THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Carl Vernon Kelly, Appellant.

Appeal From Charleston County
Paul M. Burch, Circuit Court Judge

Opinion No. 4203
Submitted January 1, 2007 Filed February 5, 2007

AFFIRMED

Appellate Defender Aileen P. Clare, Office of the Attorney General, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Shawn L. Reeves, all of Columbia; and Solicitor Ralph E. Hoisington, of Charleston, for Respondent.

WILLIAMS, J.: Carl Kelly appeals the circuit courts decision not to grant a mistrial and not to issue an Allen[1] charge after a juror retracted her guilty verdicts during jury polling. We affirm.

FACTS

Carl Kelly stood trial before a jury on charges of assault and battery with intent to kill, armed robbery, first-degree burglary, and kidnapping. At the close of trial, the jury informed the judge they had reached a unanimous verdict of guilty on each charge. After the jury read the verdict, the defense requested the jury be polled.

Upon polling, eleven of the jurors reported that their verdicts were guilty. One juror, however, reported that she was not comfortable with the verdict. The trial judge then said:

The [c]ourt fully understands that a juror certainly has been put in a position where youre not comfortable with what you do. Im not comfortable many times in my job up here. I understand that. But I needif you dont mind, if you would, I need you to respond to the question: Is this still your verdict?

The juror then responded I really dont know. I cant . . . (shaking her head side to side) no.

The trial judge then sent the jury back to the jury room to continue deliberations to see if [they could not] reach a verdict. Kellys defense attorneys then made an objection to the courts statement, which they called a de facto Allen charge. They also made a motion for a mistrial and requested a full Allen charge. Nearly two hours later, the jury returned with a guilty verdict on each charge. This verdict survived a jury polling.

LAW AND ANALYSIS

Kelly argues the court erred by failing to declare a mistrial or alternatively by failing to issue a full Allen charge after the juror retracted her guilty verdicts during jury polling. We disagree.

The granting or refusing of a motion for a mistrial lies within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent an abuse of discretion. State v. Harris, 340 S.C. 59, 63, 530 S.E.2d 626, 627-28 (2000). A mistrial should be declared only when absolutely necessary. Id. at 63, 530 S.E.2d at 628. In order to receive a mistrial, the defendant must show error and resulting prejudice. Id.

The trial judge must be satisfied that the verdict is unanimous and must conduct a jury poll at the request of either party. State v. Linder, 276 S.C. 304, 309, 278 S.E.2d 335, 338 (1981). Polling is a practice whereby the court determines from the jurors individually whether they assented [to] and still assent to the verdict. Id. at 308, 278 S.E.2d at 338. If it is made known to the court when it is time to render the verdict that any juror does not assent to it, the verdict cannot be received and the jury should retire to their room until they have agreed. State v. Singleton, 319 S.C. 312, 316, 460 S.E.2d 573, 576 (1995). A judge has a duty to urge the jury to reach a verdict, but he may not coerce them. Id. at 316, 460 S.E2d at 575.

In criminal cases, this Court sits to review errors of law only. State v. Staten, 364 S.C. 7, 15, 610 S.E.2d 823, 827 (Ct. App. 2005). An appellate court will not reverse the trial courts decision regarding jury instructions unless the trial court abused its discretion. State v. Williams, 367 S.C. 192, 195, 624 S.E.2d 443, 445 (Ct. App. 2005). The requesting party must have been prejudiced by the trial courts failure to give the instruction in order to warrant reversal on appeal. Id. at 195-96, 624 S.E.2d at 445.

In this case, when the juror stated she was not comfortable and ultimately not in agreement with the verdicts, the trial judge sent the jury back into the deliberation room to see if they could arrive at a unanimous verdict. It was within the trial judges discretion to either grant a mistrial or send the jury back for deliberations. The juror did not indicate that she was coerced into voting for a guilty verdict, nor did she indicate that the jury was hopelessly deadlocked. Therefore, declaring a mistrial was not an absolute necessity, and no prejudice resulted from sending the jury back for more deliberations.

Here, the judge followed the same procedure affirmed by the Supreme Court in State v. Roper, 274 S.C. 14, 260 S.E.2d 705 (1979). In Roper, one juror indicated she had her doubts about the verdict. After questioning that juror, the trial judge sent the jury back in for more deliberations with the instruction that any verdict must be unanimous. The Supreme Court ruled that the judges instructions were courteous and expeditious and were not coercive.

Likewise, the questions asked in State v. Singleton, 319 S.C. 312, 315-16, 460 S.E.2d 573, 575-76 (1995) were found to be appropriate to ensure that the juror did not misunderstand the verdict and to confirm that the verdict was unanimous. In Singleton, when asked if the guilty verdict was still his verdict, the juror answered no. The judge then said: Go back in your jury room to continue your deliberations. Im told this was a unanimous verdict. Is this your verdict? The juror then answered: It is now. Singleton, at 315, 460 S.E.2d at 575.

A comparison of the instructions in the case at bar to the proper instructions in Roper and Singleton shows that the instructions given in this case were noncoercive and did not prejudice Kellys case.

Kelly also argues the trial court erred in failing to issue a full Allen charge after the juror retracted her guilty verdict. An Allen charge, also known as a Dynamite or Hammer charge, is to be used when the jury has expressed a deadlock and cannot come to a unanimous conclusion. See Allen v. United States, 164 U.S. 492 (1896). There is no case law requiring or suggesting that an Allen charge be given when a juror retracts her verdict during polling and this Court will not impose such a requirement.

Accordingly, the trial courts decision is

AFFIRMED.[2]

HEARN C.J., and KITTREDGE, J., concur.

[1] Allen v. United States, 164 U.S. 492 (1896).

[2] We decide this case without oral argument pursuant to Rule 215, SCACR.