Allen v. People
| Decision Date | 14 March 1983 |
| Docket Number | No. 81SC367,81SC367 |
| Citation | 660 P.2d 896 |
| Parties | Jennifer Lee ALLEN, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
J. Gregory Walta, Colorado State Public Defender, Barbara S. Blackman, Deputy State Public Defender, Denver, for petitioner.
J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., William Morris, John T. Hyland, Asst. Attys. Gen., Denver, for respondent.
We granted certiorari to review People v. Allen, 636 P.2d 1329 (Colo.App.1981). We reverse the court of appeals and return the case to the court of appeals with directions to remand to the district court for a new trial.
The defendant, Jennifer Lee Allen, was charged, tried, and convicted of introducing contraband into the Colorado State Penitentiary. Section 18-8-203(1)(a), C.R.S.1973 (1978 Repl.Vol. 8). The correctional officers at the maximum security unit of the Colorado State Penitentiary discovered marijuana and hash oil in letters and packages addressed to the defendant's husband, Gary Allen, who was an inmate, and to Martin Aguerro, another inmate. At trial, the defendant admitted that she had mailed the drugs to the penitentiary but claimed that she acted under duress.
The duress defense was based upon events surrounding her husband's confinement. The defendant's husband testified that shortly after he was confined in the maximum security unit he was approached by inmates who demanded that he obtain drugs for them. Shortly after he refused to cooperate in obtaining drugs for two inmates, he was assaulted. While he was in his bunk he was stabbed in the back and stomach and was strangled with a guitar string until he was unconscious. Thereafter, he was confined to a hospital for approximately one week and was placed in protective custody for eleven months.
While Allen was in protective custody he received threatening notes from other inmates. When he returned to the general prison population, he agreed to help Martin Aguerro obtain drugs in exchange for protection. The defense of duress was supported by testimony that Gary Allen informed his wife of the threats and that she was in tears when she left the penitentiary after visiting her husband. She testified that she mailed the drugs to protect her husband from death.
After the jury instructions were given, the matter was submitted to the jury. The jury then deliberated from 11:30 a.m. until 9:45 p.m. At that time, the court advised counsel that it intended to bring the jury in and ask the foreman if there were any possibility that a verdict could be reached. The trial judge said that if the jury foreman responded that there were no chance of obtaining a verdict, the judge would probably allow the jury to deliberate another hour. He also told counsel that if the foreman indicated that the jury could reach a verdict, he would simply let them go back into the jury room. The prosecution objected to the court's plan. Defense counsel said that no objection would be made to an inquiry regarding whether the jury was close to a verdict.
When the jury returned to court, the following colloquy occurred:
THE COURT: "Mr. [Foreman], do you feel that there is any possibility that they jury can reach a verdict?"
[Foreman]: "I don't think so, your Honor."
(Mistakes in original.) (Emphasis added.) The jury retired, deliberated fifteen minutes and returned a verdict of guilty on all counts. The defense then filed a motion for a new trial based upon the court's "time-fuse" 1 instruction. The motion was denied.
The sole issue before us is whether the giving of the "time-fuse" instruction constitutes plain error and requires reversal. We hold that it does.
On September 22, 1971, the Chief Justice of the Colorado Supreme Court issued a directive to all judges of courts of record concerning the "Allen" instruction which is also referred to as the "third degree" instruction. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); see generally United States v. Bailey, 468 F.2d 652 (5th Cir.1972); People v. Gainer, 19 Cal.3d 835, 566 P.2d 997, 139 Cal.Rptr. 861 (1977). The directive, which parallels Standard 15-4.4 of the American Bar Association Standards for Criminal Justice Relating to Trial by Jury, states:
See III American Bar Association Standards for Criminal Justice 15-4.4, Commentary Standard 15-4.4(b) (1978). We issued the directive to minimize...
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