Petition for Writ of Certiorari — Marion Alexander Lindsey, Petitioner v. South Carolina

Supreme Court briefApr 3, 2026

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APPENDIX VOLUME I

TABLE OF CONTENTS

Appendix Volume I:

Appendix A – S.C. Supreme Court opinion

(Nov. 5, 2025)..................................... 1a

Appendix B – Amended order denying postconviction relief (Oct. 2, 2015) ...... 120a

Appendix C – Order denying motions to recuse or

alter or amend (July 8, 2019)........ 339a

Appendix Volume II:

Appendix D – S.C. Supreme Court order vacating

order denying post-conviction relief

(Sept. 30, 2014) .............................. 390a

Appendix E – Order denying post-conviction

relief (Aug. 12, 2011) ..................... 392a

Appendix F – Catalogue of errors in order denying

post-conviction relief ..................... 613a

Appendix G – Catalogue of errors in order

denying motions to recuse or

alter or amend ............................... 631a

APPENDIX A

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Marion Alexander Lindsey, Petitioner,

State of South Carolina, Respondent.

Appellate Case No. 2019-001271

_______________

ON WRIT OF CERTIORARI

________________

Appeal from Spartanburg County

Paul M. Burch, Circuit Court Judge

____________

Opinion No. 28304

Heard September 12, 2023 – Filed November 5, 2025

____________

AFFIRMED IN RESULT

____________

Chief Appellate Defender Robert Michael Dudek,

Appellate Defender David Alexander, and Appellate

Defender Lara Mary Caudy, all of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Deputy

Attorney General Donald J. Zelenka, and Senior Assistant Deputy Attorney General Melody Jane Brown,

all of Columbia, and Solicitor Barry Joe Barnette, of

Spartanburg, for Respondent.

____________

JUSTICE JAMES: This lengthy death penalty

post-conviction relief proceeding began in 2007, and

the PCR court denied relief in 2010. In 2014, we remanded to the PCR court for further proceedings, after

which the PCR court again denied relief. We granted

Marion Alexander Lindsey’s petition for a writ of certiorari to review the PCR court's decision. Lindsey

raises issues concerning the PCR court's signing of a

proposed order submitted by the State, and he raises

issues concerning trial counsel's preparation and

presentation of his mitigation case during the penalty

phase of his jury trial. We affirm the PCR court in

result.

I. Background

On September 18, 2002, Lindsey murdered his estranged wife, Ruby Nell Lindsey (Victim), by shooting

her as she sat in the back seat of her friend's car in the

parking lot of the Inman Police Department. A Spartanburg County jury convicted Lindsey of murder and

recommended a death sentence, which the trial court

imposed. We affirmed the conviction and sentence.

State v. Lindsey, 372 S.C. 185, 642 S.E.2d 557 (2007).

The United States Supreme Court denied Lindsey's

petition for a writ of certiorari. Lindsey v. South Carolina, 552 U.S. 917 (2007).

Lindsey filed for PCR in 2007. At the conclusion

of Lindsey's 2010 PCR hearing, the PCR court requested and obtained proposed orders from both sides.

The PCR court dismissed the application with prejudice in an order identical to the State's proposed order.

Lindsey petitioned this Court for a writ of certiorari,

arguing the PCR court’s verbatim adoption of the

State’s proposed order violated his constitutional

rights. In our order dated September 30, 2014 (Remand Order), we vacated the dismissal of Lindsey’s

application and remanded the case to the PCR court,

directing it to issue an order that (1) included findings

of facts and conclusions of law on each issue presented

in Lindsey’s PCR application, with accurate references to the record and applicable law and (2) complied with Pruitt v. State, 310 S.C. 254, 423 S.E.2d 127

(1992); Hall v. Catoe, 360 S.C. 353, 601 S.E.2d 335

(2004); and S.C. Code Ann. § 17-27-80 (2014).

On remand, the PCR court asked the parties for

their original proposed orders. In response, Lindsey

petitioned this Court for a de novo PCR hearing before

a different judge, contending the PCR court violated

our Remand Order by requesting the same proposed

orders. We denied Lindsey’s request. Subsequently,

the PCR court issued an amended order, again denying Lindsey relief. Lindsey again petitioned this

Court for a new hearing, arguing the amended order

was the same as the original PCR order except for the

correction of some typographical errors. We denied

that petition as well.

Lindsey then petitioned this Court for a writ of

certiorari, which we granted.

The following issues are before us:

1. Did the PCR court disobey this Court’s order and violate state law and Lindsey’s constitutional rights by adopting the State’s proposed order of dismissal “under circumstances showing the

PCR court failed to consider Lindsey’s grounds for

PCR and did not even read the proposed order before signing it”?

2. Did trial counsel provide ineffective assistance by failing to properly investigate and present an adequate mitigation defense?

II. Facts

On September 17, 2002, Lindsey was arrested on

an outstanding criminal domestic violence warrant.

The charge arose from an incident during which Lindsey hit Victim and tore off her jewelry in an Applebee’s

parking lot. He was released on bond the evening of

his arrest.

The next evening, Victim’s close friend, Celeste

Nesbitt, picked up Victim from Victim’s job at a local

hospital to give her a ride home. Nesbitt was driving

a Mercury sedan with tinted rear windows. Nesbitt’s

mother was in the front passenger seat, and Victim

was seated in the back seat behind Nesbitt. Nesbitt’s

two daughters, aged four and nine, were in the back

seat with Victim. Victim and Lindsey were separated

at the time, and Victim was living with her mother.

When Nesbitt and Victim neared Victim’s mother’s

house, they saw Lindsey in his girlfriend’s car. Instead of going to Victim’s mother’s house, Nesbitt

pulled her car into a neighbor’s yard, turned around,

stopped in the middle of the road, rolled down her window, and spoke to Lindsey. Lindsey asked Nesbitt if

she had spoken to Victim. Nesbitt, knowing Lindsey

had recently threatened Victim, told Lindsey she had

not seen Victim for three days. Nesbitt’s four-year-old

leaned forward in her car seat to say hello to Lindsey.

Lindsey asked Nesbitt who else was in the back seat,

and Nesbitt told him her other daughter was also in

the back seat. Lindsey asked Nesbitt to roll down her

back window so he could see who was in the back seat,

but Nesbitt told him the window was broken. When

Lindsey said he would get out of his car and look, Nesbitt sped off and headed to the Inman police station,

running stop signs and stop lights along the way.

Lindsey followed closely behind.

Victim called 911 as Nesbitt drove to the police

station, and both cars arrived at the same time. Lindsey exited his car and demanded Victim get out of Nesbitt’s car. When Victim refused, Lindsey fired a

handgun four times through the tinted rear driver’s

side window, killing Victim and narrowly missing the

children in the back seat. A police officer in the parking lot fired at Lindsey. Lindsey was treated and hospitalized for gunshot wounds, including one to the

head, which Lindsey claims he inflicted in an attempt

to kill himself.

Lindsey was indicted for murder in October 2002,

and the State served Lindsey with a death penalty notice, notice of intent to seek a life without parole sentence, and notice of statutory aggravating circumstances. The State listed one statutory aggravating

factor: under section 16-3-20(C)(a)(3) of the South

Carolina Code (2015), Lindsey’s “act of murder knowingly created a great risk of death to more than one

person in a public place by means of a weapon or device which normally would be hazardous to the lives

of more than one person.”

III. Trial

During the guilt phase of his 2004 trial before

then-circuit judge John C. Few, Lindsey admitted he

shot and killed Victim. His defense centered on the

theory that at the time of the shooting, he was depressed because Victim was keeping him from their

two minor sons. He contended he snapped and killed

Victim without the malice aforethought required for

murder. The State presented the narrative of a man

who stalked his wife and killed her in cold blood. The

jury found Lindsey guilty of murder.

During the penalty phase, the State presented evidence of several instances in which Lindsey physically abused Victim, including those in which he: (1) hit

Victim “so hard . . . he almost broke her jaw” in a parking lot while on a family vacation for “com[ing] back

too late”; (2) hit Victim for not coming to pick up milk

from him; (3) knocked out the window of Victim’s car,

sending broken glass over Victim and their son; and

(4) assaulted Victim in an Applebee’s parking lot. The

State presented evidence showing Lindsey had been

ordered to stay away from Victim by a magistrate the

day before the murder. The State also presented evidence (1) Lindsey was convicted of assault and battery

with intent to kill (ABWIK) after shooting an ex-girlfriend’s new boyfriend through the man’s car windshield;1 (2) Lindsey had drug trafficking charges

pending against him at the time of his murder trial;

(3) Lindsey never attempted to gain custody of his

children through legal means; and (4) Nesbitt’s older

daughter suffered emotional and psychological

trauma as a result of the murder.

James Sligh, the Division Director of Classification of Inmate Records for the South Carolina Depart-

Stanford Wilkins testified during the penalty phase that

Lindsey shot him with a .45 caliber handgun in February 1994.

Wilkins was driving his vehicle on a public road in Spartanburg

County with Jessica Cannon in the front passenger seat. Lindsey

blocked Wilkins’ vehicle with his Honda Accord and fired twice

through Wilkins’ windshield, striking Wilkins in the arm. Lindsey pled guilty to ABWIK.

ment of Corrections (SCDC), testified during the penalty phase that if Lindsey were sentenced to life imprisonment, he would be in contact with other inmates, hold jobs, participate in recreational activities,

and have visitation rights. The State emphasized

Lindsey murdered Victim at a police station—a public

place that should have been a refuge for Victim and, in

the process, put others in danger, including Nesbitt’s

children, who were seated in the back seat with Victim when Lindsey shot her.

Lindsey claims trial counsel was ineffective in

failing to prepare and present an adequate mitigation

case. The mitigation case trial counsel presented during the penalty phase emphasized Lindsey’s povertystricken upbringing, his depression, and his various

intellectual deficiencies. The following is a summary

of the testimony of Lindsey’s mitigation witnesses.

Ann Howard

Ann Howard, a registered nurse and mental

health professional employed by the Spartanburg

County Mental Health Center, testified she met with

Lindsey in the detention facility the night of the shooting. Though she was neither offered as an expert nor

permitted to give any opinions, she testified Lindsey

appeared depressed and suicidal, and she noted that

after the shooting, a psychiatrist prescribed Lindsey

antidepressants, mood stabilizers, and antipsychotic

medications.

Margaret Melikian, M.D.

Margaret Melikian, M.D. was qualified before the

jury as an expert in forensic psychiatry. At the time of

trial, she was the Program Director of Forensic Psychiatry at the Medical University of South Carolina. Her

duties included performing competency and criminal

responsibility evaluations for the Department of

Mental Health. Before Lindsey’s trial, she had been

qualified as an expert in forensic psychiatry approximately ten times in South Carolina courts.

Dr. Melikian testified she reviewed Lindsey’s

school records and medical records, including records

of a psychiatric hospitalization after Lindsey attempted suicide at age fifteen, and his neuropsychological records. She testified Lindsey had major depressive disorder and was significantly depressed at the

time he shot Victim. Dr. Melikian based her diagnosis

on Lindsey’s school records, which showed he had

learning and speech disabilities; his multiple past

head injuries resulting from being run over by a car

when he was about eighteen months old, a motorcycle

accident, and a car accident; an incident in which he

ingested kerosene as a baby; cognitive deficits affecting his fine motor skills, dexterity skills, memory, and

verbal skills; his family’s history of depression; a drugoverdose suicide attempt at age fifteen; and his suicidal ideation and extreme weight loss in the weeks

leading up to the murder.

Dr. Melikian testified Lindsey’s low intelligence

limited his ability to cope with stress, and she testified

the stress of separating from Victim further decreased

his coping abilities. Dr. Melikian testified Lindsey reported he had been suicidal for several weeks before

the murder and that during the three weeks before the

murder, Lindsey’s weight dropped from 225 pounds to

160 pounds.

She related to the jury that after the murder,

Lindsey was evaluated at the William S. Hall Psychiatric Institute, a facility operated by the South Carolina Department of Mental Health. She testified test-

ing at Hall showed Lindsey had an IQ of 76, with retesting showing an IQ in the 80s. She testified Lindsey was diagnosed at Hall with borderline intellectual

functioning. She recommended he be evaluated by a

behavioral neurologist because of abnormalities in his

psychological testing. Lindsey was seen by behavioral

neurologist Dr. Absher, who reported Lindsey had a

normal neurological exam.

Dr. Melikian testified Lindsey’s neuropsychological testing (performed by Dr. Brawley) showed Lindsey “had some abnormalities having to do with naming and being able to copy designs, dexterity, and fine

motor skills.” She testified that based on those results,

Lindsey had cognitive deficits, i.e., problems thinking

or acting. She explained the deficits included decreased verbal fluency (naming words), processing

memory, difference in dexterity on the right and left,

and motor speed differences on the right and left. Dr.

Melikian testified a brain abnormality was the cause

of Lindsey’s “low test scores and sudden neurological

findings.” She testified the brain abnormality was either something Lindsey was born with or was caused

by a traumatic head injury or ingesting kerosene. She

testified Lindsey put forth good effort during testing

and was not malingering.

Dr. Melikian testified Lindsey used an imaginary

friend named “Jimmy” as a coping mechanism when

suffering stress. She testified Lindsey claimed Jimmy

was present in the hospital after he attempted suicide

at age 15. She acknowledged on cross-examination

that Lindsey first mentioned Jimmy on the day he was

served with the State’s death penalty notice. However, she then testified it would not be unusual for

Jimmy to appear on that day, because Lindsey used

Jimmy as a mechanism to cope with stress, and receiving a death notice was undoubtedly one of the most

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stressful things to ever happen to Lindsey. She persisted in her opinion that Lindsey was not malingering, stating quite clearly that she disagreed with Dr.

Narayan, who was of the opinion Lindsey was malingering. Melikian testified Lindsey was using Jimmy

as a coping mechanism, not as an alternative source

of blame to escape responsibility for his crimes. She

also insisted on cross-examination that the report of

an imaginary friend has nothing to do with a diagnosis of mental illness, and she stated “[Lindsey] is suffering from depression regardless of whether he had

the hallucination of the imaginary friend or not. I’m

not sure that that would change, it would not change

his neurological impairment or his low IQ.”

Dr. Melikian also testified on cross-examination

that Lindsey’s depression, cognitive deficits, and low

IQ did not cause or excuse the murder; she clarified

“these are mitigating factors and should be considered

in the imposition of a death penalty.”

Virginia Lindsey

Virginia Lindsey, Lindsey’s mother (Mother), testified she raised Lindsey and her three other sons in a

small two-bedroom house. She and Lindsey’s father

never married, and Lindsey’s father was never involved in his life. She testified Lindsey was one of four

boys, but one drowned at a young age. She also testified she had a daughter who died at age seven months

in a car accident. She described Lindsey as “a very

loving, sweet child.” Mother testified Lindsey ingested kerosene when he was nineteen months old,

and about a month after that, Lindsey’s uncle backed

over his head with a car. She testified Lindsey was

“slow in school,” repeated eighth grade three times,

and had speech problems. She knew of only one fight

he had been in at school. She testified her other two

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sons’ father would pick them up on weekends2 and

leave Lindsey at home, which upset Lindsey greatly.

She testified Lindsey was hospitalized after attempting suicide when he was fifteen. She told the jury

Lindsey and Victim had a good relationship, she never

saw Lindsey hit Victim, and Lindsey loved his sons

very much. She also stated Victim had not allowed

Lindsey to see his sons in the two months prior to the

shooting, and she noted Lindsey was very depressed

about not seeing his children. Mother asked the jury

to show mercy to Lindsey.

Bill Burton

Bill Burton testified he was a lifeguard at a public

pool in his teens and befriended Lindsey and his

brothers when they were small and frequented the

pool. He taught Lindsey how to swim. He took them

to Spartanburg Phillies games, to Burger King, and

fishing at a pond on his family’s property. Burton testified Lindsey and his brothers were very polite to his

parents. He testified Lindsey and his brothers grew up

in a “rough situation” and in “desperate poverty,”

“without the benefit of parents like normal families.”

He said Lindsey and his brothers lived with their

mother in a 1,000-square-foot home with several other

people. Burton testified Lindsey was like many kids

from poverty looking for attention. He testified he did

not know Lindsey to be violent. Burton also testified

that when Lindsey was about nineteen, he got Lindsey

a job at the company where he was employed.

On cross-examination, Burton admitted he had

just learned about Lindsey shooting Stanford Wilkins

In her testimony, forensic psychiatrist Margaret Melikian

stated the notation that Lindsey repeated eighth grade three

times was a misstatement—she testified the school records were

confusing but reflect he repeated first grade and seventh grade.

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through Wilkins’ windshield. He also admitted there

were many other disadvantaged children in the area

who grew up without a mother or a father and Lindsey

was lucky to have someone like him. He also testified

that if Lindsey had called him to ask for help in getting visitation with his children, he would have helped

him get a lawyer.

Leon McDowell

Leon McDowell, Lindsey’s father, testified he was

not involved in Lindsey’s life other than occasionally

giving him money. He testified he “was never a father

to” Lindsey and regretted that fact. He also testified

to the jury that “if [they] can see fit not to execute

[Lindsey], maybe he can [be a] benefit to his kids

somehow.”

Chris Wilkins

Chris Wilkins testified he was related to Lindsey

and they “were like brothers.” He testified he had

known Lindsey since they were thirteen years old. He

testified Lindsey was a loving father, was very close

to his children, and tried hard to provide for his family. He testified Lindsey, Victim, and their children

lived with him for a time and they “raised [their] kids

practically together.” He never saw Lindsey hit Victim or hurt anyone on purpose. He testified Lindsey

would mumble to himself on occasion, usually when he

was stressed. Wilkins asked the jury to take into consideration the kind of father Lindsey was and asked

the jury to show mercy to Lindsey. On cross-examination, Wilkins admitted Lindsey shot Stanford Wilkins

through Stanford’s windshield and that Lindsey cold

cocked Victim in an Applebee’s parking lot.

Steve Pilgrim

One of Lindsey’s uncles, Steve Pilgrim, testified

during the penalty phase. He testified he lived with

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Lindsey, Mother, and Lindsey’s brothers for about

seven years while Lindsey was growing up. He testified he took Lindsey to the hospital after Lindsey’s

head was run over by a car as a child, and he also testified he was aware Lindsey ingested kerosene as an

infant. Pilgrim testified he and his daughter suffered

from panic attacks.

Bessie Smith

Bessie Smith, one of Lindsey’s aunts, testified she

and her husband lived with Lindsey, Mother, and

Lindsey’s brothers for a time. She testified that when

Lindsey was a child, he had a kitten he adored. She

testified one of Lindsey’s uncles killed the kitten by

throwing it into their house’s heating unit. She testified Lindsey “was very hurt by that” and “talked about

it for a long time.”

Lindsey’s Statement to the Jury

Lindsey did not testify during either phase of the

trial, but during closing arguments, he asked the jury

to spare him so he could be a father to his children. He

stated that if he serves a term of life in prison, “I could

still be of some use to my boys.” He said he was the

best father he could be. He expressed remorse for killing Victim and for all the pain he had caused to the

family and to everyone who loved and missed Victim

and stated he would do anything to bring her back.

10.

Counsel’s Closing Argument

While Mr. Bartosh’s closing argument was not evidence, we summarize it nonetheless. He emphasized

Dr. Melikian’s testimony about Lindsey’s cognitive

deficits, his depression, and possible brain damage.

He also recounted Mother’s testimony about Lindsey’s

head injury, his inhaling kerosene, that he was “slow,”

had speech problems, did poorly in school, and repeated the eighth grade three times. He emphasized

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Lindsey grew up without a father and wanted to be a

father to his children so Lindsey’s children would

never experience the environment he experienced. He

explained that even though Lindsey’s issues did not

excuse the murder, his background helped “explain

to you how Marion Lindsey can end up sitting at that

table” and that “[n]one of us can sit here and say how

we view the situations like [Lindsey] did with his

handicap.” He also emphasized the evidence Lindsey

was depressed, suicidal, and lost weight during his

last separation from Victim. He noted Dr. Melikian’s

testimony about Lindsey’s state of mind and argued

“[a]ll of the frustration, all of the depression, all of the

loss of his children all came together” at the time of

the murder. He also noted Lindsey’s attempt to commit suicide by shooting himself in the head while still

in the parking lot.

The jury found the State proved the existence of a

statutory aggravating circumstance and recommended Lindsey be sentenced to death. The trial

court imposed a death sentence. We affirmed Lindsey’s conviction and sentence. Lindsey, 372 S.C. at

188, 642 S.E.2d at 558. This PCR proceeding followed.

IV.PCR Hearing

Several witnesses who testified during the PCR

hearing provided testimony related to the preparation

and presentation of mitigation evidence.

Doug Brannon

Mike Bartosh, Lindsey’s lead trial counsel, passed

away before the PCR hearing. Doug Brannon, a private attorney and second chair at Lindsey’s trial, testified during the PCR hearing that he was not appointed to the case until March 5, 2004, roughly two

months before trial began. Mr. Brannon testified Mr.

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Bartosh was one of the finest lawyers he knew, and he

jumped at the chance to assist. Mr. Brannon explained he mainly worked on the guilt phase of the

trial, while Bartosh focused on the penalty phase.

Brannon testified he was not privy to all of Bartosh’s

preparation for the penalty phase; however, Brannon

testified he and Mr. Bartosh discussed Dr. Melikian’s

pending testimony about Lindsey’s mental state. He

explained Bartosh believed the best mitigation route

was to emphasize Lindsey’s troubled upbringing and

borderline intelligence level.

Karen Quimby Hatcher

Ms. Hatcher, a Spartanburg County assistant

public defender and third chair on the defense team,

testified she was not appointed until after mid-March

of 2004; her role was to organize files and act as a gobetween for Bartosh and the mitigation investigator,

Lenora Topp. Hatcher testified she had no part in calling witnesses or making strategic decisions.

Lenora Topp

Ms. Topp was a law enforcement officer from

1975-1990 and began private investigative work in

1991. She testified she was recommended to the defense team as a mitigation investigator by attorney

Jeff Blume. She began working on the case on April

16, 2004, a little more than a month before trial began.

She described her role as gathering records. She testified she did not have enough time to complete her

investigation and was, therefore, unable to obtain

Lindsey’s aunts’ medical records. She was also unable

to contact Dr. Barry Henderson, Lindsey’s childhood

physician, until the day after the death sentence was

delivered. She wanted Lindsey’s medical records, but

was not able to ask Dr. Henderson to testify during

trial. She testified she learned from Dr. Henderson

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that his children played with Lindsey when they were

little, and that he would have been willing to testify.

Dr. Henderson died in 2006, well before the PCR hearing.

On cross-examination, Topp testified she was a

mitigation investigator in three other death penalty

cases in South Carolina, and she did not have enough

time to complete her investigation in any of those

cases, having “no more than two months” for each one.

She testified she had two major interviews with Lindsey and obtained a lot of information from him, such as

being run over by a car, never having new clothes, living in a small house and sleeping in one bed with his

brothers, being very poor, and not having a father figure. She testified “Jimmy” was not in the room when

she talked to Lindsey. She testified Lindsey told her

that on the day of the murder, he was very upset his

wife was having an affair with a man who would take

over raising his children. She testified Lindsey told

her he was affected severely when his brother Paul

drowned. She stated Lindsey described his older

brother Timothy Sims as like a father. She testified

Lindsey told her he sold drugs because he needed

money and liked the lifestyle it allowed. She testified

she was aware before trial that Lindsey shot another

man through a car windshield, that he had relationships with other women while he was married, and

that Lindsey supposedly had an imaginary friend

named “Jimmy.”

In sum, almost all of what Ms. Topp summarized

during her PCR testimony was communicated to the

jury by witnesses.

Mother

Mother’s testimony during the PCR hearing was

very similar to her trial testimony. Mother testified

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she raised Lindsey in a “rough neighborhood” where

drinking, drug dealing, and violence were normal. She

testified Lindsey was raised in poverty in a small

home with as many as twelve family members living

there.

Mother testified her live-in boyfriend of twenty

years had a “real bad drinking problem” and was violent toward Lindsey, even when Lindsey was a young

child. Mother explained that while her other children

spent time with their fathers, Lindsey’s father was not

a part of his life. She also noted her brothers lived

with them and were violent, fought often, owned

weapons, once got into a shootout at their home, and

threw Lindsey’s kitten into the house’s heating unit.

As she did during trial, Mother testified Lindsey suffered several medical emergencies as a child, including ingesting kerosene when he was a baby and his

uncle backing over his head. She added head injuries

she did not relate during her trial testimony, specifically Lindsey falling twice when he was six or seven

and hurting his head and receiving another head injury when he was in a car wreck at sixteen years old.

She recounted Lindsey’s attempt to kill himself when

he was fifteen years old. Mother stated Lindsey received poor grades in school, had to repeat some

grades, and dropped out at age seventeen. She testified Lindsey sold illegal drugs to support the family,

and even though he sometimes had “legal” jobs, he

would quit because he made more money selling

drugs. Mother stated Lindsey was a good father, and

she said she never saw him hit Victim; she further testified that when Lindsey and Victim separated, Victim

would not let Lindsey see his children. She testified

he then became depressed and considered suicide,

writing multiple suicide notes that she gave to Rodman Tullis, Lindsey’s former attorney.

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Bessie Smith and Steve Pilgrim

During their PCR testimony, Lindsey’s aunt Bessie Smith and his uncle Steve Pilgrim—both of whom

also testified during the penalty phase—provided similar accounts of the violence prevalent in Lindsey’s

childhood home and noted Lindsey’s and his family’s

mental health struggles. Specifically, Ms. Smith testified Lindsey’s uncles drank and were violent; Lindsey’s other aunt had drug abuse problems; and Mother

had drinking problems, leaving Lindsey’s care to other

family members. Smith testified that two weeks before Victim’s murder, Lindsey was depressed and contemplated suicide, but his family decided not to seek

professional or medical help for him. She also stated

Lindsey was very upset about not being able to see his

children. Mr. Pilgrim testified Mother and two of

Lindsey’s aunts had attempted suicide. Pilgrim testified Lindsey’s other uncles and one of his aunts acted

violently toward family members and others around

Lindsey. He also stated he lived in the small house

with Lindsey, and the house did not have indoor

plumbing or air conditioning and had a coal/wood

stove for heat.

Timothy Sims

Timothy Sims, Lindsey’s younger brother by ten

years, testified during the PCR hearing, but did not

testify during the murder trial. Sims testified he was

convicted of a drug offense in 2003, a year before the

trial. He testified he received a suspended six-year

sentence but was available to testify during the trial.

Sims testified Lindsey was a father figure to him, and

he lived with Lindsey, Victim, and their sons for a

time. He said he never witnessed any physical violence between Lindsey and Victim. Sims testified that

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two weeks before the murder, Lindsey cried and contemplated suicide. Sims stated he had never seen

Lindsey cry before. Sims detailed that the day before

the shooting, Lindsey suspected Victim was seeing another man and Lindsey asked Victim over the phone to

let him visit with the boys. Sims stated Victim refused

to let Lindsey’s children see him, and he heard one of

Lindsey’s sons say, “I want my daddy,” but Victim

stated, “no, you don’t, we is not living with him no

more, that’s not your daddy,” and hung up the phone.

Sims testified he spoke to Lindsey on the phone

shortly before the shooting, and Lindsey was crying

about Victim’s new boyfriend and stated he felt like his

head was “messed up,” like he was “all out of his

mind.” According to Sims, when Lindsey asked him to

check on Victim’s home, Lindsey was trying to find out

if Victim was seeing another man, not to find out how

his children were faring.

Rodman Tullis

Mr. Tullis, Lindsey’s former attorney, did not testify during the trial. At the time of the PCR hearing,

Mr. Tullis had been disbarred for several years. See

In re Tullis, 375 S.C. 190, 652 S.E.2d 395 (2007). He

testified during the PCR hearing that at the time of

the murder, he represented Lindsey in some pending

cases in general sessions court and perhaps some traffic court and family court matters. He stated he had

spoken to Lindsey about handling some domestic issues (including Victim’s extramarital affair), and he

stated Lindsey’s biggest concern was being able to see

his children. He and Lindsey discussed Lindsey making an offer to pay child support in exchange for visitation, but no pleadings were filed, and he did not know

whether Lindsey ever communicated the offer to Victim. Tullis testified that about an hour before the

murder, Lindsey left him a voicemail in which Lindsey

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sounded emotional, distressed, and distraught but not

angry or “manic.” Tullis stated he visited Lindsey at

the county detention center after Lindsey was released from the hospital after the murder. Tullis testified Lindsey’s head was bleeding because he had

been “bashing his head against the concrete wall” of

his cell in an attempt to kill himself. Tullis testified

Lindsey was put on suicide watch, lost a lot of weight,

and told Tullis he wanted to die. Tullis also testified

that a few weeks before the shooting, Mother gave

him Lindsey’s suicide notes, and he gave the suicide

notes and the voicemail recording to the public defender’s office.

On cross-examination, Tullis noted Lindsey had a

criminal domestic violence case pending at the time of

the murder. He stated Victim denied Lindsey access

to his children “some weeks before the shooting,” and

there was a court order directing Lindsey to have no

contact with Victim. He also confirmed Lindsey was

accused of domestic abuse incidents allegedly occurring in August and October of 1996, February 1999,

August 2000, and December 2001, with the murder

occurring in September 2002.

Bill Burton

Burton’s trial testimony is summarized above.

With limited exceptions, his PCR testimony tracked

his trial testimony. He testified Mr. Bartosh was very

busy and difficult to contact before the trial. He had

no one-on-one discussions with Bartosh before testifying. He testified he had no legal experience but “the

case was unorganized and I was very concerned about

it.” He testified he was more prepared to testify about

Marion before his PCR testimony than he was before

the penalty phase. Again, however, much of his PCR

21a

testimony tracked his trial testimony. He stated Lindsey was desperate for attention and “seemed [to be] a

guy who wanted to have a family, who needed adult

approval, and who didn’t have it all.” He said Lindsey

did not do well in school, seemed to want a male figure

in his life, and was “unsupervised.” He testified he lost

track of Lindsey when Lindsey was about nineteen.

As he did during his trial testimony, he conceded on

cross-examination that until the trial, he was not

aware of Lindsey shooting Stanford Wilkins, dealing

drugs, or having relationships with other women

while he was married.

Mrs. Burton

She is identified in the PCR transcript as “Mrs.

Burton” and in related filings as Patsy Burton, but it

is clear she is Bill Burton’s mother. She did not testify

during trial. During the PCR hearing, she testified

she loved Lindsey and would have testified during

trial had she been asked. She stated she met Lindsey

when he was six or seven, and she stated Lindsey was

special to her son. Lindsey would come to her house

“and fish and play.” After Bill went to the Air Force

Academy, Lindsey’s brothers or cousins would bring

him to the house on occasion. She testified she has

gotten to know Lindsey better since he has been in the

penitentiary, where she has visited him “many times.”

She testified she would have asked the jury to show

Lindsey mercy if she had been called to testify.

During cross-examination, Mrs. Burton conceded

that most of what she knew about Lindsey’s family

came from her son. She was not aware Lindsey was a

drug dealer, she did not know his relationship with

Victim or that he was involved in a shooting and criminal domestic violence incidents. She said “all I knew

was that he was a happy little kid.”

22a

10.

Vincent Bell

Vincent Bell was a paramedic who responded to

the murder scene. He did not testify during trial. He

testified during the PCR hearing that Lindsey stated

at the scene that he shot his wife, then shot himself in

the head, and wanted the paramedics to let him die.

Bell also testified Lindsey told him he killed Victim

because she was “fooling around” with another man.

Bell testified he did not recall Lindsey saying anything about his children.

11.

Tora Brawley

Tora Brawley, a clinical psychologist, testified

during the PCR hearing, but not during trial. She was

retained about a month before the murder trial and

testified she “had been called in late in the game.” She

performed an “extended clinical interview and a battery of neuropsychological tests” and found Lindsey

had neuropsychological deficits in verbal fluency,

memory, and speed of mental tracking. She stated

Lindsey informed her he had multiple instances of

head trauma, problems in school, and had attempted

suicide on four occasions. She scored Lindsey’s fullscale IQ at 85. She testified she had no medical records, school records, or any other records pertaining to

Lindsey. She testified her diagnosis was consistent

with Dr. Melikian’s. She gave a verbal report to Mr.

Bartosh and a written report to Dr. Melikian and testified she did not know why she was not called to testify during trial. Dr. Brawley testified she performed

several malingering tests which led her to conclude

Lindsey was not malingering.

During cross-examination, Dr. Brawley noted she

asked Lindsey about Jimmy and Lindsey told her

Jimmy was like an older role model who came to live

with him after Lindsey tried to commit suicide when

23a

he was twelve. She shared that information with Dr.

Melikian. She testified Lindsey told her he was hospitalized for over a month after the suicide attempt

and also tried to kill himself in 2001 and August 2002,

weeks before he murdered Victim.

12.

Jan Vogelsang

Jan Vogelsang, an expert in clinical social

work with expertise in bio-psychosocial assessments, testified during the PCR hearing that she conducted a bio-psychosocial assessment on Lindsey and

his family. According to Vogelsang, a bio-psychosocial

assessment is a gathering of extensive information in

an effort to shed light on a person’s behavior and determine how the person came to be in his current circumstances. Vogelsang interviewed Lindsey, his family, Topp, Tullis, Dr. Melikian, and Dr. Brawley; reviewed Lindsey’s medical records, mental health records, prison records, suicide notes, legal/criminal records, and a letter he wrote to Victim’s mother; reviewed the medical, mental health, and criminal records of Mother and other various family members; and

visited the community where Lindsey grew up. Vogelsang explained Lindsey grew up in “abject poverty,”3

and his family had a history of sexually inappropriate

behavior, abandonment and desertion of children,

drug dealing, domestic and non-domestic violence, imprisonment, untreated mental illnesses and suicide

attempts, a lack of education, and a belief in and use

of “roots.”4 Vogelsang stated Lindsey’s childhood home

Vogelsang explained “abject poverty” means Lindsey’s family

“did go cold, did go hungry, that the children got up in the morning early to see who could be first to get one of [the family’s three

spoons] and eat first.”

Vogelsang testified “roots” is a cultural practice using liquids,

powders, and plants to affect others’ lives and is a form of voodoo

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was a crowded four-bedroom home (it was actually a

two-bedroom home with four rooms) with as many as

ten people living together, with no indoor plumbing or

heating, and was located in a rough neighborhood

where drug-dealing was prevalent.

Vogelsang testified Lindsey was abandoned by his

father, and Mother was not involved in important

parts of his life, causing him to have an over-reactivity

to rejection. She testified Lindsey did not have a

strong adult male figure in his life, and one of the biggest risk factors for criminal activity and incarceration in a young male is the absence of a strong male

figure in the young male’s life. Vogelsang also testified

Lindsey was corrupted or mis-socialized by watching

his family’s violent behavior, specifically by witnessing the males in his life beat their girlfriends and get

into fights and witnessing Mother shoot at her boyfriend. In addition, Lindsey’s uncles used him as a

drug runner beginning at age twelve or fourteen. Vogelsang also testified Lindsey thought he was a good

and loving father to his children. Vogelsang testified

there was no evidence Lindsey abused his children.

Vogelsang opined the family system and behaviors

witnessed by Lindsey through his developing years

caused an accumulation of risk factors affecting his

decision-making, judgment, insight, and impulsivity

and placed him at a higher risk of committing a “serious act.”

On cross-examination, Vogelsang testified she also

had experience as a social worker in family court child

or black magic. Vogelsang explained children who grow up in violent or chaotic homes that practice roots “are simply further

confused by the use of roots, and especially if it’s being used to

deal with problems in relationships.”

25a

custody cases. She testified she was not aware Lindsey had given one of his infant children beer in a baby

bottle, but she conceded that would be something she

would weigh against a parent having unsupervised

visitation rights, as would dealing drugs, carrying a

firearm, being violent toward the children’s mother,

and shooting someone (all of which applied to Lindsey

before he murdered Victim). During cross-examination, Vogelsang also admitted Lindsey’s belief he was

a good father was based on his limited understanding

of what fatherhood was, namely buying things for his

children. She admitted that because of Lindsey’s

criminal history and abuse of Victim, she would have

been hesitant to recommend to a family court judge

that Lindsey have visitation rights, even with supervision. She also conceded on cross that Lindsey’s uncle Steve Pilgrim was a father figure to Lindsey, spent

time with Lindsey, and Lindsey liked being with him

(though in Vogelsang’s opinion, Pilgrim did not have

“the skills” necessary to help Lindsey through “developmental stages”). She also confirmed on cross she

had not spoken with eight other potential witnesses

identified to her.

13.

Dr. Melikian

Dr. Melikian, the forensic psychiatrist who testified for Lindsey during the penalty phase, also testified during the PCR hearing. She testified Lindsey’s

case was either her first or second death penalty case.

She testified she was unable to fully prepare for trial

because Mr. Bartosh contacted her only a month or so

before trial. She testified the mitigation investigation

was lacking, and she testified she was inexperienced in

death penalty cases at the time of trial. Dr. Melikian

testified she had six to seven times more records and

information for the PCR hearing than she had at the

time of trial, and she noted some of the new records

26a

(Lindsey’s suicide notes, some mental health and medical records, some prison records, and parts of the incident reports related to the shooting) might have impacted her view of the case. Dr. Melikian also testified

she did not know Lindsey’s family history at the time

of trial or the extent to which he was suicidal at the

time of the shooting. Dr. Melikian asserted this additional information “would have changed” her diagnosis

because she did not “understand the seriousness of

Mr. Lindsey’s depression at the time of the incident.”

Dr. Melikian testified Mr. Bartosh set up a time

for her to call the trial judge so she could explain she

was not ready to testify. Bartosh did not participate

in this phone call and did not, to her knowledge, formally request a continuance. Dr. Melikian testified

that even though she would have still diagnosed Lindsey with depression, the information she obtained after trial and before her PCR testimony would have allowed her to better understand and testify during trial

about the depth of Lindsey’s depression and explain to

the jury the depression could have been the cause of

his low cognitive ability at the time of the shooting.

Dr. Melikian also testified about Jimmy, Lindsey’s alleged imaginary friend. She testified that at

the time of trial, she believed Jimmy was merely a

coping mechanism when Lindsey was under stress.

She testified that had she known before trial that

Lindsey apparently fabricated Jimmy, she would have

made the fabrication the focus of her evaluation before

trial because it might have provided evidence helpful

to a mental health defense. However, on cross-examination, Dr. Melikian conceded she had learned since

the trial that Lindsey invented Jimmy on the advice

of fellow inmates, not for any reason related to his deficient mental status.

27a

14.

James Evans Aiken

Lindsey contends trial counsel was ineffective in

failing to retain a prison adaptability expert to testify

during trial. James Evans Aiken,5 a prison adaptability expert, testified during the PCR hearing that he

reviewed Lindsey’s prior records from SCDC up until

the 2004 trial and determined SCDC “has and can

manage this type of offender for the remainder of his

life without causing unreasonable risk of harm to

staff, inmates, as well as the general community.”

However, on cross-examination, Aiken admitted the

“best predictor of future behavior is past behavior,”

and he acknowledged Lindsey was previously convicted of ABWIK for shooting an ex-girlfriend’s new

boyfriend through the windshield of the man’s vehicle

and had been charged with criminal domestic violence

several times. Aiken also admitted Lindsey got into

multiple fights with other inmates while he was in

prison, had been in an altercation with an officer who

tried to break up one of the fights, and had been

“gassed” by an officer who was attempting to break up

a fight in which Lindsey was involved.

The PCR court ruled trial counsel’s investigation

of the social history of Lindsey and his family members was reasonable. Pointing to the trial testimony

of Mother, Chris Wilkins, Bill Burton, Leon McDowell, and Steve Pilgrim, the PCR court concluded that

even though the investigation did not meet the ABA

Guidelines, the investigation “uncovered matters necessary for the defense.” The PCR court concluded the

summaries of Lenora Topp’s interviews of Lindsey

Mr. Aiken introduced himself to the jury as James Evans Aiken, but the transcript header refers to him as Rob Aiken.

28a

and Mother, and Topp’s PCR testimony about what

Topp learned in 2004 are in virtually the same detail

as the PCR testimony of Jan Vogelsang and Lindsey’s

family members. The PCR court explained that Jan

Vogelsang’s testimony, while “laborious,” conveyed essentially the same information presented to the trial

jury. The court also cited some less-than-helpful information imparted by Vogelsang, including her concession that she would not have recommended Lindsey have even supervised visitation with his children,

in light of Lindsey’s proclivity to deal drugs and act

violently. The PCR court also noted that even though

Vogelsang “presented a social history of known poverty and lack of a father figure . . . , she also confirmed

that he had become a controlling and violent person.”

The PCR court also ruled trial counsel’s failure to

call paramedic Vincent Bell as a witness was not deficient performance. The PCR court ruled the same information provided by Bell during the PCR hearing

was conveyed to the jury by other witnesses.

V. PCR Court’s Signing of the

State’s Proposed Orders

After the PCR hearing, the PCR court requested

the parties to submit proposed orders. The PCR court

signed the proposed order submitted by the State,

making no changes or corrections. As noted, the PCR

court dismissed Lindsey’s PCR claim, finding, among

other things, that Lindsey’s three trial attorneys were

not deficient in investigating or presenting his mitigation defense, and, even if they were deficient, Lindsey

was not prejudiced.

The PCR court denied Lindsey’s motion to reconsider. Lindsey petitioned this Court for a writ of certiorari, arguing the PCR court’s verbatim adoption of the

State’s proposed order violated his constitutional

29a

rights, and noting the order contained numerous typographical and grammatical errors, which Lindsey

asserted cast doubt as to whether the PCR court even

read the proposed order before signing it. We vacated

the dismissal of Lindsey’s application for PCR and remanded the case to the PCR court to issue a new order

that (1) included findings of facts and conclusions of

law on each issue presented in Lindsey’s PCR application with accurate references to the record and applicable law and (2) complied with Pruitt; Hall; and section 17-27-80.

On remand, the PCR court asked the parties for the

same proposed orders they previously submitted. In

response, Lindsey filed a petition for extraordinary

relief to this Court, asking for a new PCR hearing before a different judge and asserting the PCR court had

violated this Court’s order by requesting copies of the

original proposed orders, which indicated it planned to

adopt the State’s order a second time. We denied the

request for extraordinary relief.

Subsequently, the PCR court issued an amended

order, again denying Lindsey PCR. The PCR court initialed each page of the 187-page order and made

three handwritten and initialed edits to typographical

errors in the amended order. Lindsey filed another petition for extraordinary relief, alleging the amended

order was the same as the original PCR order except

for the correction of some typographical errors. We denied that petition as well.

Lindsey moved in the circuit court for a new PCR

hearing in front of a new PCR judge or, in the alternative, for reconsideration of the amended order of dismissal. During the hearing of this motion, the PCR

judge admitted he read through the parties’ proposed

orders the first time “probably too hastily and [] didn’t

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make any corrections because of that.” However, the

judge noted the State’s order “was exactly as I . . . saw

the case that was presented to me.” The PCR court

explained during a post-remand hearing:

[Y]’all would never even imagine the number

of hours that [my law clerk] and I spent going

through all these documents. And even after

we loaded the final proposed order that, I even

instructed [my law clerk] to not make some

corrections on purpose to prove to everyone

that could possibly be concerned on this case

that I was involved in redrafting that order

and there were many changes made. As I said,

I purposely asked him to leave some errors in

there so I could initial them to prove that

point, and I even took the extra step to call the

Clerk of the Supreme Court to let them know

over there that I had purposely done that to

prove what I’m just stating. So I wanted to put

that on the record because I didn’t want anybody to say well, [the PCR court] didn’t even

correct this last order. That was purposefully

done.

The PCR court then denied Lindsey’s recusal motion. After a second hearing on the motion to reconsider, the PCR court denied the motion.

VI.Discussion

“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a

conviction or death sentence has two components.”

Strickland v. Washington, 466 U.S. 668, 687 (1984).

“First, the defendant must show that counsel’s performance was deficient.” Id. “Second, the defendant

must show that the deficient performance prejudiced

31a

the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a

fair trial, a trial whose result is reliable.” Id. “When

a defendant challenges a death sentence, prejudice is

established when ‘there is a reasonable probability

that, absent [counsel’s] errors, the sentencer–including an appellate court, to the extent it independently

reweighs the evidence–would have concluded that the

balance of aggravating and mitigating circumstances

did not warrant death.’” Council v. State, 380 S.C.

159, 176, 670 S.E.2d 356, 365 (2008) (quoting Jones

v. State, 332 S.C. 329, 333, 504 S.E.2d 822, 823

(1998)). “The bottom line is that we must determine

whether or not [the defendant] has met his burden of

showing that it is reasonably likely that the jury’s

death sentence would have been different if counsel

had presented additional” mitigating evidence. Jones,

332 S.C. at 333, 504 S.E.2d at 824. “Unless a defendant makes both showings, it cannot be said that the

conviction or death sentence resulted from a breakdown in the adversary process that renders the result

unreliable.” Strickland, 466 U.S. at 687.

Generally, “[o]ur standard of review in PCR cases

depends on the specific issue before us.” Smalls v.

State, 422 S.C. 174, 180, 810 S.E.2d 836, 839 (2018).

“We defer to a PCR court’s findings of fact and will uphold them if there is evidence in the record to support

them.” Id. (citing Sellner v. State, 416 S.C. 606, 610,

787 S.E.2d 525, 527 (2016)). “We review questions of

law de novo, with no deference to trial courts.” Id. at

180-81, 810 S.E.2d at 839. Whether trial counsel was

deficient and whether any deficiency prejudiced a

PCR applicant are questions of law.

32a

We first address Lindsey’s argument that the PCR

court violated our Remand Order and violated his constitutional and statutory rights by readopting the

State’s proposed order of dismissal after this Court’s

remand, asserting the PCR court did so without considering Lindsey’s grounds for PCR or even reading

the proposed order before signing it. Lindsey contends

this Court, by citing Pruitt and Hall in the Remand

Order, required the PCR court to draft its own order.

Lindsey argues the PCR court ignored this directive

by adopting the State’s proposed order a second time

without making any material changes to the order or

even correcting a majority of the typographical errors.

Lindsey requests de novo review of the factual findings

of the PCR court or, in the alternative, a new PCR

hearing.

Lindsey argues for de novo review, claiming the

PCR court adopted the State’s proposed order without

reading it, which removes the “presumption of correctness” of the order. Lindsey cites federal habeas corpus

cases he contends support this argument. See Jefferson v. GDCP Warden, 941 F.3d 452, 474 (11th Cir.

2019) (finding “the state habeas court’s factual findings [were not] entitled to a presumption of correctness” because the state court deprived the defendant

of a “full and fair hearing” by adopting an order

“drafted exclusively by the State pursuant to an ex

parte request made by [the judge’s] law clerk,” and the

order showed the court “uncritically accepted findings

prepared without judicial guidance” as shown by the

court overlooking at least twenty-one typographical

errors, inviting the inference that the court “failed to

review the proposed order . . . before executing the final order”).

33a

A 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. The

commentary to Canon 3B(7) of the Code of Judicial

Conduct states a court “may request a party to submit

proposed findings of fact and conclusions of law, so

long as the other parties are apprised of the request

and are given an opportunity to respond to the proposed findings and conclusions.” See Commentary to

Rule 3B(7), CJC, Rule 501, SCACR.

We have expressed a “concern with the increasing

number of orders in PCR proceedings that fail to address the merits of the issues raised by the applicant”

because this “deprive[s] the parties of rulings on the

issues raised, [and] makes review by the appellate

court more difficult and ultimately increases the work

load of all involved[,]” often requiring a new hearing.

Pruitt, 310 S.C. at 255-56, 423 S.E.2d at 128. In

Pruitt, we stated, “Counsel preparing proposed orders

should be meticulous in doing so, opposing counsel

should call any omissions to the attention of the PCR

judge prior to issuance of the order, and the PCR judge

should carefully review the order prior to signing it.”

Id. at 256, 423 S.E.2d at 128. Also, while we “strongly

encourage[d] PCR judges to draft their own findings

of fact and conclusions of law in death penalty cases,

we also acknowledge[d] that in all other cases, it is

common practice for judges to ask a party to draft a

proposed order for the sake of efficiency.” Hall, 360

S.C. at 365, 601 S.E.2d at 341.

We hold the PCR court did not err in requesting

proposed orders from the parties after remand or in

adopting the State’s proposed order. PCR courts can,

and commonly do, request and adopt proposed orders

from parties, even though PCR courts are encouraged

to write their own orders in death penalty PCR cases.

34a

See § 17-27-80; Commentary to Rule 3B(7), CJC, Rule

501, SCACR; Hall, 360 S.C. at 365, 601 S.E.2d at 341.

This practice is proper, as long as: (1) the other parties

are aware of the request for a proposed order and are

allowed to respond to the proposed order; and (2) the

PCR court carefully reviews the order before signing

it. Hall, 360 S.C. at 365, 601 S.E.2d at 341; Pruitt, 310

S.C. at 255-56, 423 S.E.2d at 128. Here, the record

shows that (1) after the initial PCR hearing, the PCR

court requested a proposed order from the State in a

letter sent to the State and copied to Lindsey’s PCR

counsel on May 2, 2011; (2) in a May 12, 2011 email to

Lindsey’s PCR counsel and copied to the State, the

PCR court apologized for not requesting a proposed order from Lindsey, noting it had mistakenly believed

Lindsey had already sent in a proposed order and stating it would hold the matter open for Lindsey to have

time to submit a proposed order, which he did; (3) the

State sent its proposed order to the PCR court and

Lindsey on June 2, 2011, providing Lindsey with time

to respond to the proposed order, which he did not;

and (4) after this Court remanded the case to the PCR

court for a new order, the PCR court emailed both parties asking the parties to send their initial proposed

orders, not new orders, and in response, Lindsey filed

a petition for emergency relief to this Court, which

was denied. Thus, we believe Lindsey was aware of

and had ample opportunity to respond to the State’s

proposed order.

The PCR court’s post-remand statements at the

hearing on Lindsey’s motion to reconsider establish

the PCR court sufficiently reviewed the State’s proposed order before issuing the amended PCR order.

Specifically, the PCR court stated: (1) the State’s order

“was exactly as I . . . saw the case that was presented

35a

to me”; (2) the parties “would never imagine the number of hours” the PCR court spent working on the case;

and (3) the PCR court purposefully left in errors so it

could fix and initial the errors to prove it read the order. See Hall, 360 S.C. at 357, 365, 601 S.E.2d at 337,

341 (finding the PCR court “spent an adequate

amount of time reviewing the [PCR] order before

adopting it,” where the PCR court adopted the State’s

proposed order “in full, without alterations” in a death

penalty case but told the parties it would “carefully review the proposed order and insure that the facts and

conclusions of law are as I find them to be”). Thus, the

record demonstrates the PCR court adopted the

State’s proposed order only after carefully reviewing

the State’s initial proposed order. Therefore, we hold

the PCR court did not adopt the amended order in violation of Lindsey’s constitutional rights or South

Carolina law.

Next, we address Lindsey’s assertion that the

amended PCR order violates our Remand Order because it does not contain specific findings of fact or conclusions of law with respect to each of his PCR claims.

In Lindsey’s post-PCR hearing memorandum, he

listed each of his PCR claims, including his claims

trial counsel was ineffective for failing to: (1) prepare

Lindsey for his mental-health evaluations, spend

enough time with him, and stop Lindsey from listening

to “jailhouse lawyers” telling him to feign a mental illness; (2) adequately address the issue of malingering;

(3) adequately prepare witnesses to request mercy for

Lindsey or adequately defend the witnesses’ right to

request mercy for Lindsey during their trial testimony; (4) provide sufficient information to Dr. Melikian to allow her to both properly evaluate and testify

regarding Lindsey’s mental condition; (5) adequately

present Lindsey’s family history of mental illness and

36a

impairment; (6) present evidence of Lindsey’s adaptability to prison through an expert; (7) present an expert to discuss Lindsey’s psycho-social history; (8) present EMS workers who treated Lindsey at the scene of

the murder and said Lindsey said he shot himself and

wanted to die; (9) “commit sufficient time to perform

an adequate investigat[ion] for the penalty phase of

the trial . . . [or] adequately prepare for the presentation of a case in support of mitigation”; and (10) argue

against the aggravating factor raised by the State. In

its amended order, the PCR court addressed each of

these issues, evaluating the facts extensively and

reaching legal conclusions as to each. Thus, we hold

the PCR court articulated specific findings of fact and

conclusions of law as to each issue raised by Lindsey,

as required by our remand order and as required by

Pruitt, Hall, and section 17-27-80. We hold the order

comports with South Carolina law and our Remand

Order. Accordingly, we will adhere to our normal

standard of review. See Smalls, 422 S.C. at 180-81,

810 S.E.2d at 839 (“We defer to a PCR court’s findings

of fact and will uphold them if there is evidence in the

record to support them,” but “we review questions of

law de novo, with no deference to trial courts”).

We respectfully reject Lindsey’s arguments and

will defer to the PCR court’s factual findings if they

have evidentiary support. We also hold there is no justification for a new PCR hearing.

C. Lindsey’s Ineffective Assistance Claims

Lindsey intersperses in his mitigation argument

many allegations relative to the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases

(ABA Guidelines). Lindsey asserts trial counsel was

deficient in failing to follow the ABA Guidelines in the

37a

following particulars: (1) failing to obtain records concerning Lindsey’s background or his family members

who had mental illnesses; (2) not beginning the mitigation investigation until a month before trial; (3) failing to present evidence of Lindsey’s “horrible childhood”; (4) failing to attend important interviews with

the State’s mental health expert; (5) losing the tape of

Lindsey’s voicemail to Tullis; (6) failing to call important mitigation witnesses, such as the paramedics

who treated Lindsey at the scene of the incident, Lindsey’s childhood doctor, and Sims, Lindsey’s younger

brother; (7) failing to prepare the mitigation witnesses

to ask the jury for mercy for Lindsey; (8) failing to retain, prepare, and call Dr. Brawley, who tested Lindsey for cognitive impairments; (9) failing to retain a

social work expert; and (10) failing to retain a prison

adaptability expert to testify during trial. Lindsey

also contends the PCR court erred in failing to rely

upon the ABA Guidelines in determining whether

trial counsel was deficient.

This Court has noted the ABA Guidelines in a

PCR case are but one factor in determining whether

trial counsel’s performance in a death penalty case

was deficient. Council, 380 S.C. at 172-73, 670 S.E.2d

at 363. The ABA Guidelines purport to “set forth a

national standard of practice for the defense of capital

cases in order to ensure high quality legal representation for all persons facing the possible imposition or execution of a death sentence by any jurisdiction.”

American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death

Penalty Cases 1.1(A) (rev. 2003). “As soon as possible

after designation, lead counsel should assemble a defense team,” including “at least one mitigation specialist and one fact investigator” and “one member qualified by training and experience to screen individuals

38a

for the presence of mental or psychological disorders

or impairments.” ABA Guidelines 10.4(C). “Counsel

at every stage have an obligation to conduct thorough

and independent investigations relating to the issues

of both guilt and penalty.” ABA Guidelines 10.7(A).

In deciding which witnesses and evidence to

prepare concerning penalty, the areas counsel

should consider include the following: 1. Witnesses familiar with and evidence relating to

the client’s life and development . . . that

would be explanatory of the offense(s) . . . or

would otherwise support a sentence less than

death; 2. Expert and lay witnesses along with

supporting documentation (e.g., school records, military records) to provide medical, psychological, sociological, cultural or other insights into the client’s mental health and/or

emotional state and life history that may explain or lessen the client’s culpability for the

underlying offense(s); to give a favorable opinion as to the client’s capacity for rehabilitation, or adaption to prison; to explain possible

treatment programs; or otherwise support a

sentence less than death; and/or to rebut or

explain evidence presented by the prosecutor.

...

ABA Guidelines 10.11(F).

As we noted in Stone v. State, 419 S.C. 370, 397

n.6, 798 S.E.2d 561, 576 n.6 (2017), the United States

Supreme Court and this Court “have relied on the

ABA Guidelines to determine whether counsel’s performance was reasonable” under the Strickland deficiency prong. See also Ard v. Catoe, 372 S.C. 318, 332,

642 S.E.2d 590, 597 (2007). In Bobby v. Van Hook,

the United States Supreme Court flatly rejected the

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notion that the 2003 ABA Guidelines should be considered “inexorable commands” trial counsel must

strictly follow:

Strickland stressed, however, that “American

Bar Association standards and the like” are

“only guides” to what reasonableness means,

not its definition. 466 U.S., at 688, 104 S.Ct.

2052. We have since regarded them as such.

See Wiggins v. Smith, 539 U.S. 510, 524, 123

S.Ct. 2527, 156 L.Ed.2d 471 (2003). What we

have said of state requirements is a fortiori

true of standards set by private organizations:

“[W]hile States are free to impose whatever

specific rules they see fit to ensure that criminal defendants are well represented, we have

held that the Federal Constitution imposes

one general requirement: that counsel make

objectively reasonable choices.” Roe v. FloresOrtega, 528 U.S. 470, 479, 120 S.Ct. 1029, 145

L.Ed.2d 985 (2000).

558 U.S. 4, 8-9 (2009) (footnote omitted).

Lindsey’s initial specific mitigation-related claim

is that trial counsel waited too late to mount a pretrial

mitigation effort. We disagree. In Bobby, the defendant’s trial counsel met with one mitigation expert for

the first time one month before trial and met with another for two hours one week before trial. Id. at 9-10.

The Court found the timing of the retention of experts

to be reasonable and rejected the lower court’s holding

that counsel waited until the last minute. Under the

facts of this case, we hold the timing of the retention

of Lindsey’s experts was not unreasonable.

Lindsey contends trial counsel was deficient in

failing to perform an adequate mitigation investigation; in failing to hire a social work expert to testify as

40a

to his poor upbringing; and in failing to prepare Dr.

Melikian for her testimony. Lindsey claims that had

trial counsel performed according to accepted professional norms, it is reasonably likely the jury would not

have recommended a death sentence. Lindsey argues

he is entitled to a new sentencing trial because the

mitigation evidence he presented during the PCR

hearing was far from being merely cumulative to what

he describes as trial counsel’s “feeble” mitigation

presentation.

Even if trial counsel’s investigation and presentation of evidence was deficient, we hold Lindsey was

not prejudiced. We first address Dr. Melikian’s testimony. Even though Dr. Melikian testified during the

PCR hearing that she was inexperienced at the time

of trial and felt she did not have enough time to prepare for her penalty phase testimony, she very clearly

and ably testified during the penalty phase that Lindsey had major depressive disorder at the time of the

murder, had limited coping abilities at the time of the

murder arising from his low intelligence and his cognitive deficits, and was not malingering. While Dr.

Melikian testified during the PCR hearing that having additional records and information regarding

Lindsey would have changed her understanding of the

depth of Lindsey’s depression, her trial testimony that

Lindsey suffered from major depressive disorder at

the time of the murder and was not malingering remained the same. It is apparent from Dr. Melikian’s

testimony as a whole that any lack of experience and

other supposed shortcomings in available information

did not hamper her ability to effectively provide relevant opinions during the penalty phase.

Lindsey claims the State’s cross-examination of

Dr. Melikian about Jimmy was particularly devastating. Dr. Melikian stated during her PCR testimony

41a

that had she known before trial Lindsey “was malingering Jimmy,” she could have tailored her testimony

to explain “that with his level of depression and cognitive ability, he’s believing [making up Jimmy] is a

good idea.” However, as we read Dr. Melikian’s trial

testimony, that is essentially what she did during her

trial testimony. As summarized above, Dr. Melikian’s

trial testimony reveals that in the face of the State’s

cross-examination, she held fast to her opinion Lindsey was not malingering, and she expressed her frank

disagreement with Dr. Narayan’s assessment of malingering. Specifically, she insisted during cross-examination that Lindsey’s report of an imaginary

friend named Jimmy had nothing to do with her diagnosis of mental illness, stating “[h]e is suffering from

depression regardless of whether he had the hallucination of the imaginary friend or not. I’m not sure

that that would change, it would not change his neurological impairment or his low IQ.”

Lindsey, not trial counsel or Dr. Melikian, fabricated Jimmy. Even if Dr. Melikian had known of the

fabrication before her trial testimony, she would have

still been cross-examined about the fabrication as it

related to Lindsey’s attempt to avoid responsibility for

his actions. As noted above, she explained during her

trial testimony why the fabrication did not impact her

opinion Lindsey suffered from cognitive deficits, depression, and neurological deficits. And as also noted

above, under cross-examination during the PCR hearing, Dr. Melikian admitted it appeared Lindsey fabricated Jimmy at the behest of his fellow jail inmates,

not as a result of his mental health deficiencies. All in

all, the damage to Lindsey’s mitigation defense resulted from Lindsey’s choice to fabricate Jimmy, not

from Dr. Melikian’s lack of knowledge or supposed unpreparedness.

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Vogelsang’s PCR testimony, considered in isolation or in conjunction with other evidence, does not establish Lindsey suffered prejudice from any supposed

deficiency on the part of trial counsel. While Vogelsang’s PCR testimony was certainly detailed, and

while she talked to more people and considered more

documentation than what was alluded to during

trial, she provided information of the same substance

as did Dr. Melikian and others during the penalty

phase. The substance of Vogelsang’s bio-psychosocial

assessment contained much of the same evidence that

was presented to the jury during the penalty phase:

Lindsey grew up in extreme poverty. He was abandoned by his father, and his mother was not involved

in important parts of his life. Lindsey felt rejected and

suffered from major depression. Other family members suffered from mental illness. He ingested kerosene and his head was run over by a car when he was

a very small child. He had cognitive deficits and did

poorly in school. An uncle threw Lindsey’s kitten to

its death into a fire. Lindsey attempted suicide at age

fifteen. Vogelsang provided additional details during

the PCR hearing, such as Lindsey witnessing his

mother shoot at her boyfriend; witnessing family

members deal drugs; witnessing males in his family

beat their girlfriends; and family members believing

in the use of “roots.” However, these additional details

fall far short of establishing a reasonable probability

that, had they been related to the jury, the jury would

have recommended a sentence other than death.

Lindsey claims the penalty phase mitigation evidence that was communicated to the jury was communicated ineffectively. We disagree. Mother testified

during the penalty phase that Lindsey attempted suicide at age fifteen, ingested kerosene and was run over

by a car as a baby, and that Lindsey’s father was not

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involved in his life. She also testified Lindsey was depressed during the weeks leading up to the murder,

and Burton, Lindsey’s friend and mentor, testified

Lindsey grew up in “desperate poverty” “without the

benefit of parents like normal families.” Uncle Steve

Pilgrim testified Lindsey was run over as a baby, and

he testified about his own mental health issues and his

daughter’s mental health issues. Aunt Bessie Smith

testified that when Lindsey was a child, he witnessed

his uncles throw his kitten into a heater.

We further hold that had Timothy Sims and Rodman Tullis testified during the penalty phase, there is

not a reasonable probability the jury would have recommended a sentence other than death. Sims’ testimony was essentially the same as that given by other

family members. Tullis’s testimony adds little to the

mitigation case, and if he had testified during trial, he

could have been effectively cross-examined on the nature of his legal representation of Lindsey (drug offenses, family court order of protection, and domestic

abuse charges). That is true even though the jury

heard evidence of these misdeeds during the penalty

phase. As for Tullis’s testimony that Lindsey sounded

very depressed in his voicemail, Dr. Melikian testified

Lindsey was depressed and suicidal at the time of the

murder. Also, Ann Howard testified Lindsey was

suicidal, and Mother testified Lindsey was very

depressed. Finally, the evidence presented to the jury

that Lindsey shot himself immediately after murdering Victim is certainly evidence of his suicidal intent.

Lindsey claims he was prejudiced by trial counsel’s failure to prepare his mitigation witnesses to ask

the jury for mercy. We reject this claim, as Lindsey’s

mother, father, and Chris Wilkins (who is “like a

brother” to Lindsey), asked the jury to show mercy and

not sentence Lindsey to death. There is no prejudice

44a

when pleas for mercy would be cumulative. See State

v. Sapp, 366 S.C. 283, 294, 621 S.E.2d 883, 888 (2005).

Lindsey next argues the PCR court erred in denying his claim that trial counsel was ineffective for failing to call EMS worker Vincent Bell to testify. Bell

responded to the scene of the murder and testified

during the PCR hearing that Lindsey told him he shot

his wife and wanted to die. EMS worker Joseph Stewart testified for the defense during the guilt phase. He

testified he treated Lindsey at the scene for multiple

gunshot wounds, including one to the head. Stewart

told the jury Lindsey stated he shot himself in the

head after he shot Victim. Even though the jury did

not hear Bell’s testimony that Lindsey said he wanted

to die, Lindsey’s statement to Stewart that he shot

himself after shooting Victim was a clear indication to

the jury that Lindsey wanted to die. Also, Bell testified during the PCR hearing that Lindsey said he shot

Victim because she “was fooling around” with another

man. This testimony directly contradicted one of

Lindsey’s central claims—that he shot Victim because

he was depressed over Victim not letting him visit his

sons. Bell’s testimony, if presented to the jury, would

have painted Lindsey as an angry and jealous husband, not as a desperate and depressed father distraught over not being able to visit his children.

Lindsey also argues the PCR court erred in rejecting his claim that trial counsel provided ineffective assistance of counsel by failing to hire a prison adaptability expert to testify Lindsey “did not pose an unreasonable risk of harm to prison staff, other inmates, or

the community.” As noted above, prison adaptability

expert Aiken testified during the PCR hearing. Lindsey contends the PCR court erred in: (1) disregarding

Aiken’s testimony that Lindsey could adapt to prison

life and that SCDC could manage Lindsey; and (2)

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speculating that Lindsey’s trial counsel considered

and had a reasonable trial strategy for not presenting

a prison adaptability expert during trial, when no

valid reason existed not to call a prison adaptability

expert. Specifically, Lindsey asserts the only valid

reason not to call such an expert would be if no expert

would testify Lindsey could adapt to prison life. Lindsey further notes the PCR court speculated trial counsel did not procure testimony from a prison adaptability expert in an effort to keep Lindsey’s prison altercations from being introduced during the penalty

phase. Lindsey asserts the

State introduced this evidence anyway, and no expert testimony was offered to rebut the State’s contention that Lindsey could not adapt to prison life. Lindsey asserts trial counsel’s failure to present testimony

from a prison adaptability expert prejudiced him because there was a reasonable probability that if the

jury had heard he was adaptable to prison, the jury

would not have recommended a death sentence, especially considering the “only” reason Lindsey’s case was

a death penalty case was because he killed Victim in a

public place instead of a private one, “transforming a

domestic homicide into a capital crime.”

“In deciding which witnesses and evidence to prepare concerning [the] penalty [phase of a capital murder trial], . . . the areas counsel should consider include . . . [e]xpert and lay witnesses . . . to give a favorable opinion as to the client’s capacity for rehabilitation, or adaptation to prison . . . .” ABA Guidelines

10.11(F). Our courts are not required to blindly adhere

to the ABA Guidelines; however, the United States

Supreme Court has held adaptability to prison life is

constitutionally relevant. Skipper v. South Carolina,

476 U.S. 1, 8 (1986), as recognized by Chaffee v. State,

294 S.C. 88, 91, 362 S.E.2d 875, 877 (1987).

46a

We conclude the PCR court did not err in finding

trial counsel did not provide ineffective assistance of

counsel by failing to call a prison adaptability expert,

but for a different reason than that expressed by the

PCR court. The PCR court found Mr. Bartosh exercised “reasonable professional judgment” in not calling a prison adaptability expert, concluding testimony

from an expert such as Aiken would have been unpersuasive, given Lindsey’s history of fights in prison.

However, this was error, because there is no evidence

as to why Mr. Bartosh did not retain or call a prison

adaptability expert to testify. We have held that neither the PCR court nor the appellate court can conclude trial counsel exercised a valid trial strategy unless evidence is presented as to what the strategy actually was. See, e.g., Weik v. State, 409 S.C. 214, 236,

761 S.E.2d 757, 768 (2014); Smith v. State, 386 S.C.

562, 568, 689 S.E.2d 629, 633 (2010); Gilchrist v.

State, 350 S.C. 221, 228 n.2, 565 S.E.2d 281, 285 n.2

(2002); Bruno v. State, 347 S.C. 446, 451, 556 S.E.2d

393, 395-96 (2001).

However, even if trial counsel was deficient in failing to present testimony from a prison adaptability expert, Lindsey was not prejudiced by this deficiency. As

noted above, adaptability expert Mr. Aiken testified

during the PCR hearing that he reviewed Lindsey’s

prior records from SCDC up until the 2004 trial. He

testified SCDC “can manage this type of offender for

the remainder of his life without causing unreasonable

risk of harm to staff, inmates, as well as the general

community.” However, on cross-examination, Aiken

admitted the “best predictor of future behavior is

past behavior,” and he acknowledged Lindsey’s prior

conviction for ABWIK after shooting Stanford Wilkins. Aiken also acknowledged Lindsey had been

charged with domestic violence several times. Aiken’s

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testimony that SCDC could suitably manage Lindsey

was also significantly neutered by evidence of Lindsey’s prison fights, that a prison guard had been

caught in the middle of one of the fights, and that

Lindsey was gassed in order to break up one of the

fights. Lindsey’s commission of violent crimes and his

violent conduct in prison severely contradicted Aiken’s adaptability opinion and would have done so had

he testified during the penalty phase. Because Lindsey did not establish prejudice, he is not entitled to

relief on this ground.

VII.

Conclusion

We hold the PCR court did not err in signing the

amended PCR order. We also hold any deficiencies in

trial counsel’s investigation and presentation of a mitigation defense did not prejudice Lindsey. Even if trial

counsel had secured a more robust mitigation investigation, and even if trial counsel had presented the

mitigation evidence Lindsey presented during the

PCR hearing, it is not reasonably likely the jury would

have recommended a sentence other than death. See

Jones, 332 S.C. at 338-39, 504 S.E.2d at 826 (holding

the absence of “fancier” mitigation evidence does not

render the prior mitigation case constitutionally inadequate where such evidence would not have any effect

on the outcome of the trial). Lindsey has not made the

requisite showing that trial counsel’s errors, if any,

were so serious so as to deprive him of a trial whose

result was reliable. See Strickland, 466 U.S. at 687.

Lindsey has not established “‘there is a reasonable

probability that, absent [counsel’s] errors, the sentencer–including an appellate court, to the extent it

independently reweighs the evidence–would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.’” Council, 380

S.C. at 176, 670 S.E.2d at 365 (quoting Jones, 332 S.C.

48a

at 333, 504 S.E.2d at 823). The decision of the PCR

court is therefore

AFFIRMED IN RESULT.

KITTREDGE, C.J., and Acting Justice Paula H.

Thomas, concur. HILL, J., concurring in part and

dissenting in part in a separate opinion, in which

Acting Justice Donald W. Beatty, concurs.

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JUSTICE HILL, concurring in part and dissenting in part:

I join Section VI.B of the majority opinion affirming that there was no error in the procedural aspects

of the trial court’s signing of the order. With great respect, I dissent from the majority’s conclusion that

Lindsey received the effective assistance of counsel at

the sentencing phase of his death penalty trial.

I. Trial Preparation

Lindsey was indicted and served with the State’s

death penalty notice in October 2002. It appears Mr.

Bartosh became Lindsey’s counsel that same month.

The trial began on May 17, 2004.

As lead trial counsel, Mr. Bartosh began to assemble his team two months before trial. Second chair

counsel was not appointed until March 5, 2004. The

second chair counsel was just three years out of law

school and had never tried a capital case. Trial counsel

did not engage a mitigation investigator to gather records of Lindsey’s social history until April 16, 2004.

Ms. Topp, the investigator, had also never worked on

a death penalty case. Trial counsel waited until April

12, 2004, to contact Dr. Tara Brawley, a neurologist.

Dr. Brawley first told trial counsel she could not work

on the case, but due to a cancellation, she was able to

work Lindsey in for an examination on April 27, 2004.

The trial was then just twenty days away. Ms. Topp

scrambled to obtain Lindsey’s school and medical records. She was still sending out releases to obtain some

of these records after the trial had started.

Trial counsel first contacted forensic psychiatrist

Margaret Melikian on April 6, 2004, but she was not

retained until April 16. Dr. Melikian shared something in common with second chair counsel and Ms.

50a

Topp: like them, she had never worked on a death penalty case before. She had trouble obtaining Lindsey’s

records from trial counsel and did not receive anything until April 28. Her secretary noticed Lindsey

had been given a competency and criminal responsibility exam after his arrest, but the report was not included in the records trial counsel sent. Dr. Melikian

met with Lindsey on April 28 for an examination. Dr.

Melikian soon advised trial counsel that she did not

have adequate documentary evidence about Lindsey,

nor the time to effectively prepare for her testimony.

File notes reflect that trial counsel’s response was

that Dr. Melikian “knew the time constraints before

she started and said she would be okay.”

But it was not okay with Dr. Melikian after she realized the mitigation investigation was unorganized

and incomplete. She explained to trial counsel that

she felt unprepared; trial counsel told her she would

have to call the trial judge, a bizarre request to make

of an expert. It appears Dr. Melikian made this call,

but no formal continuance motion was ever made. The

only assistance trial counsel gave Dr. Melikian with

testifying in her first death penalty case (which was

broadcast by CourtTV) was a thirty-minute phone

conversation the night before she took the stand.

II. The Sentencing Phase

Because we do not have the benefit of trial counsel’s version of what his mitigation strategy was, we

must rely on the record. Second chair counsel testified

at the PCR hearing that he was responsible only for

the guilt phase, and lead trial counsel was responsible

for the sentencing phase. According to second chair

counsel, his defense theory during the guilt phase was

that Lindsey just “snapped. That’s it.” But mental ill-

51a

ness or incapacity was not a defense available to Lindsey; there was no dispute he was competent and had

criminal responsibility for his actions.

To this day, we do not know what trial counsel’s

sentencing strategy was. We must assume it echoed

the “snapping” theory. We have to assume that, because trial counsel never told the sentencing jury

what the theory was. His opening statement at the

sentencing phase occupies just a few pages of transcript, and he merely asked the jury to “keep an open

mind,” remain “objective,” and to consider whether

the State had met its burden of proving the aggravating circumstance beyond a reasonable doubt.

Neither trial counsel, the State, nor the trial court

mentioned the word “mitigation” in their opening remarks. Trial counsel did not explain to the jury how

the sentencing phase works or what the death penalty

statute says about mitigating circumstances. This is

a crucial point, for the jury was not told until the trial

court’s final charge what mitigating circumstances

Lindsey was relying upon. (There were two: that

“[t]he murder was committed while the defendant was

under the influence of mental or emotional disturbance” and “[t]he age or mentality of the defendant at

the time of the crime.” S.C. Code Ann. § 16-320(C)(b)(2), (7) (2015)). It was only then–after they

had heard all the evidence and trial counsel’s closing

argument–that the jurors knew the legal framework

for their sentencing decision, and how mitigating circumstances fit into the framework. It is true trial

counsel did tell the jury during his closing that they

could “consider the mitigating circumstances. His

mental state, his cognitive deficit and any other factors that you may consider appropriate.” But this

fleeting reference–like most of trial counsel’s efforts–

52a

was so bereft of context that it must have puzzled rather than enlightened the jury. The thrust of trial

counsel’s closing argument was not about how the jury

could use the mitigating circumstances recognized by

the law and impose a sentence less than death.

Reading trial counsel’s closing leads one to conclude

that he tried to convince the jury that Lindsey had indeed snapped, and a life sentence for him would be a

worse punishment than death.

Trial counsel presented limited evidence at the

sentencing phase. This evidence consumed less than

one hundred transcript pages. Eight witnesses testified, all of whom were family or friends except for Ann

Howard and Dr. Melikian.

III. The PCR Hearing Evidence

As will soon become obvious, the testimony at the

PCR hearing did not just suggest trial counsel could

have put on a “fancier” mitigation case. It proved that

trial counsel failed to present an intelligible one. The

core of death penalty mitigation is to humanize the defendant and offer evidence that would reduce his

moral culpability for the horrible crime he committed.

This must be done–if it is to be done competently–by

presenting a coherent narrative that rational jurors

can follow and understand. It requires that the story

of the defendant’s life be told with appropriate detail,

so that jurors can be truly informed about the momentous, ultimate decision to either end or spare a fellow

human’s life.

Saying that the new mitigation evidence presented at the PCR hearing was simply “fancier” is the

same as saying it is merely cumulative to the mitigation evidence put up at trial. A closer look at the new

mitigation evidence shows that it was much different

53a

in nature and degree than what the sentencing jury

heard.

Take the testimony of Lindsey’s mother. At the

sentencing hearing, mother testified that she raised

Lindsey by herself, along with his three half-brothers.

They lived in a “very small home.” Mother worked,

and the boys’ uncle, Steve Pilgrim, would stay with

them. Mother recounted how another of Lindsey’s uncles backed over him with a car when Lindsey was

twenty months old, injuring his head and leaving a

scar. A month before, he had ingested kerosene that

had been left open in a jar beside the coal heater.

Mother related that Lindsey was “slow” in school and

had difficulty with his speech. He repeated several

grades and dropped out at age seventeen in the ninth

grade.

Mother testified Lindsey and Victim’s relationship

was “good”; although, they often would separate and

then reconcile. Mother stated Lindsey’s children were

the most important part of his life, in part because his

father had abandoned him.

Mother told the jury that her sister, Bessie Smith,

had attempted suicide. When trial counsel attempted

to explore whether Bessie had been treated for a mental illness, the State’s objection was sustained for lack

of foundation (when Ms. Smith later testified, the trial

court sustained the State’s objection to her testimony

on this matter as well). Mother confirmed Lindsey was

hospitalized after attempting suicide at age fifteen.

When Mother saw Lindsey three days before the murder, he was “very depressed” and talked of hurting

himself if he did not get to see his children and “could

not get [his] family back.”

At the PCR hearing, a different and decidedly

bleaker picture of Lindsey’s childhood emerged.

54a

Mother explained, for the first time, that until Lindsey was seven, they lived in a two-bedroom home with

her mother, two or three sisters, two of her brothers

(sometimes three), her other three boys, and two of her

sister’s children. All told, nearly a dozen people were

living in a home that had no indoor plumbing or central air conditioning and was heated by a wood stove.

Mother admitted she experienced emotional problems

after the death of her seven-month-old daughter in

1969.

Mother’s PCR testimony also revealed for the first

time that for some twenty years she had a live-in boyfriend who had a severe drinking problem and often

became violent in front of Lindsey and the other boys,

noting Lindsey often ran to his grandmother for help.

Mother further testified that her sons, Lindsey included, sometimes took “the brunt” of her boyfriend’s

violence. Mother noted Lindsey “just had to live with”

the violence because “he didn’t have too much a choice”

due to his young age. The family later moved to an

even rougher neighborhood, where the children were

exposed to drug dealing. Mother testified that her

brothers Paul and Willie fought often and “beat their

girlfriends.” She told of one incident when her brother

ran into the home and began shooting a firearm late

at night while Lindsey and others were present.

Mother also told of two other incidents when Lindsey was around six and fell and hit his head, as well

as a car wreck when he was sixteen that damaged his

eye and caused other injuries.

Mother also put Lindsey’s suicide attempt at age

fifteen in context. Mother had attempted to break up

a fight between Lindsey and his older half-brother.

After Lindsey held Mother down on a bed, Mother told

him she would never do anything else for him and that

55a

she did not love him. Lindsey fled to the bathroom and

swallowed an assortment of pain pills. He was hospitalized for several days and received inpatient psychiatric care for around two weeks.

After he left school at seventeen, Lindsey lived

with a girlfriend and began selling drugs, though occasionally taking legitimate employment. Mother explained that she met with Ms. Topp and second chair

counsel only once before the trial. The interview occurred about two weeks before the trial. It lasted one

hour and never delved into Lindsey’s detailed family

background.

At the PCR hearing, Mother, for the first time,

gave concrete detail as to what occurred when she saw

Lindsey three days before the murder. Mother had

been called from work by her son Timothy Sims, who

claimed Lindsey was about to kill himself. She and

other family members went to Lindsey and calmed

him down. Lindsey had prepared suicide notes for

Mother and three other family members. Mother later

gave these notes to Rod Tullis, Lindsey’s former attorney.

Attached to this dissent is an Appendix containing

a table summarizing the enormous amount of mitigation evidence revealed at the PCR hearing and comparing it to the skeleton of facts heard by the jury at

the sentencing trial. I will not burden the reader by

rehashing them here. But it is crucial to understand

the significance of the PCR testimony of four non-family members, three of whom did not testify at the trial:

Rod Tullis, Dr. Melikian, Jan Vogelsang, and Dr.

Brawley.

Rod Tullis

Tullis was an important witness who any reasonable lawyer would have called to testify at the penalty

56a

phase. This is so for three reasons. First, Tullis had

the best contemporaneous evidence about Lindsey’s

state of mind at the time of the murder. He had audio

proof of Lindsey’s state of mind in the form of an answering machine message Lindsey had left him shortly

before the shooting. Tullis also had the suicide notes

Lindsey had written his family members. The jury

never heard about the message or the notes. And Tullis saw Lindsey in jail shortly after the murder. Second, Tullis could have related to the jury how concerned Lindsey was about losing custody of and contact with his children. Tullis could have testified that

Lindsey consulted with him about his legal options as

a father. This is a key point, for at the sentencing

hearing the State again and again argued Lindsey

had no concern for his children, and his disregard was

proven by his failure to seek legal assistance in obtaining custody or visitation.

Third, and finally, Tullis saw Lindsey in jail a few

days after the murder and observed injuries to Lindsey’s head from bashing it against his cell wall in an attempt to kill himself, another detail that would have

countered the State’s suggestion that Lindsey’s depression was nothing but a malingering ruse.

Dr. Melikian

As to Dr. Melikian, while her diagnosis that Lindsey suffered major depressive disorder did not change,

her explanation of how it affected Lindsey’s cognitive

ability changed utterly. The table in the Appendix details the differences, but one of the most compelling is

her explanation of the significance of Lindsey’s IQ

tests shortly after his arrest.

At the PCR hearing, Dr. Melikian explained that

Lindsey’s depression dramatically impaired his cognitive ability. His IQ, as tested shortly after the murder,

57a

was 76, which placed him in the range of borderline

intellectual functioning. When Dr. Brawley tested

him almost two years later, it was 85, a number consistent with tests conducted years before the murder.

Dr. Melikian was able to explain that Lindsey’s depression was so severe that it caused the low score,

signifying how much his ability to think clearly was

impaired at the time of the murder. This would have

tracked one of the statutory mitigators the sentencing

jury (finally) heard about: Lindsey’s mental and emotional state.

Also material is Dr. Melikian’s cursory, rushed investigation before trial due to trial counsel’s delay in

hiring her. She did not have access to Tullis or Lindsey’s phone message or suicide notes. Tullis and Lindsey’s family members could have told her about Lindsey’s self-harm and other details of his mental state.

Instead, the State was able to score points in its

cross-examination of Dr. Melikian by forcing her to

concede that she had not talked to a “single soul” who

saw Lindsey the day of the murder. The State also

showed that Dr. Melikian could not corroborate anything Lindsey had told her, a line of attack that could

have been stifled had Dr. Melikian spoken with family

members or Tullis.

Jan Vogelsang

Melikian surely would have benefitted from the

exhaustive family history that Jan Vogelsang presented at the PCR hearing. Vogelsang’s testimony

demonstrated the abject failure of Lindsey’s defense

team to offer the jury a coherent narrative of Lindsey’s

life. Again, the Appendix table sets out her testimony

in copious detail. Vogelsang was able to fill in compelling details of Lindsey’s childhood poverty and to vividly illustrate that the poverty was not just economic.

58a

Although the home at times only had three spoons,

there was pervasive dysfunction. He had no father in

his life, and his mother was not a real caretaker. The

home model was one of abandonment, desertion, violence, substance abuse, and dislocation (not to mention belief in voodoo and the use of the “roots”).

Vogelsang’s testimony contrasted starkly with the

brief, generic picture of his home life presented at the

sentencing hearing. Unlike the initial defense team,

Vogelsang had prepared explanatory charts and exhibits, including a genogram, a bread and butter mitigation exhibit. She demonstrated that Lindsey’s family had pervasive mental health challenges, including

several suicide attempts. Vogelsang’s testimony

pulled together the threads of Lindsey’s life to provide

the jury a complete narrative that would have allowed

them to consider his moral culpability in full, and not

just left them with disordered snippets of his story.

Her testimony would also have enabled the jury to see

how all the “stressors” working on Lindsey’s mind–

which was already “severely impaired” (in the words

of Dr. Brawley, which the jury never heard about)–

further disturbed his mental and emotional state at

the time of the murder.

Dr. Brawley

Why trial counsel did not ask Dr. Brawley to testify is unknown. The majority opinion states that she

testified at the PCR hearing in part about Lindsey’s

neuropsychological “deficits.” Dr. Brawley’s actual

clinical characterization was much more pointed than

that. She related that Lindsey’s mental tracking, verbal fluency, naming ability, and verbal learning ability were all “severely impaired.” Trial counsel’s decision to let Dr. Melikian tell the jury about Dr. Braw-

59a

ley’s report was insufficient and unreasonable, especially in light of the State’s damaging cross-examination of Dr. Melikian.

IV.The Standard for Ineffective Assistance of

Death Penalty Counsel

To succeed on his PCR claim, Lindsey must prove

both deficient performance by his trial counsel and

prejudice. This is the familiar double prong test of

Strickland v. Washington, 466 U.S. 668 (1984). There

is little doubt that trial counsel was deficient. Professional standards in place impose an obligation on

death penalty counsel to thoroughly and timely investigate their client’s background. Williams v. Taylor,

529 U.S. 362, 395–96 (2000).

We have noted that evidence of mental impairment and low intellectual functioning is “powerful

mitigating evidence.” Stone v. State, 419 S.C. 370,

395, 798 S.E.2d 561, 574–75 (2017); see also Tennard

v. Dretke, 542 U.S. 274, 288 (2004) (“Evidence of significantly impaired intellectual functioning is obviously evidence ‘that might serve “as a basis for a sentence less than death.”’” (quoting Skipper v. South

Carolina, 476 U.S. 1, 5 (1986))). The failure to adequately prepare and present mental health witnesses

at the sentencing phase can amount to prejudicial ineffectiveness of counsel. See Von Dohlen v. State, 360

S.C. 598, 606–08, 602 S.E.2d 738, 742–43 (2004);

Council v. State, 380 S.C. 159, 173–75, 670 S.E.2d 356,

363–64 (2008).

The purpose of a sentencing mitigation is to reduce

the defendant’s moral culpability for the crimes. To

that end, as we have said, it is essential that trial

counsel attempt to humanize his client and furnish a

coherent narrative about his life history. Weik v.

State, 409 S.C. 214, 234, 761 S.E.2d 757, 767 (2014)

60a

(“Evidence about the defendant’s background and

character is relevant because of the belief, long held by

this society, that defendants who commit criminal

acts that are attributable to a disadvantaged background may be less culpable than defendants who

have no such excuse.” (quoting Penry v. Lynaugh, 492

U.S. 302, 319 (1989))).

The death penalty lawyer has “a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. Courts greatly defer to counsel’s choices, and the field of discretion the

lawyer enjoys in his representation is necessarily

wide. But counsel’s conduct must still be reasonable.

Trial counsel’s investigation started too late to have

been effective. Ms. Topp was still desperately trying

to gather basic records about Lindsey’s life after the

trial had begun. Any competent counsel would know

that obtaining medical, school, and other protected

records can be a difficult and drawn out process, even

with a release from the client. Not beginning this process until a few weeks before trial was not just objectively unreasonable, it was reckless.

Relying on Bobby v. Van Hook, 558 U.S. 4 (2009),

the majority opinion concludes that trial counsel’s delay in preparing a mitigation case was reasonable. In

Van Hook, though, the Supreme Court noted counsel

started their mitigation investigation some three

months before trial, and their investigation was both

intensive and extensive. 558 U.S. at 9–12.

Between Van Hook’s indictment and his trial

less than three months later, they contacted

their lay witnesses early and often: They

spoke nine times with his mother (beginning

within a week after the indictment), once with

61a

both parents together, twice with an aunt who

lived with the family and often cared for Van

Hook as a child, and three times with a family

friend whom Van Hook visited immediately

after the crime. As for their expert witnesses,

they were in touch with one more than a month

before trial, and they met with the other for

two hours a week before the trial court

reached its verdict. Moreover, after reviewing

his military history, they met with a representative of the Veterans Administration

seven weeks before trial and attempted to obtain his medical records. And they looked into

enlisting a mitigation specialist when the trial

was still five weeks away.

Id. at 9–10 (internal citations omitted).

I cannot share the majority’s belief that trial counsel’s delay here was reasonable. Like all mortals, lawyers can only control time on the front end. This Court

should not signal that it is acceptable to wait until a

month before a death penalty trial is to begin to start

planning a defense to the penalty. Not to begin working on the sentencing mitigation until less than a

month before trial is indefensible. Mounting a competent mitigation case takes months and to suggest that

it can be effectively slapped together at the last minute

is at odds with how the world works. Rome could have

been built in a day, but no one would have ever lived

there.

This level of neglect is more akin to that condemned in Williams v. Taylor, where trial counsel did

not begin preparing a mitigation defense until a week

before trial and, even then, bungled things by not pursuing obvious leads or obtaining fundamental records.

529 U.S. at 395.

62a

The mitigation evidence at the sentencing trial

was sterile and bland. It is true, for example, that

there was evidence that Lindsey grew up in “desperate poverty.” But such saccharine phrases, empty of

corroborating detail, pack little punch with a jury, especially a jury that has already heard gut wrenching,

granular details about Lindsey’s murder of his children’s mother. The only way to counter the weight of

that and other aggravating evidence on the State’s

side of the scales would be to present Lindsey’s story

by way of a narrative that could help the jury understand his conduct. The underlying theme of the law

surrounding death penalty sentencing is that the jury

must be allowed to make an individualized determination as to the defendant’s fate. Woodson v. North

Carolina, 428 U.S. 280, 304 (1976) (“A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the

possibility of compassionate or mitigating factors

stemming from the diverse frailties of humankind.”);

Lockett v. Ohio, 438 U.S. 586, 604 (1978) (the constitution requires 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”) (emphasis

in original); State v. Plath, 281 S.C. 1, 15, 313 S.E.2d

619, 627 (1984) (holding it “is essential . . . that

the jury have before it all possible relevant information about the individual whose fate it must determine” (quoting Barefoot v. Estelle, 463 U.S. 880, 897

(1983))).

63a

Mitigating evidence is not designed to remove responsibility for the crime. Instead, it is offered to ensure the sentence reflects the defendant’s individual

moral culpability for the crime. As the United States

Supreme Court has stated, “[r]ather than creating the

risk of an unguided emotional response, full consideration of evidence that mitigates against the death

penalty is essential if the jury is to give a ‘reasoned

moral response to the defendant’s background, character, and crime.’” Penry, 492 U.S. at 328 (quoting

Franklin v. Lynaugh, 487 U.S. 164, 184 (1988) (O’Connor, J., concurring)).

The constitution commands that capital sentencing procedures permit extensive mitigation evidence

to ensure the greatest punishment known to law is imposed only after a process of the greatest reliability.

Lockett, 438 U.S. at 604; see also Bowman v. State, 422

S.C. 19, 36, 809 S.E.2d 232, 241 (2018) (“[T]he Eighth

Amendment demands that a capital defendant be

given wide latitude to present any relevant evidence

of potentially mitigating value that might convince

the jury to impose a sentence of life in prison instead

of death.”).

The Supreme Court recently summarized the

court’s task in deciding an ineffectiveness of counsel

claim at the capital sentencing stage:

When a capital defendant claims that he was

prejudiced at sentencing because counsel

failed to present available mitigating evidence, a court must decide whether it is reasonably likely that the additional evidence

would have avoided a death sentence. This

analysis requires an evaluation of the

strength of all the evidence and a comparison

64a

of the weight of aggravating and mitigating

factors.

Thornell v. Jones, 602 U.S. 154, 171–72 (2024). The

Court in Thornell emphasized the defendant there

was convicted of four aggravating factors related to

“three gruesome killings, including the cold-blooded

murder of a 7-year old girl,” while attempting to steal

a $2000 gun collection. Id. at 158, 170. Jones killed

the little girl, her father, and her grandmother by beating them with a baseball bat. Id. at 158–59. He then

used the stolen guns to pay for a trip to Las Vegas. Id.

at 159. The majority noted Jones had not produced

much new mitigation evidence, and much of what was

new could not be causally linked to the murders. Id. at

166–70. The Court concluded that the new evidence

would not have altered the picture of Jones the sentencing jury saw. The Court stressed that, after

weighing Jones’ relatively weak mitigation evidence

against the multiple, horrific aggravating circumstances, the balance was so lopsided in the State’s favor that a court applying the correct legal standard

would have “no choice” but to deny Jones relief. Id. at

172.

To support its reasoning, the Court highlighted

several capital habeas cases where relief was granted.

It noted these cases shared common traits: trial counsel had “introduced little, if any, mitigating evidence

at the original sentencing,” and the sentencer usually

found only one aggravator and at most a “few.” Id. at

171.

Thornell’s focus on weighing the mitigating evidence against the aggravating is important. After all,

that is what the jury is supposed to do under South

Carolina’s statutory capital sentencing scheme. See

S.C. Code Ann. § 16-3-20(B)–(C) (2015). But, at this

65a

stage of the PCR process, we are required to add the

new mitigating evidence to the pan. See Jamison v.

State, 410 S.C. 456, 466, 765 S.E.2d 123, 127–28

(2014). After doing that, it seems clear that Lindsey’s

“sentencing profile” bears little resemblance to the

Lindsey the jury saw. Of course, it is possible that a

new jury would reach the same verdict. But that is not

the test. The test is whether there is a reasonable

probability that the sentence would be different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome of the first penalty

trial. Strickland, 466 U.S. at 694. This inquiry means

we must speculate as to whether it is reasonably probable that the new mitigation evidence would sway at

least one juror to vote for a life sentence, rather than

death. Andrus v. Texas, 590 U.S. 806, 823 (2020). The

reasonableness inquiry takes into account not just the

new mitigation proof, but compares it side by side

with the aggravating circumstances. It is inescapable

that Lindsey’s crimes were brutal (what murder is

not?), but they were fueled by the unchecked passion

of a deluded father, a passion that was as wrong as it

was compulsive and uncontrolled. A reasonable juror

could likely conclude Lindsey’s erratic and fatal

choices deserve harsh punishment, but he should not

be counted among “the worst of the worst.” The aggravating circumstances in a capital murder trial are by

definition heinous, but it must be remembered that

there was only one aggravator here: “The offender by

his act of murder knowingly created a great risk of

death to more than one person in a public place by

means of a weapon or device which normally would be

hazardous to the lives of more than one person.” S.C.

Code Ann. § 16-3-20(C)(a)(3) (2015).

There is no denying Lindsey’s unhinged, fatal

shooting of Victim while she was in a car with three

66a

others, including two children, and while she was

seeking the refuge and sanctuary of the Inman Police

Department was both cruel and reckless. But Thornell requires that we must in effect weigh or rank the

aggravators. Is it reasonably probable a rational juror

might weigh Lindsey’s murder of his estranged wife

differently than the crude bludgeoning of a sevenyear-old girl and her father and grandmother in the

course of a home invasion and robbery? Or a murder

by poison or dismemberment? Or murders committed

by a serial killer, accompanied by rape and torture?

The catalog of evil is infinite, and Thornell reminds us

that not all evil is created equal, and is not to be

treated equally by a reviewing court.

This is not to say Lindsey’s life before that fateful

day was blameless. He dealt drugs, beat Victim, and

even shot one of his previous girlfriend’s suitors in the

arm. But the question before us is whether Lindsey

has shown there is a reasonable probability that one

juror would have chosen life after hearing his full story.

Because he has, I respectfully dissent.

Acting Justice Donald W. Beatty, concurs.

67a

Appendix

Evidence Presented at the Sentencing Hearing

Versus at the PCR Hearing

Wit

Sentencing

PCR Hearing

ness

Hearing

Vir•Mother testified •Mother explained, for

ginia

that she raised the first time, that unLindsey Lindsey by her- til Lindsey was seven,

(Mothself, along with they lived in a twoer)

his three half- bedroom home with

brothers.

her mother, two or

sisters,

two

•They lived in a three

“very

small (sometimes three) of

her brothers, her other

home.”

•Mother worked, three boys, and two of

and the boys’ un- her sister’s children.

cle, Steve Pil- All told, nearly a dozen

grim, would stay people were living in a

home that had no inwith them.

door plumbing or cen•Mother

re- tral heat or air condicounted how an- tioning.

other of Lindsey’s

uncles •Mother admitted she

backed over him experienced emotional

in a car when problems after the

Lindsey

was death of her seventwenty months month-old daughter in

old, injuring his 1969.

head and leaving •Mother’s PCR testia scar. A month mony also revealed for

before this inci- the first time that she

dent, he had in- had a live-in boyfriend,

gested kerosene for some twenty years,

that had been who had a severe

68a

left open in a jar drinking problem and

beside the coal often became violent in

heater.

front of Lindsey and

•Mother related the other boys, noting

that

Lindsey Lindsey often ran to

was “slow” in his grandmother for

school and had help. Mother further

difficulty

with testified that her sons,

included,

his speech. He Lindsey

repeated several sometimes took “the

grades

and brunt” of her boydropped out at friend’s violence.

age seventeen in •Mother noted Lindsey

the ninth grade. “just had to live with”

•Mother testified the violence because

that Lindsey and “he didn’t have too

Victim’s

rela- much a choice” due to

tionship

was his young age.

“good”; although, •The

family

later

they often would moved to an even

separate

and rougher neighborhood,

then reconcile.

where the children

•Mother

stated were exposed to drug

Lindsey’s chil- dealing.

dren were the •Mother testified that

most important her brothers Paul and

part of his life, in Willie fought often and

part because his “beat

their

girlfather had aban- friends.” She told of

doned him.

one incident when

•Mother told the Lindsey and others

jury that her sis- were in the home, and

ter,

Bessie her brother began

Smith, had at- shooting a gun in the

tempted suicide. house late at night.

69a

When trial coun- •Mother also told of two

sel attempted to other incidents when

explore whether Lindsey was around

Bessie had been six and fell and hit his

treated for a head in the same spot,

mental illness, as well as a car wreck

the State’s objec- when he was sixteen

tion was sus- that injured his eye.

tained for lack of •Mother also put Lindfoundation

sey’s suicide attempt

(when Ms. Smith at age fifteen into conlater

testified, text. Mother had atthe trial court tempted to break up a

sustained

the fight between Lindsey

State’s objection and his older halfto her testimony brother. After Lindsey

on this matter as held Mother down on a

well).

bed, Mother told him

•Mother

con- she would never do anfirmed Lindsey ything else for him and

was hospitalized that she did not love

after attempting him. This caused Lindsuicide at age fif- sey to go into the bathteen.

room and swallow an

•When

Mother assortment of pain

saw

Lindsey pills. He was hospitalthree days before ized for several days

the murder, he and received inpatient

was “very de- psychiatric care for

pressed”

and around two weeks.

talked of hurting •After he left school at

himself if he did seventeen,

Lindsey

not get to see his lived with a girlfriend

children

and and began selling

“could not get

70a

[his]

back.”

family

drugs, though occasionally taking legitimate employment.

•Mother explained that

she met with Topp and

second chair counsel

only once before the

trial. The interview occurred

about

two

weeks before the trial

and lasted one hour.

She was never asked

about Lindsey’s detailed family background.

•Mother, for the first

time, gave concrete detail as to what really

occurred when she saw

Lindsey three days before

the

murder.

Mother

had

been

called from work by

her son Timothy Sims,

who claimed Lindsey

was about to kill himself. She and other

family members went

to Lindsey and calmed

him down. Lindsey

had prepared suicide

notes for Mother and

three other family

members.

Mother

later gave these notes

71a

to Rod Tullis, Lindsey’s former attorney.

Steven •Pilgrim stated •Lindsey’s

mother’s

Pilgrim he lived with childhood home in(Uncle) Lindsey and his cluded nine siblings

brothers during and a father that never

Lindsey’s child- lived in the home.

hood (total of 7 •Mother’s siblings inyears).

cluded Steven Pilgrim,

•Lindsey was run Bessie Lindsey, Robin

over by a car as a Pilgrim, Willie Piltoddler; Pilgrim grim, and Paul Piltook Lindsey to grim.

the hospital to be •Lindsey’s Mother was

treated for head suicidal during a petrauma.

riod of Lindsey’s child•Pilgrim

con- hood.

firmed Lindsey •Lindsey’s aunt Bessie

inhaled kerosene Smith also attempted

as a young child. suicide during a period

•Pilgrim stated of Lindsey’s childhood;

he suffered from Smith was hospitalmental illness, ized as a result.

and his daughter •Lindsey’s aunt Robin

suffered

from attempted suicide on

and was being three occasions; she,

treated for panic too, was hospitalized

attacks.

multiple times.

•Robin, as of the date of

the PCR hearing, was

incarcerated for an unnamed violent offense.

72a

•Willie and Paul have

each been incarcerated

for violent offenses.

•When Lindsey was

born, ten people lived

in a four-bedroom

house in Inman; Lindsey lived in that home

until he was ten years

old.

•The house lacked indoor

plumbing;

lacked air conditioning; the heating came

from a furnace in

which the family alternatively burned coal

and wood.

•Lindsey’s uncles Willie

Pilgrim and Paul Pilgrim routinely exhibited violent behavior

toward the family and

toward other people in

the neighborhood, including firing guns inside and outside the

home.

•When Lindsey was

less than a year old,

his uncle Paul accidentally ran over Lindsey’s head with his car.

Lindsey was hospitalized and underwent

73a

surgery on his head; he

returned home that

night.

•Lindsey

sustained

other significant head

injuries

throughout

his childhood because

he was left alone to

“crawl outside.”

•Weeks

before

the

shooting, Lindsey was

suicidal. His mother,

brother, aunts, and

uncle visited him for

several

hours

the

night his ideations

were the most acute.

•Lindsey was crying,

and he was “not usually like that.” Pilgrim

had never seen Lindsey cry as an adult.

•Trial counsel did not

meet with Pilgrim until one day before the

trial began; the meeting lasted between 20

and 30 minutes.

•The meeting with trial

counsel was a “group

meeting”––it included

the defense team as

well as another family

member,

Lindsey’s

aunt Bessie Smith.

74a

•Despite knowing he

suffered from depression and anxiety, trial

counsel did not seek

any medical or psychological release from

Pilgrim concerning his

history with mental

health issues. Pilgrim

would have “been glad

to [provide] it.”

•At all times between

the shooting in 2002

and the trial in 2004,

Pilgrim lived in Spartanburg county and

was available for questioning by the trial

counsel team.

•Pilgrim would have

asked the jury to show

mercy at trial, but he

was told not to by trial

counsel.

Bessie •Smith stated she •Smith had nine sibSmith

lived with Lind- lings, who were raised

(Aunt) sey’s family dur- in childhood home of

ing a period of Smith and Mother.

his childhood.

•Lindsey’s uncle Paul

•When Lindsey Pilgrim was one of the

was a child, he few male role models

had a kitten he in Lindsey’s life. Paul

was

“crazy Pilgrim

constantly

about.”

fought other males and

75a

•Smith’s broth- females in the neighers, Paul and borhood and abused alWillie, without cohol.

Lindsey’s

•Lindsey’s aunt Robin

knowledge,

Pilgrim babysat Lindthrew the kitten sey during his childinto a furnace hood. Robin Pilgrim

while it was has since been interalive, killing it.

mittently incarcerated

•Lindsey

was following periods of

“hurt”

and drug abuse and home“talked about it lessness.

for a long time.” •Mother’s

daughter,

•Smith attempted Vanessa, died as a

suicide at some child. Mother was left

point in her life in a depressive state

(additional testi- for nearly a year, often

mony as to this unable to get out of

issue was ob- bed.

jected to by the •When Lindsey was two

State, and the years old, Mother’s

trial court sus- husband left Mother to

tained the objec- be

with

another

tion).

woman following the

death of Vanessa.

Mother began to abuse

alcohol as a result.

•Mother’s children, including

Lindsey,

“pretty much did for

the[m]sel[ves].”

Mother would “work

all week and then on

Friday night, when

[she] got off work, then

76a

[she]

would

start

drinking . . . and . . . go

out.”

•Lindsey’s

grandmother and uncles

(Steve Pilgrim, Paul

Pilgrim, and Willie Pilgrim) were responsible

for Lindsey’s care

when he was still

young.

•Lindsey and his other

young siblings were often left in the care of

their uncles or “whoever [else was] there”

at nighttime while

Mother and Grandmother left to play

bingo.

•When Lindsey was 12

or 13 years old, he

went to live with

Smith

for

several

months. This move

required some adjusting because Smith

“didn’t let [her] boys

run around”; Smith’s

children played sports;

Smith attended PTA

meetings.

Lindsey’s

mother, by contrast,

“didn’t do a whole lot of

77a

that” with Lindsey or

Lindsey’s siblings.

•While he lived with

Smith, Lindsey desperately wanted attention. “[H]e liked being

at my house because . .

. he could get that attention and he . . could

feel like he was at

home. He had that

family home feeling

when he was at my

house.”

•In Smith’s home, there

were rules. “[I]t wasn’t

all lovey dovey. But we

had that structure

there. We had that

foundation there. …

But on the other hand

in [Mother’s home],

Marion

and

them

pretty much had they

freedom.”

•Mother did not take an

active role in Lindsey’s

(or his siblings’) activities away from home,

school, sports, or otherwise.

•Lindsey often lacked

clean clothes to wear

at school. He and his

siblings would hand

78a

wash their clothes and

shoes when Mother

could not afford to take

them to the laundromat.

•Lindsey’s

mother

“never learned responsibility . . . [s]he didn’t

know what it was really to run a household. . . .”

•When Lindsey was “15

or so,” he attempted

suicide by taking “a lot

of pills.”

•Weeks

before

the

shooting,

Smith,

Mother, and other

family members went

to Lindsey’s house after Lindsey threatened

to kill himself, recounting the same narrative as Pilgrim.

•Lindsey was bereft at

the threat of not having access to his children.

•Lindsey “was really

depressed at the time

and he didn’t want to–

–he act like he didn’t

want to live.”

•Lindsey’s

uncles

“talked to Lindsey”;

79a

Smith told Lindsey he

“need[ed] to pray” and

eventually, everyone

left.

•No one sought to get

Lindsey

treatment

that night.

•Smith did not see

Lindsey in-person after that night.

•Lindsey remained distraught because he believed he was losing

access to his children.

•Sometime later, Smith

spoke with Lindsey on

the phone. Lindsey

was upset and “was

talking about his boys,

talking

about––said

that [Victim] was trying to take the children away from him

and he wasn’t gonna

get to see his children

no more. She was telling him he wasn’t

gonna get to see his

children no more.”

•Lindsey

repeatedly

said that Victim “don’t

want me to see my

children. … She ain’t

gonna––she

don’t

80a

want him to see his

children no more.”

•The day after that

phone call, Lindsey

called Smith a second

time. Lindsey had just

been hired at BMW.

Victim and Victim’s

mother took out warrants against Lindsey

(impliedly with the

knowledge that the police would visit Lindsey at his new workplace and he would

lose his job as a result).

•Lindsey was crying on

the phone, still distraught, two or three

hours prior to the

shooting.

•No more than a week

before trial, trial counsel met with Smith to

prepare for her testimony during the sentencing phase. The

meeting lasted between thirty and fortyfive

minutes,

and

there was little to no

discussion of Lindsey’s

family history.

•There was no formal

preparation or practice

81a

before Smith testified

at trial.

Leon

•When Lindsey •Father did not testify

McDow- was born, his fa- at the PCR/

ell (Fa- ther was marther)

ried to someone

other than his

mother.

•McDowell

admitted he “really

wasn’t a father

to [Lindsey].”

•McDowell occasionally

provided money for

clothes or a bicycle, but played

no role in Lindsey’s emotional

well-being.

•McDowell would

not attend baseball games or

other of Lindsey’s school functions.

Timo•Sims did not tes- •Lindsey took over the

thy

tify at the sen- role of parenting Sims

Sims

tencing hearing. when Sims was eleven

(Brothyears old and Lindsey

er)

was twenty-one years

old.

•Lindsey was Sims’ father-figure for eight

years;

Lindsey

82a

“treated [Sims] like a

son, like he want his

father to treat him because [Lindsey] never

had a father.”

•Sims lived with Lindsey and Victim while

they were married.

•When Lindsey was

dealing drugs, Lindsey

spent the money he

earned on his family

and Victim’s family,

including their children.

•Several weeks prior to

the shooting, Lindsey

took Victim, their children, Sims, Sims’ wife

and newborn baby,

and multiple others

out to eat together.

•Shortly after that

night, multiple family

members,

including

Sims, went to Lindsey’s house after learning that Lindsey was

threatening to take his

own life.

•In a phone call earlier

that same day, Lindsey sounded “nervous

and crying.”

83a

•Sims saw Lindsey cry

“twice in [Sims’] life”:

once that night and

once the day of the

shooting.

•While the family members were at Lindsey’s

house following his suicidal ideations, Lindsey shared multiple

suicide notes prepared

for different family

members,

including

one for Victim, one for

his children, one for

Sims, and one for

Mother.

•None of Lindsey’s family members took Lindsey to the hospital or

otherwise sought professional help for him

that night or after that

night.

•Lindsey suspected Victim was “seeing another dude” and asked

Sims to drive by Victim’s home to confirm

his suspicions. Sims

did so, and there was

another car parked at

Victim’s house that did

not belong to Victim.

84a

•Sims lied to Lindsey

about the presence of

the vehicle to prevent

“trouble.”

•Sometime later, Lindsey asked Sims to contact Victim on his behalf because Victim

would no longer answer Lindsey’s calls.

•Sims called Victim the

day before the shooting and listened to the

call while Lindsey and

Victim spoke.

•During the call, Lindsey said, “I understand

you don’t want to be

with me no more, just

let me get the boys.

And she, she was upset

already at him.”

•Victim “started cussing” and replied “you

not seeing them. I’m

not dealing with you.

We staying away from

you.”

•Sims heard one of

Lindsey’s sons in the

background say “I

want my daddy.”

•Victim said, “no, you

don’t . . . that’s not

85a

your daddy” and hung

up the phone.

•The day of the shooting, Lindsey called

Sims again and requested that Sims contact a third person on

Lindsey’s behalf. Sims

refused, but his roommate, Chawney, did as

Lindsey asked.

•Chawney later spoke

with Lindsey again

over the phone, and evidently

confirmed

Lindsey’s suspicions

that another man was

with Victim.

•Lindsey then called

Sims a second time,

crying and distraught.

Sims asked Lindsey to

meet him at their

brother’s home to “talk

about the situation.”

Lindsey agreed to do

so but never showed

up.

•The shooting took

place shortly thereafter.

•Sims was well-integrated with the rest of

the family and “was

available” to talk with

86a

trial counsel. No one

from the trial counsel

team ever contacted

Sims.

•Sims was present in

the courtroom for the

entire trial. He asked a

member of the trial

counsel to allow him to

testify because Sims

“kn[e]w more about

[Victim] and Marion

than anybody.”

•Lindsey’s trial counsel

said they would get

back Sims concerning

his testimony, but, despite his request, Sims

never took the stand.

•Sims admitted on

cross-examination

that he had been present at Applebee’s

when

Lindsey

removed Victim’s jewelry and threw it in the

road, but he claimed

he never saw Lindsey

physically assault Victim or tear her clothing.

•Sims admitted on

cross-examination

that Lindsey did not

87a

actually attempt suicide the night the family went to Marion’s

home.

•Sims admitted on

cross-examination

that Lindsey had multiple other girlfriends

while married to Victim. On re-direct, Sims

admitted to having

suspicions that both

Lindsey and Victim

had relationships with

others outside of their

marriage, but that he

was never able to confirm as much.

Rod

• Tullis did not •Tullis explained he

testify at the was an attorney in

Tullis

(Lind- sentencing hear- Spartanburg, and he

sey’s

ing.

had represented Lindsey from the late 90s

Former

up until Victim’s murder for criminal, famLawyer)

ily court, and traffic

matters.

•Tullis explained he

knew the details of

Lindsey’s life, and

Lindsey also did some

repair and mechanic

work for Tullis.

•Tullis explained that

in the weeks leading

88a

up to Victim’s murder,

Lindsey had met with

him, his main concern

was his children, and

they had discussed

“potential ways to resolve issues involving

his children,” including paying child support to secure visitation. However, Tullis

did not know if this offer was ever actually

made to Victim, and he

admitted they didn’t

file anything in the

family court, noting

some concerns that

such a filing would

have affected pending

drug charges Lindsey

faced that Victim was

potentially a witness

in.

•Tullis

also

stated

Lindsey spoke to him

about how Victim was

seeing another man,

and he was concerned

about this affecting his

relationship with his

children, essentially

taking his place as the

children’s father.

89a

•Tullis explained Lindsey tried to see him the

day before the incident. He noted after he

heard about the incident, he went to his office to prepare a notice

of representation, and

he listened to his answering

machine,

which used cassette

tapes to record the

messages. There was a

message from Lindsey–made about an

hour prior to the shooting–in which Lindsey

stated he needed to

talk to Tullis, and

Lindsey sounded “very

distressed, very distraught.” Tullis explained

didn’t

sound angry or agitated, just “distraught,

very emotionally down

and upset. Not manic

at all.”

•Tullis explained he

was the attorney of

record on this case for

a short time, but

shortly after, Bartosh

became the attorney

on the case. He told

Bartosh about the

90a

message and gave the

audiotape to Bartosh.

•Tullis stated he visited

Lindsey in prison after

he was released from

the hospital (following

a surgery from his selfinflicted gun wound to

the head). When he

visited Lindsey, Lindsey was bleeding from

the head because “he

had been bashing his

head against the concrete wall . . . and he

had ripped . . . the

stiches . . . and that he

was attempting to kill

himself by doing that.”

Tullis informed the jail

about Lindsey’s actions, and they put

him on suicide watch.

There was a jail incident report and photographs regarding this

instance.

•While Lindsey was in

jail, he would write letters to Tullis saying

“he just didn’t want to

live” and wanted to kill

himself. Tullis explained Lindsey’s demeanor

had

not

91a

changed from the voice

message he left, rather

he had “probably gotten worse, and it got

worse over the weeks

thereafter.”

•Tullis

also

stated

“sometime

probably

immediately after the

shooting

occurred,”

Lindsey’s Mother gave

him some suicide notes

that Lindsey had written a couple of weeks

before the shooting.

Tullis provided these

letters to Bartosh. Tullis explained the letters indicated “a clear

intention to do harm to

himself,” and were

“consistent with the

state of mind [he] observed in those weeks

leading up to the

shooting

and

the

weeks

immediately

thereafter.”

•Tullis was not contacted by Lindsey’s attorneys about the trial,

which he found surprising because he

thought he was “probably the best witness

92a

as to state of mind.” He

was subpoenaed by the

State on May 21, 2004,

and he went to the

court and explained to

the State the records

he had provided to Mr.

Bartosh and gave

them documents he

had at the time (this

did not include the suicide notes).

•On cross-examination,

Tullis explained Lindsey did not want to

leave Victim or his

family, noting Lindsey

seemed confused about

what

wanted.

Mainly, Tullis stated

Lindsey seemed scared

to lose access to his

children, and he noted

in the weeks before the

shooting, Lindsey had

been denied access to

his kids.

•Tullis did not recall

having a conversation

with Lindsey about the

order of protection issued just days prior to

Victim’s murder.

93a

•Tullis admitted the

voice message he received could have been

left after the shooting,

but insisted “it was

contemporaneous”

with

the

shooting

whether it was before

or after. However, he

noted he didn’t know

how Lindsey would

have been able to

make the phone call after the shooting, as

Lindsey himself was

injured and arrested.

•Tullis stated he told

the prosecution about

the existence of the

voice message, but he

did not give it to them

because he had already given the tape to

Bartosh.

•Tullis stated he knew

Lindsey was seeing

other woman at the

same time he was stating he wanted to get

back together with

Victim, and Tullis

stated he expected Victim to file divorce proceedings. He was also

aware of the domestic

94a

abuse charges and the

series of incidents involving Victim. However, he stated Lindsey was not convicted

of domestic violence.

•Tullis admitted he had

been disbarred since

the time of Victim’s

murder.

Vincent •Bell did not tes- •Bell explained he was

Bell

tify at the sen- one of the paramedics

(Para- tencing hearing.

who responded to the

medic

scene of the shooting

and took care of LindScene)

sey.

•He explained Lindsey

was conscious at the

scene, so he and the

other

paramedics

asked him questions to

try to ascertain how

alert he was and if he

was a danger to them.

•Bell explained that

when asked what happened, Lindsey stated

“he shot himself . . . let

me die.” He also stated

he shot himself and

then his wife.

•He also admitted he

shot his wife because

“his wife was fooling

95a

around with somebody.”

•Bell explained Lindsey

was not cooperative as

they treated him, “he

basically told us that

he wanted to die and

let him die.”

•On cross-examination,

Bell stated he gave a

written statement to

police about his interactions with Lindsey,

and in the written

statement, he said

Lindsey stated he shot

his wife then shot himself.

•Also on cross, Bell

stated he did not remember Lindsey ever

mentioning his kids to

the paramedics.

•Bell did not remember

speaking to any of

Lindsey’s counsel prior

to his trial or Lenora

Topp, the investigator.

Ann

•Howard testified •Howard did not testify

Howard she was a “pro- at the PCR hearing.

(Mental fessional, mental

Health

health

profesProfessional” and regsional)

istered nurse.

96a

•She stated she

met Lindsey the

day of the shooting. When she

met Lindsey, he

was

suicidal,

crying,

depressed,

and

said he heard

voices. She did

not give him a diagnosis because

she did not have

enough

information, but she

believed he was

depressed and

thought

needed further

assessment from

a psychiatrist.

•She then saw

Lindsey

again

two days later

and made a deferred diagnosis

depression

and got him in to

see a psychiatrist.

•She noted Lindsey was prescribed an antidepressant,

mood stabilizer,

97a

and an anti-psychotic.

She

stated Lindsey

continued

take medications

in jail, though

the

anti-psychotic

was

changed to a different brand.

Dr.

•She

reviewed •Preparation – Dr.

Marga- some of Marion’s Melikian testified she

ret Me- medical records; was

contacted

likian

psychiatric hos- 4/6/2004 by Bartosh

(Expert pitalization rec- but did not start rein Fo- ords; head injury viewing his records

records; school until 4/28/2004. Before

rensic

Psychi- records; and re- showing up to testify

atry)

ports where he she had worked on the

was evaluated. case for 7 hours 45

She met with minutes. She only

him on 5/4/2004. spent 2 hours and 45

•School records minutes with Marion

– Marion had during her evaluation.

problems and re- Marion was her first

quired learning death penalty trial,

disability clas- and she recalled reses,

including ceiving documents and

speech therapy; being concerned that

he struggled in she could not prepare

school

and for trial. Dr. Melikian

dropped out in did not feel prepared to

testify and tried to set

ninth grade.

•Physical inju- up a conference call

ries – he was with Bartosh and the

trial judge. She was

98a

run over by a car the only one on the

when he was 18 conference call from

months old and the defense. She exsustained head pressed her concerns

injury; he in- to the trial judge. She

haled kerosene; only spent 30 minutes

had been in a on the phone with Barmotorcycle acci- tosh the night before

dent and a car she was supposed to

accident

and testify at the original

sustained

sev- trial. Also, Dr. Meeral head inju- likian learned in late

ries.

April that Dr. Brawley

•Family history would not be testifying

– Has a family and, instead, Dr. Mehistory of de- likian would testify as

pression and had to Dr. Brawley’s report

been

treated at trial. She did not

feel comfortable doing

psychiatrically

after an overdose that, so she requested

when he was 15; a written report from

met diagnostic Dr. Brawley.

criteria for de- •Records – Dr. Mepression at that likian did not receive

time.

all the records that

•Malingering – were available or that

Marion’s records she requested before

“had malinger- trial. Bartosh did not

ing on them” be- provide the suicide

cause he dis- notes, Marion’s comcussed hearing plete medical records,

voices and a DOC records, or an infriend, Jimmy. cident report. Dr. MeHe

saw

Dr. likian said this inforBrawley,

who mation would have

been important for her

99a

gave him a test evaluation. She never

to see if he was received corroborating

exaggerating a pictures about his suimental illness. cides attempts – speBased on the re- cifically of Marion

sults of that test, banging his head on

she did not make the wall when he was

a diagnosis of arrested after the incimalingering. Dr. dent. When she perMelikian

ex- formed her evaluation,

plained Marion she did not give it

does not have much weight.

the external in- •Malingering – Dr.

centive for ma- Melikian learned since

lingering

be- trial that during Marcause he claimed ion’s evaluation, he

that when he was pulling chairs out

overdosed at 15 for Jimmy. She did not

years old, his im- know that Marion

aginary friend, spoke with Brannon

Jimmy, came to and Bartosh about

visit him at the Jimmy before trial and

hospital, which this information would

was comforting have been beneficial

him.

He before trial. Also, had

claimed

that she known all of the inwhenever

he formation

available

gets

stressed, about Jimmy, she

Jimmy appears would have focused

to comfort him. her evaluation differDr.

Melikian ently.

concluded Mar- •Family history – Dr.

ion used Jimmy Melikian did not know

coping much of Marion’s fammechanism.

100a

•Mental state – ily history and conMarion said he firmed it’s better to

had been sui- have other family or

cidal for weeks evidence corroborate

leading up to the his reports. She only

incident and was learned about Maractually

plan- ion’s history during his

ning a suicide; one evaluation and

he experienced from Topp the day of

decreased appe- trial.

tite, weight loss, •Conclusion – Knowfeelings of hope- ing what she knows

lessness, and a now, Dr. Melikian

sad mood. He would have better exmet the criteria plained the diagnosis

for depression at she made because she

the time of inci- did not understand the

dent. She de- seriousness of Marscribed his de- ion’s

depression

pression as re- around the time of the

current

but incident. She had no

could not deter- family history and not

mine whether it enough time with Marwas chronic or ion to determine his

acute since she functioning. She would

did not know have explained his diwhen his depres- agnosis differently at

sion

started. trial. Since trial, she

Marion wanted has visited him three

to commit sui- times and believes she

cide. He claimed misjudged his cognithat on the day tive ability and diagnoof the incident, sis since the first time

he just snapped she met him.

and did not know

his wife was shot

101a

until EMS told •Dr. Melikian did not

him. He told Dr. understand the severMelikian

he ity of Marion’s depresasked EMS if sion and was unaware

they would just of his phone call to Tullet him die.

lis, which would have

•Testing results been important in

– On testing, evaluating his mental

Marion

was state at the time of the

found to have be- incident.

low-average IQ. •At the original trial,

He was previ- the only school records

ously diagnosed she had were his

with borderline grades.

intellectual func- •She was unaware

tioning (diagno- Jimmy first appeared

sis

used

for in the record on the

someone

func- day Marion was served

tioning close to with the State’s intent

the mildly men- to seek the Death Pentally

retarded alty. This information

range).

How- would have been imever, after run- portant so Jimmy

ning tests, Dr. could have been dealt

Melikian would with before trial. She

not classify him now knows Marion

as borderline in- was

malingering

tellectual func- Jimmy because some

tioning. Marion inmates told him to do

had

cognitive it. If she had more time

deficits, or prob- to meet with him belems in thinking fore trial, she would

or acting; verbal have been aware of

fluency;

pro- that information and

cessing memory;

and

dexterity.

102a

These are all in- provided much more

dicators of brain effective testimony.

damage

and •She diagnosed Marion

brain abnormal- with a major depresity, either ge- sive disorder before

netic or from the the trial in 2004. She

trauma he expe- would still make that

rienced as a diagnosis today, as he

child.

Marion still met the diagnostic

had limited abil- criteria.

ity to cope due to

his decreased intelligence in general. He had poor

coping skills, as

evidenced

Jimmy, his imaginary friend.

His neurological

problems

appeared chronic

because he had a

history of problems in school.

•Conclusions –

Marion had had

abnormalities

with naming and

the ability to

copy

designs;

dexterity

and

fine motor skills.

She further concluded he had

cognitive deficits

103a

and that he suffers from major

depressive disorder. She recommended he see a

behavioral neurologist.

•She was not provided DOC records for Marion’s

time served for

assault and battery with intent

to kill.

•She

learned

there was no

mention

Jimmy until Oct.

10, 2002, the

date the State

sought the death

penalty. She was

also

unaware

that Jimmy was

present for an interview

conducted by Dr.

Narayan

7/18/2003.

•She was unaware that he lied

on a job application and claimed

he finished high

school. Bartosh

104a

did not provide

this information,

and she said it

might have been

helpful to know

this information.

•She

clarified

that his depression was acute.

Dr.

•Dr. Brawley did •Bartosh called Dr.

not testify at the Brawley on 4/12/2004

Tora

Brawsentencing hear- and she initially deley (Ex- ing.

clined to work on the

case because it was too

pert in

Clinical

short notice. She had a

cancellation and was

Psychology)

able to see Marion on

4/27/2004.

Bartosh

gave her no records.

She was only told

there was a history of

head trauma, a gunshot wound, and a car

accident. After the

evaluation, she provided Bartosh with the

results but could not

recall why she was not

asked to testify.

•She performed an extended clinical interview and neuropsychological tests. She provided verbal results to

105a

Dr. Melikian and Dr.

Absher (a neurologist).

•Marion reported that

he fell on the steps, hit

his head 4-5 times,

he’d been run over by a

car; was in the hospital

for two weeks at one

point; had surgery on

his face; experienced 23 motorcycle wrecks –

one with no helmet; a

self-inflicted gunshot

wound to the head in

2002; and a history of

migraines. He claimed

to have dropped out of

school in the tenth

grade.

•Malingering – She

conducted a test to figure out whether he

was malingering–the

only indication she

had at the time of trial

was that Bartosh told

her about the imaginary friend and was

aware that other doctors had diagnosed

him with malingering.

She did the memory

malingering

test,

which is a recognition

test, and he scored

106a

completely within normal limits. For malingering for psychiatric

symptoms, he scored

within normal limits.

She said there was no

indication he was malingering. On cross,

Dr. Brawley said she

asked Marion about

Jimmy. Marion said

Jimmy was like a role

model, and he came to

him at age 12 when he

first tried to kill himself.

further

claimed God sent him

Jimmy to “help him

out” and that he talks

to Jimmy when he has

a problem. Marion said

Jimmy was not there

in the meeting with

them on 4/27.

•Comparison to William S. Hall findings – When Marion

was evaluated during

his time at William

Hall, the doctor who

performed the evaluation there performed

the same tests, which

had different results;

107a

she said this could be

due to the depression.

•Findings – There

were some scattered

neuropsychological

deficits, including severely impaired speed

of mental tracking

(i.e., ability to sequence, like ABC’s);

severely impaired verbal fluency; severely

impaired

confrontation naming (i.e., ability to name objects);

below average verbal

memory; delayed visual memory; severely

impaired verbal learning ability; and impaired ability to copy

and recall a complex

figure. Her conclusion

was that he fell below

the average range of

normal brain function.

However, because she

had no records, she

could not say whether

the cognitive deficits

were due to head injuries.

Jan Vo- •Vogelsang

did •Vogelsang interviewed

gelsang not testify at the Marion Lindsey, Vir(Expert

ginia Lindsey, Bessie

108a

in Clinical Social

Work

and

Biopyschosocial

Assessments)

sentencing hearing.

Smith, Steve Pilgrim,

Timothy Sims, Patsy

Burton, Rob Tullis,

and Dr. Tora Brawley.

She evaluated the family history, including

mental health records

of family members and

any available court

records. She reviewed

Marion’s

medical,

mental health, high

school, and DOC records, his prior arrests,

suicide letters, and

records that were

gathered after the incident. She visited the

community

where

Marion lived.

•Family history/patterns of behavior –

His family exhibited

patterns of abandonment and desertion.

They lived in extreme

poverty, meaning the

children went hungry.

Marion’s grandfather

was sexually inappropriate with several

boys in the family.

Marion’s mother was

abandoned by her father and raised by a

109a

mother who was unable to care for her children; she was sick often. Marion’s father

abandoned the family.

Marion’s mother was

married before she

met Marion’s father.

She had three children

with her previous husband but five pregnancies, with 2 miscarriages. She suffered

the loss of her daughter when she was 7

months old a few years

before Marion was

born. She never had

intervention,

treatment or grief counseling. After her child

died, she partied, had

several

boyfriends,

and was not present or

at home for her children. Marion was

cared for by his grandmother. There were

patterns of divorce and

separation, abuse, neglect, and abandonment in his home.

There was a pattern of

suicide attempts in his

family – both his aunts

had drug problems and

110a

attempted suicide; his

other checked herself

into the ER for an

overdose following a

conflict with Mr. Sims.

Marion’s

brother,

Fred, drowned. Marion

felt guilt about their

relationship and became depressed when

Fred passed away.

•Violence at home –

Marion grew up witnessing violence. He

had no one in his home

guiding him, which affected his ability to determine how to behave

in certain situations.

He had no strong male

influences. His family

members

resolved

problems in relationships with violence. He

witnessed his family

members deal and use

drugs between age 11

and

13.

Marion

watched his uncles

beat their girlfriends

and each other; some

of his family members

were charged with domestic violence, assault and battery with

intent to kill. Marion

111a

witnessed his mother

shoot at Mr. Sims. His

uncles were in and out

of prison – one of his

uncles beat a man to

death. The others were

in trouble with the law

for drugs and violent

behavior. Marion witnessed his uncle throw

his favorite pet into a

fire. Marion’s family

practiced roots, which

was confusing for him.

His family members

would “put roots” on

their girlfriends or

wives to make them

sick or make them die.

•Living conditions –

When Marion was

born, there were aunts

and uncles living in

the house. The living

conditions in Marion’s

childhood home were

crowded, with ten people often living in the

home at one time.

There was no indoor

plumbing or hearing,

and the neighborhood

was

considered

“rough.”

112a

•Injuries – Marion fell

a lot as a child and

would

often

have

stitches in his head.

He was run over by a

car when he was very

small, and his family

delayed sending him to

the hospital due to

lack of resources.

•School

–

Marion

failed first grade. He

started exhibiting behavioral

problems

when

his

mother

started working third

shift in eighth grade.

He had to repeat

eighth grade twice and

dropped out of school

before finishing eighth

grade.

When

dropped out, he became a drug runner in

the neighborhood. The

only one to graduate

high school in his family was his Aunt Robin

but she left the home

to raise her own children.

•Mental state – When

Marion was 15, he took

somewhere

between

45 and 60 medications

113a

at one time and tried

to take his life. He received treatment at

the hospital, but his

mother resisted the

doctor’s recommendations.

•Relationships – Marion was very reactive

in romantic relationships. He shot one of

his

girlfriend’s

boyfriends.

Marion had a chaotic

relationship with Nell,

the mother of his children. He was arrested

for CDV during their

relationship.

•Conclusion – There

were so many stressors in Marion’s life

from the time he came

into the world that it

would be reasonable to

conclude that it affected his insight,

judgment, impulsivity,

and decision-making

and placed him at

higher risk of committing a serious act.

Lenora •Topp did not tes- •Topp testified she

Topp

tify at the sen- started working on

tencing hearing. Lindsey’s case on April

114a

(Mitigation Investigator)

16, 2004, approximately a month before

trial, and her job was

“essentially a fact

finder, getting records

as needed, and . . .

meeting with witnesses as necessary.”

•She spent approximately forty hours

working on Lindsey’s

case before his trial began. She believed she

did not have enough

time to work on Lindsey’s case, explaining

it takes time to cultivate a relationship and

get information from a

defendant’s family and

that she was still seeking records during the

trial.

•She had never worked

on a death penalty

case before, had never

been a mitigation investigator before, and

had never worked on a

South Carolina case

before.

•She explained she

mainly tried to get to

know about Lindsey’s

115a

background through

family members.

•Mother

told

Topp

about Dr. Barry Henderson (accidently giving Topp the wrong

name–Hennison–but

Lindsey

eventually

told Topp the right

name during the trial),

Lindsey’s

childhood

doctor, and she attempted to find Dr.

Henderson for medical

records and to be a witness. Once Topp was

able to get into contact

with Dr. Henderson,

the day after trial on

May 25, 2004, Dr.

Henderson stated he

would have testified

for Lindsey and how in

the past he trusted

Lindsey to play with

the doctor’s children.

Dr. Henderson passed

away prior to the PCR.

•She was never asked

to interview Rod Tullis.

•Lindsey told Topp

about his upbringing,

being raised poor, not

having his father in

116a

his life, being run over

by a car. He also spoke

about his desire for his

kids to not be without

a father figure like

him.

•He told Topp he could

not remember “half” of

what happened when

he shot Victim, but “he

was very upset about

the, his wife having an

affair with a gentleman who was going to

take over raising his

children.” He told

Topp he just wanted to

know what was going

on with his kids, but

Nesbitt and Victim

took off. He remembered following them,

and that he shot into

the car.

•Lindsey told her his

mother’s and father’s

names, and he indicated he had hatred towards his father because his father never

had anything to do

with him.

•Lindsey

explained

growing up they only

had enough clothes for

117a

two days and had to

wash their clothes

every other night, drying them on a wood

heater.

•He also explained he

was severely emotionally affected by the

death of one of his

brothers who drowned

seven years prior.

Lindsey’s

brother’s

body was never found.

•He discussed only eating bologna sandwiches as a child because it was all they

could afford, and how

he hated bologna now,

refusing to eat it when

it was served at the

jail.

•He admitted he sold

drugs to support his

family, so he could

have a better life-style

for his kids. However,

he claimed he never

used drugs.

•Topp admitted Lindsey got into fights at

school with both other

boys and some girls.

•Lindsey told Topp

about

his

uncles

118a

throwing his cat into a

wood heater.

•After Lindsey quit

school, he got into a

bad

car

accident,

wherein his car flipped

three times, he had

memory loss after the

accident, had to have

facial surgery, and his

hip broke.

•He told Topp about his

romantic

relationships. He also spoke

about his relationship

to Bill Burton.

•Topp stated based on

her conversations with

Lindsey, she believed

he had a hard time in

life, had turned to drug

dealing to take care of

Victim and their kids.

•She also mentioned

Lindsey told her he

“was just resigned to

dying and his biggest

regret is not having

enough time to spend

with his children.”

•Topp also looked for

mental health records

for Bessie Smith, Lindsey’s aunt.

119a

•Topp stated she was

not sure if they had all

of Lindsey’s school record even at the time of

the PCR.

•Topp suggested to Bartosh

that

mental

health issues ran in

the family and that he

should subpoena family members who had

these issues, such as

Bessie Smith, Steve

Pilgrim, Paul Pilgrim,

and Mother.

120a

APPENDIX B

STATE OF SOUTH CAROLINA

COUNTY OF SPARTANBURG

MARION ALEXANDER

LINDSEY, #6015

Applicant,

vs.

STATE OF SOUTH CAROLINA,

Respondent.

) IN THE COURT OF

) COMMON PLEAS

) SEVENTH JUDI)

CIAL CIRCUIT

)

) C/A No. 2007-CP-422848

)

) AMENDED ORDER

) DENYING POST) CONVICTION RE)

LIEF

)

________________________________ )

This matter is before this Court upon the Supreme

Court of South Carolina’s vacating and remanding

this Court’s Order of Dismissal for issuance of an

amended order that complies with Pruit v. State, 310

S.C. 254, 423 S.E.2d 127 (1992), and Hall v. Catoe, 360

S.C. 353, 601 S.E.2d 335 (2004), and with S.C. Code

Ann. § 17-27-80 (2003). This Amended Order Denying

Post-Conviction Relief follows.

This matter came before the Court on Marion Alexander Lindsey’s application for post-conviction relief (PCR) filed on August 14, 2007, as amended August 6, 2009. The initial application was filed by his

appointed appellate counsel, Robert M. Dudek, of the

South Carolina Office of Appellate Defense. The Respondent made an initial Return and requested under

121a

S.C. Rule of Civil Procedure, Rule 12(e), greater particularity and specificity on September 24, 2007. The

Applicant, through appointed PCR counsel Richard

Vieth and David Collins submitted an Amended Application for Post-Conviction Relief on August 6, 2009.

The matter was held before the Court on July 1921, 2010. The Applicant was present and represented

by court-appointed counsel Richard Vieth and David

Collins. The Respondent was represented by Assistant Deputy Attorney General Donald Zelenka and

Assistant Attorney General Al Simon. At the hearing,

testimony was received from Douglas Brannon, Dr.

Tora Brawley, Vincent Bell, Lenora Topp, Rod Tullis,

James Aiken, Karen Hatcher, Bill Burton, Mrs. Burton, Virginia Lindsey, Bessie Smith, Steve Pilgrim,

Tim Sims, Jan Vogelsang, and Dr. Margaret Melikian.

At the conclusion of the hearing, post-hearing memoranda were allowed. The Applicant’s memorandum

was filed October 26, 2010. The Respondent’s memorandum was made on April 1, 2011. On May 2, 2011,

this Court requested a proposed order in the matter

from Respondent and subsequently from Applicant.

PRIOR PROCEDURAL HISTORY

The Petitioner, Marion Alexander Lindsey, was

indicted on October 3, 2002 by the Court of General

Sessions for Spartanburg County for murder. The

charge arose from the homicide of Ruby (Nell) Lindsey

on September 18, 2002. On October 10, 2002, Solicitor

Trey Gowdy served his notice of intent to seek the

death penalty consistent with S.C. Code Ann. § 16-326. He further served an additional notice of life sentence pursuant to § 17-25-45(A) based upon Lindsey’s

February 20, 1994 conviction for assault and battery

122a

with intent to kill. Both were served on Lindsey and

his attorney, Michael Bartosh, personally.

A notice of statutory aggravating circumstances

and evidence in support of aggravating circumstances

was served on the Petitioner on March 10, 2004. The

listed statutory aggravator was:

That the defendant, Marion Alexander Lindsey, did murder Ruby Nell Lindsey, and by his

act of murder knowingly created a great risk

of death to more than one person in a public

place by means of a weapon or device which

normally would be hazardous to the lives of

more than one person, Section 16-320(C)(a)(3) of the Code of Laws of South Carolina (1976) as amended (Cum. Supp. 1990).

Supplemental notices were made on May 11, 2004 and

May 14, 2004.

On May 17, 2004, the matter was called for trial

before the Honorable John C. Few. Petitioner was present and represented by Spartanburg County Public

Defender Michael Bartosh, Doug Brennan and Karen

Quimby (Hatcher). The prosecution was represented

by Seventh Circuit Solicitor Harold “Trey” Gowdy and

Deputy Solicitors Barry Barnette and Donnie Willingham. On May 21, 2004 the jury convicted Lindsey of

murder at 4:45 p.m. R., Tr. p. 1718, I.14 - p. 1719, I. 5.

On May 22, 2004, the penalty phase began. After

testimony, the jury was instructed to consider the sole

aggravating circumstance involving “great risk of

death to more than one person.” R., Tr. 2152-53. The

jury was also instructed to consider as mitigating circumstances:

1. Murder was committed while th

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