Clark v. State

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(D)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Brandon Heath Clark, Petitioner,

v.

State of South Carolina, Respondent.

Appellate Case No. 2015-001898

ON WRIT OF CERTIORARI

Appeal From Greenville County
Perry H. Gravely, Circuit Court Judge

Unpublished Opinion No. 2019-UP-394
Submitted September 12, 2019 – Filed December 18, 2019

AFFIRMED

Appellate Defender Kathrine Haggard Hudgins, of
Columbia, for Petitioner.

Senior Assistant Deputy Attorney General Megan
Harrigan Jameson, of Columbia, for Respondent.
PER CURIAM: In this appeal from the denial of an application for post-
conviction relief (PCR), Brandon Heath Clark argues the PCR court erred in
refusing to find trial counsel ineffective for not (1) calling two witnesses to
impeach testimony about alleged conversations two other witnesses said they had
with Clark after a shooting, and (2) objecting to the trial court's instruction to the
jury that inferred malice may also arise when the deed is done with a deadly
weapon when there was evidence in the record that would reduce Clark's charge
from murder to involuntary manslaughter. We affirm.

FACTS

On July 29, 2006, a crowd1 gathered at a party to watch a fight between Cameron
Wade and Joshua Wood. Wood and Wade had fought two weeks earlier. Wood
arrived at the party with David Murray. Wade arrived at the party in a car with
Christopher Garland. Clark went to the party with Christopher Allison
(Christopher) and Jordan Mardis.2 Although the trial testimony conflicts as to
what occurred at the party, it is undisputed that Wade and Garland were fatally
shot while they sat in a car at the party. Additionally, at trial, Clark and the State
stipulated that (1) Clark went to the party, (2) he fired his pistol nine times during
the party, and (3) the nine .40 caliber shell casings found at the scene came from
his gun.

At Clark's trial, Wood admitted he was drinking and acting wild and out of control
at the party. Wood further admitted he intended to fight Wade at the party. He
testified when the victims arrived at the party, he hit one of the people who arrived
with them with a stick. Wood stated after he hit the person with a stick, he heard
gunshots coming from behind him and from the road, and he claimed he saw Clark
shoot into the air twice. Wood testified that after the gunshots, he ran towards
Murray's car but did not leave the scene immediately. Instead, he and Murray
stopped to pick up a friend, who had been left behind at the party by Clark,
Christopher, and Mardis. Wood stated he threw a tire iron from Murray's car at
another car because he thought it belonged to the person he hit with a stick, and he
kicked in the car's rear window. Wood testified he did not know the victims were
in the car, and he left after kicking in the window. Wood stated that after leaving
the party, he and Murray went to the home of Kayte and Dustin Allison (the

1
Witnesses testified and law enforcement was told there were between twenty and
two hundred people at the party.
2
At trial, Jordan's last name was spelled Mardis. However, at the PCR hearing,
his last name was spelled Martis.
Allisons). Wood stated Clark was at the Allisons' home when they arrived, and
Clark told Wood, "I think I shot them, I think I shot them." Wood claimed he told
Clark, "[N]o, you didn't, you didn't shoot them, you shot into the air." Wood
asserted Clark had a gun in his hands when they spoke, and Clark "said something
about throwing it in the river." Wood testified he did not have a gun the night of
the party. On cross-examination, Wood admitted he had blood on his leg when he
arrived at the Allisons' home.

Murray testified he went to the party with Wood, knowing Wood intended to fight
Wade. Murray stated Wood did not have a gun at the party. Murray described
hearing gunshots, but he did not see who fired the gun. After the shots were fired,
Murray testified he told Wood "let's go," and they left the scene; however, they
turned back because Wood thought he saw some of their friends. Murray
explained when they went back for their friends, Wood got out of the truck and
threw a tire iron at another car. Murray stated he did not see Wood kick in the car
window. Murray stated he and Wood then went to the Allisons' home, and Clark
was there when they arrived. Murray did not see Clark with a gun at the Allisons'
home, but he stated Clark told Christopher that Christopher "was supposed to
throw the gun in the river." Murray did not hear Clark say he shot the victims, and
Murray stated "we thought [Clark] had shot in the air." On cross-examination,
Murray stated he did not know if it was his tire iron that Wood threw at the car,
and he testified Wood was not bleeding when they left the party.

Christopher testified he went to the party with Clark and Mardis. Christopher
stated he saw someone shoot a gun over the hood of a Honda, and in response,
Clark fired his .40 caliber Smith and Wesson gun approximately nine times into
the air. Christopher stated that after the shots, Clark drove him and Mardis to the
Allisons' home.3 Christopher asserted he did not see anyone else with a gun that
night.

On cross-examination, Christopher repeated his assertions that he saw Clark fire
his gun into the air nine times, and they left after Clark fired the gun. Christopher
also recalled seeing Wood run up to the back side of a car with a large item that
could have been a tire iron. Christopher stated he did not see Wood throw the item
at the car. Christopher stated Wood arrived at the Allisons' home about thirty
minutes after he and Clark did. Christopher explained Wood's leg was bleeding
when he arrived, and Kayte would not let Wood into the house because she had a

3
Christopher and Dustin are brothers.
young son who crawled, and she did not want blood on the floor. Christopher
stated Murray did not come into the house and talk with Clark that night.

Both victims died from a single gunshot wound. Nine .40 caliber shell casings
were found ten to twelve yards from the victims' vehicle, and the forensic firearms
examiner stated each of the casings were fired from the same firearm. The forensic
firearms examiner admitted he could not determine if the casings were fired from
the same gun that fired the bullet retrieved from one of the victim's bodies because
there was no firearm for comparison. However, the forensic firearms examiner did
state the ballistic evidence showed the bullet retrieved from one of the victim's
bodies was consistent with being fired from a .40 caliber Smith and Wesson, the
same type of gun that fired the casings. Clark's gun was never recovered.

In March 2007, a Greenville County grand jury indicted Clark for two counts of
murder and two counts of possession of a weapon during the commission of a
violent crime. Clark proceeded to trial on the charges, and the jury found him
guilty as charged. The trial court sentenced Clark to concurrent terms of forty
years' imprisonment for each count of murder and five years' imprisonment for
each count of possession of a weapon during the commission of a violent crime.

Clark appealed, and this court affirmed his convictions and sentences. See State v.
Clark, Op. No. 2012-UP-549 (S.C. Ct. App. filed Oct. 10, 2012). Clark filed an
application for PCR, which the PCR court denied. Clark then filed a petition for a
writ of certiorari with this court on April 6, 2016. On June 22, 2018, this court
granted Clark's petition for a writ of certiorari. This appeal follows.

STANDARD OF REVIEW

"Our standard of review in PCR cases depends on the specific issue before us. We
defer to a PCR court's findings of fact and will uphold them if there is evidence in
the record to support them." Smalls v. State, 422 S.C. 174, 180, 810 S.E.2d 836,
839 (2018), reh'g denied (Mar. 29, 2018) (citing Sellner v. State, 416 S.C. 606,
610, 787 S.E.2d 525, 527 (2016), and Jordan v. State, 406 S.C. 443, 448, 752
S.E.2d 538, 540 (2013)). "We review questions of law de novo, with no deference
to trial courts." Id. at 180-81, 810 S.E.2d at 839-40 (citing Sellner, 416 S.C. at
610, 787 S.E.2d at 527, and Jamison v. State, 410 S.C. 456, 465, 765 S.E.2d 123,
127 (2014)). "[W]e will reverse the PCR court's decision when it is controlled by
an error of law." Sellner, 416 S.C. at 610, 787 S.E.2d at 527.
LAW/ANALYSIS

I. Witnesses

Clark argues the PCR court erred in refusing to find trial counsel ineffective for not
calling the Allisons to impeach testimony about alleged conversations Wood and
Murray said they had with Clark after the shooting. We disagree.

"A criminal defendant is guaranteed the right to effective assistance of counsel
under the Sixth Amendment to the United States Constitution." Taylor v. State,
404 S.C. 350, 359, 745 S.E.2d 97, 101 (2013). "[T]o establish a claim for
ineffective assistance of counsel, the applicant must show that: (1) counsel failed to
render reasonably effective assistance under prevailing professional norms, and (2)
counsel's deficient performance prejudiced the applicant's case." Speaks v. State,
377 S.C. 396, 399, 660 S.E.2d 512, 514 (2008). Deficiency "is measured by an
objective standard of reasonableness." Taylor, 404 S.C. at 359, 745 S.E.2d at 102.
To establish prejudice, an applicant must show that "but for counsel's error, there is
a reasonable probability the result of the proceedings would have been different."
Id. "A reasonable probability is a probability sufficient to undermine confidence in
the outcome." Id. (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).

"[A] PCR applicant must produce the testimony of a favorable witness or
otherwise offer the testimony in accordance with the rules of evidence at the PCR
hearing in order to establish prejudice from the witness' failure to testify at trial."
Bannister v. State, 333 S.C. 298, 303, 509 S.E.2d 807, 809 (1998). "The
applicant's mere speculation [as to] what the witnesses' testimony would have been
cannot, by itself, satisfy the applicant's burden of showing prejudice." Glover v.
State, 318 S.C. 496, 499, 458 S.E.2d 538, 540 (1995).

"In post-conviction proceedings, the burden of proof is on the applicant to prove
the allegations in his application." Speaks, 377 S.C. at 399, 660 S.E.2d at 514.
"Counsel's performance is accorded a favorable presumption, and a reviewing
court proceeds from the rebuttable presumption that counsel 'rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.'" Smith v. State, 386 S.C. 562, 567, 689 S.E.2d 629, 632
(2010) (quoting Strickland, 466 U.S. at 690). "Accordingly, when counsel
articulates a valid reason for employing a certain strategy, such conduct will not be
deemed ineffective assistance of counsel." Id. "A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S.
at 689. "The reasonableness of counsel's actions may be determined or
substantially influenced by the defendant's own statements or actions." Id. at 691.

Clark argues the PCR court erred by not finding trial counsel ineffective for failing
to call the Allisons as witnesses to impeach the testimony of Wood and Murray
about alleged conversations they had with Clark after the shooting. Clark contends
this prejudiced him because the Allisons' testimony was critical to refute Wood's
testimony that Clark said he thought he shot the victims. Clark further asserts it
prejudiced him because Wood and Murray both stated Clark discussed disposing of
his gun in the river.

At the PCR hearing, trial counsel testified he issued several subpoenas in this case,
but he did not have a subpoena for the Allisons. Trial counsel further stated he did
not have any notes about interviews with the Allisons in his records. Trial counsel
claimed he did not have any witnesses that corroborated Christopher's testimony,
and he "guessed" at the time of trial he did not believe "it would have been helpful
to present evidence that would have corroborated [Christopher's] testimony." Trial
counsel stated he decided to not put up a defense despite the fact that he
subpoenaed several witnesses because "[he] believed that the State had not proved
their case beyond a reasonable doubt to the jury. [He] believe[d] that based on . . .
the conflicting testimony that came out." In particular, trial counsel said the State
could not prove Clark's gun fired the bullets that killed the victims; however, he
admitted the State's expert testified the victims were shot with .40 caliber bullets,
the same caliber as Clark's gun. Trial counsel initially insisted the State could not
prove what caliber bullets killed the victims, but after reviewing the trial transcript
several times, trial counsel admitted the State's expert testified as to the bullets'
caliber. Trial counsel additionally admitted he argued to the trial court that the
State could not determine what type of bullet killed the victims. Trial counsel also
explained he raised a third-party guilt defense, arguing Wood and Murray actually
killed the victims, not Clark.

Kayte, Clark's cousin, testified Clark, Christopher, and Mardis all came to her
home after the party, and about forty-five minutes later, Wood and Murray arrived
at her home. Kayte testified Murray waited in the car while Wood came to her
door, but she would not let him inside because he had blood on his legs and she did
not want to get blood on her floor where her young son crawled. She stated neither
Wood nor Murray came into her house, and to her knowledge, Clark never went
outside to speak with Wood and Murray. Wood and Murray left her home, and
Clark stayed at her home for the entire evening. She said Clark did not have a
weapon at her home. She also asserted she met with trial counsel about Clark's
case and went with Clark every time he met trial counsel at his office. Kayte
testified she told trial counsel her story, and trial counsel subpoenaed her for
Clark's trial. She attended Clark's trial, but trial counsel did not call her to testify.

Dustin testified Clark and Christopher came to his and Kayte's home after the
party, and after thirty or forty-five minutes, Wood and Murray also arrived at the
Allisons' home. Dustin stated he did not see Clark with a weapon. He and Kayte
did not let Wood into their home because he was bloody from a cut on his leg. He
also asserted Murray sat on the front porch of the Allisons' home but never came
into the home. Dustin said to his knowledge, Clark never spoke with Wood or
Murray because Clark was upstairs with the Allisons' son. He and Kayte gave
Wood paper towels to clean up his leg, and after that, Wood and Murray left
without ever entering their home. Dustin stated Wood said he kicked in a car
window and the victims were still alive when he did it. Dustin met with trial
counsel three or four times, and he had the opportunity to tell trial counsel his
story. Trial counsel subpoenaed Dustin to testify, but he did not testify at trial.

Clark testified he asked trial counsel to contact and interview the Allisons, and
they met trial counsel with Clark a few times. Clark stated the Allisons were able
to tell trial counsel what they saw and heard that night, and trial counsel
subpoenaed them for trial. Clark and trial counsel discussed trial counsel's
decision to not put any witnesses on the stand, but Clark could not remember why
he made that decision. Clark thought the Allisons' testimony "could have disputed
what [Wood] said . . . and could have helped [him] out."

On cross-examination, Clark admitted Wood and Christopher both testified that
Wood's leg was bloody, but he asserted this fact "wasn't what [he] was talking
about [on direct]." Instead, Clark stated he referred to Wood's statement that Clark
told him, "I think I killed those two men." Clark contended the Allisons' testimony
would have affected the outcome of his trial because their testimony "[w]ould have
disputed what . . . a main witness said." Clark admitted trial counsel "[got] a lot of
the State's witnesses to admit inconsistencies," but he believed it would have been
better if the Allisons had testified.

The PCR court found Clark did not meet his burden of proof to show "trial counsel
should have called witnesses to testify at trial." In particular, the PCR court found
the Allisons' testimony would not have changed the outcome of the trial because
(1) their statements that Clark did not have a gun at their home were irrelevant in
light of Clark's stipulation that he fired a gun during the party; (2) their testimony
that Wood's leg was bloody would have been cumulative to Wood's and
Christopher's testimony; and (3) the Allisons' testimony differed on whether
Murray stayed in his truck or came to the Allisons' front porch. Thus, the PCR
court found trial counsel's representation did not prejudice Clark.

We find probative evidence supports the PCR court's finding that trial counsel did
not act ineffectively when he made the decision not to call the Allisons as
witnesses at Clark's trial. See Sellner, 416 S.C. at 610, 787 S.E.2d at 527 ("This
[c]ourt gives great deference to the factual findings of the PCR court and will
uphold them if there is any evidence of probative value to support them.");
Bannister, 333 S.C. at 303, 509 S.E.2d at 809 ("[A] PCR applicant must produce
the testimony of a favorable witness or otherwise offer the testimony in accordance
with the rules of evidence at the PCR hearing in order to establish prejudice from
the witness' failure to testify at trial."). Although trial counsel subpoenaed several
witnesses,4 he stated he decided to not put up a defense because he thought the
State had not proven Clark's guilt beyond a reasonable doubt, explaining the State
could not prove the bullets that killed the victims came from Clark's gun. See
Smith, 386 S.C. at 567, 689 S.E.2d at 632 ("[W]hen counsel articulates a valid
reason for employing a certain strategy, such conduct will not be deemed
ineffective assistance of counsel."). Further, the PCR court correctly found the
Allisons' testimony would not have changed the outcome of the trial. Therefore,
we find trial counsel was not ineffective by not calling the Allisons as witnesses.

Furthermore, trial counsel's decision not to call the Allisons as witnesses did not
prejudice Clark. See Taylor, 404 S.C. at 359, 745 S.E.2d at 102 (stating to
establish prejudice, an applicant must show that "but for counsel's error, there is a
reasonable probability the result of the proceedings would have been different");
id. ("A reasonable probability is a probability sufficient to undermine confidence
in the outcome." (quoting Strickland, 466 U.S. at 694)). Clark produced the
testimony of Kayte and Dustin at the PCR hearing. Kayte and Dustin both testified
Clark came to their home after the party, and Wood and Murray arrived at their
home thirty to forty-five minutes after Clark. They also testified Kayte would not
let Wood inside the home because his leg was bleeding. Additionally, they
testified Wood and Murray never came into their home, and to their knowledge,
Clark never went outside their home or spoke to Wood or Murray. Therefore, the
Allisons' testimony would not have refuted Wood's and Murray's testimony about

4
At the PCR hearing, trial counsel stated he had no recollection of subpoenaing the
Allisons; however, both Kayte and Dustin testified trial counsel subpoenaed them
but did not call them at trial.
alleged conversations they had with Clark after the shooting. Furthermore, the
Allisons could have been impeached regarding their differing testimony about
whether Murray remained in his truck or came to the Allisons' front porch.
Because the Allisons' testimony would have been cumulative and impeachable, we
find trial counsel's decision not to call the Allisons as witnesses did not prejudice
Clark.

II. Jury Instruction

Clark argues the PCR court erred in declining to find trial counsel ineffective for
not objecting to the trial court's instruction to the jury that inferred malice may also
arise when the deed is done with a deadly weapon when there was evidence in the
record that would reduce the charge from murder to involuntary manslaughter. We
disagree.

"The trial court is required to charge only the current and correct law of South
Carolina." State v. Mattison, 388 S.C. 469, 479, 697 S.E.2d 578, 583 (2010). "The
law to be charged to the jury is to be determined by the evidence presented at trial."
State v. Lee, 298 S.C. 362, 364, 380 S.E.2d 834, 835 (1989). "The trial [court]
should charge only the law applicable to the case as the purpose of jury
instructions is to enlighten the jury." Id. at 364, 380 S.E.2d at 836 (internal
citations omitted). "Providing instructions to the jury which do not fit the facts of
the case may tend to confuse the jury." Id. "To warrant reversal, a trial [court]'s
refusal to give a requested jury charge must be both erroneous and prejudicial to
the defendant." State v. Brown, 362 S.C. 258, 261, 607 S.E.2d 93, 95 (Ct. App.
2004).

In State v. Belcher, our supreme court held:

[W]here evidence is presented that would reduce,
mitigate, excuse[,] or justify a homicide (or assault and
battery with intent to kill) caused by the use of a deadly
weapon, juries shall not be charged that malice may be
inferred from the use of a deadly weapon. The
permissive inference charge concerning the use of a
deadly weapon remains a correct statement of the law
where the only issue presented to the jury is whether the
defendant has committed murder (or assault and battery
with intent to kill).
385 S.C. 597, 612, 685 S.E.2d 802, 810 (2009), overruled by State v. Burdette, 427
S.C. 490, 832 S.E.2d 575 (2019), reh'g denied (Sept. 27, 2019). However,
recently, in Burdette, 427 S.C. at 504-05, 832 S.E.2d at 583, our supreme court
held, "[r]egardless of the evidence presented at trial, trial courts shall not instruct a
jury that the element of malice may be inferred when the deed is done with a
deadly weapon."

"Involuntary manslaughter is defined as (1) the unintentional killing of another
without malice but while engaged in an unlawful activity not naturally tending to
cause death or great bodily harm; or (2) the unintentional killing of another without
malice but while engaged in a lawful activity with reckless disregard for the safety
of others." State v. Mekler, 379 S.C. 12, 15, 664 S.E.2d 477, 478-79 (2008). "The
negligent handling of a loaded gun will support a charge of involuntary
manslaughter." Id. "A trial court should refuse to charge the lesser-included
offense of involuntary manslaughter only where there is no evidence the defendant
committed the lesser offense." Id.

"[T]here is a difference between being armed in self-defense and acting in self-
defense, and that at the point of the analysis of determining whether one is armed
in self-defense, the court is 'concerned only with whether [the defendant] had a
right to be armed for purposes of determining whether he was engaged in a lawful
act, i.e., was lawfully armed, and not whether he actually acted in self-defense
when the shooting occurred.'" State v. Brayboy, 387 S.C. 174, 181, 691 S.E.2d
482, 486 (Ct. App. 2010) (quoting State v. Light, 378 S.C. 641, 648 n.6, 664 S.E.2d
465, 468 n.6 (2008) (Light II)). Our supreme court has stated "'[t]here is no error
in the refusal to charge the law of involuntary manslaughter when the defendant
admitted intentionally firing the gun, but claimed only he meant to shoot over the
victim's head.'" Harris v. State, 354 S.C. 382, 389, 581 S.E.2d 154, 157 (2003)
(quoting State v. Cooney, 320 S.C. 107, 112, 463 S.E.2d 597, 600 (1995)). Also,
in Bozeman v. State, 307 S.C. 172, 177, 414 S.E.2d 144, 147 (1992), the petitioner
stated he never aimed the pistol, but he did intend to shoot the gun. Our supreme
court held trial counsel's failure to request a jury charge of involuntary
manslaughter was not deficient performance because the evidence in the record did
not support a charge of involuntary manslaughter. Id. The court found there was
no evidence to support an allegation of mere criminal negligence in the use of a
dangerous instrumentality. Id.; see State v. Pickens, 320 S.C. 528, 531, 466 S.E.2d
364, 366 (1996) (finding refusal to charge involuntary manslaughter is proper
when a defendant admits he intentionally shot the gun at the victim); State v.
Smith, 315 S.C. 547, 550, 446 S.E.2d 411, 413 (1994) (finding defendant acted
intentionally in wielding knife, and stabbing is an unlawful act; thus, defendant
was not entitled to a charge on involuntary manslaughter); Sullivan v. State, 407
S.C. 241, 245, 754 S.E.2d 885, 887 (Ct. App. 2014) ("When the victim was killed
by a gunshot, and no evidence is presented showing the defendant fired the gun
unintentionally, the defendant is not entitled to a charge of involuntary
manslaughter."); State v. Morris, 307 S.C. 480, 484, 415 S.E.2d 819, 821-22 (Ct.
App. 1991) (stating under involuntary manslaughter the act must be unintentional
and defendant had intentionally shot his gun although he claimed self-defense).

Clark argues the PCR court erred in not finding trial counsel ineffective for not
objecting to the trial court's jury instruction that malice may be inferred when the
defendant uses a deadly weapon because there was evidence in the record that
could reduce the murder charge to an involuntary manslaughter charge. He
contends the record does not support the PCR court's finding that there was no
evidence "that would mitigate, reduce, excuse, or justify the murder." Clark asserts
the State did not present any evidence of malice beyond the use of a deadly
weapon; thus, the jury instruction was not harmless.

At Clark's trial, the trial court charged the jury that,

Inferred malice may . . . arise when the deed is done with
a deadly weapon. A deadly weapon is any article,
instrument[,] or substance which is likely to cause death
or great bodily harm. And whether an instrument has
been used as a deadly weapon depends on the facts and
circumstances of each case.

Neither the State nor the defense made any objections to the jury charge.

At the PCR hearing, trial counsel admitted he did not object to the trial court's jury
instruction on inferred malice resulting from the use of a deadly weapon. Trial
counsel further admitted that at the time of Clark's trial, he was not aware of
Belcher, which was decided about a month prior to Clark's trial. He stated he did
not recall Belcher at the time of the PCR hearing, and he did not know if he would
have argued Belcher applied in Clark's case. Clark testified the trial court gave the
jury a charge on inferred malice, and trial counsel did not object to the charge.

The PCR court found Clark "failed to meet his burden of proving trial counsel
should have objected to the jury charge regarding an inference of malice." In
particular, the PCR court found Belcher inapplicable to Clark's case because "there
was no evidence presented at trial that would mitigate, reduce, excuse, or justify
the murder for which a jury found [Clark] guilty." The PCR court found trial
counsel was not deficient for failing to object to the jury charge, and trial counsel's
representation did not prejudice Clark.

This issue is not preserved for our review because Clark never argued to the PCR
court that he was entitled to a jury instruction on the lesser-included offense of
involuntary manslaughter. "It is axiomatic that an issue cannot be raised for the
first time on appeal, but must have been raised to and ruled upon by the trial judge
to be preserved for appellate review." Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497
S.E.2d 731, 733 (1998); see also State v. Freiburger, 366 S.C. 125, 134, 620
S.E.2d 737, 741 (2005) (holding an issue is not preserved for appeal where one
ground is raised below and another ground is raised on appeal).5

CONCLUSION

Accordingly, the decision of the PCR court is

AFFIRMED.

SHORT, THOMAS, and GEATHERS, JJ., concur.

5
Even if we addressed this issue, the supreme court's recent decision in Burdette,
427 S.C. at 504-05, 832 S.E.2d at 583, stated, "today's ruling will not apply to
convictions challenged on post-conviction relief." Id. Therefore, trial counsel's
decision not to object to the inferred malice jury instruction did not constitute
deficient performance in this case.