§ 1-28 Reargument by Counsel after Deliberation Has Begun

• Library: South Carolina Requests to Charge - Criminal (SCBar) (2023 Ed.)

§ 1-28 Reargument by Counsel After Deliberation Has Begun

In State v. Johnson, 418 S.C. 587, 795 S.E.2d 171 (Ct. App. 2016), the trial court, during the charge conference and in several instances thereafter, refused the State's request for a charge on "the hand of one is the hand of all" finding that there was no evidence in the record to support this charge being given to the jury. Defense counsel crafted his closing argument in reliance on these statements and the charge to be provided to the jury. After an hour of deliberations, the jury asked a question that made the trial court find that its prior decision not to give the charge was incorrect and that it was now required to charge the jury on this issue. To cure the error, "the trial court offered Appellant the opportunity to reargue his closing argument before the court recharged the jury." Additionally, "[t]he trial court considered declaring a mistrial because of the error." However,

Appellant rejected the trial court's offer, asserting that rearguing the charge would 'waive' the issue on appeal. Further, Appellant objected to the charge and moved for a mistrial, arguing (1) he would have addressed the charge in closing had he known it would become an issue, (2) giving the charge in response to a question after deliberations began was a judicial comment on the facts, (3) the charge would 'constitute a premature deliberation after the fact because [the jury was] not supposed to deliberate until the case

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