Ex parte Morris

• Citation: 465 So.2d 1180
• Parties: 24 Ed. Law Rep. 587 Ex parte Betty MORRIS. (Re: Betty Morris v. State of Alabama). 83-1355.
• Decision Date: 11 January 1985
• Court: Alabama Supreme Court

Page 1180

465 So.2d 1180

24 Ed. Law Rep. 587

Ex parte Betty MORRIS.

(Re: Betty Morris v. State of Alabama).

83-1355.

Supreme Court of Alabama.

Jan. 11, 1985.

Paul M. Harden, Monroeville, for petitioner.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for respondent.

JONES, Justice.

We granted certiorari on the single issue of whether the trial judge's jury instructions amounted to coercion of a verdict.

Petitioner Morris was indicted, by separate indictments, on several charges of embezzlement. After trial on the first indictment, she was acquitted. After a jury trial on the second indictment, however, she was found guilty and sentenced to two years in the state penitentiary. That judgment was affirmed by the Court of Criminal Appeals, Morris v. State, 465 So.2d 1173 (Ala.Cr.App.1984), which found, specifically, that the trial court had not coerced a verdict from the jury.

The events upon which Petitioner bases her claim that the trial court coerced the jury's verdict are as follows:

After a jury trial before the Honorable Robert E.L. Key, Judge of the Circuit Court of Conecuh County, Alabama, the jury retired to begin deliberations on Wednesday, September 29, 1982, at 10:00 A.M. The trial judge, in the presence of the Petitioner, Petitioner's attorney, and the District attorney, addressed the jury:

"I received a message shortly before dinner in which the jury said they were deadlocked which I chose not to mention when I let you go to dinner but I did receive it. I have now received another note through the bailiff saying you are still deadlocked. Let me say this to you: You have heard this case from start to finish and you know as much about it as any twelve people we could put in the jury box. The question as to how long you can deliberate is left to the Court and in my opinion you haven't deliberated long enough in this case."

During that meeting, a juror asked the following question:

"JUROR: Are we here to decide whether she got the money from this check or whether she stole the money? There is proof enough that she got the money.

"THE COURT: The question in this case is whether or not she obtained the money, having at that time the fraudulent intent to convert it to her own use. That is the question right there and you must decide that from all the evidence in this case. Is that a fair answer to your question?

"JUROR: Yes, sir, but I don't think this is enough evidence.

"THE COURT: That is your prerogative...."

Thereafter, the jurors retired to the jury room for further deliberations. At 3:35 P.M. the jury asked to meet with the court again, and the following transpired:

"THE COURT: Ladies and gentlemen, I have got a note saying that you can't agree. I want to say this to you and I don't want to come across in the wrong way but you need to get down to business in this thing because I'm not about to declare a mistrial in this case today.

"A JUROR: Judge Key, I'm the hold-up and if I stay down here until 5:00 o'clock, I'll have to tell a lie....

"THE COURT: We're not talking about 5:00 o'clock this afternoon. I mean 5:00 o'clock Friday afternoon because I mean business about this thing."

At 5:43 P.M. the jury had not reached a verdict and Judge Key addressed the jurors:

"THE COURT: Ladies and gentlemen, it's my understanding that you have been unable, up to this point, to reach a verdict in this case. I certainly don't want to detain you any longer today. I know that we have been here since 8:00 o'clock this morning and I know that some of you were like I was--up before daylight this morning to be able to get here at 8:00 o'clock. You have given your full day and more to the State of Alabama today. Let me say this to the jury: I think that after you go home and have your breakfast in the morning, you will return here refreshed and hopefully in a position to sit down and discuss this matter and give credit to one another's opinion. I would never tell any juror that they should sacrifice any principle which they feel that they are bound to but on the other hand, sometimes we get on a principle one way or the other and we discover after looking at it different ways that perhaps we might not have been right in the position we took.... These are grave matters and they deserve, I think, a decision with all deliberate speed. That's a relative term and I want to let you have an abundant time within which to further deliberate the affairs of this case. With that admonition--had you rather come back at 8:00 or had you rather come back at 9:00 in the morning?"

After the jurors had left the courtroom, counsel for Petitioner moved for a mistrial on the ground that the jury was deadlocked. Judge Key replied:

"THE COURT: It's pretty obvious to me they haven't reached a verdict because they haven't come in with one so I take it there is some one way and some the other--that being the case--and in my opinion they haven't deliberated yet half as long as they may have to deliberate. I'm going to get a verdict in this case. It will be good for you and your client and for the State of Alabama and everybody else. Suppose I entertained your motion to declare a mistrial? We have got to go back right through it. I presume you charge your client every time we come to court so it's just up to you about that but I'm not going to grant a mistrial at this time. I'm not even considering it. I'll tell you that right now."

The next morning, Thursday, September 30, 1982, at 9:23 A.M., the following took place:

"THE COURT: Miss Gladwell, ladies and gentlemen of the jury, have you reached a verdict?

"JURY FOREMAN MAE GLADWELL: We have, Your Honor.

"THE COURT: 'We, the jury, find the defendant guilty as charged in the indictment.' Signed Elsie Mae Gladwell, Foreman.

"MR. HARDEN: Judge, we would like to have the jury polled.

"THE COURT: All right, sir, is this your verdict?

"A JUROR: Yes, sir.

"THE COURT: Is this your verdict?

"Yes, sir.

"THE COURT: Is this your verdict?

"A JUROR: Judge, to tell you the truth, no.

"THE COURT: All right, sir. That being the case, I think you need to continue your deliberations. As I told you earlier, I will be back here at 5:00 o'clock this afternoon. I have a meeting that I have to attend but I will be back here by 5:00 o'clock."

At this point, counsel for Petitioner again moved for a mistrial, stating as his grounds that the foregoing amounted to coercion. The motion was overruled and the jury retired again for further deliberations. The trial transcript reveals that "[a]t 11:20 A.M. the jury having reported that they had arrived at a verdict, Honorable James B. Watson, District Judge and Special Circuit Judge so designated by Judge Key to receive the verdict, came to Evergreen, the jury was called to the courtroom and in the presence of the defendant, her attorney and the district attorney [reported its verdict of guilty]." Each juror answered in the affirmative Judge Watson's question, "Is this your verdict?" Counsel for Petitioner renewed his motion for mistrial.

Petitioner urges this Court to take the initiative to "hereby overrule those controlling cases in Alabama which allow the use of the 'Allen charge.' " This we refuse to do. The admonitions of this charge are as valid today as when Allen was decided in 1896:

"While, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury-room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury-room with a blind determination that the verdict shall represent his opinion of the case at that moment; or, that he should close his ears to the arguments of men who are equally honest and intelligent as himself." Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896).

Indeed, "[i]t is quite clear that under Alabama law a trial judge may urge a jury to resume deliberations and cultivate a spirit...