State v. Erb: Improvident Mistrials After Jury Polling and the Double Jeopardy Bar on Retrial of Greater and Lesser-Included Offenses

I. Introduction

The Supreme Court of South Carolina’s substituted opinion in State v. John Joseph Erb, Op. No. 28298 (Nov. 26, 2025), addresses a recurring but under-theorized problem in criminal trials: what happens when a juror recants during jury polling, and the trial judge reacts by abruptly declaring a mistrial. Specifically, the Court holds that when a trial judge sua sponte declares a mistrial—without “manifest necessity” and without exploring reasonable alternatives—double jeopardy bars the State from retrying the accused, not only on the charged offense (murder) but also on the lesser-included offense (voluntary manslaughter).

The decision is notable in three key respects:

It strongly reinforces the “manifest necessity” standard governing mistrials and ties it closely to the judge’s obligation to consider alternatives and to allow party input.
It provides clear guidance on how trial courts must respond when a juror’s answer during polling reveals a lack of unanimity.
It confirms that when a mistrial is improvidently granted, jeopardy attaches to both the charged offense and its lesser-included offenses, barring retrial on all such counts.

In reversing the circuit court, the Supreme Court uses the extraordinary device of a common law writ of certiorari to prevent what it views as a clear double-jeopardy violation, emphasizing the constitutional gravity of subjecting a defendant to a second trial after a mishandled mistrial.

II. Background of the Case

A. The Underlying Charge and Trial

John Joseph Erb was arrested on March 20, 2020, for the murder of Donald Blake, alleged to have been committed by blunt force trauma. In August 2023, Erb was indicted on a single count of murder; voluntary manslaughter was not separately charged but later submitted as a lesser-included offense at trial.

The case proceeded to jury trial in September 2023 before Judge Bentley J. Price in Charleston County. At the close of evidence, the jury received instructions on:

Murder (the indicted offense), and
Voluntary manslaughter (as a lesser-included offense).

After deliberating for more than five hours, the jury announced it had reached a unanimous verdict. The trial court read the verdict form aloud:

Not guilty as to murder; and
Guilty as to voluntary manslaughter.

The State declined the court’s offer to poll the jury. Defense counsel requested polling, plainly intending to poll only the voluntary manslaughter verdict, as the murder verdict was in Erb’s favor.

B. Jury Polling and the Disruption of the Verdict

Polling proceeded juror-by-juror. The first ten jurors answered “yes” to both questions:

“Is this your verdict?”
“Is it still your verdict?”

The eleventh juror polled—identified in the opinion as “Juror 16”—initially said “yes” to the first question, but “no” when asked if it was still her verdict. At that point:

The transcript shows only that the court told the jury, “you’ll have to return to the jury room,” and then turned to counsel to discuss a potential Allen charge (a supplemental instruction to encourage a deadlocked jury to continue deliberating).
Contrary to the trial court’s later written order, the record does not reflect that the court actually instructed the jury to continue deliberations.

Defense counsel expressed concern about giving an Allen charge in light of the revealed split, and the judge told the parties to “hang tight” before leaving the bench for approximately 14 minutes.

C. The Judge’s Questioning of Juror 16 and the Mistrial

When the judge returned, he did not recall the full jury. Instead, he directed that Juror 16 alone be brought to the courtroom. Before she entered, defense counsel asked what the judge intended to do. The judge responded:

“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.”

Both the defense and the State objected to questioning a single juror, arguing that such one-on-one inquiry would be coercive. The State specifically asked the court to instruct the entire jury to return to deliberations instead.

Despite both parties’ objections, the judge proceeded to question Juror 16 privately:

“[S]o 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 soliciting input from either party after this revelation, the judge immediately recalled the full jury and declared a mistrial, stating:

“We have to get 12 people to agree, and we weren’t able to, so I’m going to declare a mistrial.”

At no point did the judge:

Instruct the full jury to continue deliberations;
Give, or even seriously consider giving, an Allen charge; or
Allow the parties to be heard before sua sponte granting a mistrial.

D. Post-Trial Proceedings and the Writ of Certiorari

About a week later, the State published a trial roster listing Erb’s murder charge for retrial. In response, Erb:

Petitioned for a writ of habeas corpus, and
Moved in the alternative for entry of a verdict under Rule 29, SCRCrimP.

Erb argued that jeopardy had attached to the murder charge because the jury had returned a final not-guilty verdict on that count, and also that the mistrial was improvidently declared. Judge Price denied relief, concluding that “[j]eopardy has NOT attached … leaving the State in a position to retry the Defendant for Murder.”

Erb appealed to the court of appeals and also petitioned for writs of supersedeas and habeas corpus. The court of appeals dismissed the appeal (finding the order not immediately appealable) and denied the extraordinary writs.

The Supreme Court of South Carolina denied certiorari to the court of appeals but, critically, issued a common law writ of certiorari directly 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.’” After receiving supplemental briefing, the Court expanded its analysis to address voluntary manslaughter as well.

III. Summary of the Supreme Court’s Opinion

Justice James, writing for a unanimous Court, reverses the circuit court and holds:

The trial court improperly declared a mistrial without “manifest necessity,” principally because it mishandled the jury polling and failed to consider alternatives or allow party input.
Because the mistrial was “improvidently granted,” double jeopardy bars any retrial of Erb on both:
- the original murder charge, and
- the lesser-included offense of voluntary manslaughter.
Having found the mistrial itself renders retrial constitutionally impermissible, the Court finds it unnecessary to reach Erb’s alternative argument that the not-guilty verdict on murder was independently final and dispositive.

The Court emphasizes that:

Polling that reveals a lack of unanimity does not automatically justify a mistrial.
A judge must first send the entire jury back to deliberate and may consider an Allen charge, where appropriate.
Separately questioning a single juror, ignoring counsels’ objections, and then instantly declaring a mistrial is an abuse of discretion under long-standing double jeopardy principles.

IV. Detailed Analysis

A. The Double Jeopardy Framework

The Court roots its analysis in the South Carolina and federal constitutional guarantees against double jeopardy. As summarized in State v. Kirby, 269 S.C. 25, 236 S.E.2d 33 (1977), the double jeopardy clause protects against three distinct harms:

Prosecution for the same offense after acquittal;
Prosecution for the same offense after conviction; and
Multiple prosecutions for the same offense after an improvidently granted mistrial.

These protections derive from:

Article I, § 12 of the South Carolina Constitution: “No person shall be subject for the same offense to be twice put in jeopardy of life or liberty….”
The Fifth Amendment to the U.S. Constitution: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb,” applied to the states via the Fourteenth Amendment, as recognized in Benton v. Maryland, 395 U.S. 784 (1969).

The question whether jeopardy has attached—and whether a second trial is barred—is one of law, reviewed de novo. See State v. Frasier, 437 S.C. 625, 879 S.E.2d 762 (2022).

B. The Pivotal Trial Events: Jury Polling and Mistrial

The Court first squarely criticizes the trial court’s handling of the jury polling:

The judge should have instructed the jury that unanimity had not been reached and then directed them to return to the jury room to continue deliberations.
This is so regardless of when in the polling sequence the dissent emerged—whether Juror 16 was the first, middle, or last juror polled.

Instead, the judge unilaterally:

Stopped the poll when Juror 16 recanted;
Removed the full jury from the courtroom without instructing them to deliberate further;
Privately questioned Juror 16 despite both parties’ objections; and
Declared a mistrial without considering or attempting any less drastic alternative.

The Supreme Court highlights that polling sometimes reveals changing minds, which is precisely why parties request it. Once the lack of unanimity emerged, the court’s proper role was to send the entire jury back, not to interrogate a single juror and short-circuit the deliberative process.

C. Precedents and Authorities Cited

1. Early South Carolina Precedent: Bilton and Kirby

The Court relies on State v. Bilton, 156 S.C. 324, 153 S.E. 269 (1930), for the proposition that if 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.”

Kirby provides the conceptual framework for understanding former jeopardy in South Carolina, emphasizing that the accused must not be forced to “run the gauntlet” of criminal adjudication more than once on the same charge.

2. State v. Robinson and the Role of the Allen Charge

In State v. Robinson, 360 S.C. 187, 600 S.E.2d 100 (Ct. App. 2004), the court described the Allen charge as the “typical judicial mechanism” to encourage an indecisive jury to further deliberate. The Court reiterates that a genuine inability to reach unanimity can constitute a “manifest necessity” for a mistrial—but only where the judge has reasonably attempted to allow the jury to fulfill its function.

In Erb, the Supreme Court points out that the State does not defend the judge’s individual questioning of Juror 16 and instead argues that the revealed 10–1 split (based on Juror 16’s recantation) made an Allen charge potentially coercive. The Court rejects this reasoning as misdirected: the error lay in not sending the entire jury back to deliberate at all, not in the failure to administer an Allen charge after deliberations had definitively deadlocked.

3. State v. Kelly: Handling a Juror’s “Discomfort” with the Verdict

The Court cites State v. Kelly, 372 S.C. 167, 641 S.E.2d 468 (Ct. App. 2007), for the proposition that when a single juror indicates discomfort or disagreement with a verdict:

The trial court should not accept the verdict as final; instead,
The jury should be directed to continue deliberations.

This is exactly what the trial judge failed to do in Erb. Rather than treat Juror 16’s statement as a signal that deliberations were incomplete, the judge treated it as grounds to halt the process entirely.

4. U.S. Supreme Court: United States v. Jorn and the “Manifest Necessity” Standard

The single most important federal precedent here is United States v. Jorn, 400 U.S. 470 (1971). There, a trial judge abruptly declared a mistrial sua sponte to address a concern about whether witnesses had been advised of their Fifth Amendment rights. When the case was later set for retrial, the Supreme Court held that the initial mistrial lacked “manifest necessity,” and double jeopardy barred a second prosecution.

Erb quotes the critical language from Jorn:

“[I]t 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.” (Jorn, 400 U.S. at 487).

The Court declares that this observation “fits this case to a T,” underscoring the parallel:

In Jorn, the judge ended the trial abruptly without exploring alternatives or seeking party input.
In Erb, the judge did essentially the same—after privately questioning a juror and without returning the issue to the full jury or soliciting further argument.

5. State v. Benton and the Modern “Manifest Necessity” Test

The Court also draws on its then-recent decision in State v. Benton, 443 S.C. 1, 901 S.E.2d 701 (2024). In Benton, the Court reaffirmed that:

“[T]he 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.”

In Benton, the Court found that a mistrial was properly granted, emphasizing the trial court’s careful consideration of alternatives. In contrast, Erb presents the flip side: a mistrial declared with no such careful process.

Benton itself relied on U.S. Supreme Court authorities such as:

Renico v. Lett, 559 U.S. 766 (2010),
Illinois v. Somerville, 410 U.S. 458 (1973), and
Arizona v. Washington, 434 U.S. 497 (1978).

These cases collectively stress that “manifest necessity” is a stringent standard that cannot be applied mechanically; trial courts must assess the particular circumstances and consider less drastic alternatives before resorting to a mistrial.

6. Futch v. McAllister Towing and Limiting the Decision

Finally, the Court invokes Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 518 S.E.2d 591 (1999), for the principle that an appellate court need not address remaining issues once a dispositive ground has been resolved. Applying that approach, the Court declines to reach Erb’s separate argument that the murder acquittal was independently final—because the improvident mistrial ruling already fully resolves the double jeopardy question.

D. The Court’s Legal Reasoning

1. No “Manifest Necessity” for the Mistrial

The Court concludes that the trial court’s sua sponte mistrial was not supported by manifest necessity. Several factors converge:

The court never instructed the jury to continue deliberations after Juror 16’s recantation.
The judge conducted an improper individual inquiry of Juror 16 over both parties’ objections.
The judge failed to seek or consider argument from either party before declaring the mistrial.
The court considered no alternative mechanisms—further deliberations, resuming the poll, carefully calibrated supplemental instructions, or even a carefully structured Allen charge.

In the Court’s view, the “implosion” of the verdict did not occur because one juror changed her mind; it occurred because the trial court mishandled the polling results and abandoned its duty to manage the jury process in a measured, constitutional manner.

2. Improvident Mistrial Equals Acquittal for Double Jeopardy Purposes

Once the Court determines that the mistrial was granted without manifest necessity, the consequence follows from long-standing doctrine: such a mistrial is “equivalent to an acquittal” and bars reprosecution on the same offense. This principle directly flows from Bilton and Jorn and is consistent with Kirby’s articulation of the protections against being forced to endure repeated trials.

3. Application to Both Murder and Voluntary Manslaughter

The key doctrinal move in Erb is the Court’s explicit extension of the double jeopardy bar to:

The indicted offense of murder; and
The lesser-included offense of voluntary manslaughter.

Because voluntary manslaughter is a lesser-included offense of murder, both are considered the “same offense” for double jeopardy purposes: one cannot be convicted of the greater without proving all elements of the lesser. When jeopardy attaches to the trial of the greater offense, it also attaches to any lesser-included offenses submitted to the jury.

The Court therefore holds that the State is barred from retrying Erb on either murder or voluntary manslaughter, because the mistrial improperly terminated the jury’s consideration of both.

The Court does not reach (but implicitly leaves undisturbed as a distinct doctrine) any separate rule concerning when a not-guilty verdict on the greater offense alone would bar retrial, because that question is rendered moot by the mistrial ruling.

E. The Procedural Vehicle: Common Law Writ of Certiorari

An important procedural dimension of Erb is the Court’s use of a common law writ of certiorari to the circuit court.

Ordinarily, a pretrial order denying a double jeopardy motion is not immediately appealable as a matter of right in South Carolina. Here, however:

The trial court’s order expressly allowed the State to retry Erb for murder.
The court of appeals dismissed Erb’s appeal and denied his extraordinary writ petitions.
The Supreme Court, recognizing the constitutional stakes, invoked its common law certiorari power to review the circuit court’s ruling directly, initially limited to murder and then extended to include voluntary manslaughter.

This underscores the Court’s willingness to intervene in exceptional circumstances to prevent a second prosecution where double jeopardy is plainly implicated, even when ordinary appellate routes are unavailable or exhausted.

F. Clarifying “Manifest Necessity” and Trial Court Discretion

The opinion sharpens the contours of “manifest necessity” in the context of jury polling:

Manifest necessity is a “high degree” of necessity, not merely a convenience or a way out of a difficult situation. It must be grounded in preserving the integrity of the process and public confidence in fair trials.
Trial judges have broad, but not unbounded, discretion. They must:
- Consider reasonable alternatives to a mistrial;
- Invite and consider argument from both sides;
- Create a record that reflects careful thought and factual basis for the decision.

In Erb, the trial court’s abrupt handling of the polling, its private interrogation of a lone juror, and its failure to consider alternatives or hear argument all indicated a lack of “sound discretion” as required by Jorn and Benton.

G. Scope of Jeopardy: Greater and Lesser-Included Offenses

The opinion also clarifies that when a jury is empaneled and sworn on a charge that includes lesser-included offenses, jeopardy attaches to the entire unit of prosecution—that is, to both the greater and any lesser-included offenses submitted.

Thus, when an improvident mistrial terminates a trial:

The State may not simply re-indict or reprosecute on the lesser offense as an attempted workaround.

By explicitly stating that double jeopardy bars retrial on both charges, the Court closes the door on any argument that a defendant could still be retried on a lesser-included offense after an improper mistrial on the greater charge.

H. The Court’s Non-Decision on the Finality of the Murder Acquittal

Although Erb argued that the “not guilty” verdict on murder was itself final and thus independently barred retrial on the murder count, the Court deliberately avoids reaching that issue. Applying Futch, it holds that resolution of the improvident mistrial question suffices to decide the case.

Practically, the Court signals that:

Even if there were complexities about the finality of the murder verdict in light of the incomplete polling,
The State is barred from retrying Erb because the mistrial itself was constitutionally invalid.

Future cases involving partial polling or irregularities in returning a verdict on a greater offense may still present open questions about when a verdict is “final” for double jeopardy purposes—but those issues remain untouched here.

V. Complex Concepts Simplified

1. Double Jeopardy

Double jeopardy means the government cannot:

Try you again for the same offense after you have been acquitted;
Try you again for the same offense after you have been convicted; or
Subject you to a second trial after a mistrial that was wrongly declared.

Its core purpose is to prevent the State from repeatedly trying a person until it obtains a conviction, thereby sparing defendants from the anxiety, expense, and risk of repeated prosecutions.

2. When Does “Jeopardy Attach”?

In a jury trial, “jeopardy attaches” when the jury is sworn. From that moment:

The defendant has a legitimate expectation that the case will proceed to verdict before that particular jury, unless there is a valid reason to stop the trial (such as manifest necessity for a mistrial).

3. Mistrial and “Manifest Necessity”

A mistrial ends the current trial without reaching a verdict. It may be declared for several reasons (for example, a hopelessly deadlocked jury, juror misconduct, or a fundamental legal error that cannot be remedied).

However, for a mistrial to allow a second trial without violating double jeopardy, it must be supported by manifest necessity—a very strong, fact-based justification showing the trial could not fairly continue.

4. Improvidently Granted Mistrial

A mistrial is “improvidently granted” when the judge:

Acts too hastily;
Fails to consider reasonable alternatives (like further deliberations or curative instructions);
Does not allow the parties to argue the issue; or
Declares a mistrial without a compelling factual basis.

In such cases, the mistrial is treated as if the defendant had been acquitted, and the State may not try the defendant again for the same offense.

5. Jury Polling

After a verdict is announced, either side can request that the jurors be “polled.” This means each juror is asked individually in open court whether the announced verdict is indeed their verdict, and whether it remains their verdict.

If any juror says “no,” the verdict is not unanimous, and the judge must:

Reject the verdict as incomplete; and
Normally send the full jury back for more deliberations.

6. The Allen Charge

An “Allen charge” (from Allen v. United States, 164 U.S. 492 (1896)) is a special instruction given to a jury that reports difficulty reaching a unanimous verdict. It reminds jurors:

To listen to and consider each other’s views;
To re-examine their own positions with an open mind; but
Not to abandon sincerely held beliefs merely to reach a verdict.

Because it can be coercive if mishandled (especially where the numerical split is known), courts must use it carefully.

7. Lesser-Included Offense

A lesser-included offense is a crime whose elements are entirely contained within a greater offense. For example:

Murder may have as a lesser-included offense voluntary manslaughter.

If a defendant is tried on the greater offense, the jury can instead convict on the lesser-included offense. For double jeopardy purposes, both are typically treated as the “same offense,” so that an acquittal or bar on one extends to the other.

8. Common Law Writ of Certiorari

A common law writ of certiorari is an extraordinary tool that an appellate court can use to review lower court decisions when:

No normal appeal is available, and
Important legal or constitutional questions require immediate attention.

In Erb, the Supreme Court used this writ to review the circuit court’s conclusion that the State could retry Erb for murder, despite the double jeopardy concerns.

VI. Impact and Future Implications

A. Guidance for Trial Judges

State v. Erb sends a strong message to South Carolina trial judges:

When polling reveals a lack of unanimity, the default response must be to:
- Reject the verdict as incomplete; and
- Instruct the full jury to resume deliberations.
Judges should avoid privately questioning individual jurors about their views or willingness to deliberate—especially over the parties’ objections.
Before declaring a mistrial, judges must:
- Consider all reasonable alternatives;
- Allow both sides an opportunity to be heard; and
- Clearly articulate on the record why no alternative would suffice (i.e., why a mistrial is truly necessary).

B. Implications for Prosecutors and Defense Counsel

For prosecutors:

Erb is a cautionary tale: if the State participates in, or does not prevent, a mistrial that lacks manifest necessity, it may permanently lose the ability to retry a serious charge.
Prosecutors should be prepared to object when the trial judge moves toward a precipitous mistrial and to insist on proper deliberative procedures.

For defense counsel:

The case validates strategic use of jury polling after an unfavorable verdict on a lesser-included offense. If polling reveals a lack of unanimity and the court mishandles the situation, the resulting mistrial may bar any retrial.
Defense lawyers should object on the record to any private questioning of jurors and should request that the full jury be returned to deliberate.

C. Strengthening Double Jeopardy Protections in South Carolina

Erb fortifies South Carolina’s double jeopardy jurisprudence by:

Confirming that improvidently granted mistrials after jury polling are constitutionally equivalent to acquittals;
Clarifying that this bar applies to both greater offenses and their lesser-included counterparts; and
Aligning state precedent more explicitly with U.S. Supreme Court authority, particularly Jorn and Arizona v. Washington.

It also underscores that the South Carolina Supreme Court will use extraordinary writs when necessary to prevent double jeopardy violations, signaling the importance it places on this constitutional protection.

D. Administrative and Systemic Effects

Administratively, Erb encourages:

More careful trial management, especially at the verdict stage;
Better training and guidance for trial judges on polling, deadlocks, and the appropriate use of the Allen charge; and
Greater emphasis on preserving a clear record of the court’s reasoning when a mistrial is contemplated.

Systemically, the decision may reduce the number of questionable mistrials, as judges become more aware that an unnecessary mistrial can permanently end the prosecution of serious offenses.

VII. Conclusion

The Supreme Court of South Carolina’s opinion in State v. Erb stands as a consequential statement on the limits of judicial discretion to declare mistrials and the breadth of double jeopardy protections. By holding that a sua sponte mistrial—precipitated by mishandled jury polling and lacking manifest necessity—bars retrial on both the charged offense of murder and the lesser-included offense of voluntary manslaughter, the Court:

Reaffirms the high bar for “manifest necessity”;
Provides concrete guidance for handling juror recantations during polling;
Uses its extraordinary powers to prevent a clear double-jeopardy violation; and
Clarifies that improvident mistrials protect defendants against reprosecution across the entire spectrum of greater and lesser-included offenses.

In doing so, Erb significantly advances South Carolina’s double jeopardy jurisprudence, ensuring that the constitutional promise not to be “twice put in jeopardy” remains more than a theoretical guarantee and continues to function as a practical, enforceable constraint on the criminal justice system.