State v. Taylor

• Decision Date: 12 June 2019
• Docket Number: Appellate Case No. 2016-000549,Opinion No. 5655
• Citation: 427 S.C. 208,829 S.E.2d 723
• Parties: The STATE, Respondent, v. Billy Lemurces TAYLOR, Appellant.
• Court: South Carolina Court of Appeals

427 S.C. 208

829 S.E.2d 723

The STATE, Respondent,

v.Billy Lemurces TAYLOR, Appellant.

Appellate Case No. 2016-000549

Opinion No. 5655

Court of Appeals of South Carolina.

Submitted February 1, 2019

Filed June 12, 2019

Rehearing Denied July 15, 2019

Appellate Defender David Alexander, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy Attorney General Melody Jane Brown, Assistant Attorney General Alphonso Simon, Jr., Assistant Attorney General Samuel Marion Bailey, all of Columbia, and Solicitor William Walter Wilkins, III, of Greenville, for Respondent.

HILL, J.:

Seven hours and twenty minutes into their deliberations following four days of trial, the jury in Billy L. Taylor's criminal trial informed the trial court they were at an impasse. The trial court sent the jury home for the night. The next morning, the trial court gave the jury a charge derived from Allen v. United States , 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Taylor objected to the charge and moved for a mistrial. Two-and-a-half hours later the jury returned with a guilty verdict. Taylor now appeals, contending his motion for a mistrial should have been granted, and the Allen charge was unconstitutionally coercive. We agree the Allen charge was coercive and reverse.

I.

Taylor was tried for the attempted murders of Brittany Jeeter and Ashley Hiott, the murder of Rodney Nesbit, and the possession of a weapon during the commission of a violent crime. The jury began deliberating at noon on the fourth day of trial, and soon the jury asked a question about the "hand of one, hand of all" charge. After further instruction, the jury resumed deliberations at 1:50 p.m. They returned to the courtroom at 7:20 p.m. after sending a note advising they were at an impasse. The note also contained an apparent tally of successive votes the jury had taken, indicating the latest vote was 10-2 in favor of conviction on the murder charge, 8-4 for conviction on the attempted murder charges, and 11-1 for conviction on the weapon charge. The trial court sent the jury home for the night. The next morning, the trial court gave the following charge:

Ladies and gentlemen, I recognize that last night you sent me a note that indicated that you were at an impasse and you told me the division that you had in that note as well.

Now, I understand that the decision that you have to make is very difficult. And when you get 12 people together, it's difficult to have 12 people agree. Particularly, when you come from different walks of life and you're just thrown together on a jury, it's difficult to make that decision. I know that, oftentimes, it's difficult for two people, just two people to make a decision. It's hard for my wife and I to figure out what we're going to eat for supper sometimes. So, this decision, I recognize is hard.

But understand that it's important that you come to a decision in this case. Understand that both the State and the Defense have extended significant resources and time and effort to get to this point. Also, know that the State and the County has extended resources to get to this point as well. And if you're unable to come to a verdict in this matter, then, essentially, we'd be left with having to do it all over again, extending additional resources, time and effort. Now, ladies and gentlemen, I will tell you that there are no 12 other people in the County of Greenville who are more capable or competent to come to a decision in this matter than the 12 of you are.

Now, again, I understand it's hard to come to a decision. But those of you who are in the majority should listen to the people in the minority. Those of you who are in the minority should listen to the people in the majority. You should take into consideration your respective positions and you should come to a decision in this matter. Again, it really would be a waste of time, effort and resources for us to have to do all of those over again. So, I'm going to ask you to go back to your jury room and resume your deliberations. ...

After the jury left the courtroom at 9:10 a.m., Taylor moved for a mistrial and also objected to the Allen charge on the ground that it was unduly coercive. He asked the court to instruct the jurors that a hung jury was "a legitimate end of a criminal trial" and sometimes the result of the State's burden to prove its case beyond a reasonable doubt.

The trial court denied Taylor's motions. The jury returned a guilty verdict at 11:43 a.m.

II.

A. Mistrial

We first address Taylor's argument that the trial judge abused its discretion by giving an Allen charge rather than declaring a mistrial. A trial court should declare a mistrial as a last resort, when all other alternatives have been exhausted. A mistrial is a drastic step, "an extreme measure which should be taken only where an incident is so grievous that the prejudicial effect can be removed in no other way." State v. Herring , 387 S.C. 201, 216, 692 S.E.2d 490, 498 (2009).

The trial court was well within its discretion in refusing to declare a mistrial simply because the jury, after some seven hours of deliberation, announced an impasse. We review the decision with deference to the trial court's superior position to observe the courtroom atmosphere, the jury's demeanor, and the tenor and rhythm of the trial. The trial court has several ways to respond to a deadlocked jury, including delivering an Allen charge. In fact, the trial judge has a duty to urge the jury—without pressuring or coercing them—to reach a verdict. State v. Williams , 344 S.C. 260, 263, 543 S.E.2d 260, 262 (Ct. App. 2001). We find no error in the trial court's choice to deny Taylor's mistrial motion.

B. Allen Charge

According to Taylor, the trial court's Allen charge was coercive because it did not tell the jurors not to give up their honestly held beliefs simply to reach a verdict, it targeted the minority "holdout" jurors, and pressured them by stating a mistrial would be a waste of time and resources. He further complains the charge did not inform the jurors they have a right not to reach a verdict.

Because a criminal defendant's right to due process is violated by a charge that coerces a jury to reach a verdict, courts have long struggled with what to tell a deadlocked jury. The substance of the original Allen charge was described as instructing the jury that:

in a large proportion of cases absolute certainty could not be expected; that, although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, [on] the other hand, the majority were for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.

Allen , 164 U.S. at 501, 17 S.Ct. 154. The original Allen charge was upheld, but with time and experience courts questioned its latent coercive force, particularly when trial judges tinkered with the original version. See United States v. McElhiney , 275 F.3d 928, 937–38 (10th Cir. 2001) (canvassing the history and evolution of Allen charge); United States v. Rogers , 289 F.2d 433, 435 (4th Cir. 1961) (Haynsworth, J.) (noting original Allen charge "approaches ultimate permissible limits"), abrogated on other grounds by Bell v. United States , 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

The United States Supreme Court continues to approve Allen -type charges, see Jones v. United States , 527 U.S. 373, 382 n.5, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999), but many states have banned the original Allen charge, with some embracing a charge developed by the American Bar Association (ABA) that must be given to juries before deliberation begins. Thomas & Greenbaum, Justice Story Cuts the Gordian Knot of Hung Jury Instructions , 15 Wm. & Mary Bill of Rts. J. 893, 914–16 (2007). Versions of the charge vary in the federal circuits, but all circuits allow them, though several recommend the ABA version. See Lowenfield v. Phelps , 484 U.S. 231, 238 n.1, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988) ("All of the Federal Courts of Appeals have upheld some form of a supplemental jury charge.").

Although labelled the "dynamite" charge because of its proven ability to "blast a verdict out of a jury otherwise unable to agree," United States v. Bailey , 468 F.2d 652, 666 (5th Cir. 1972), the label could just as well describe the Allen charge's success in blowing up otherwise error-free trials by introducing volatile elements into the fluid and emotionally charged atmosphere prolonged jury deliberations often create. Like dynamite, the charge must be handled with extreme care.

South Carolina approves the use of a modified Allen charge, which must be neutral and even-handed, instruct both the majority and minority to reconsider their views, and cannot be directed at the jurors in the minority. Workman v. State , 412 S.C. 128, 130, 771 S.E.2d 636, 638 (2015) ; Green v. State , 351 S.C. 184, 194, 569 S.E.2d 318, 323 (2002). A trial judge has a duty to urge jurors to reach a verdict, but must do so in a way that does not coerce them, eroding their independence and impartiality. No set definition of coercion has emerged; instead, we detect its presence by viewing the charge in context and in light of four factors: (1) whether the charge speaks "specifically to minority jurors"; (2) whether the charge includes ...