THE STATE OF SOUTH CAROLINA
In The Supreme Court
Herman Brightman, Petitioner,
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
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
12 years.1 We granted petitioner a writ of certiorari to review the denial of
his application for post-conviction relief (PCR). We reverse.
Did the PCR judge err in finding trial counsel was
not ineffective for failing to request a King2charge?
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
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).
(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
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.
of that doubt, when it is questionable that the
crime committed by him was murder or
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
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).
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