Kersey v. State

Decision Date16 June 1975
Citation525 S.W.2d 139
PartiesFrank KERSEY, Petitioner, v. STATE of Tennessee, Respondent.
CourtTennessee Supreme Court

Conrad Finnell, Finnell, Thompson, Scott & Logan, Cleveland, for petitioner.

R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, Richard Fisher, Dist. Atty. Gen., Cleveland, for respondent.

OPINION

HENRY, Justice.

We granted certiorari to take a fresh look at the 'Allen' or 'dynamite' charge, and to clarify certain matters incidental thereto.

I.

Petitioner was found guilty of involuntary manslaughter and sentenced to confinement in the State Penitentiary for not less than one (1) nor more than five (5) years. His conviction was upheld by the Court of Criminal Appeals.

The record reflects that after the jury had deliverated about one hour and forty-five minutes it returned to the courtroom and, in response to questions by the trial judge, announced that it had not reached a verdict but was making progress. After discussing arrangements for the evening meal the jury left the courtroom. It is not clear from the record whether the jury deliberated further or went out to eat. The record simply shows that 'the jury, after deliberating further after supper', returned and reported that it had not reached a verdict and '(i)t looks like we are not going to, your Honor.' In response to a question by the trial judge, the foreman reported that the jury was hung on the question of guilt or innocence. In response to a direct question on the division, the foreman reported the jury to be hung eleven to one.

Immediately the trial judge, Sua sponte, charged the jury as follows:

While the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of your fellows, yet you should examine the questions submitted with candor and with a proper regard and Difference 1 (sic) to the opinions of each other. It is your duty to decide the case if you can conscientiously do so. You should listen with a disposition to be convinced to each other's arguments. If the larger number are for conviction or acquittal, a dissenting juror should consider whether his doubt was a reasonable one which made no impression on the minds of so many other men, equally honest, and equally intelligent with himself. The jury should not go contrary to their convictions, but they should properly give heed to the opinions of their fellow jurors and by reasonable concessions reach a conclusion which although not originally entertained by any of them, nevertheless, may be one to which all can scrupulously adhere. In other words, the minority should listen to the views of the majority with the disposition of being convinced. Now, with that addition we will work a few minutes longer. (Emphasis supplied). 2

His Honor, the trial judge, apparently had faith that this 'dynamite' charge would blast the jury into a unanimous verdict. At least, he so indicated by stating 'we will work a few minutes longer.'

Immediately upon the conclusion of this supplemental charge, the record reflects that counsel for the defendant tendered a special request as follows:

Defendants further request that the court charge the jury as follow (sic):

at close of 7:55 report of 11--1 deadlock Irrespective of anything I have said, each of you must believe beyond a reasonable doubt that the defendant is guilty. If any juror has a reasonable doubt he should vote for an acquittal.

This special request was denied by the trial judge.

Thereafter, the trial judge instructed the jury to return to the jury room and advised that 'we will send for you in a few minutes.'

Thereafter, at a time not disclosed 3 by the record the jury returned and reported that it had reached a verdict.

II.

We first address the matter of the trial judge making inquiry as to the division of the jury and hold that this is not proper practice. Until the jury shall have reached a verdict, no one--not even the trial judge--has any right, reason or power to question the specifics of its deliberative efforts. We hold that such inquiry is error. Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). Where this inquiry is accompanied by the Allen charge or any of its variations, the error is compounded. For text and cases relating to an inquiry as to the division of the jury, see 76 Am.Jur. 2d, Trial, Sec. 1058 and E. Ledford, Defusing the Dynamite Charge: A Critique of Allen and its Progeny, 36 Tenn.L.Rev. 749 (1969).

Under the inherent and the statutory supervisory power of this Court, we advise the trial bench that when a jury's deliverations have not produced a verdict, and it returns to the courtroom and so reports, the presiding judge should admonish the jury, at the very outset, not to disclose their division or whether they have entertained a prevailing view. The only permissive inquiry is as to progress and the jury may be asked whether it believes it might reach a verdict after further deliberations. If the trial judge feels that further deliberations might be productive, he may give supplemental instructions in accordance with subsequent portions of this opinion. See State v. Hutchins, 43 N.J. 85, 202 A.2d 678 (1964).

III.

The so-called Allen or Dynamite charge had its origin in Commonwealth v. Tuey, 62 Mass. 1 (1851). It achieved national prominence and the name by which it is generally known through Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), wherein the court paraphrased the charge of the trial judge as follows:

. . . These instructions were quite lengthy, and were, in substance, that in a large proportion of cases absolute certainty could not be expected; that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and Deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen With a disposition to be convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority . . .. (Emphasis supplied) 164 U.S. at 501, 17 S.Ct. at 157, 41 L.Ed. at 530.

IV.

The Tennessee version of the Allen charge originated in Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487 (1955), wherein this Court approved a charge identical with that given in the case at bar, as hereinabove set forth.

The Court cited as authority for its holding, two cases. The first of these was High v. Lenow, 195 Tenn. 158, 258 S.W.2d 742 (1953). The crux of the Court's holding in Lenow is as follows:

The jury should not go contrary to their convictions but they should properly give heed to the opinions of their fellow jurors, and by reasonable concessions reach a conclusion which although not originally entertained by any of them, nevertheless may be one of which all can scrupulously adhere. 258 S.W.2d at 745.

Lenow supports only a limited portion of the Simmons charge. Certainly, it does not provide authority for the strong admonition of Simmons that 'the minority should listen to the views of the majority with the disposition of being convinced.'

The other case cited in Simmons is Allen v. United States, supra, but when Allen is analyzed in the light of the Simmons charge it is substantially less offensive in that it too, stops short of requiring, In haec verba, that the minority should listen to the views of the majority with the disposition of being convinced although this is the import of the Allen charge.

The Simmons charge was approved in principle in Hopper v. State, 205 Tenn. 246, 326 S.W.2d 448 (1959). In Weston v. State, 506 S.W.2d 946 (Tenn.Cr.App.1973), the Court of Criminal Appeals followed Simmons and approved the charge; however, it noted:

(T)here appears to be a growing body of opinion that the Allen charge itself is coercive, and that a different instruction should be given a deadlocked jury. 506 S.W.2d at 948.

V.

Reference to various text treatments will validate the assertion that the Allen charge, in one form or another, has tantalized the criminal defense bar, tortured the trial bench and tormented the appellate courts throughout the nation. 4

The Allen charge has come under widespread criticism. Mr. Justice Clark has stated:

Allen is dead and we do not believe in dead law. Clark, Progress of Project Effective Justice--A Report on the Joint Committee, 47 J.Am.Jud.Soc'y., 88--90 (1963).

The Fifth Circuit, in Green v. United States, 309 F.2d 852 (5th Cir. 1962) has asserted:

(t)here is small, if any, justification for its use. Id. at 854.

Judge Brown, in his dissenting opinion in Huffman v. United States, 297 F.2d 754 (5th Cir. 1962), stated in part:

I think a mistrial from a hung jury is a safeguard to liberty. In many areas it is the sole means by which one or a few may stand out against an overwhelming contemporary public sentiment. Nothing sould interfere with its exercise. In the final analysis the Allen charge itself does not make sense. All it may rightfully say is that there is a duty to consider the views of others but that a conscientious person has finally the right and duty to stand by conscience. If it says that and nothing more it is a superfluous lecture on citizenship. If it says more to declare that there is a duty to Decide, it is legally incorrect as an interference with that rightful independence. Id. at 759.

We concur in this statement of Judge Brown.

In an en banc hearing, the Court of Appeals for the Fifth Circuit,...

To continue reading

Request your trial
62 cases
  • People v. Rodriguez
    • United States
    • California Supreme Court
    • October 23, 1986
    ... ... The trial court ruled that [726 P.2d 127] the sound of Klaess's voice on the tape, "her pauses, her hems and haws," were irrelevant to her state of mind and so ruled the tape inadmissible ...         Appellant invokes the best evidence rule (Evid.Code, § 1500), but that objection ... State (1979) 95 Nev. 881, 603 P.2d 1063, 1065; with People v. Wilson (1973) 390 Mich. 689, 213 N.W.2d 193, Kersey v. State (Tenn.1975) 525 S.W.2d 139, 141.) ... In approving numerical-division inquiries, this court's Carter opinion did not mention Brasfield ... ...
  • People v. Gainer
    • United States
    • California Supreme Court
    • August 31, 1977
    ... ... In the present case, the burden of proof is on the People of the State of California to establish every part of it beyond a reasonable doubt. And, if in any part of it you are left in doubt, the defendant is entitled to ... 2420, 32 L.Ed.2d 674; Commonwealth v. Spencer (1971) 442 Pa. 328, 275 A.2d 299; State v. Patriarca (1973) 112 R.I. 14, 308 A.2d 300; Kersey v. State (Tenn.1975) 525 S.W.2d 139; Kelley v. State (1971) 51 Wis.2d 641, 187 N.W.2d 810; Elmer v. State (Wyo.1969) 463 P.2d 14 ... 9 In so ... ...
  • Lowenfield v. Phelps
    • United States
    • U.S. Supreme Court
    • January 13, 1988
    ... ... 1126, 108 S.Ct. 1126 ... Syllabus ...           At petitioner's state-court trial on charges of killing five people, the jury returned guilty verdicts on three counts of first-degree murder, an essential statutory ... Czachor, 82 N.J. 392, 413 A.2d 593 (1980) (same); Kersey v. State, 525 S.W.2d 139 (Tenn.1975) (same) ... 3. The Court argues that the failure of petitioner's counsel to object to the polling or the ... ...
  • State v. Czachor
    • United States
    • New Jersey Supreme Court
    • April 2, 1980
    ... ... Marsh, 260 Or. 416, 490 P.2d 491 (Sup.Ct.1971), cert. den. sub nom. O'Dell v. Oregon, 406 U.S. 974, 92 S.Ct. 2420, 32 L.Ed.2d 674 (1972); Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (Sup.Ct.1971); State v. Patriarca, 112 R.I. 14, 308 A.2d 300 (Sup.Ct.1973); Kersey v. State, 525 S.W.2d 139 (Tenn.Sup.Ct.1975); Kelley v. State, 51 Wis.2d 641, 187 N.W.2d 810 (Sup.Ct.1971); Elmer v. State, 463 P.2d 14 (Wyo.Sup.Ct.1969), cert. den. 400 U.S. 845, 91 S.Ct. 90, 27 L.Ed.2d 82 (1970) ... 3 This initial Allen charge did not contain all of the coercive features ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT