The Supreme Court of South Carolina The State, Respondent, v. John Joseph Erb, Petitioner.

Appellate Case No. 2024-001518

ORDER

The petition for rehearing is granted. We dispense with further briefing and argument. The attached opinion is substituted for the previous opinion, which is withdrawn.

s/ John W. Kittredge C.J.

s/ John Cannon Few J.

s/ George C. James, Jr. J.

s/ D. Garrison Hill J.

s/ Letitia H. Verdin J.

Columbia, South Carolina November 26, 2025 THE STATE OF SOUTH CAROLINA In The Supreme Court The State, Respondent, v. John Joseph Erb, Petitioner.

Appellate Case No. 2024-001518

ON WRIT OF CERTIORARI TO THE CIRCUIT COURT

Appeal from Charleston County Bentley J. Price, Circuit Court Judge

Opinion No. 28298 Heard April 22, 2025 – Filed September 3, 2025 Withdrawn, Substituted, and Refiled November 26, 2025

REVERSED

Senior Assistant Public Defender Benjamin Andrew Mack, Circuit Public Defender Cameron Jane Blazer, and Assistant Public Defender Timothy Patrick Corbett, Jr., all of Charleston, all for Petitioner.

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General W. Jeffrey Young, Deputy Attorney General Donald J. Zelenka, Senior Assistant Deputy Attorney General Melody Jane Brown, and Assistant Attorney General Richard Brandon Larabee, all of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston, all for Respondent.

JUSTICE JAMES: We issued a common law writ of certiorari to the circuit court to determine whether the trial court erred in finding the State may retry John Joseph Erb for murder after issues arose during jury polling at the conclusion of his trial.

We reverse the trial court and hold double jeopardy bars Erb from being retried for murder and voluntary manslaughter.

I.

On March 20, 2020, Erb was arrested for the murder of Donald Blake. He was indicted on that sole count in August 2023 and was tried one month later. The record contains no details of Blake's death, other than the allegation in the indictment that Erb committed murder by blunt force trauma. The trial court, Judge Bentley J.

Price, instructed the jury on murder and the lesser-included offense of voluntary manslaughter. After deliberating for more than five hours, the jury advised it had reached a unanimous verdict. The trial court correctly read the verdict form into the record as "not guilty" for murder and "guilty" for manslaughter. The State declined the trial court's offer to poll the jury, but defense counsel requested polling. The first ten jurors polled answered "yes" to the two polling questions: "is this your verdict," with the follow-up "is it still your verdict?" 1 The eleventh juror polled (hereinafter, Juror 16) answered "no" to the follow-up question of whether it was still her verdict.

The trial court immediately sent the jurors back to the jury room—without ordering the jurors to continue deliberations 2—and asked the attorneys if they wanted him to give an Allen3 charge.

Erb obviously intended for polling to be on only the voluntary manslaughter verdict, as the murder verdict was not guilty.

In its written order ruling Erb could be retried for murder, the trial court stated it sent the jury out with instructions "to continue deliberations toward reaching a unanimous verdict." That is not borne out by the transcript. The transcript establishes that after Juror 16 was polled, the trial court said to the jury, "[Y]ou'll have to return to the—to the jury room." Immediately after the jury departed, the trial court began discussing the prospect of an Allen charge with counsel.

Allen v. United States, 164 U.S. 492 (1896). "The typical judicial mechanism for encouraging an indecisive jury is the Allen charge, in which jurors are instructed on, Defense counsel expressed hesitation based on the revealed split of the jury, and the trial judge told the attorneys to "hang tight" before he left the courtroom for minutes. When the judge returned, he asked the bailiff to bring only Juror 16 back into the courtroom. Before the bailiff brought the juror out, defense counsel stated, "Judge, may I ask what the plan is here?" In response, the trial court stated: I'm just going to ask her what she wants to do. I mean, if she thinks it's futile and to continue to deliberate, I'm going to declare a mistrial. If she says I just lost it, I think I can talk to my friends, I just got to see what she needs to do before I make a decision.

Defense counsel objected, arguing the questioning of one juror would be coercive. The State expressed the same concern and requested the trial court to instruct the jury to continue deliberations. Despite both parties' request that he not question Juror 16 directly, the trial judge did not instruct the jury to continue deliberations; instead, the trial court summoned only Juror 16 to the courtroom and said to her, "so you indicated that it was your verdict and then that it was not your verdict. Only one question is that is me allowing you a little bit more time to deliberate that it'd be futile." Juror 16 answered, "Yes, sir. It was always not guilty, and I just wanted to get it over with because they were all in there screaming and yelling at me and I just—I'll never change my—like, it's not guilty. I'm sorry." Without asking for any input or argument from the parties, the trial court immediately said, "Bring [the jury] out." When the remainder of the jury was seated, and again without seeking input from the parties, the trial court immediately declared a mistrial, stating to the jury, "We have to get 12 people to agree, and we weren't able to, so I'm going to declare a mistrial." Approximately one week later, the State published a trial roster with Erb's murder charge listed. Erb petitioned for habeas corpus and moved in the alternative for entry of a verdict pursuant to Rule 29 of the South Carolina Rules of Criminal Procedure. Both requests for relief were based on the ground that jeopardy attached to the murder indictment because the jury returned a final verdict of not guilty on that charge. Judge Price denied relief in a written order, stating in pertinent part that "[j]eopardy has NOT attached to the above referenced charge leaving the State in a position to retry the Defendant for Murder."

among other things, their duties to approach the evidence with an open mind and consider the opinions of their fellow jurors." State v. Robinson, 360 S.C. 187, 193, 600 S.E.2d 100, 103 (Ct. App. 2004).

The trial court denied Erb's motion to reconsider, and Erb appealed to the court of appeals. He also petitioned the court of appeals for writs of supersedeas and habeas corpus. The court of appeals dismissed the appeal, finding the trial court's ruling was not immediately appealable. The court of appeals also denied Erb's petitions for supersedeas and habeas corpus. We denied Erb's petition for a writ of certiorari to the court of appeals but issued a common law writ of certiorari to the circuit court "to review only that portion of the trial court's ruling that provides the State may 'retry the Defendant for Murder.'" In his brief, Erb argued jeopardy has also attached to voluntary manslaughter. Because our initial common law writ pertained only to murder, we asked for supplemental briefing on the manslaughter issue, which the parties provided. We address both issues in this opinion.

II.

A.

In State v. Kirby, we addressed a claim of double jeopardy (also known as "former jeopardy") and stated, The theory of former jeopardy presupposes the imposition of the adjudicatory gauntlet only once when one is accused of a crime. This guarantee consists of three separate constitutional safeguards: (1) protection from prosecution for the same offense after acquittal; (2) protection against prosecution for the same offense after conviction; and (3) protection from multiple prosecution for the same offense after an improvidently granted mistrial. The safeguards derive their constitutional proportion through Article 1, Section 12 of the South Carolina Constitution and the Fifth Amendment of the United States Constitution made applicable to the states through the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 (1969). 269 S.C. 25, 27-28, 236 S.E.2d 33, 34 (1977) (citation modified). Article 1, section of the South Carolina Constitution provides, "No person shall be subject for the same offense to be twice put in jeopardy of life or liberty, nor shall any person be compelled in any criminal case to be a witness against himself." The Fifth Amendment to the United States Constitution provides in pertinent part that no "person be subject for the same offence to be twice put in jeopardy of life or limb." The determination of whether jeopardy has attached is a question of law, which we review de novo. See State v. Frasier, 437 S.C. 625, 633-34, 879 S.E.2d 762, 766 (2022) (refining the Court's standard of review of constitutional questions).

Before we begin our analysis of the jeopardy issue, we must address what got us here—the trial court's misguided decision to question Juror 16 individually.

While polling rarely results in a juror changing her mind, it does happen. That is why parties request polling after an unfavorable verdict, so the trial court should have been prepared to act accordingly. After Juror 16 was polled, the trial court should have stated to the jury that it was apparent the jury had not reached a unanimous verdict and then instructed the jury to continue deliberating and to let the court know when it reached a unanimous verdict. That is true regardless of whether Juror 16 was the first, fifth, eleventh, or last juror polled. Both the solicitor and defense counsel correctly argued individual questioning of Juror 16 would be improper, but the trial court ignored their input. Had the trial court heeded the arguments of counsel and instructed the jury to continue deliberating, the situation we face would likely have been avoided—if the jury continued to deliberate, it might have eventually returned hung, or with a verdict of guilty on murder, or with a verdict of not guilty on murder and guilty on voluntary manslaughter, or with a total not guilty verdict.

B.

We hold double jeopardy bars a retrial of both the murder charge and the lesser-included voluntary manslaughter charge because the trial court improvidently granted a mistrial.

"If, in a criminal trial, a mistrial is declared 'without an absolute necessity for it, the [mistrial] is equivalent to an acquittal, and may be pleaded as a bar to a subsequent indictment.'" Robinson, 360 S.C. at 193, 600 S.E.2d at 103 (quoting State v. Bilton, 156 S.C. 324, 342, 153 S.E. 269, 276 (1930)). "[A] genuine inability of the jury to reach a unanimous verdict constitutes a manifest necessity for the declaration of a mistrial." Id. at 193, 600 S.E.2d at 103. If one juror indicates discomfort with the verdict, the trial judge should instruct the jury to continue deliberations. See State v. Kelly, 372 S.C. 167, 170, 641 S.E.2d 468, 469-70 (Ct. App. 2007). Here, the trial court did not instruct the jury to continue deliberations; instead, it made the snap—and erroneous—decision to sua sponte declare a mistrial.

The State does not defend the trial court's erroneous decision to question Juror individually. Instead, the State argues the results of the polling caused the verdict to "implode" in a way that revealed the numerical split of the jury, thus rendering a mistrial the only proper alternative for the trial court. Juror 16 was the eleventh juror polled, so her response indeed revealed at least a 10-1 split on voluntary manslaughter (the last juror was not polled) at the time of polling. However, after Juror 16 was polled, it was apparent the jury had not yet reached a unanimous verdict. Any "implosion" of the verdict was not brought about by the result of the polling—it was brought about by the trial court's mishandling of the result of the polling by questioning Juror 16 individually. The State does not address that obvious defect and instead jumps straight to the argument that an Allen charge would have been ruled coercive had the trial court opted to give one after polling. That misses the point. Had the trial court simply instructed the jury to continue deliberating and the jury later advised the trial court it could not reach a unanimous verdict, then the trial court would have had to decide whether an Allen charge should be given.

In United States v. Jorn, a tax-return preparer was charged with filing fraudulent income tax returns for clients. 400 U.S. 470, 472 (1971). After the jury was sworn, the prosecution called one of the defendant's clients to testify, and a question arose as to whether the client and other clients slated to testify had been advised of their right to remain silent when they were initially questioned by authorities. Id. at 473. The trial court sua sponte declared a mistrial so the issue could be resolved. Id. When the case was recalled for trial before another jury, the same trial court ruled jeopardy attached during the aborted trial and the defendant could not be tried again. Id. The United States Supreme Court agreed, noting that "[w]hen one examines the circumstances surrounding the discharge of this jury, it seems abundantly apparent that the trial judge made no effort to exercise a sound discretion to assure that, taking all the circumstances into account, there was a manifest necessity for the sua sponte declaration of this mistrial." Id. at 487.

In State v. Benton, we recognized "the double jeopardy clause bars a second prosecution unless the mistrial was declared due to 'manifest necessity,' that is a 'high degree' of necessity to further the ends of justice and preserve public confidence in fair trials." 443 S.C. 1, 6, 901 S.E.2d 701, 703 (2024) (citing Renico v. Lett, 559 U.S. 766, 774-75 (2010) and Illinois v. Somerville, 410 U.S. 458, 468 (1973)). In Benton, considering different circumstances, we held the trial court did not improvidently grant a mistrial. In so holding, we noted: The trial court conscientiously considered alternatives to the drastic remedy of declaring a mistrial. Cf. Jorn, 400 U.S. at 487 (holding a trial court abused its discretion in declaring a mistrial when it did so without allowing either party to object or request a continuance); see also Arizona v. Washington, 434 U.S. 497, 506 (1978) (explaining the "manifest necessity" test cannot be applied "mechanically or without attention to the particular problem confronting the trial [court]").

443 S.C. at 6-7, 901 S.E.2d at 703-04 (citation modified). Here, the trial court considered no alternatives to declaring a mistrial. The trial court disregarded the arguments of the parties and afforded neither party the chance to object to its decision to grant a mistrial. The following observation of the Supreme Court in Jorn fits this case to a T: "When one examines the circumstances surrounding the discharge of this jury, it seems abundantly apparent that the trial judge made no effort to exercise a sound discretion to assure that, taking all the circumstances into account, there was a manifest necessity for the sua sponte declaration of this mistrial." 400 U.S. at 487. We hold the trial court's sua sponte declaration of a mistrial, colored by its mishandling of the polling results, was not manifestly necessary. Jeopardy attached to both the murder and voluntary manslaughter charges. 4 III.

For the foregoing reasons, we hold jeopardy has attached to both murder and voluntary manslaughter; therefore, the State may not retry Erb for either offense.

REVERSED.

KITTREDGE, C.J., FEW, HILL and VERDIN, JJ., concur.

Because our holding that the mistrial was improvidently granted resolves the double jeopardy issue, we need not address Erb's separate argument that jeopardy attached to the murder charge because the verdict on murder was final. 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").