Hoskins v. State, 4534

• Citation: 552 P.2d 342
• Decision Date: 21 July 1976
• Docket Number: No. 4534,4534
• Parties: James HOSKINS, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: United States State Supreme Court of Wyoming

Page 342

552 P.2d 342

James HOSKINS, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4534.

Supreme Court of Wyoming.

July 21, 1976.

Rehearing Denied Sept. 13, 1976. See 553 P.2d 1390.

Gerald M. Gallivan, Director, and Roy Jacobson, Student Intern, Wyoming Defender Aid Program, Laramie, signed the brief and Gerald M. Gallivan, Roy Jacobson and Louis A Mankus, Cheyenne, appeared in oral argument on behalf of appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Donn J. McCall, Legal Intern, Cheyenne, signed the brief and Donn J. McCall and Robert L. Bath, County Atty., Green River, appeared in oral argument on behalf of appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, J., delivered the opinion of the court, in which GUTHRIE, C. J., and THOMAS, J., joined. GUTHRIE, C. J., filed a separate concurring opinion. ROSE, J., filed a dissenting opinion in which McCLINTOCK, J., joined.

The appellant-defendant was tried before a jury on a charge of grand larceny. He was found guilty and sentenced. Amongst the instructions given by the trial judge before the jury's retirement to deliberate was the following:

'In order to return a verdict, each juror must agree thereto. The jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to your individual judgments. Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors. In the course of your deliberations a juror should not hesitate to reexamine his or her own views and change his or her opinion if convinced that it is erroneous. No juror should surrender his honest conviction as to the right or effect of the evidence solely because of the opinion of his or her fellow juror, or for the mere purpose of returning a verdict. However, in the course of your deliberations, a juror should not hesitate to examine his or her own views and change his or her opinion if convinced that it is erroneous.'

After the jury retired and had been out for about six hours, they sent a note to the trial judge, 'We cannot reach a verdict due to lack of evidence.' While the transcript of trial proceedings does not show exactly what occurred immediately following receipt of the note nor the presence of all trial counsel, in an appendix to the State's brief, appears the affidavit of Ms. Nena R. Stafford, ¹ stating that she was present during the entire trial, that regular trial counsel for the defendant, following closing argument, asked her to stand by and appear as counsel for defendant during jury deliberation and their decision, because he was returning to Rawlins, that she was present in chambers when the court was advised of the jury problem and present when the court discussed the matter with them. This will be examined later in this opinion, with other circumstances in that connection.

The trial judge then gave the following instruction to the jury:

'Ladies and gentlemen, it is our understanding that you are having difficulty reaching an agreement. As you know, this is an important case to the defendant and the State. This trial has been expensive even though short. If you fail or are unable to agree, of course, there will be the necessity of choosing another jury, twelve people, no more intelligent than you are, no more impartial, or no more competent. They have (sic) the same responsibility, under the same oath, who (sic) would hear the evidence with the same attention with an equal desire to arrive at the truth.

'You have already been instructed that in order to return a verdict, each juror must agree thereto. The jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to your individual judgments. Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors. In the course of your deliberations a juror should not hesitate to re-examine his or her own views and change his or her opinion if convinced that it is erroneous. However, no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his or her fellow jurors, or for the mere purpose of returning a verdict. The Court requests you to deliberate further in an atmosphere of mutual deference and respect, giving due consideration to the views of your fellow jurors in the knowledge that your verdict must reflect the views of all.

'Your attention is specifically called to all of the other instructions given to you in this case, including those relating to the presumption of innocence, the burden of proof, and the requirement that guilt must be established beyond a reasonable doubt, and the instruction I have just given you is to be considered with all other instructions in this case.

'You have commented that to this point you feel there is a lack of evidence. There is evidence. Please reconsider the evidence in this case. We stand in recess.'

No objection to this instruction appears in the record to have been made before given nor at any time before the jury returned its verdict.

The appellant assigns several errors in the following order and language:

1. 'Whether supplemental instructions given by a trial judge, pursuant to notification by a jury that it is unable to reach a verdict because of a lack of evidence, constitute a deprivation of the accused's right to a fair and impartial trial by jury, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Art. 1, § 10 of the Wyoming Constitution when such instructions:

a. 'are not given with the original jury instructions but are instead given after the jury has entered into deliberation;

b. 'are not reduced to writing in violation of Rules 31 ² of the W.R.Cr.P. and 51 ³ of the W.R.C.P.; and

c. 'are given to the jury in the absence of the accused's counsel in violation of Wyo.Stat., 7-9.2 ⁴

2. 'Whether a comment by a trial judge to a jury that '(t)here is evidence,' incorporated into the Court's supplemental instruction to the jury, constitutes a prejudicial invasion of the province of the jury in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Art. 1, § 10 of the Wyoming Constitution.

3. 'Whether the failure to make a timely objection to prejudicial and erroneous supplemental jury instruction will bar appellate review, where the instructions have impaired the accused's rights to a fair and impartial trial.'

No error relating to the guilt or innocence of the defendant is assigned.

The 1968 Approved Draft of the American Bar Association of Standards Relating to Trial by Jury provides at page 145, as follows:

'5.4 Length of deliberations; deadlocked jury.

'(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:

'(i) that in order to return a verdict, each juror must agree thereto;

'(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;

'(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;

'(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and

'(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.

'(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

'(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.'

That standard, which we approve, does not require any particular language but identifies the significant points to be covered. The instruction given by the trial judge along with all other instructions in the case, at the close of all the evidence, is consistent with that high standard; ⁵ in fact, his instruction used the very language of the standard. ⁶

This court has approved such a type of instruction being given along with other instructions delivered at the close of the evidence. Alcala v. State, Wyo.1971, 487 P.2d 448, 461, cert.den. 405 U.S. 997, 92 S.Ct. 1259, 31 L.Ed.2d 466, reh.den. 406 U.S. 911, 92 S.Ct. 1613, 31 L.Ed.2d 823; Elmer v. State, Wyo.1969, 463 P.2d 14, 21, cert.den. 400 U.S. 845, 91 S.Ct. 90, 27 L.Ed.2d 82. The defendant does not complain about the instruction being given along with all other instructions. His claimed error is that after it appeared that the jury might be deadlocked, the trial judge not only repeated the essence, if not the exact text, of his initial instruction but included the following language:

'* * * As you know, this is an important case to the defendant and the state. This trial has been expensive even though short. If you fail or are unable to agree, of course, there will be the necessity of choosing another jury, twelve people, no more intelligent than you are, no more impartial, or no more competent. They have (sic) the same responsibility, under the same oath, who (sic) would hear the evidence with the same attention with an equal desire to arrive at the truth.

'* * * The Court requests you to deliberate further in an atmosphere of mutual deference and respect, giving due consideration to the views of your fellow jurors in the knowledge...