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 crossexamination 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 crossexamination 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.