Dawson v. State
Decision Date | 28 October 2002 |
Docket Number | No. 25551.,25551. |
Court | South Carolina Supreme Court |
Parties | Wendell DAWSON, Petitioner, v. STATE of South Carolina, Respondent. |
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
We granted a writ of certiorari to review the denial of petitioner's application for post-conviction relief (PCR). We reverse.
Did the PCR judge err by concluding trial counsel was not ineffective for failing to object to a portion of the Allen1 charge?
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 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:
(Underline added).
Trial counsel did not object to the Allen charge.
The jury continued deliberating and returned with a verdict convicting petitioner of both offenses.2
The PCR judge concluded trial counsel was not ineffective for failing to object to the Allen charge.
To prove ineffective assistance of counsel, the applicant must show trial counsel's performance fell below an objective standard of reasonableness and, but for counsel's errors, there is a reasonable probability the result at trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). A reasonable probability is one sufficient to undermine confidence in the outcome of trial. Id. If there is any probative evidence to support the findings of the PCR judge, those findings must be upheld. Anderson v. State, 342 S.C. 54, 535 S.E.2d 649 (2000). The Court will not uphold the PCR court's findings if there is no probative evidence to support them. Holland v. State, 322 S.C. 111, 470 S.E.2d 378 (1996).
The trial judge has the duty to urge, but not coerce, a jury to reach a verdict. Green v. State, Op. No. 25515, 351 S.C. 184, 194, 569 S.E.2d 318, 323 (2002). An Allen charge cannot be directed to the minority voters on the jury panel, but must instead be even-handed, directing both the majority and the minority to...
To continue reading
Request your trial-
Winkler v. State
...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
-
Garner v. State
...write a verdict until that time. While the PCR judge recognized the trial judge in Garner's case used nearly identical language to that in Dawson, found determinative the fact that the trial judge followed this statement by saying "I would never say that to you." Based on this statement, th......
-
Johnson v. Sam English Grading, Inc.
...an Allen charge is unconstitutionally coercive must be judged in its context and under all the circumstances.” Dawson v. State, 352 S.C. 15, 20, 572 S.E.2d 445, 447 (2002) (internal quotation marks omitted). “The trial judge has a duty to urge the jury to reach a verdict, but he may not coe......