596 F.2d 1195 (4th Cir. 1979), 78-6175, Ellis v. Reed

Docket Nº:78-6175.
Citation:596 F.2d 1195
Party Name:Bruce E. ELLIS, Appellant, v. Amos E. REED, Secretary of Corrections, and The Attorney General of the State of North Carolina, Appellees.
Case Date:April 25, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1195

596 F.2d 1195 (4th Cir. 1979)

Bruce E. ELLIS, Appellant,

v.

Amos E. REED, Secretary of Corrections, and The Attorney

General of the State of North Carolina, Appellees.

No. 78-6175.

United States Court of Appeals, Fourth Circuit

April 25, 1979

Submitted Nov. 14, 1978.

Roger W. Smith, Raleigh, N.C. (Robert L. McMillan, Jr., Raleigh, N.C., on brief), for appellant.

Rufus L. Edmisten, Atty. Gen. of N.C., Richard N. League, Asst. Atty. Gen., Raleigh, N.C., on brief, for appellees.

Before HAYNSWORTH, Chief Judge, WINTER, Circuit Judge and HOFFMAN, [*] Senior District Judge.

Page 1196

WALTER E. HOFFMAN, District Judge:

Appellant stands convicted in the North Carolina state court of embezzling $18,799.50 from a finance company. On direct appeal to the North Carolina Court of Appeals, the court found no error in the trial. State v. Ellis, 33 N.C.App. 667, 236 S.E.2d 299 (1977). Discretionary review was denied by the Supreme Court of North Carolina. The district court denied appellant's petition for a writ of habeas corpus by order entered on March 21, 1978.

The issues in this case arise from questions and instructions put to the jury by the trial judge after the jury had retired to consider the case. Appellant contends that it was error for the court to inquire into the numerical division of the jury, a practice which has been prohibited in the federal courts since the decision in Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). Appellant also assigns as error the giving of a supplemental modified version of the "Allen charge" 1 instruction.

Appellant's trial lasted three days. Following arguments of counsel, the court instructed the jury and it retired to deliberate. Appellant alleged in his petition that after about an hour of deliberation, the jury returned to the courtroom for additional instructions. After retiring and deliberating for another hour the jury again returned to the courtroom. At this time the following colloquy occurred:

COURT: Mr. Foreman, have you reached a verdict?

JURY FOREMAN: No, Your Honor, we have not.

COURT: Will you tell me numerically what is the division; not what each of you were, but the numerical division.

JURY FOREMAN: Eleven to one.

COURT: Well, I presume, ladies and gentlemen, that you realize what a disagreement means; that the time of the Court will again have to be consumed in the trial of this action. I don't want to force you or coerce you or attempt to do so in any way to reach a verdict but it is your duty to try to reconcile your differences and to reach a verdict if it can be done without the surrender of anyone's conscientious convictions; and you heard the evidence in this case, and a mistrial will mean that another jury will have to be selected to hear this case and the evidence again; and it's long and complicated. The Court recognizes sometimes that there are reasons why jurors cannot agree, but I want to emphasize the fact that it is your duty to do whatever you can to reason this matter over as reasonable men and women and attempt to reconcile your differences if it is possible without the surrender of any conscientious convictions on the part of any member of the jury. I will let you resume your deliberations and see if you can reach a verdict.

The jury then retired, deliberated, and returned a verdict of guilty within eight minutes, according to the appellant.

Appellant did not interpose an objection to either the numerical division inquiry or the supplemental charge to the jury.

The length of time of the three periods of deliberation by the jury is not indicated in the North Carolina record on appeal. Since the court below dismissed the petition for the writ without an evidentiary hearing, we accept the alleged times as being true for the purpose of this appeal.

It is the rule of this circuit that a "calmly dispassionate balanced effort on the part of a (federal) trial judge to induce a verdict does not seem to us to invade the province of the jury." United States v. Sawyers, 423 F.2d 1335, 1341-42 (4th Cir. 1970). We agree with the district court that the charge given in appellant's case fits within this rule. In the brief charge that was given, the trial judge twice cautioned that it was the duty of the jurors to attempt a reconciliation of their differences, if it was possible without the surrender of any conscientious convictions on the part of any member of the jury. We find no error in the instruction and do not feel

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that the instruction was coercive in any manner. Indeed, as to the effect of the modified version of the "Allen charge", the intermediate North Carolina appellate court held that it was not coercive, but did not discuss the issue of the numerical standing inquiry although that fact is mentioned in the opinion.

We are concerned, however, by appellant's allegation that it was error for the trial court to inquire as to the numerical division of the jury. 2 Appellant urges this court to hold that the rule announced by the Supreme Court in Brasfield, supra, is a rule of constitutional interpretation grounded in due process requirements, and therefore applicable to the states by reason of the Fourteenth Amendment to the United States Constitution. We disagree and hold that the Brasfield rule is one of judicial administration based on the supervisory powers of the Supreme Court over the federal court system. The strong language of the Court's opinion in Brasfield merits our careful consideration of this issue as we note that there is a sharp division of authority on the question.

In Burton v. United States, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482 (1905), the Supreme Court condemned the practice of inquiring of a federal jury the extent of its numerical division, even though a response indicating the vote for or against conviction was neither sought nor obtained. 196 U.S. at 307, 25 S.Ct. 243. The conviction in Burton was reversed on other grounds, however, and federal courts of appeals remained in substantial disagreement as to whether the rule against inquiry constituted reversible error, or whether the expressions in Burton were hortatory only. The Supreme Court put an end to the uncertainty by holding in Brasfield that such inquiry of the jury constituted error Per se :

We deem it essential to the fair and impartial conduct of the trial, that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.

272 U.S. at 450, 47 S.Ct. at 135-136.

The language "essential to the fair and impartial conduct of the trial" might be read to impart a rule of constitutional interpretation, although not necessarily so. We note that no provisions of the Constitution are cited in Brasfield. The succinct, two-page opinion of the Court...

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