Buff v. SOUTH CAROLINA DEPT. OF TRANSP.

• Decision Date: 18 September 2000
• Docket Number: No. 25195.,25195.
• Citation: 537 S.E.2d 279,342 S.C. 416
• Court: South Carolina Supreme Court
• Parties: Gary E. BUFF, Petitioner, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent. Southeastern Freight Lines, Petitioner, v. South Carolina Department of Transportation, Respondent.

342 S.C. 416

537 S.E.2d 279

Gary E. BUFF, Petitioner, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent.

Southeastern Freight Lines, Petitioner, v. South Carolina Department of Transportation, Respondent.

No. 25195.

Supreme Court of South Carolina.

Heard May 23, 2000.

Decided September 18, 2000.

Gary W. Popwell, Jr., of Lee, Eadon, Isgett & Popwell, and Pope D. Johnson III, of McCutchen, Blanton, Rhodes & Johnson, both of Columbia, for petitioners.

James D. Nance, of Nance & McCants, of Aiken, for respondent.

BURNETT, Justice:

Petitioner Gary E. Buff was injured in an automobile accident while driving a truck for Petitioner Southeastern Freight Lines. Buff and Southeastern Freight Lines (Buff) brought these negligence actions against Respondent South Carolina Department of Transportation (DOT).¹ The jury awarded damages to Buff. DOT appealed. Finding the trial judge improperly sent the jury back to deliberate after it had twice stated it was deadlocked, the Court of Appeals reversed. Buff v. South Carolina Dep't of Transp., 332 S.C. 472, 505 S.E.2d 360 (Ct.App.1998) (Anderson, J., dissenting). We granted a writ of certiorari to review this decision.

FACTS

The jury began deliberations at 4:25 p.m. Through a note, the jury requested a copy of a deposition. At 5:00 p.m., the jury returned to the courtroom; the trial court informed the jury it could not have the deposition. The jury returned to deliberate at 5:03 p.m.

The jury sent a second note requesting a definition of proximate cause. At 5:25 p.m., the jury returned to the courtroom and was instructed. The jury returned to deliberate at 5:45 p.m.

At 8:00 p.m., the jury returned to the courtroom. The trial judge stated he had received a third note which stated: "we are deadlocked." The trial judge inquired if the jury was making progress. The foreperson responded: "No, sir. We have been deadlocked ever since we came in, went back out and we've been informed that, that the deadlock have (sic) not changed since we came back out." After giving an Allen charge,² the trial judge instructed the jury to return at 9:00 the following morning to resume deliberations.

At some point after resuming deliberations the following morning, the jury sent a fourth note which stated: "we are deadlocked 11-1 with no chance of reaching an agreement." At 10:50 a.m., the jury returned to the courtroom. The trial judge stated:

I have received your note from the bailiff that indicates that, up until this point in time, Mr. Foreman, we've been unable to reach a unanimous verdict.

Again I want to thank you for your deliberations up to this point. I did want to give you some additional instructions that may be of some benefit to you. So if you would consider this fact. If I have to declare a mistrial in the case it would require us to come back and try the case again before another jury with great cost and expense to both sides. Of course it's an important case for both sides. As I may have indicated earlier, you were chosen because we had full confidence in your abilities to hear testimony and evidence and decide the factual issues in dispute and we still do. We believe that you're the best twelve we could ever have impaneled to hear this case. You've heard all the testimony and evidence and while I understand that you've been unable up to this point in time to reach a unanimous verdict if there is some question of law that I need to instruct you on I can certainly do that. If [sic] any question that you need further clarification on, I'll be more than happy to do that. If you need me to [sic] send me a note through the bailiff and let me know, if that's the case. But I'm going to ask you to try if you can to make one last effort at trying to reach a unanimous verdict, if possible. Again, I'm not going to ask any individual juror to give up his or her conscience [sic] convictions about the case just simply to reach a verdict but on the other hand I am going to ask you re-evaluate your position and if there is some question about the law, I'll be more than happy to instruct you on the law if there is some misunderstanding in that regard. But, I don't want to comment on the facts. I have no opinion about the facts. I do want you to understand the law. So if it's a question about that, you let me know. The factual issues in dispute must be decided by you and that's why we sent back the special verdict form to try to assist you when you make your findings. If there is a problem in the way in which the form was presented to you, let me know.

In any event I believe both sides would like, if possible, for you to reach a unanimous verdict if you can. So I'm going to continue the trial in the other case and ask you to make a continued effort to reach a unanimous verdict and let me know. Thank you very much.

(Emphasis added).

The jury returned to the jury room. DOT moved for a mistrial, arguing a mistrial was appropriate after the jury twice stated it was deadlocked. The trial judge refused to grant a mistrial but stated he would declare a mistrial if the jury was again unable to reach a verdict.

At some point thereafter, the jury sent a note stating "we are making progress." At 11:50 a.m. the jury returned to the courtroom and delivered a unanimous verdict.

ISSUE

Did the Court of Appeals err by holding the trial court abused its discretion by failing to grant a mistrial after the jury twice indicated it was unable to reach a verdict?

DISCUSSION

South Carolina Code Ann. § 14-7-1330 (1976) provides: When a jury, after due and thorough deliberation upon any cause, returns into court without having agreed upon a verdict, the court may state anew the evidence or any part of it and explain to it anew the law applicable to the case and may send it out for further deliberation. But if it returns a second time without having agreed upon a verdict, it shall not be sent out again without its own consent unless it shall ask from the court some further explanation of law.

(Emphasis added).³

The Court of Appeals held § 14-7-1330 permits a jury to resume deliberations after it has twice stated it is unable to reach a verdict only if the trial judge informs the jury it may choose whether to continue deliberations. It found the trial judge's final words to the jury, "[s]o I'm going to continue the trial in the other case and ask you to make a continued effort to reach a unanimous verdict and let me know," ordered the jury to continue deliberations until it reached a verdict and the jury's silence after the instruction could not be construed as consent. Buff, 332 S.C. 472, 505 S.E.2d 360. We disagree.

The purpose of § 14-7-1330 is "to prevent forced verdicts, and to prevent undue severity of jury service." State v. Freely, 105 S.C. 243, 247, 89 S.E. 643, 644 (1916).⁴ In Freely, the trial judge did not advise the jury it could not be required to deliberate a third time without its consent. On appeal, the Court held the question is whether, under all the circumstances, it appeared to the trial judge the jury consented to deliberate a third time. Affirming the trial court, the Court noted: "[t]he exercise of such a discretion at so delicate stage of a trial ought not to be disturbed unless it was obviously wrongly exercised." Id. In State v. Rowell, 75 S.C. 494, 56 S.E. 23 (1906), the jury twice stated it was unable to reach a unanimous verdict. The trial court sent the jury back to deliberate for a third time; it did not inform the jury its consent was necessary in order to pursue further deliberations. The Court held there was no abuse of discretion in returning the jury to deliberate a third time where there was no indication of unwillingness on the part of the jury to retire.

In State v. Drakeford, 120 S.C. 400, 113 S.E. 307 (1922), the trial judge gave the foreman instructions on how to deliver the verdict when reached. The foreman inquired, "[s]uppose we can't agree?" and the trial judge responded, "[o]h, but you must agree; we wouldn't consider a mistrial in this case." The next morning, upon questioning by the trial judge, the jury stated it had not reached a verdict. After giving an Allen charge, the trial judge instructed the jury to "make one more effort." Thereafter, the jury returned with a verdict. The Court held, even if the jury had twice indicated it was unable to reach a verdict,⁵ the statute was not violated because "[t]here was no insistence here that a verdict could not be agreed on and no objection or complaint ... on the part of the jury as to retiring for further deliberations." Id. at 406, 113 S.E. at 310.

In Edwards v. Edwards, 239 S.C. 85, 121 S.E.2d 432 (1961), in returning the jury to the jury room to deliberate a third time, the trial judge stated:

I'm going to ask you in all seriousness, Gentlemen, to make one more attempt at this case. When you tell me you can't do it, that's going to be the end of it, because I'm not going to send you back again. So, I'm putting it right straight up to you, see what you can do with it, Gentlemen. Was there any question any of you Gentlemen wanted to ask?

Id. at 93, 121 S.E.2d at 436.

In determining whether the jury was returned with its consent as required by statute, the Supreme Court held:

There was no response or indication of unwillingness on the part of any member of the jury, but on the contrary they returned immediately to the jury room for further deliberation. No verbal acceptance of the request of the trial Judge was made, but consent was implied. Had there been a statement to the effect that further consideration of the case was without their consent, it would have become the duty of the trial Judge to discharge them. However, under the circumstances, if the Judge was satisfied in the exercise of his discretion that the jury consented to return for further deliberation, he should not have dismissed them but permitted further deliberation as was done in the instant case.

Id.

On other hand, where the...