          THE STATE OF SOUTH CAROLINA 

               In The Supreme Court 


Kenneth W. Workman, Petitioner,

v. 


State of South Carolina, Respondent. 


Appellate Case No. 2013-002789 

Lower Court Case No. 2012-CP-23-02386 



               ON WRIT OF CERTIORARI



               Appeal From Greenville County

 The Honorable C. Victor Pyle, Jr., Circuit Court Judge
The Honorable Edward W. Miller, Post Conviction Judge


                    Opinion No. 27514 

       Submitted March 19, 2015 – Filed April 15, 2015 



              REVERSED AND REMANDED 



Susannah Conyers Ross, of Ross & Enderlin, PA, of
Greenville, for Petitioner.

Attorney General Alan McCrory Wilson and Senior
Assistant Attorney General Karen Christine Ratigan, both
of Columbia, for Respondent.
PER CURIAM: Petitioner seeks a writ of certiorari from the dismissal, after a
hearing, of his application for post-conviction relief (PCR). We grant the petition
for a writ of certiorari, dispense with further briefing, and reverse.

                      FACTUAL/PROCEDURAL BACKGROUND

In a joint trial, petitioner and codefendant Oshawn Robinson were convicted of
assault and battery, conspiracy, possession of a weapon during the commission of a
violent crime, and armed robbery. After petitioner's direct appeal was dismissed
pursuant to Anders,1 petitioner filed an application for PCR, alleging trial counsel
was ineffective in failing to object to a coercive Allen2 charge and in failing to
challenge the trial judge's ruling barring cross-examination of the State's witness,
Timothy Wright, regarding the sentencing recommendation Wright received in
exchange for testifying against petitioner and Robinson.

The PCR judge denied petitioner's application for PCR, finding (1) petitioner failed
to meet his burden of proving trial counsel was ineffective in failing to object to
the Allen charge, as the charge was not unduly coercive; and (2) petitioner was not
prejudiced by trial counsel's failure to challenge the ruling barring cross-
examination regarding Wright's sentence.

                                              ISSUES
Was trial counsel ineffective in failing to object to the Allen charge?

Was trial counsel ineffective in failing to challenge the ruling barring cross-
examination regarding Wright's sentence?

                                       LAW/ANALYSIS
In South Carolina state courts, an Allen charge cannot be directed to the minority
voters on the jury panel. Green v. State, 351 S.C. 184, 194, 569 S.E.2d 318, 323
(2002). Instead, an Allen charge should be even-handed, directing both the
majority and the minority to consider the other's views. Id. A trial judge has a
duty to urge, but not coerce, a jury to reach a verdict. Id. Whether an Allen charge
is unconstitutionally coercive must be judged in its "context and under all the
circumstances." Tucker v. Catoe, 346 S.C. 483, 490-91, 552 S.E.2d 712, 716


1
    Anders v. California, 386 U.S. 738 (1967).
2
    Allen v. United States, 164 U.S. 492 (1896).
(2001). The four factors adopted by this Court in Tucker to determine whether an
Allen charge is unconstitutionally coercive are:

             (1) Does the charge speak specifically to the minority
                 juror(s)?

             (2) Does the charge include any language such as "You
                 have got to reach a decision in this case"?

             (3) Is there an inquiry into the jury's numerical division,
                 which is generally coercive?

             (4)	 Does the time between when the charge was given,
                  and when the jury returned a verdict, demonstrate
                  coercion?

At trial, victim testified two men robbed him at gunpoint. Victim identified
petitioner and Robinson as his assailants after seeing their pictures on the evening
news. However, a third person, Timothy Wright, pled guilty to robbing victim.
Wright testified he conspired with petitioner and Robinson to rob victim and all
three men robbed victim together.

The defense called an expert witness to testify regarding false identification. The
expert testified to the hazards of cross-racial identification, memory development
during short and traumatic events, and how memories can be influenced when
there is a suggestive succeeding event, such as a news broadcast featuring pictures
of the defendants.

Neither petitioner nor Robinson testified, and the jury began deliberations at 10:33
a.m. From 10:56 a.m. to 11:26 a.m., the jury re-listened to Wright's testimony. At
1:15 p.m., the jury asked the trial judge if there were three photographs displayed
on the news broadcast wherein victim identified petitioner and Robinson as his
assailants, or if there were photographs of only two people. The trial judge
informed the jury he could not answer this question, as it pertained to the facts of
the case. At 2:50 p.m., the jurors indicated they could not reach a unanimous
decision. The trial judge gave an Allen charge, which stated in relevant part:

             Now it's been said that jury service is perhaps the highest
             service that a citizen can perform for his or her country
             during peace-time. And I certainly agree with that.
             However, I tell you that a juror does not render good
             jury service who arbitrarily says, I know what I want to
             do in this case, and if and when everybody agrees with
             me, then we'll write a verdict. And we will not write a
             verdict until that time.

             ....

             I tell you that it is the duty of each of you to tell the
             others how you feel and why you feel that way.
             However, I also tell you that if much the larger number
             of your panel are in favor of one particular verdict, then
             a dissenting [sic] juror or jurors should consider
             whether or not his or her or their positions is a
             reasonable one which makes no impression upon the
             minds of the majority.

             In other words, if a majority of you are for one particular
             form of a verdict, the minority ought to seriously ask
             themselves whether they can reasonably doubt the
             correctness of the judgment of the majority.

(Emphasis added). The trial judge did not charge the majority jurors to consider
the positions of the minority jurors. The trial judge concluded the Allen charge by
stating:

             Therefore, ladies and gentlemen, I cannot accept any
             report at this time that you cannot agree on a unanimous
             verdict in this case. I am of the opinion that you have not
             deliberated sufficiently long that I could in good
             conscience accept that report. And I tell you frankly it
             will take considerably more time before I am convinced
             that you cannot reach a verdict.

             I therefore, humbly beseech you to return to your jury
             room, continue your deliberations with the hope that you
             can arrive at a unanimous verdict within a reasonable
             time.

(Emphasis added). Trial counsel made no objection to the charge, and the jury
returned a guilty verdict at 4:47 p.m., two hours after receiving the Allen charge.
In light of the four factors delineated in Tucker, we find the Allen charge given at
petitioner's trial was unconstitutionally coercive. See Tucker, supra (finding an
Allen charge violated the defendant's due process rights when the charge, viewed
as a whole, was impermissibly directed at minority jurors and when the jurors
returned a guilty verdict an hour and a half after receiving the charge); State v.
Williams, 386 S.C. 503, 690 S.E.2d 62 (2010) at note 7 (cautioning trial judges
against using the language "with the hope that you can arrive at a verdict" because
the language could potentially be construed as coercive, as jurors are not required
to reach a verdict after expressing they are deadlocked). Accordingly, we find trial
counsel was deficient in failing to object to the charge.

Further, we find petitioner was prejudiced by trial counsel's deficient performance
in failing to object to the unconstitutionally coercive Allen charge. See Strickland
v. Washington, 466 U.S. 668, 695 (1984) (stating prejudice is defined as a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different).

                                   CONCLUSION
We find petitioner was prejudiced by trial counsel's deficient performance in
failing to object to an unconstitutionally coercive Allen charge; accordingly, we
grant the petition for a writ of certiorari, dispense with further briefing, reverse the
PCR judge's denial of relief, and remand for a new trial in the criminal case.

Because we grant petitioner relief on the first issue presented, we need not address
petitioner's remaining issue. See Futch v. McAllister Towing of Georgetown, Inc.,
335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (appellate court need not address
remaining issues when disposition of prior issue is dispositive).


REVERSED AND REMANDED.

TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ.,
concur.
