Burnette v. State

• Court: Maryland Supreme Court
• Writing for the Court: Argued before MURPHY; ELDRIDGE
• Citation: Burnette v. State, 280 Md. 88, 371 A.2d 663 (Md. 1977)
• Decision Date: 07 April 1977
• Docket Number: No. 106,106
• Parties: William Paul BURNETTE, Jr. v. STATE of Maryland.

Page 88

280 Md. 88

371 A.2d 663

William Paul BURNETTE, Jr. v. STATE of Maryland.

No. 106.

Court of Appeals of Maryland.

April 7, 1977.

Mark Colvin, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., Baltimore, (Francis B. Burch, Atty. Gen., Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDEG and ORTH, JJ.

ELDRIDGE, Judge.

This appeal concerns the propriety of an Allen instruction ¹ given to a deadlocked jury in the criminal trial of William Paul Burnette, Jr.

William Burnette was charged in the Circuit Court for Prince George's County under a fifteen count indictment which included charges of kidnapping, assault and battery, and other crimes stemming from an incident which took place on June 7, 1974. At trial, Mr. Burnette did not dispute his agency in these offenses; his sole defense was that he was insane at the time.

Pursuant to Maryland Rule 828g, the parties have submitted this case on an agreed statement of facts, much of which concerns the question of Mr. Burnette's sanity. According to the stipulated facts, in 1970 Mr. Burnette was treated at the District of Columbia General Hospital and diagnosed as suffering from paranoid schizophrenia. The examining psychiatrist at D. C. Hospital reported that Mr. Burnette had paranoid ideas 'concerning little people in his head who were ordering him to carry out their violent instructions.' Later, in 1972, the defendant was hospitalized and treated at St. Elizabeth's Hospital for that was diagnosed as 'hysterical personality and drug dependance.'

Concerning the defendant's sanity at the time of the commission of the offenses enumerated in the indictment, the defense offered the testimony of Dr. Roger Harris, a former Chief Resident in Psychiatry at the University of Maryland Hospital. Dr. Harris, after lengthy testimony, stated that in his opinion, at the time of the offenses, Mr. Burnette 'was suffering from a severe mental disorder, namely, paranoid schizophrenia and multiple drug dependance; and that as a result of this disorder, (he) . . . lacked substantial capacity to appreciate the criminality of his conduct.'

The State, in rebuttal, offered the testimony of Dr. Ido Adamo, a staff psychiatrist at Clifton T. Perkins State Hospital where the defendant, by court order, had undergone a psychiatric examination. Dr. Adamo was one of five members of the Perkins's staff who administered a series of examinations to Mr. Burnette over a two week period. The Perkins's staff initially diagnosed Mr. Burnette 'as suffering at the time of the offense from schizophrenia, paranoid type, with multiple drug dependence (and as a result) . . . not responsible for the offenses charged.' Several days later, the Perkins's staff changed its opinion. Due in part to changes in the defendant's behavior after the defendant had learned of the contents of the first report, the Perkins's staff concluded that Mr. Burnette, while suffering from a personality disorder, was in fact 'responsible' at the time of the offenses.

With this conflicting evidence before it, the jury received its instructions and retired to deliberate. Four hours later the trial judge received the following note from the jury foreman:

'Judge Mattingly, Your Honor, we are in accord with the fifteen possible verdicts. We cannot decide on the following issues: sane or insane . . ..'

The jurors returned to the jury box and the judge, over the defendant's objections, read to them the following Allen instruction;

'Mr. Foreman, ladies and gentlemen of the jury, the Court has reviewed your note from the foreman stating that you are in accord on the fifteen possible verdicts and we cannot decide on the following issues. Sane or insane.

'The Court will further instruct you, Mr. Foreman, and ladies and gentlemen of the jury, that it observed that you have been out almost three hours on this case, almost four hours, excuse me, and had it under your consideration for that period of time. We instruct you that there are many cases in which absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror as a result of his own convictions and not a mere acquiescence in the conclusions of his fellows, each of you should examine the question submitted with candor and with a proper regard and deference to the opinion of others.

'It is your duty to decide this case if you can conscientiously do so, and you should listen with a disposition to be convinced to each other's arguments. If your views are contrary to those of the vast majority you should consider whether your views, which make no impression on the minds of so many equally intelligent jurors, are correct.

'So, now I'm asking you to return to the jury room and deliberate further in light of these instructions.'

The jury returned to the jury room and deliberated for another three hours before finding Mr. Burnette sane and guilty of kidnapping, assault and battery, and various other crimes for which he received sentences totaling forty years' imprisonment.

Upon appeal to the Court of Special Appeals, Mr. Burnette argued, inter alia, that the trial judge's use of an Allen instruction was coercive and prejudicial. The Court of Special Appeals, while disapproving portions of the language used by the trial judge, affirmed the judgment on the ground that the instruction taken as a whole was not so prejudicial as to constitute reversible error. Burnette v. State, 32 Md.App. 277, 360 A.2d 23 (1976). We granted certiorari limited to Mr. Burnette's contention that the Allen instruction was coercive and invaded the province of the jury.

In Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896), the Supreme Court approved the use of the following instruction, delivered by a trial judge to a jury which was unable to reach a verdict:

'(A)lthough 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 (is) their duty to decide the case if they (can) conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; that, if much the larger number (are) for conviction, a dissenting juror should consider whether his doubt (is) a reasonable one which (makes) no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority (is) for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which (is) not concurred in by the majority.' ²

Although many courts thereafter approved the use of the Allen instruction or one of its modifications (see Annot., 100 A.L.R.2d 177), such instructions have, in recent years, come under increasing criticism by many state and federal courts on the grounds that they are coercive and intrude upon the function of the jury. Judge John Minor Wisdom, writing for the United States Court of Appeals for the Fifth Circuit in Green v. United States, 309 F.2d 852, 854 (1962), said of the Allen charge:

'There is small, if any, justification for its use. . . . The jury system rests in good part on the assumption that the jurors should deliberate patiently and long, if necessary, and arrive at a verdict-if, but only if, they can do so conscientiously. It is improper for the court to interfere with the jury by pressuring a minority of the jurors to sacrifice their conscientious scruples for the sake of reaching agreement.'

See also, e. g., United States v. Thomas, 146 U.S.App.D.C. 101, 449 F.2d 1177 (1971); United States v. Fioravanti, 412 F.2d 407 (3d Cir.), cert. denied sub nom. Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969); United States v. Brown, 411 F.2d 930 (7th Cir. 1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508 (1970); Fields v. State, 487 P.2d 831 (Alaska 1971); State v. Thomas, 86 Ariz. 161, 342 P.2d 197 (1959); State v. Nicholson, 315 So.2d 639 (La.1975); State v. Randall, 137 Mont. 534, 353 P.2d 1054 (1960); State v. Garza, 185 Neb. 445, 176 N.W.2d 664 (1970); State v. Marsh, 260 Or. 416, 490 P.2d 491, cert. denied 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 (1971); State v. Ferguson, 84 S.D. 605, 175 N.W.2d 57 (1970).

The focus of these criticisms is common. It is recognized that a juror should not be encouraged, requested or required to surrender his conscientious convictions for the purpose of reaching a verdict. It is urged that the Allen instruction weakens or minimizes this principle by placing a premium on reaching a verdict. In particular, a growing body of opinion regards the typical use of 'majority-minority' language as perhaps the most offensive, inherent defect of Allen-type charges. In Note, Due Process, Judicial Economy and the Hung Jury: A Reexamination of the Allen Charge, 53 Va.L.Rev. 123, 143 (1967), it was observed that:

'Although the language of the Allen charge contains a reminder that the jurors should vote only for a verdict with which they conscientiously agree, it may easily influence a minority juror to acquiesce in the majority vote. The charge is expressly directed at the minority jurors. They are importuned to reconsider their decision with a disposition to being convinced and told of their duty to decide the case if they can conscientiously do so. The emphasis of the charge is upon reaching a verdict, not upon voting one's conscientious convictions, and it hardly seems unreasonable that the jury, already frustrated by its inability to agree, will attach such a...