place) at the time of the crime. A plurality of the Court wrote that,

"the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id., at 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (emphasis added and deleted).

And in Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1, the Court majority adopted this statement. See also McCleskey v. Kemp, 481 U.S. 279, 306, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987); Bell v. Ohio, 438 U.S. 637, 642, 98 S. Ct. 2977, 57 L. Ed. 2d 1010 (1978) (plurality opinion).

But the evidence at issue in these cases was traditional sentence-related evidence, evidence that tended to show how, not whether, the defendant committed the crime. Nor was the evidence directly inconsistent with the jury's finding of guilt.

The Oregon Supreme Court thought that this latter distinction -- the fact that the "alibi evidence was inconsistent with," rather than "consistent with[,] the underlying convictions" [*14] -- did not matter. App. to Pet. for Cert. 58. It said that this "factual distinction . . . is of no consequence in light of the Supreme Court's decision in Green v. Georgia." Ibid. In Green, however, the Court focused upon a defendant convicted of murder, who sought to introduce at sentencing a statement his confederate made to a third party that he (the confederate) had alone committed the murder (i.e., without the defendant). The State opposed its use at the defendant's sentencing hearing on the ground that, as to the defendant, it was hearsay. The Court, in a brief per curiam opinion, noted that the State had used the confession in the confederate's trial, referred to an earlier case holding that the Constitution forbids States from "'mechanistically'" applying the hearsay rule "'to defeat the ends of justice,'" and held that the Constitution prohibited the State from barring use of the confession. 442 U.S., at 97, 99 S. Ct. 2150, 60 L. Ed. 2d 738 (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)). The opinion focused only upon the hearsay problem, and it implicitly assumed that, in the absence of the hearsay problem, state law would not have [*15] blocked admission of the evidence.

In any event, subsequent to Green, this Court decided Franklin v. Lynaugh, 487 U.S. 164, 108 S. Ct. 2320, 101 L. Ed. 2d 155 (1988) (plurality opinion), and that case makes clear, contrary to the Oregon Supreme Court's understanding, that this Court's previous cases had not interpreted the Eighth Amendment as providing a capital defendant the right to introduce at sentencing evidence designed to cast "residual doubt" on his guilt of the basic crime of conviction. The Franklin plurality said it was "quite doubtful" that any such right existed. Id., at 173, n. 6, 108 S. Ct. 2320, 101 L. Ed. 2d 155. And two other Members of the Court added that "our cases" do not support any such "right to reconsideration by the sentencing body of lingering doubts about . . . guilt." Id., at 187, 108 S. Ct. 2320, 101 L. Ed. 2d 155 (O'Connor, J., concurring in judgment). See also Penry v. Lynaugh, 492 U.S. 302, 320, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) (characterizing Franklin as a case in which a majority "agreed that 'residual doubt' as to Franklin's guilt was not a constitutionally mandated mitigating factor" (brackets omitted)).

Franklin did not resolve whether the Eighth Amendment affords capital defendants [*16] such a right, for the plurality held that the sentencing scheme at issue was constitutional "even if such a right existed." 487 U. S., at 174, 108 S. Ct. 2320, 101 L. Ed. 2d 155. But the Court's statements on the matter make clear that the Oregon Supreme Court erred in interpreting Green as providing a capital defendant with a constitutional right to introduce residual doubt evidence at sentencing.

In this case, we once again face a situation where we need not resolve whether such a right exists, for, even if it does, it could not extend so far as to provide this defendant with a right to introduce the evidence at issue. See, e.g., Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461-462, 65 S. Ct. 1384, 89 L. Ed. 1725 (1945). The Eighth Amendment insists upon "'reliability in the determination that death is the appropriate punishment in a specific case.'" Penry, supra, at 328, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (plurality opinion)). The Eighth Amendment also insists that a sentencing jury be able "to consider and give effect to mitigating evidence" about the defendant's "character or record or the circumstances of the offense." Penry, supra, at 327-328, 109 S. Ct. 2934, 106 L. Ed. 2d 256. [*17] But the Eighth Amendment does not deprive the State of its authority to set reasonable limits upon the evidence a defendant can submit, and to control the manner in which it is submitted. Rather, "States are free to structure and shape consideration of mitigating evidence 'in an effort to achieve a more rational and equitable administration of the death penalty.'" Boyde v. California, 494 U.S. 370, 377, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990) (quoting Franklin, supra, at 181, 108 S. Ct. 2320, 101 L. Ed. 2d 155 (plurality opinion)); see, e.g., Johnson v. Texas, 509 U.S. 350, 362, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993); California v. Brown, 479 U.S. 538, 543, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987).

Three circumstances, taken together, convince us that the State possesses the authority to regulate, through exclusion, the evidence that Guzek seeks to present. First, sentencing traditionally concerns how, not whether, a defendant committed the crime. See United States Sentencing Commission, Guidelines Manual § 1A1.1, editorial note, § 4(a), p. 4 (Nov. 2004). But the evidence at issue here -- alibi evidence -- concerns only whether, not how, he did so.

Second, the parties previously litigated the issue to which the evidence [*18] is relevant -- whether the defendant committed the basic crime. The evidence thereby attacks a previously determined matter in a proceeding at which, in principle, that matter is not at issue. The law typically discourages collateral attacks of this kind. Cf. Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980) ("As this Court and other courts have often recognized, res judicata and collateral estoppel relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication").

Third, the negative impact of a rule restricting defendant's ability to introduce new alibi evidence is minimized by the fact that Oregon law gives the defendant the right to present to the sentencing jury all the evidence of innocence from the original trial regardless. That law permits the defendant to introduce at resentencing transcripts and exhibits from his prior trial. Ore. Rev. Stat. § 138.012(2)(b) (2003). The defendant here has not claimed that the evidence at issue was unavailable at the time of his original trial. Thus, he need only have introduced it at that time to guarantee its presentation [*19] (albeit through transcripts) to a resentencing jury as well.

The legitimacy of these trial management and evidentiary considerations, along with the typically minimal adverse impact that a restriction would have on a defendant's ability to present his alibi claim at resentencing convinces us that the Eighth Amendment does not protect defendant's right to present the evidence at issue here. We conclude that the Oregon court was wrong in holding to the contrary.

Hughes v. State, 2006 S.C. LEXIS 44 (S.C. 2/13/2006) From the Court provided squib, "Petitioner filed a post-conviction relief (PCR) application, but later sought to waive his right to pursue PCR and further appeals. The Supreme Court, after extensively reviewing Petitioner’s mental status as shown in the record and in hearings before the circuit court and Supreme Court, held Petitioner was not mentally competent to waive the right to pursue PCR under the standard set forth in Singleton v. State, 313 S.C. 75, 437 S.E.2d 53 (1993). The Supreme Court concluded Petitioner does not understand the nature of the PCR proceeding which he wishes to waive the right to pursue; nor does he possess sufficient capacity or ability to rationally communicate with his lawyer. The Supreme Court remanded the case for further proceedings."

In deciding the issue of an appellant's competency, we carefully and thoroughly review the appellant's history of mental competency; the existence and present status of mental illness or disease suffered by the appellant, if any, as shown in the record of previous proceedings and in the competency hearing; the testimony and opinions of mental health experts who have examined the appellant; the findings of the circuit court which conducted a competency hearing; the arguments of counsel; and the appellant's demeanor and personal responses to our questions at oral argument regarding the waiver of appellate and PCR rights. See Passaro, 350 S.C. at 504-08, 567 S.E.2d at 865-67 (reviewing evidence presented at competency hearing, including testimony of mental health experts, as well as appellant's responses to Court's extensive questioning of him at oral argument, in concluding he was mentally competent to waive right to direct appeal [*9] and be executed); Torrence III, 322 S.C. 475, 473 S.E.2d 703 (after reviewing the record of a competency hearing in circuit court which included testimony from mental health experts and the record of the Court's prior questioning of appellant, Court concluded the record "overwhelmingly supports a determination that [appellant] is indeed competent" to knowingly and voluntarily waive his appellate rights and be executed); Torrence II, 317 S.C. 45, 451 S.E.2d 883 (where appellant wished to waive right to direct appeal, Court remanded case for circuit court to conduct a competency hearing "allowing the introduction of testimony, exhibits, and evidence, to provide a full record for this Court's evaluation"; Court questioned appellant personally about the waiver of his appellate rights and instructed circuit court to do the same); Singleton, 313 S.C. at 84, 437 S.E.2d at 58 (after reviewing record of competency hearing in circuit court which revealed, inter alia, the appellant was completely unaware he would die in an electric chair and was able to give only yes-no answers to questions, Court concluded "the record contains a wealth [*10] of evidence which supports the PCR judge's finding of incompetence" and thus appellant could not be executed). We necessarily decide each case on an individual basis, and it is within our discretion whether to allow an appellant to waive his appellate or PCR rights. Passaro, 350 S.C. at 506, 567 S.E.2d at 866.

* * * *

We have carefully and thoroughly reviewed [*29] Petitioner's history of mental competency, as well as his history of mental illness as shown in the record of previous proceedings and in the last competency hearing. We have considered the testimony of the mental health experts who examined Petitioner. We have reviewed the findings of the circuit court and weighed the arguments of counsel for the parties, and we have considered Petitioner's demeanor and personal responses to our questions at oral argument regarding the waiver of his rights. We recognize, of course, that questions of mental competence, unlike issues of historical fact, call for a basically subjective judgment. "And unlike the determination of whether the death penalty is appropriate in a particular case, the competency determination depends substantially on expert analysis in a discipline fraught with subtleties and nuances." Ford v. Wainwright, 477 U.S. 399, 426, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986) (Powell, J., concurring) (quotes omitted).

We acknowledge the issue of Petitioner's mental competence is not immutable. A determination of mental competence may change from one period of time to another, particularly when the administration of medication or treatment, [*30] or the lack thereof, may affect a person's mental faculties. See e.g. Walton v. Angelone, 321 F.3d 442, 459 (4th Cir. 2003) ("Even if a defendant is mentally competent at the beginning of the trial, the trial court must continually be alert for changes which would suggest that he is no longer competent."); Hunter v. State, 660 So.2d 244, 248 (Fla. 1995) (once a defendant is determined competent to stand trial, a presumption of competence attaches to the defendant in later proceedings; however, another competency hearing is required if a bona fide question about the defendant's competency is raised); see also Drope v. Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975) (information concerning defendant's suicide attempt during trial, when considered with psychiatric information available prior to trial and wife's testimony concerning his "strange behavior" and his attempt to kill her shortly before trial, created sufficient doubt of defendant's competence to stand trial so as to require further inquiry on the issue).

We conclude that, pursuant to the Singleton standard, Petitioner is not mentally competent at this time to [*31] waive the right to pursue PCR. Petitioner apparently understands what he was tried for and the reason for his punishment; whether he understands the nature of the punishment is less certain. However, it is clear he does not understand the nature of the PCR proceeding which he wishes to waive the right to pursue. Petitioner was not able to describe, in a reasonably coherent fashion using layman's terms, the basic purposes or procedures available to him in PCR, either in the court below or in this Court. Thus, the cognitive prong of the Singleton analysis has not been satisfied.

We further conclude the assistance prong is not satisfied on this record. We are not persuaded Petitioner possesses sufficient capacity or ability to rationally communicate with counsel. We agree with the mental health experts who examined Petitioner, and who cited his inability to communicate adequately with counsel as a primary reason for their conclusion he was not mentally competent. Given our conclusions, it is not necessary to reach the issue of whether any waiver was knowing and voluntary.

Simpson v. Moore, 2006 S.C. LEXIS 46 (S.C. 2/13/2006) Reversible error occurred when the State witheld exculpatory evidence relating to Simpson's armed robbery conviction.

When police arrived at the scene of the crime, they noticed that the cash register drawer was open, and there were bills in every slot except the slot that would normally contain twenty-dollar bills. Police also found a bag of money behind the counter, near the register. Instead of preserving the bag and disclosing its existence to Simpson's counsel, the police gave the bag to the victim's brother, Jack Harrison, who helped run the store.

The PCR court found:

The turning over of the bag by law enforcement clearly constitutes sloppy police work in an armed robbery investigation and could be considered a tainting of the scene. Clearly the contents of the bag could have been exculpatory. Clearly this evidence should have been preserved and, thus, been subject to discovery by [Simpson].

[*12]

Despite this finding, the court ruled that the issue about the bag of money was not preserved for review because Simpson did not specifically raise it in his PCR application. We disagree.

At the PCR hearing, two witnesses were called to testify about the money issue. The first witness was Simpson's defense counsel, who testified that he learned about the bag of money only two hours before testifying. The second witness was Jack Harrison, whom the State called for the specific purpose of addressing the money issue. Jack testified that the money was used to cash customers' checks, and it was unusual for money to be taken from the register and put into the bag.

(amendments must conform to evidence presented at trial, not raise [*13] new claims). Moreover, we hold that the State would not be prejudiced by such an amendment given that the State cross-examined Simpson's defense counsel on the issue and was permitted to present its own witness, Jack Harrison, to contest the issue's relevance. Given this testimony and the PCR court's ruling on the issue relating to the bag of money, we hold that Simpson should have been permitted to amend his PCR application to conform to the evidence presented. See Rule 15(b), SCRCP (pleadings may be amended, even after judgment, to conform to issues tried by express or implied consent but not raised in the original pleadings); Arnold v. State, 309 S.C. 157, 172, 420 S.E.2d 834, 843 (1992)See Harvey v. Strickland, 350 S.C. 303, 313, 566 S.E.2d 529, 535 (2002) (amendments should be liberally allowed when no prejudice to the opposing party will result).

Turning to the merits, we hold that the State's failure to tell the defense that a bag of money was found behind the counter prejudiced Simpson's case in the penalty phase. "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. State of Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). A Brady claim is complete if the accused can demonstrate (1) the evidence was favorable to the accused, (2) it was in the possession of or known to the prosecution, (3) it was suppressed by the prosecution, and (4) it was material to guilt or punishment. [*14] Sheppard v. State, 357 S.C. 646, 659, 594 S.E.2d 462, 470 (2004). Favorable evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id. at 660, 594 S.E.2d at 470.

Armed robbery was both a charge against Simpson in its own right and a statutory aggravating circumstance urged by the State as a ground for imposing the death penalty. There is a reasonable probability that Simpson would not have been found guilty of armed robbery had the evidence about the bag of money been disclosed. n3 Moreover, because the State needed to prove that a robbery occurred in order to seek the death penalty, there is a reasonable probability that Simpson would not have received a sentence of death had the State failed to prove Simpson robbed the store.