dissenting:
The majority holds the State’s Brady1 violation entitles Simpson to a new trial on the armed robbery charge, with capital resentencing contingent on the outcome of that trial. In my opinion, such a limited remedy would violate Simpson’s constitutional rights.
In finding a Brady violation, we have necessarily found the nondisclosed evidence was material. In determining materiality for Brady purposes,
The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.
Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
I would hold that when, as here, the Brady violation in the guilt phase of a capital trial relates to the aggravating circumstances relied upon by the State in the penalty phase,2 fundamental fairness requires a new trial.
I am also concerned that to deny Simpson a new sentencing proceeding under these circumstances would violate his Sixth Amendment right to trial by jury. In Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the United *610States Supreme Court held that this right entitles the capital defendant to “a jury determination of any fact on which the legislature conditions an increase in [his] maximum punishment.” Id. at 589, 122 S.Ct. 2428. The original jury which sentenced Simpson to death was deprived, by the State’s unconstitutional act, of hearing all of the evidence relevant to the aggravating factors. To deny Simpson the right to have his sentence determined by a jury which has heard all the facts, including those which exculpate him, would violate his Sixth Amendment right to a jury trial. Ring v. Arizona, supra; cf. State v. Riddle, 301 S.C. 68, 389 S.E.2d 665 (1990) (capital resentencing reversed where state permitted to prove statutory aggravators merely by introducing defendant’s convictions for burglary and armed robbery from the first trial; these convictions were in no way binding on resentencing jury, which had to determine appropriate penalty from the evidence presented to it).
I therefore concur in the majority’s determination that the State committed a Brady violation, but dissent from its holding that the error may be remedied by a retrial on the armed robbery charge alone with a contingent new sentencing proceeding. In any case, as explained below, I would hold that counsel were ineffective in failing to present expert testimony to impeach Nathan’s credibility, and to dispute the State’s forensic evidence.3
At trial, Nathan acknowledged that ‘someone’ had told him what to say, and agreed on cross-examination that the solicitor’s office had “helped” him remember. At the PCR hearing, Simpson presented expert testimony that Nathan’s low I.Q.4 *611and learning disability5 made him especially susceptible to suggestions about past events, a situation compounded by his young age (nine at the time of the events). Simpson’s expert pointed to specific parts of Nathan’s testimony that were consistent with false memories. One of Simpson’s trial attorneys admitted that while they were aware of the changes in Nathan’s testimony, they felt they could deal with it through cross-examination. Simpson’s lead counsel echoed this sentiment. Trial counsel did not consult with a memory expert.
The PCR judge found that the attorneys were fully aware before trial of Nathan’s belated recollection of having seen Simpson with cash in hand, and was not ineffective in relying only on cross-examination to call Nathan’s credibility into question. The majority upholds this ruling. I would reverse.
A PCR applicant claiming trial counsel was ineffective must establish both that counsel’s performance was deficient, that is, that it fell below an objective standard of reasonableness, and that the deficient performance prejudiced the applicant’s case, that is, but for counsel’s deficient performance there is a reasonable probability that the outcome of the proceeding would have been different. Williams v. State, 363 S.C. 341, 611 S.E.2d 232 (2005); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). On certiorari, this Court will uphold the PCR judge’s findings if they are supported by any probative evidence in the record. Williams, supra.
The PCR judge found counsel was not ineffective in relying solely on cross-examination to impeach Nathan’s credibility. In support of this finding, the PCR judge referred to a juror’s affidavit which stated:
I was concerned about the testimony of the little boy who was in the store. I suspected that he might have some memory problems because I was not sure that I could rely on the boy’s testimony about Mr. Simpson taking money out of the register and although I signed the verdict form in the end, I was never certain the [sic] Mr. Simpson really committed armed robbery.
*612The majority affirms the PCR judge’s denial of relief to Simpson on this ground, finding the decision to rely on cross-examination of Nathan was “a valid trial strategy.” I disagree. Counsel were well aware of the weakness of the State’s armed robbery case, and the letter sent shortly before trial alerted them that Nathan ‘may’ have suddenly remembered a crucial fact. Without exploring the issue of Nathan’s background, trial counsel were not in a position to make a strategic decision. Had counsel conducted even a cursory review of Nathan’s school records, they would have been aware of his low I.Q. and learning disability. Surely knowledge of these facts, combined with Nathan’s critical new recollection, would have sufficient to put trial counsel on notice that Nathan’s memory was suspect. In my opinion, counsel were deficient in failing to pursue the credibility of Nathan’s recalled memory and in relying on cross-examination of a child witness/victim upon whose testimony the armed robbery case largely turned.
As Simpson demonstrated at the PCR hearing, expert testimony would have allowed the jury to understand the special vulnerability of Nathan to suggestions regarding the crucial events. In my opinion, Simpson produced evidence not only of deficient performance in counsels’ reliance solely on cross-examination to impeach Nathan’s testimony, but also of prejudice. One juror admitted she “suspected that [Nathan] might have some memory problems.” While the PCR judge viewed this statement as evidence of counsel’s adequate cross-examination performance, I find it is evidence of prejudice. In my opinion, there is a reasonable probability that expert testimony would have confirmed this juror’s “suspicion” and resulted in Simpson’s acquittal of armed robbery. A finding of ‘not guilty’ on the armed robbery charge would have negated both aggravators relied upon by the State.
Further, as explained below, if the jury were to find Nathan’s story less credible, then the credibility of Simpson’s explanation of the events is enhanced. A jury finding Simpson’s story credible might return a manslaughter verdict.6
*613Simpson testified that he had decided to withdraw from the planned armed robbery, and that the first shots were fired as he and Harrison struggled over the gun. Simpson explained that he shot at Harrison as Harrison moved rapidly away from the cash register, presumably to use the phone to summon help, only in an attempt to disable him. In contrast, the State theorized that there was no struggle and no shots fired during such, and that Harrison was shot in the back while prostrate on the ground. The State presented testimony from a pathologist that Harrison’s hand wound was ‘distant,’ and that Harrison had been lying on the ground when he was shot twice in the back.7
At trial, counsel relied solely on Simpson’s testimony and counsel’s own “reenactment” during closing argument to support Simpson’s version of events.
At the PCR hearing, Simpson presented three forensic experts. All disputed the State’s expert’s trial testimony, and opined that the evidence was consistent with the first shots having been fired during a struggle. They testified that Harrison’s hand wound was not distant, and that the other wounds indicated Harrison was shot while standing, not while prostrate as the pathologist had testified at trial.
The PCR judge agreed that Simpson’s PCR experts supported Simpson’s story, but held their evidence was merely cumulative to trial counsel’s reenactment in closing argument. I disagree.
Counsel’s closing argument is not evidence. E.g., State v. Charping, 333 S.C. 124, 508 S.E.2d 851 (1998). I would hold, therefore, that there is no evidence in the record to support the PCR judge’s holding that trial counsel were not deficient in failing to present forensic evidence to support Simpson’s version of events.
The PCR judge held that, in any case, Simpson could not establish prejudice in that there was no reasonable probability that the forensic evidence would have changed the result since the jury could still have returned a murder verdict even if a *614struggle preceded the upright shooting of Harrison. I disagree. Had the jury heard the expert evidence concerning false memories and found that no money was taken, and had it heard forensic evidence that supported Simpson’s story of a struggle followed by the shooting of Harrison while he was running away, the jury may have found Simpson’s story credible and returned a manslaughter verdict. While it is true Simpson entered the store intending to rob it, he claimed to have changed his mind once there. Further, Simpson’s testimony indicated that Harrison lunged for the gun after seeing it in Simpson’s waistband, which is one explanation “how and why the gun was initially pulled from Simpson’s waistband.” Finally, Simpson acknowledges shooting Harrison twice after the struggle ended, but claimed it was in a panicked attempt to stop Harrison from getting help. In my opinion, Simpson demonstrated both deficient performance and prejudice stemming from trial counsels’ decision not to present expert testimony supporting Simpson’s version of events.
CONCLUSION
The State’s Brady violation denied Simpson a fair trial. Kyles v. Whitley, supra. Further, Simpson demonstrated both deficient performance on the part of his trial attorneys and resulting prejudice from their failure to pursue and present expert testimony. I would reverse Simpson’s murder and armed robbery convictions and sentences, and remand for a new trial.8
. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
. Murder during the commission of armed robbery, S.C.Code Ann. § 16-3-20(c)(a)(l)(d) (2003) and murder for the purpose of receiving money or any thing of value. § 16-3-20(c)(a)(4) (2003).
. I would also find that trial counsel were deficient in failing to be aware of J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), which was decided five months before the capital trial. See Hill v. State, 350 S.C. 465, 567 S.E.2d 847 (2002) (trial counsel rendered deficient performance in failing to be aware of three month old decision). I agree, however, that Simpson failed to demonstrate the requisite prejudice stemming from this deficient performance and thus did not meet his burden of proving this allegation ineffective assistance of counsel. See Williams v. State, 363 S.C. 341, 611 S.E.2d 232 (2005).
. Nathan's full scale I.Q. was 71 while his performance I.Q. was 69, placing him in the lowest 3% of children in the United States.
. His learning disability included an inability to recall the details of a story while grasping the main theme.
. The trial judge charged the jury on voluntary manslaughter based on Simpson's testimony.
. I note this theory is in part contradicted by the store employee's testimony that he saw Simpson shoot Harrison as Harrison walked rapidly towards the store phone.
. Even if the new jury were to convict Simpson of murder and armed robbery, it is conceivable that Simpson would be entitled to argue and/or have his sentencing jury charged on residual doubt. The United States Supreme Court has on its docket for December 7, 2005, Oregon v. Guzek, No. 04-928. The issue in Guzek is:
Does a capital defendant have a right under the Eighth and Fourteenth Amendments to the United States Constitution to offer evidence and argument in support of a residual-doubt claim — that is, that the jury in a penalty-phase proceeding should consider doubt about the defendant’s guilt in deciding whether to impose the death penalty?
Even without a Guzek argument or charge, it is entirely possible that a weaker guilt case would result in a life sentence.