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2011-MO-023 - Franklin v. State

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Maurice L. Franklin, Petitioner,

v.

State of South Carolina, Respondent.


Appeal from Pickens County
Edward W. Miller, Circuit Court Judge
John C. Few, Post-Conviction Relief Judge


Memorandum Opinion No. 2011-MO-023
Submitted August 3, 2011 – Filed August 22, 2011


AFFIRMED


Appellate Defender M. Celia Robinson, of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, of Columbia, for Petitioner.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliot, and Assistant Attorney General Karen C. Ratigan, all of the Office of the Attorney General, of Columbia, for Respondent.


PER CURIAM:  Petitioner seeks a writ of certiorari from the denial of his application for post-conviction relief (PCR).

Because there is sufficient evidence to support the PCR judge’s finding that petitioner did not knowingly and intelligently waive his right to a direct appeal, we grant the petition for a writ of certiorari, dispense with further briefing, and proceed with a review of the direct appeal issue pursuant to Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986). 

Petitioner argues the trial judge erred in refusing to charge the jury that “the failure to promptly report an incident of sexual abuse creates an inference that the incident did not happen.”  Under South Carolina law, it is a general rule that a trial judge should refrain from all comment which tends to indicate to the jury his opinion on the credibility of the witnesses, the weight of the evidence, or the guilt of the accused.  State v. Jackson, 297 S.C. 523, 377 S.E.2d 570 (1989).  We find that while defense counsel can, and in this case did, argue the jury should infer, based on the delay in reporting the incidents of sexual abuse, that the incidents did not occur, a jury charge on such an inference is impermissible because it places undue emphasis on circumstantial evidence.  See State v. Grant, 275 S.C. 404, 272 S.E.2d 169 (1980).  Further, the charge appears to express an opinion on the alleged victim's credibility.  See State v. Roof, 298 S.C. 351, 380 S.E.2d 828 (1989).  Accordingly, the trial judge did not err in refusing to give the requested charge.

AFFIRMED.

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