Tucker v. Catoe, No. 25332.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: PER CURIAM
• Citation: 346 S.C. 483,552 S.E.2d 712
• Parties: Richard Anthony TUCKER, Petitioner, v. William CATOE, Director, South Carolina Dep't of Corrections, and Charles M. Condon, Attorney General of South Carolina, Respondents.
• Decision Date: 23 July 2001
• Docket Number: No. 25332.

346 S.C. 483
552 S.E.2d 712

Richard Anthony TUCKER, Petitioner,
v.
William CATOE, Director, South Carolina Dep't of Corrections, and Charles M. Condon, Attorney General of South Carolina, Respondents

No. 25332.

Supreme Court of South Carolina.

Heard June 7, 2001

Decided July 23, 2001.

346 S.C. 484

Thomas R. Haggard, of Ridgeway, and Teresa L. Norris, of Columbia, for petitioner

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Donald J. Zelenka, of Columbia, for respondents.

346 S.C. 485

PER CURIAM

This matter is before the Court on a Butler¹ petition for a writ of habeas corpus. Petitioner, now on death row,² contends that errors in his capital sentencing proceeding warrant this Court's exercise of the writ. We find that the Allen³ charge given to petitioner's sentencing jury was unconstitutionally coercive and "in the setting, constitute[d] a denial of fundamental fairness shocking to the universal sense of justice." Butler v. State, 302 S.C. 466, 468, 397 S.E.2d 87, 88 (1990). Accordingly, we grant the writ and remand for a new sentencing proceeding.

A. Facts

We have adopted, with minor modifications, the findings of fact⁴ made by the state post-conviction relief (PCR) judge:

• The jury begins sentencing deliberations at 1:33 p.m. on October 27, 1993.

• At 5:02 p.m., the jury returns with this question: "In the event of a decision for a life sentence—what is the possibility of parole, if any," and the trial court responds: Whether or not the defendant would or would not be eligible for parole should not enter into your deliberations or factor into your decision. The terms a death sentence and a life imprisonment sentence are to be understood in their plain and ordinary meaning.

• Sometime between 5:03 p.m. and 5:55 p.m., the jury returns with a second note: "We are deadlocked at 10-2 for the death penalty. We are not making any further progress. We would like to hear [petitioner's] testimony, and then continue our deliberation until 10:00 PM—unless we reach a verdict before then." The trial judge does not read this note to counsel; he does tell counsel that the

346 S.C. 486

jury wanted to rehear testimony. The jury declines the judge's offer to order dinner, preferring to wait until after the testimony is replayed. Testimony is then replayed over the next hour, and the jury retires to deliberate at 6:53 p.m.

• Around 8:03 p.m., the jury sends another note: "We are not going to reach a decision tonight. We would like to go back to the motel and resume deliberations in the morning. (We can eat at the motel)." No party objects, and the jury is excused for the evening.

• The jury returns and begins deliberations the next day at 9:00 a.m. Around 10:44 a.m., the jury sends another note: "We are hopelessly deadlocked at 11-1 for the death penalty. I do not feel we will ever get an[sic] unanimous decision." Again, the trial court does not read the note in court although the judge informs the parties that he intends "to bring them back in to inquire and perhaps to give them additional instruction." The attorneys are made aware only that the vote is 11-1; no mention is made of "hopelessly deadlocked." Petitioner's counsel then objects:

Well, let met [sic] state that I know that the Court is going to give additional instructions. Prior to anything that would be either a watered-down version of an Allen charge, we would ask that the Court inquire as to whether or not in the jury's opinion they feel that they are hopelessly deadlocked. Additionally, we would further submit that if the Court gives a charge that would be, again, a watered-down Allen charge we would also request that the Court instruct the jury that other consequences of not reaching a decision in a death-penalty case dealing specifically with the penalty phase, that the defendant would receive life imprisonment. Our authority is based primarily on some Florida cases. I can cite those to you, but that basically would be our position on that.

The trial court then gives this charge:

Good morning, ladies and gentlemen. I understand from a note handed up by way of the bailiff that apparently came from the foreman, is [sic] that you are having some difficulty in arriving at a unanimous decision. I intend to give you

346 S.C. 487

a little further instruction, and then I am going to ask you to go back to the jury room to continue for some time with your deliberations.

Now, as I told you in the beginning of the trial, you are the sole judges of the facts in the case and I am the judge of the law in this case. I am not permitted to in any fashion give you a hint as to how I feel about the verdict or how the case should be decided. That is not my decision; that is not my purpose.

It is your decision as to the appropriate sentence that should be imposed in this particular case based upon your view of the evidence as well as the application of the law; but I can say that when a matter is in dispute it isn't always easy for even two persons to agree, and when 12 men and women must agree as to a particular decision, it becomes correspondingly more difficult, but it's important that jurors reach a unanimous verdict if that may be accomplished without a juror doing violence to his or her own conscience. At the same time no juror is expected to give up an opinion based on reasoning satisfactory to himself or herself merely for the purpose of being in agreement with others.

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 the collective reasoning of all of the men and women serving on the panel. That's why we have a jury, so that we have the benefit of collective thought and of collective reasoning.

Now, it becomes each of your duties as jurors to tell the other jurors how you feel about the case and why you think as you do. It becomes each of your duties to exchange views with the other jurors, and you should listen to each other and give to the other's thought such meaning as you think it should have.

So, ladies and gentlemen, at this time I am going to ask you to consider that further instruction. Go back into the jury room and continue your deliberations and see if you can arrive at a unanimous verdict.

Petitioner's counsel then objects again:

Your Honor, on the specific charge and on the Allen charge in and of itself, I object to the entire charge, per se. It's

346 S.C. 488

the very nature of an Allen charge outside of public policy, that it helps avoid the cost of another trial which would not be applicable here.

The very nature of any sort of an Allen charge is coercive in nature. It is our position particularly at paragraph number—the third paragraph referred to by the Court is, in effect—it could be interpreted as singling out either one or two jurors and could lead to some coerciveness inside the deliberations.

It could be interpreted by a juror that that juror has to switch over because of a particular charge. So we would object to the charge in toto as being coercive, and just renew again our request that they be given further instruction as to the consequences of not being able to reach a unanimous verdict. That would be it.

• At 12:27 p.m., the jury returns a unanimous recommendation of death.

B. Procedural History

Petitioner's trial attorney asked that the jury be informed of the consequences of its inability to reach a sentencing decision. Following the Allen charge, which did not include a "consequences" charge, the trial attorney objected to the Allen charge as coercive "in toto and "per se," and objected that the charge could be interpreted as singling out the minority juror. On direct appeal, petitioner argued (1) that the trial judge should have instructed the jury not to reveal its vote and (2) that the Allen charge was improper because the judge knew there was only one juror holding out. State v. Tucker, 319 S.C. at 427-28, 462 S.E.2d at 264-65. We found these claims procedurally barred because petitioner was improperly altering the grounds raised at trial on appeal. Id. at 428, 462 S.E.2d at 265.⁵

346 S.C. 489

At the PCR proceeding, petitioner claimed appellate counsel was constitutionally ineffective in altering the Allen charge argument. Appellate counsel acknowledged he had deliberately "blurred" the issues because his...