Dawson v. State, No. 25551.

CourtUnited States State Supreme Court of South Carolina
Decision Date28 October 2002
Docket NumberNo. 25551.
PartiesWendell DAWSON, Petitioner, v. STATE of South Carolina, Respondent.

352 S.C. 15
572 S.E.2d 445

Wendell DAWSON, Petitioner,
v.
STATE of South Carolina, Respondent

No. 25551.

Supreme Court of South Carolina.

Submitted September 29, 2002.

Decided October 28, 2002.

Rehearing Denied December 4, 2002.


352 S.C. 17
Deputy Chief Attorney Joseph L. Savitz, III, of 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, Donald J. Zelenka, Columbia, for respondent.

ON WRIT OF CERTIORARI

Justice BURNETT:

We granted a writ of certiorari to review the denial of petitioner's application for post-conviction relief (PCR). We reverse.

ISSUE

Did the PCR judge err by concluding trial counsel was not ineffective for failing to object to a portion of the Allen1 charge?

FACTS

During deliberation, the trial judge received a note from the jury requesting permission to speak with him. The jury returned to the courtroom and the foreman stated: "We have—there are eleven of us who feel one way and one that feels another way."

After inquiry by the trial judge, the foreman stated he did not know whether the jury could reach a unanimous verdict. The trial judge instructed the jury to determine whether further deliberation would be helpful and excused the jury.

When the jury returned to the courtroom, the foreman stated the jury's "status" was "the same." The judge responded, "Okay, and I understand eleven jurors—without

352 S.C. 18
telling me who feels which way, eleven jurors feel one way and one juror feels another way." The foreman replied, "Yes, sir."

The trial judge gave the following Allen charge:

Mr. Foreman and ladies and gentlemen, in the trial of a case in this Court, as I've told you, you are the sole judges of the facts. As Judge of the law in this case, I'm not permitted to even give you a hint as to how I feel about what verdict you should write in this case.
It is my duty to take the law and state it to you, and it is your duty to write the verdict in the case, but I can say this, that when a matter is in dispute I realize it is not always easy for even two persons to agree.
When twelve men and women must agree, it is correspondingly more difficult. We certainly understand that, but it is important that litigation be ended if it may be ended without a juror doing violence to his or her own conscience.
Of course, at the same time no juror should be expected to give up an opinion based on reasoning satisfactory to himself or herself merely for the purpose of being in agreement.
I have sometimes thought that the juror who could render less service to the Court and to the country than any other juror is the juror who says, I know what I want to do in this case and when and if everybody agrees with me, then we'll write a verdict, and we'll not write a verdict until that time.
At the same time, of course, I charge you that every juror has the right to his or her own opinion and need not give it up merely for the purpose of being in agreement.
It was never intended that the verdict of the jury should be the view of any one person. On the other hand, the verdict of the jury is supposed to be the collective reasoning of all the men and women together.
That's why we have the jury, so that we may have that benefit of your collective thought and reasoning. It becomes your duty and it was always your duty to tell other jurors how you feel about a case, and why you think as you do,
...

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7 practice notes
  • Winkler v. State, Appellate Case No. 2014-000904
    • United States
    • United States State Supreme Court of South Carolina
    • November 23, 2016
    ...coercive Allen charge and that ruling renders his PCR final, regardless of the outcome of this appeal. See Dawson v. State , 352 S.C. 15, 20, 572 S.E.2d 445, 447 (2002) (stating an Allen charge cannot be unconstitutionally coercive, "but must instead be even-handed, directing both the major......
  • Winkler v. State, Appellate Case No. 2014-000904
    • United States
    • United States State Supreme Court of South Carolina
    • November 23, 2016
    ...coercive Allen charge and that ruling renders his PCR final, regardless of the outcome of this appeal. See Dawson v. State, 352 S.C. 15, 20, 572 S.E.2d 445, 447 (2002) (stating an Allen charge cannot be unconstitutionally coercive, "but must instead be even-handed, directing both the majori......
  • Garner v. State, 2016-MO-005
    • United States
    • United States State Supreme Court of South Carolina
    • March 23, 2016
    ...objectionable language. Specifically, the PCR judge distinguished the Allen charge from one this Court deemed coercive in Dawson v. State, 352 S.C. 15, 18, 572 S.E.2d 445, 446 (2002), which stated: I have sometimes thought that the juror who could render service to the Court and to the coun......
  • Cook v. Warden of Broad River Corr. Inst., C/A No. 0:15-2987-JFA-PJG
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • July 14, 2016
    ...The Clerk has a huge check for each one of you." (App. at 1076, 1304-05; ECF No. 18-5 at 79, 307-08.) 7. See generally Dawson v. State, 572 S.E.2d 445, 448 (S.C. 2002) (discussing the factors for determining whether an Allen charge is unconstitutionally...
  • Request a trial to view additional results
7 cases
  • Winkler v. State, Appellate Case No. 2014-000904
    • United States
    • United States State Supreme Court of South Carolina
    • November 23, 2016
    ...coercive Allen charge and that ruling renders his PCR final, regardless of the outcome of this appeal. See Dawson v. State , 352 S.C. 15, 20, 572 S.E.2d 445, 447 (2002) (stating an Allen charge cannot be unconstitutionally coercive, "but must instead be even-handed, directing both the major......
  • Winkler v. State, Appellate Case No. 2014-000904
    • United States
    • United States State Supreme Court of South Carolina
    • November 23, 2016
    ...coercive Allen charge and that ruling renders his PCR final, regardless of the outcome of this appeal. See Dawson v. State, 352 S.C. 15, 20, 572 S.E.2d 445, 447 (2002) (stating an Allen charge cannot be unconstitutionally coercive, "but must instead be even-handed, directing both the majori......
  • Garner v. State, 2016-MO-005
    • United States
    • United States State Supreme Court of South Carolina
    • March 23, 2016
    ...objectionable language. Specifically, the PCR judge distinguished the Allen charge from one this Court deemed coercive in Dawson v. State, 352 S.C. 15, 18, 572 S.E.2d 445, 446 (2002), which stated: I have sometimes thought that the juror who could render service to the Court and to the coun......
  • Cook v. Warden of Broad River Corr. Inst., C/A No. 0:15-2987-JFA-PJG
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • July 14, 2016
    ...The Clerk has a huge check for each one of you." (App. at 1076, 1304-05; ECF No. 18-5 at 79, 307-08.) 7. See generally Dawson v. State, 572 S.E.2d 445, 448 (S.C. 2002) (discussing the factors for determining whether an Allen charge is unconstitutionally...
  • Request a trial to view additional results

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