Shearouse Adv. Sh. No.
S.E. 2d


In The Supreme Court

Ronald Dove, Petitioner,


State of South Carolina, Respondent.


Appeal From Anderson County

James E. Lockemy, Trial Judge

Rodney A. Peeples, Post-Conviction Judge

Opinion No. 25019

Submitted October 20, 1999 - Filed November 22, 1999


Deputy Chief Attorney Joseph L. Savitz, III, of the

South Carolina Office of Appellate Defense,

Columbia, for petitioner.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Teresa A. Knox, and

Assistant Attorney General J. Benjamin Aplin, all of

Columbia, for respondent.

WALLER, A.J.: A jury convicted Ronald Dove (petitioner) of

murdering his estranged wife. This Court affirmed. State v. Dove, Op. No. 91-



MO-266 (S.C. Sup. Ct. filed September 18, 1991). Petitioner filed a post

conviction relief application, which a circuit judge denied after an evidentiary

hearing. We granted the petition for a writ of certiorari to review that decision,

and now reverse.


Petitioner returned to Anderson for several days to visit his

estranged wife, Sandra Dove (victim) and their children. He stole a credit card

and a small handgun before the trip from his sister-in-law in Texas, where he

was living. Petitioner's sister-in-law discovered the theft March 9, 1990, a few

days after petitioner left for South Carolina. She immediately reported it to

Anderson police; the victim's mother, Barbara Junkins; and petitioner's sister

in Anderson.

The victim spent a few nights with petitioner at his hotel room. The

couple went to a lounge the evening of March 9. There, the victim learned

about the stolen credit card and gun from a lounge employee who had spoken

to petitioner's sister. The news visibly angered the victim, and she and

petitioner left at about 9:30 p.m.

The next afternoon, Anderson police went to petitioner's hotel to

serve him with a bad check warrant in an unrelated case. Petitioner refused to

open the door. When police tried to force it open, he placed the handgun to his

head. The officers retreated ., then negotiated with petitioner for several hours.

Police ultimately rushed into the room, subdued petitioner, and discovered the

victim's body.

The State alleged petitioner shot at the victim three times the

previous evening after a fight about the thefts. The gun misfired once, one

bullet struck a paneled wall, and the final bullet killed the victim. The fatal

wound to the left temple area was inconsistent with a self-inflicted injury

because the victim was right-handed, the pathologist testified. He based his

opinion on the angle of the bullet, the bruises on the victim's head, and the fact

the entrance wound was on the victim's left side. However, the pathologist

conceded it was possible the victim shot herself with her left hand. The victim

had seriously injured her right hand at work a few months before her death,

and had worn a cast for several weeks, a defense witness testified.



Petitioner testified he and the victim returned to his hotel room that

night, still arguing about the credit card and gun. He tried to apologize, but the

victim was very upset. The victim took the handgun from a drawer and shot at

him as he emerged from the bathroom. He ducked back into the bathroom and

locked the door. Neither spoke for more than twenty minutes, petitioner

testified. He heard a gunshot and some "bumping going on." He opened the

door and heard the victim say she was hurting, but she was dead when he

walked over to her. He refused to let police enter the hotel room the next day

because he believed they would accuse him of murdering the victim, and he was

scared of police because they had beaten him in the past, petitioner testified.

Petitioner denied shooting the victim and said he loved her. He

testified he tried to kill himself "many times" after the victim died that night,

as well as during the standoff the following day, but could not pull the trigger.

He testified he first told police after they took him to jail that he believed the

victim had committed suicide. He knew the victim had been involuntarily

admitted to a mental hospital for drug abuse problems, but did not know

whether the commitment was for psychological problems. On cross

examination, he testified he did not know exactly how the shooting occurred,

but the victim "could have been playing around and shot herself."

The victim's mother, Ms. Junkins, testified the victim had never

threatened to commit suicide, although she had been admitted twice to

psychiatric facilities for substance abuse problems during the two years before

her death. The prosecutor tried to nullify any evidence that the victim

committed suicide by emphasizing she had a regular job at the time and

exhibited no signs of depression. During closing arguments, the prosecutor told

jurors that family and friends believed the victim was neither depressed nor

suicidal, and explained how she believed the evidence showed it was not suicide.

At the PCR hearing, petitioner's trial attorney testified he did not

investigate the victim's medical background; nor did he recall petitioner asking

him to obtain the victim's medical records. Petitioner's sister handed the

attorney a note during th e trial asking why the victim had been committed and

suggesting he obtain the medical records. The attorney testified he believed it

was too late to obtain and use the records, although he probably could have

gotten them. He conceded at the hearing that petitioner could have used the

records in his defense if they contained evidence of suicidal tendencies -or




The medical records show that from July 1988 to December 1989,

three months before her death, the victim was twice admitted to a psychiatric

facility. She was diagnosed with substance abuse problems and depression.

The records contain numerous references to her repeated threats to commit

suicide. In October 1988, the victim's mother swore in an affidavit for

emergency admission that the victim repeatedly had expressed suicidal

thoughts. That sworn statement directly conflicted with the mother's testimony

at trial, when she said the victim had never expressed suicidal thoughts.

After reviewing the records, the PCR judge stated in a letter to the

parties that he had "serious concerns" about trial counsel's failure to subpoena

them for possible use at trial. Nevertheless, after further consideration, the

judge denied petitioner's application.


Does probative evidence support the PCR judge's

decision to deny petitioner's application because his

attorney was not ineffective in failing to subpoena and

use at trial medical records revealing the victim's past

suicidal tendencies?


Petitioner alleges the PCR judge erred in denying his application

because his trial attorney was ineffective in failing to subpoena and use at trial

medical records revealing the victim's past suicidal tendencies and history of

depression. We agree.

"To establish a claim of ineffective assistance of trial counsel, a PCR

applicant has the burden of proving counsel's representation fell below an

objective standard of reasonableness and, but for counsel's errors, there is a

reasonable probability that the result at trial would have been different.... A

reasonable probability is a probability sufficient to undermine confidence in the

outcome of the trial." Johnson v. State,. 325 S.C. 182, 186, 480 S.E.2d 733, 735

(1997) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984)). Thus, a PCR applicant must show both error and

prejudice to win relief in a PCR proceeding. Scott v. State, 334 S.C. 248, 5,13

S.E.2d 100 (1999).



The burden is on the applicant in a post-conviction proceeding to

prove the allegations in his application. Butler v. State, 286 S.C. 441, 334

S.E.2d 813 (1985). An appellate court must affirm the PCR court's decision

when its findings are supported by any evidence of probative value. Cherry v.

State, 300 S.C. 115, 386 S.E.2d 624 (1989). However, an appellate court will not

affirm the decision when it is not supported by any probative evidence. Holland

v. State, 322 S.C. 111, 470 S.E.2d 378 (1996).

We conclude the PCR judge erred because no probative evidence

supports his decision. Petitioner has shown both error and prejudice.

Petitioner's trial attorney erred in failing to subpoena the medical

records and use them at trial. The records are replete with evidence about the

victim's past suicidal tendencies and depression, evidence that would have been

crucial in trying to prove the victim committed suicide.

Petitioner was prejudiced because he was unable to present

relevant and important evidence supporting his assertion that his wife

committed suicide. For example, petitioner could have used the medical records

to challenge the testimony of the mother that her daughter never had suicidal

thoughts. The State's case consisted entirely of circumstantial evidence and,

while the State's theory was plausible, petitioner's suicide theory also was

plausible. Investigators, for instance, found no gunpowder residue on the hands

of either petitioner or the victim; nor did they find any blood splatters indicating

a close-range shooting on petitioner's clothes. We hold that the fact the jury

never had a chance to consider medical records containing crucial evidence

about the victim's suicidal tendencies and depression undermines confidence in

the outcome of petitioner's trial.

The State argues the records are consistent with the PCR judge's

findings and corroborate Ms. Junkins and petitioner's trial testimony that the

victim was committed for substance abuse problems. The suicide threats were

simply the result of those problems, not the underlying cause of the

commitment, the State contends.

We find the State's arguments unpersuasive. The victim's

substance abuse and mental problems likely were related, but it makes no

difference precisely why she may have wanted to kill herself. The point is that

she may have wanted to end her life, for whatever reason, and petitioner did not



have a chance to introduce relevant and material evidence of those suicidal


This case is easily distinguished from Stokes v. State, 308 S.C. 546,

419 S.E.2d 778 (1992). In that case, the petitioner contended her trial attorney

was ineffective in failing to call witnesses whose testimony purportedly would

have supported her theory that the victim committed suicide. The Court held

counsel was not ineffective, but had employed a legitimate strategy by calling

only the witness he believed would be credible. Other potential witnesses

vacillated when offering their recollections to the attorney and presented no

evidence that victim actually committed suicide. In this case, petitioner's

attorney did not employ a legitimate strategy, but failed to obtain and use

medical records that plainly supported petitioner's contention that his wife

committed suicide.


We reverse the PCR judge's denial of petitioner's application and

grant him a new trial.


Finney, C.J., Toal, Moore and Burnett, JJ., concur.