THE STATE OF SOUTH CAROLINA

In The Supreme Court

Herman Brightman, Petitioner,

v.

State of South Carolina, Respondent.

Appeal From Orangeburg County

Daniel E. Martin, Sr., Judge

Opinion No. 24990

Submitted March 16, 1999 - Filed August 23, 1999

REVERSED

Assistant Appellate Defender Robert M. Dudek, of

Columbia, for petitioner.

Attorney General Charles M. Condon, Deputy

Attorney General John W. McIntosh, and Assistant

Deputy Attorney General Teresa A. Knox, all of

Columbia, for respondent.

MOORE, A.J.: Petitioner Herman Brightman was convicted of

possession with intent to distribute (PWID) crack cocaine and sentenced to

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12 years.¹ We granted petitioner a writ of certiorari to review the denial of

his application for post-conviction relief (PCR). We reverse.

ISSUE

Did the PCR judge err in finding trial counsel was

not ineffective for failing to request a King²charge?

DISCUSSION

At trial, trial counsel requested a jury charge on the lesser included

offense of simple possession. The trial judge granted petitioner's request.

Trial counsel, however, did not request a King charge. Petitioner contends

his trial counsel was ineffective for failing to request a King charge. We

agree.

A defendant is entitled to a King charge if a lesser included charge is

given. State v. King, supra. However, the State contends petitioner has not

shown trial counsel was ineffective for failing to request a King charge

because petitioner was not entitled to the charge on simple possession.

Where there is no evidence to support an instruction on a lesser-included

offense, a PCR applicant cannot show prejudice from the failure to request a

King charge. Bell v. State, 321 S.C. 238, 467 S.E.2d 926 (1996). A trial

judge must charge a lesser included offense if there is evidence from which it

can be inferred that the defendant committed the lesser rather than the

greater offense. State v. Drafts, 288 S.C. 30, 340 S.E.2d 784 (1986).

S.C. Code Ann. § 44-53-375 (B)(Supp. 1998) states: "Possession of one

or more grams of ice, crank, or crack cocaine is prima facie evidence of a

violation of this subsection." This statutory language creates a permissible

inference which the jury may accept or reject as a conviction of PWID does

not hinge upon the amount involved. State v. Adams, 291 S.C. 132, 352

S.E.2d 483 (1987)(citing State v. Simpson, 275 S.C. 426, 272 S.E.2d 431

(S.C. Sup. Ct. filed August 14, 1995)

²State v. King, 158 S.C. 251, 155 S.E. 409 (1930)(if jury has a

reasonable doubt between lesser and greater offenses, it must resolve the

doubt in the defendant's favor).

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(1980)).³Because the jury was free to reject the permissible statutory

inference, the jury could have found petitioner guilty of the lesser included

offense of simple possession.⁴ Here, petitioner was entitled to the lesser

included offense charge and trial counsel was ineffective for failing to also

request a King charge. Thus, the PCR judge erred in denying petitioner

relief.

We take this opportunity to revisit the continued propriety of the King

charge. In King, the trial judge's charge had the effect of intimating the

defendant was guilty of murder to the jury while eliminating any potential

for the lesser included offense. The Court held:

The charge did not clearly and correctly instruct

the jury, that if they had a reasonable doubt as

to whether the appellant was guilty of murder

or manslaughter, it was their duty to resolve

the doubt in his favor, and find him guilty of

the lesser offense. It is plain that the rule of

reasonable doubt requires that a defendant

charged with murder, be extended the benefit

the criminal act, which triggers the trafficking statute, and distinguishes

trafficking from distribution and simple possession. If the amount of cocaine,

or any mixture containing cocaine, is ten grams or more the trafficking

statute is applied." State v. Raffaldt, 318 S.C. 110, 117, 456 S.E.2d 390, 394

(1995)(emphasis added). However, this decision was based upon the

statutory language in the trafficking statute which provides that a

possession of certain weights of drugs is trafficking rather than merely

creating a permissible inference.

⁴ In Gilmore v. State, 314 S.C. 453, 445 S.E.2d 454 (1994)(Finney, J.,

dissenting), we held trial counsel was not ineffective for failing to request a

King charge because the defendant was not entitled to the lesser included

offense in the first instance. We stated that the drugs recovered weighed

more than the permissible statutory inference for the greater offense of

PWID and, therefore, the record did not support an instruction on the lesser

included charge of simple possession. Gilmore converted the statutory

inference into an impermissible presumption. Thus, to the extent that

Gilmore is inconsistent with this opinion, it is hereby overruled.

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of that doubt, when it is questionable that the

crime committed by him was murder or

manslaughter.

155 S.E. at 426. As we noted in State v. Gilmore, ItIhis language makes it

readily apparent that the King charge stemmed from the 1930 legal

definition of 'reasonable doubt.' The legal definition of'reasonable doubt has

gone through significant modification and revision since 1930, and an

argument could now be made that the King charge is unnecessary and

archaic. See Victor v. Nebraska, 511 U.S. 12 114 S.Ct. 1239) 127 L.Ed.2d 583

(1994)." 445 S.E.2d at 456 & n 1. We have endorsed the definition of

reasonable doubt set forth in Justice Ginsberg's concurring opinion in Victor

v. Nebraska. State v. Darby, 324 S.C. 114, 477 S.E.2d 710 (1996). We now

think the time has come to overrule King. The King charge is unnecessary

in light of the modern general reasonable doubt charge which instructs the

jury to resolve doubts in favor of the defendant.⁵

REVERSED.

TOAL, WALLER, and BURNETT, JJ., concur. FINNEY, C.J.,

concurring in part and dissenting in part in a separate opinion.

it is reversible error to fail to give the King charge when there is evidence to

support a charge on a lesser included offense. Bell v. State, 321 S.C. 238,

467 S.E.2d 926 (1996); State v. Gorum, 311 S.C. 332, 428 S.E.2d 884 (1993);

Chalk v. State, 313 S.C. 25, 437 S.E.2d 19 (1993); State v. Davis, 309 S.C.

326, 422 S.E.2d 133 (1992); State v. Robinson, 307 S.C. 169, 414 S.E.2d 142

(1992); Carter v. State, 301 S.C. 396, 392 S.E.2d 184 (1990); State v.

Jackson, 301 S.C. 41, 389 S.E.2d 650 (1990); State v. Patrick, 289 S.C. 301,

345 S.E.2d 481 (1986); State v. McLaughlin, 208 S.C. 462, 38 S.E.2d 492

(1946). See also State v. Franklin, 310 S.C. 122, 425 S.E.2d 758 (Ct. App.

1992); State v. McCall, 304 S.C. 465, 405 S.E.2d 414 (Ct. App. 1991); State

v. Clifton, 302 S.C. 431, 396 S.E.2d 831 (Ct. App. 1990).

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FINNEY, C.J.: I concur with the majority opinion insofar as it overrules

Gilmore v. State, 314 S.C. 453, 445 S.E.2d 454 (1994), and grants petitioner

a new trial, but I dissent from the majority's decision to overrule State v.

King, 158 S.C. 2512 155 S.E. 409 (1930).

The majority's decision to overrule King is predicated on the assertion

that the "modern general reasonable doubt charge ... instructs the jury to

resolve doubts in favor of the defendant." In State v. Manning, 305 S.C. 413,

409 S.E.2d 372 (1991), we urged the trial courts of this State to limit the jury

charge defining reasonable doubt to "the kind of doubt which would cause a

reasonable person to hesitate to act." Id., 305 S.C. at 417, 409 S.E.2d at 375.

I find no "endorsement" of Justice Ginsburg's suggested reasonable doubt

charge in State v. Darby, 324 S.C. 114, 477 S.E.2d 710 (1996). In Darby, we

noted in footnote 1 that the trial judge gave an instruction derived from the

Ginsburg suggested charge, and further stated "some courts have expressly

approved this charge as the definition of reasonable doubt to be given

within their jurisdiction." Id., 324 S.C. at 116, 477 S.E.2d at 711 (emphasis

added). This Court did not either expressly or impliedly approve the charge

derived from the Ginsburg suggested charge. We merely held that the

reasonable doubt charge was not erroneous. See also State v. Needs, 333

S.C. 1345 508 S.E.2d 857 (1998)(in footnote 12, Court recites alternative

versions of reasonable doubt charge, noting neither is mandatory, and that

the trial judge may decline any definitional charge).

In my view, a general charge on the definition of reasonable doubt is

explicitly distinct from an instruction on the application of the principle of

reasonable doubt where lesser included offenses are involved. The recent

changes in the jury charge definition of reasonable doubt do not alter the

necessity of the King charge. That charge does not define reasonable doubt,

but instead instructs the jury on the application of this fundamental

principle of criminal law in a case where the defendant faces charges of both

greater and lesser included offenses. I am persuaded that the ends of justice

require that where there is doubt as between the greater or lesser included

offenses, a jury must be instructed that such doubt should be resolved in

favor of the defendant as to the lesser included offense. Hence, the King

charge remains an indispensable part of our criminal jurisprudence.

For the reasons given above, I respectfully concur in part and dissent

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in part.

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