Crowdus v. State
| Decision Date | 05 March 1982 |
| Docket Number | No. 381S56,381S56 |
| Citation | 431 N.E.2d 796 |
| Parties | Jesse CROWDUS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Christopher C. Zoeller, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted of Count I, Possession of Cocaine, a Class D Felony, as a lesser included offense of the charge of Delivery of Cocaine, Ind.Code § 35-48-4-1(1) (Burns Supp.1981), and Count II, Delivery of Cocaine, a Class B Felony, Ind.Code § 35-48-4-1(1) (Burns Supp.1981). He was sentenced to two (2) years imprisonment upon Count I and eleven (11) years imprisonment upon Count II, such sentences to run concurrently. This direct appeal presents four issues, one of which requires us to reverse and remand for a new trial.
After the jurors had deliberated for almost two hours, they requested that the trial court give them an instruction on entrapment and inform them of what would happen if they could not reach a unanimous decision. Over Defendant's timely objection, the trial court gave the following additional instructions:
SUPPLEMENTAL INSTRUCTION NO. A
The Court has heretofore defined entrapment in the Final Instructions. That Instruction reads as follows:
Under the law of the State of Indiana, it is a defense that:
(1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and (2) the person was not predisposed to commit the offense. Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.
Any verdict reached as to each count must be unanimous. You are to return one verdict as to each count. If you cannot reach a unanimous verdict there would be a mistrial and what is known as a hung jury.
This, as any case, is an important case. If you should fail to reach a decision, the case is left open and undecided. Like all cases it must be disposed of some time. Another trial would be a heavy burden on both sides.
Also, there is no reason to believe that the case would ever be submitted to twelve people more intelligent or more impartial or more reasonable than you. Any future jury must be selected in the same manner that you were.
These matters are mentioned now because some of them may not have been in your thoughts.
This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
This does mean that you should give respectful consideration to each other's views and talk over any difference of opinion in a spirit of fairness and candor. If at all possible you should resolve any difference and come to a common conclusion so that this case may be completed.
You may be leisurely in your deliberations as the occasion may require and take all the time you feel necessary.
The giving of this instruction at this time in no way means it is more important than any other instruction. On the contrary, you should consider this instruction together with and as a part of the instructions which I previously gave you.
You may now retire and continue your deliberations in such a manner as may be determined by your good judgment as reasonable people. (R. at 84-85).
Supplemental Instruction B is commonly referred to as an Allen charge. Allen v. United States, (1896) 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528. In Lewis v. State, (1981) Ind., 424 N.E.2d 107, we explicitly disapproved the giving of Allen charges and we stated the procedure to follow in responding to any type of problem occasioned by inquiry from the jurors during deliberations:
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