Edlin v. State
| Decision Date | 09 March 1988 |
| Docket Number | No. 57562,57562 |
| Citation | 523 So.2d 42 |
| Parties | John Wayne EDLIN v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Guy M. Walker, Laurel, for appellant.
Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, P.J., and SULLIVAN and ZUCCARO, JJ.
John Wayne Edlin was convicted of the murder of Paula Diane Sims and sentenced to life imprisonment by the Circuit Court of Jones County, Mississippi. Edlin appeals assigning seven alleged errors by the trial court.
The jury retired at 3:30 p.m., to commence their deliberations and at 8:25 p.m., was brought into the courtroom where the foreman informed the trial judge that the jury was still divided, and had been so divided for "a little over two hours." All but one juror indicated that additional time might enable them to reach a verdict.
The judge then charged the jury as follows:
All right. Under those circumstances, I believe I will let you continue to deliberate then.
At approximately 8:52 p.m. the jury reported that they had reached a verdict. After being polled, the jury was discharged.
On October 17, 1985, at a hearing on Edlin's motion for new trial Edna Pippen, one of the bailiffs, testified as follows:
A. Both doors were shut, and I opened the front door, and that's where he knocked. I asked him had they reached a verdict and he said no, and he told me all about them being hung.
Q. What did he tell you about that?
A. He just told me, he said, "We are hung."
Q. All right.
A. He said, "There are two that says they are not going to change their minds."
Q. All right.
A. And then I went to the Judge and told him what he said, and he told me to go back in there and tell them that we had put too much work and time on this case and for them to try again, and that's what I told him.
Q. And the jury was never called out of the room?
A. Oh, no. I just talked to Mr. Harrington, and he talked loud enough that the people on the front row there heard it because my daughter was sitting there and she heard it.
* * *
* * *
Q. Mrs. Pippen, let me ask you something.
A. Yes, sir, I am sorry.
Q. Did I understand you to say that the Court told you to tell the jury that we had spent too much time on this trial and for them to continue to deliberate?
Is that what you said?
A. I told them that--I understood you to say that we had spent a lot of time--not too much--but a lot of time on this case and for them to try again--go back and deliberate some more--work on it some more.
Q. All right.
The record clearly shows that the bailiff told the foreman of the jury that "the judge said we had put too much time and work on this case...." The State's contention that it cannot be said that the court so instructed the jury is incorrect; as this Court said in Allen v. State, 172 Miss. 472, 159 So. 533 (1935):
It is immaterial whether the judge in the case at bar made the statement as testified to by the bailiff, since it was communicated to the jury as coming from him, and had some effect on them.
Allen, 172 Miss. at 490, 159 So. at 539.
The error complained of by Edlin need never have occurred. In Sharplin v. State, 330 So.2d 591 (Miss.1976), this Court stated:
If the trial judge feels that there is a likelihood that the jury might reach a verdict, he may return the jury for further deliberations by simply stating to the jurors: "Please continue your deliberations," or he may give the following instruction set forth in the tentative draft of Mississippi Mode Jury Instructions: Criminal, Volume 1, page 50.
I know that it is possible for honest men and women to have honest different opinions about the facts of a case, but, if it is possible to reconcile your differences of opinion and decide this case, then you should do so.
Accordingly, I remind you that the court originally instructed you that the verdict of the jury must represent the considered judgment of each juror. It is your duty as jurors to consult with one another and to deliberate in view of reaching agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous, but do not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Please continue your deliberations.
We approve the foregoing instruction. It may be given in either criminal or civil cases when the trial judge is confronted by a hung jury. Following publication of this opinion the "Allen Charge" in any of its various forms should not be given. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). (Footnotes omitted).
There are two instructions which properly may be given to a deadlocked jury. Neither of these instructions inform the jury that "too much work and time has gone into this case." The procedure set out in Sharplin v. State, 330 So.2d 591, 596 (Miss.1976), has been approved by this Court on numerous instances. See Wright v. State, 512 So.2d 679, 682 (Miss.1987); Gearlson v. State, 482 So.2d 1141, 1143 (Miss.1986); Isom v. State, 481 So.2d 820, 822 (Miss.1985); Blanks v. State, 451 So.2d 775, 778 (Miss.1984); Murphy v. State, 426 So.2d 786, 791 (Miss.1983). The trial judge in this case departed from the unambiguous procedure outlined in Sharplin and this departure constitutes reversible error.
The message which the bailiff gave to the jurors exerts the same pernicious influence as the Allen charge, which this Court has repeatedly condemned.
The judge's message to the jury also violated Rule 5.03, Uniform Criminal Rules of Circuit Court Practice which provides in part:
The circuit judge may instruct the jury. His instructions shall be in writing and shall be submitted to the attorneys who shall, in accordance with this rule dictate their specific objections into the record.
Rule 5.03, Uniform Criminal Rules of Circuit Court Practice.
This case is an example of the confusion and misunderstanding which is likely to be engendered when a trial judge attempts to instruct a jury orally through a bailiff. The record reflects that neither the defendant nor his attorneys were present when the trial judge gave this message to the bailiff. It is a matter of fundamental fairness and due process that the defendant is entitled to be apprised of communications between the court and the jury during deliberations. The defendant is also entitled to be represented by counsel during this very important procedure. As it directly affects the purity of the verdict, the error complained of here is presumptively prejudicial; indeed some cases hold the presumption to be irrebuttable. In Collins v. State, 99 Miss. 47, 54 So. 665 (1910), we addressed the issue of a tainted jury and stated:
All the authorities hold that, if they [the jurors] were exposed to improper influences, which might have produced the verdict, the presumption of law is against its purity; and testimony will not be heard to rebut this presumption. It is a conclusive presumption.
Collins, 99 Miss. at 51, 54 So. at 666.
Some mention need be made of the State's contention that the fact that the jury deliberated for approximately three and a half hours after receiving the bailiff's message demonstrates that the remark did not have a coercive effect upon the jurors. The length of subsequent deliberations is often mentioned when addressing assignments such as these but subsequent deliberations alone cannot remove the taint which an improper communication injects into a jury's verdict. In Allen, supra, the improper message was given to the jury at approximately 12:00 noon. The verdict which was delivered the next morning was reversed because of the coercive effect of the prior day's communication. Allen, 172 Miss. at 490-91, 159 So. at 539. Allen relied on an earlier case that reversed a verdict which was reached three days after the jurors were told they would be kept for a week until they could reach a verdict. Lewis v. State, 109 Miss. 586, 68 So. 785 (1915). Subsequent deliberation of the jury does not demonstrate that the improper message had no coercive effect. The improper message, however stale, was fresher than the evidence.
The bailiff's message, clothed with the authority of the court and coupled with the charge to continue deliberating constitutes reversible error.
At about 8:25 p.m., the trial judge, whom the jury understood to be concerned about the amount of work and time which had gone into this case, questioned the jurors in open court about whether additional time would be helpful. Eleven of the jurors indicated that additional time might possibly enable them to reach a verdict. The trial judge said,
This charge is almost identical to the "please continue your deliberations" charge explicitly approved in Sharplin. This simple charge, although not improper in itself, did nothing to remove the taint of the previous impermissible message delivered by the bailiff and may have in fact emphasized that message. The guidelines of Sharplin and Rule 5.03, Uniform Criminal Rules of Circuit Court Practice, are there for a purpose. These issues arise in cases in which the jury is slow to agree. Anxious for the guidance that they request, jurors are especially likely to rely on supplemental communications thus magnifying the...
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