Garner v. State, 2016-MO-005

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtPER CURIAM.
Decision Date23 March 2016
PartiesLuther Garner, Petitioner, v. State of South Carolina, Respondent. Appellate Case No. 2014-001312
Docket Number2016-MO-005

Luther Garner, Petitioner,

State of South Carolina, Respondent.

Appellate Case No. 2014-001312

No. 2016-MO-005

Supreme Court of South Carolina

March 23, 2016


Submitted January 15, 2016


Appeal From Horry County J. Cordell Maddox, Jr., Circuit Court Judge.

Appellate Defender Lara Mary Caudy, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant Attorney General Jessica Elizabeth Kinard, both of Columbia, for Respondent.


A jury convicted Luther Garner of murder, first-degree burglary, and attempted armed robbery. The trial judge sentenced Garner to an aggregate sentence of forty years' imprisonment. On appeal, the Court of Appeals affirmed Garner's convictions and sentences. State v. Garner, 389 S.C. 61, 697 S.E.2d 615 (Ct. App. 2010). Garner filed an application for Post-Conviction Relief ("PCR"), which was dismissed after a hearing. This Court granted Garner's petition for a writ of certiorari to determine whether the PCR judge erred in ruling that trial counsel was not ineffective in failing to object to the issuance and substance of the trial judge's Allen[1] charge. We reverse the PCR judge's decision and remand for a new trial.

I. Factual / Procedural History

On January 11, 2005 at approximately 7:30 p.m., Investigator John Caulder with the Horry County Police Department responded to a 911 call reporting the discovery of a deceased male at a residence in Conway. The male, who was later identified as Amadro Flores Espinozat ("Victim"), had been severely beaten and ultimately died on either January 10th or 11th as the result of blunt-force trauma to the head. At the crime scene, the investigating officers found a bloody shoe print, a bloody handprint, a single bullet hole, and a shell casing from a .22 caliber bullet. This evidence, however, was inconclusive and failed to yield any potential suspects.

On January 12, 2005, Lonya Sowdon called 911 and reported that she had witnessed the murder. Sowdon, an admitted crack cocaine addict, told investigators that she had purchased crack cocaine from Garner and Lee Pierce. Sowdon claimed Garner and Pierce asked her to give them a ride on the morning of January 10, 2005, and directed her to drive to the Victim's residence in Conway, a place of known drug dealers. In her description of the attack on Victim, Sowdon identified Garner as the sole assailant. Based primarily on Sowdon's statements, an Horry County grand jury indicted Garner for murder, first-degree burglary, armed robbery, and attempted armed robbery.

Circuit Court Judge Edward B. Cottingham presided over the jury trial conducted between May 29, 2007 and June 1, 2007. On May 31, 2007, the trial judge submitted the case to the jury at 6:12 p.m. Approximately two hours later, the jury requested to go home for the evening. The judge dismissed the jury and instructed the jurors to return the next day at 10:00 a.m. The following morning, the jury returned and resumed deliberations at 10:00 a.m. At 10:15 a.m., the jury submitted a written note to the judge requesting clarification regarding the following questions:

"If the jury is at an 11 to 1 stand still [sic], must our final decision in this case be not guilty?"
"What are our options?"

The jury entered the courtroom at 10:33 a.m. and received further instructions from the judge, which included an Allen charge. Specifically, the judge instructed:

Now, you have asked of me another question and I again thank you for it. "If the jury is not in a position at this time to reach a unanimous verdict, must our final decision in this be not guilty, " and the answer is absolutely not Your verdict must be unanimous either guilty or unanimous not guilty. In the event that you are unable to reach a verdict then that's what we call a hung jury and that simply means that nobody wins. It simply means that sometime in the future some 12 folks chosen just like you will come into this courtroom, basically hear the same testimony, some jury just like you will hear the whole thing again and that issue will then be resolved. I have no reason to suggest or suspect that I will ever get 12 more people more dedicated, more anxious to do their duty than you 12; and so, don't walk away thinking that somebody wins and somebody loses. It means everybody loses and our system has failed
Now, I charge you as I only can the only mode providing by our laws for a direct - - deciding questions of fact is by a verdict of the jury just like you. In most all cases, ladies and gentlemen, absolute certainty cannot be obtained or expected where the matter is in dispute initially. It isn't always even, easy for even two people to initially agree; and so, when 12 people must agree it becomes correspondingly more difficult. I tell you it is very unusual for a jury to go out and to immediately or quickly retain a verdict. You have only been deliberating two hours. The case lasted three days. That's not unusual. You've got a voluminous amount of matters to deal with. That is what would happen if a jury was in agreement to begin with. At the same time, ladies and gentlemen, we usually get a verdict under our system of jurisprudence. So, while it is normal for jurors to disagree at first, and I fully understand that, we nevertheless get a verdict after the jury has laid aside all extraneous or outside matters and have determined to try this case on its merits and on the basis of the law and evidence in this case, direct and circumstantial
It has been said that jury service is perhaps the highest service a citizen can perform for his or her own country or state during peacetime, and I certainly agree with that However, a juror does not render good service who arbitrarily says, "I know what I want to do in this case and when everybody else agrees with me then we will write a verdict and we will not write a verdict until that time." It was never intended that the verdict of the jurors should be the verdict of any one person, never intended for that. At the same time I tell you that every juror has a right to his or her own opinion, and if he or she needs, he or she need not give up that merely for the purpose of being in agreement. I would never say that to you. However, the verdict of a jury is the collective reasoning of all jurors and that is why we have a jury of 12. It is the duty of each of a jury to tell the others how he or she feels and why he or she may feel that way. Since the verdict of a jury is the result of the collective reasoning, it can be said that a verdict is a result of give and take. With this in mind, I tell you that if the much larger of your number of panels are in favor of one position a dissenting juror or jurors should consider whether [or] not his or her position is a reasonable one, which makes no impression upon the minds of the majority. In other words, if a majority of you are of one position, the minority ought to seriously ask themselves whether they can reasonably doubt the correctness of the jury and judgment of the majority. Although the verdict to which a jury agrees must, of course be his or her own verdict, the result of his or her own convictions and not merely acquiescence in the conclusion of his or her fellow jurors, yet in order to bring 12 minds to a unanimous result you must examine the questions submitted to you with candor and with a proper regard to and a respect for the opinions of each other. You should also consider that you were selected in the same manner from the same source which any future jury will be and as I indicated a while ago there is certainly no reason for me to suppose that this case will ever be submitted to 12 people more intelligent, impartial and competent than you and note there's no reason for me to suspect that more or clearer evidence will ever be produced on one side or the other. Ladies and gentlemen, in other words a mistrial of this case is an unfortunate thing. If you do not agree on a verdict of not guilty or guilty unanimously it does not mean that everybody wins. It just means that at some future time . . . I will try this case with some jury sitting just exactly where you are, the same participants will come and the same lawyers will ask basically the same questions and probably get basically the same answers, and we will go through the entire process again. In conclusion, if the State of South Carolina and the people it represents [are] entitled to a verdict in this case, they are entitled to it today, not tomorrow, not next week, not next year. Equally important, if this Defendant is entitled to a verdict, he is entitled to it today, not next month nor next year, today, and so it is, Mr. Foreman, ladies and gentlemen, recognizing that there are difficult issues for you to consider, understanding the voluminous evidence that has been in the trial of this case, I would ask that you go back, continue deliberations, have a give and take between the majority and minority, however, …it falls, would not ask anybody ever to give up their heartfelt opinions, but at the same time, regardless of which side your decision is on consider, too, the positions of the other side to ascertain whether or not that position, be it in the minority or majority, is a reasonable one.
* * *
To answer your question again and that is this, if the jury is unable to reach

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