Kelly v. State

• Decision Date: 05 January 1973
• Docket Number: No. 253,253
• Parties: Christopher Columbus KELLY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 533

16 Md.App. 533

298 A.2d 470

Christopher Columbus KELLY v. STATE of Maryland.

No. 253.

Court of Special Appeals of Maryland.

Jan. 5, 1973.

Michael E. Kaminkow, Baltimore, for appellant.

David B. Allen, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., for Baltimore City and Michael Libowitz, Asst. State's Atty., for Baltimore City, on the brief, for appellee.

Argued before MORTON, GILBERT, MENCHINE and DAVIDSON, JJ.

GILBERT, Judge.

In this appeal from the Criminal Court of Baltimore by Christopher Columbus Kelly, we are called upon to explore the subject of an Allen type charge ¹ given to the jury during the trial judge's initial advisory instructions.

Appellant was convicted of the crime of manslaughter ² by a jury presided over by Judge Solomon Liss, and was entered to a term of ten years imprisonment. Here, the appellant attacks the judgment of conviction in a trifurcated manner, namely: (1) the prosecutorial demeanor of the trial judge; (2) the Allen type charge embodied in the original advisory jury instructions, and (3) the sufficiency of the evidence.

The evidence disclosed that John D. Cook was shot and killed on the night of August 24, 1971. The sole witness to the slaying, Thelma Jean Banks, testified that she and Cook were in bed together at approximately 12:25 a. m. when the door bell rang. At Miss Banks's request, Cook went to see who was at the door. Shortly thereafter the appellant Kelly stuck his head throught the bedroom doorway and said to Miss Banks, 'Oh, you're in bed, huh?' Miss Banks made no response to the appellant, although she admitted that she had been 'seeing' him on occasion. Appellant withdrew and went back into the hallway leading to the door. Miss Banks then heard the appellant direct an exclamation to the decedent, followed by three shots. The decedent 'stumbled' back to the bedroom where he collapsed and expired. Swab samples were taken of the hands of the appellant and Miss Banks in order for a neutron activation analysis to be made by the Alcohol, Tobacco, and Firearms Division of the United States Treasury Department. The test was negative as to Miss Banks, but positive as to the appellant. ³ Appellant endeavored to explain the presence of the barium and antimony on his hands through his testimony that he was employed as a welder and that as such he frequently worked with materials that were composed in part of both barium and antimony. He admitted, however, that he wore gloves while he was welding. The gloves, which had also been analyzed, contained no traces of barium and insignificant amounts of antimony. Appellant introduced three alibi witnesses, all of whom stated that the appellant was with them on the night of the shooting from approximately 9:00 p. m. August 23, 1971 until 3:30 a. m. August 24, 1971.

At the conclusion of the testimony, Judge Liss granted the appellant's motion for judgment of acquittal as to first degree murder and submitted the matter to the jury with instructions as to the remaining possible verdicts.

At oral argument before this Court, counsel for the appellant focused the thrust of his attack on the Allen charge. We shall, therefore, consider that issue first.

During the course of Judge Liss's advisory instructions to the jury, he said:

'May I say to you when you retire to consider this case it may well be that there will be a difference of opinion between you. If that is so, that is not something to be concerned about because obviously when there are three days of testimony it's not unlikely that there may be some difference. What I ask you to do is for each of you to consult with each other, to consider the testimony as it has been given. In those instances where you cannot conscientiously agree with the majority, then you should maintain your own position. On the other hand you should not out of stubbornness refuse to alter your position, whether it is for innocence or guilt merely because you are not willing to listen to the arguments of the other jurors. There must be some give and take between you. There must be some understanding between you and it is up to you to determine for yourselves whether or not you can conscientiously agree as to what the verdict should be in this case. It makes no difference whether you originally start out in the minority or the majority. In every case you are the final arbiters of your own conscience and you must decide whether or not you can agree to reach a verdict in this case.'

Appellant's counsel excepted to the Allen type charge on the ground that it was improper to give such a charge prior to any jury deliberation. Appellant's major attack in this Court falls on the use of the words 'majority' and 'minority.' Appellant states that his 'right to a fair and impartial jury trial should not be taken away by a Trial Judge who at the time of his charge to the jury before deliberation indicates to the jurors that there will be majority and minority opinions and that the minority should be swayed by the majority.' The charge ruled on in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), included reference to a majority and a minority. Appellant, to support his argument, draws heavily upon an article entitled The Allen Charge Dilemma, 10 Am.Crim.L.Rev. 637 (1972), wherein it is suggested, 'Allen is dead,' ⁴ its precedential value dubious and that it should be jettisoned in favor of the ABA Minimum Standards for Criminal Justice, 'Standards Relating to Trial by Jury,' § 5.4, Approved Draft, 1968. The recommendation of the American Bar Association is:

'Nor do we circulate the 'Allen charge' to the new judges as I used to do when heading up the criminal division of the Department of Justice. Allen is dead and we do not believe in dead law.' Clark, Progress of Project on Effective Justice-a Report on the Joint Committee, 47 J.Am.Jud.Soc'y 88, 90 (1963).

'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.'

One of the difficulties that has arisen since the Supreme Court approved the jury charge in Allen v. United States, supra, is that divers courts and judges have endeavored to 'improve' upon the Allen charge or to add their personal touch to it. Much appellate litigation has resulted from the attempted improvement on Allen. ⁵

'Since the constitutionality of a properly framed Allen charge uniformly has been upheld by the courts, most appeals have been based upon the trial judge's additions to or deletions from the approved instruction.' 25 Vand.L.Rev. 246, 251 (1972).

Supposedly, the American Bar Association's model instruction will preclude the utilization of the personal touch with the Allen charge. We fail to comprehend the reasonin behind such a belief. As Judge Robb notes in his dissent in United States v. Thomas, ⁶ 146 U.S.App.D.C. 101, 449 F.2d 1177 (1971) at 1192:

'* * * (I)f * * * district judges have strayed from the litany approved by the Supreme Court I think it reasonable to assume that they may also deviate from the formula rescribed by the Bar Association. If they hear not the Supreme Court and this court neither will the be persuaded by the Bar Association; and, contrary to the hopes of the majority, the 'aberrations of the charge' which disturb the majority will still occur.' ⁷

We observe little support for Mr. Justice Clark's assertion that 'Allen is dead.' On the contrary, Allen is alive and well in many jurisdictions ⁸ including Maryland ⁹ and the Fourth Circuit. ¹⁰ Although some states have suggested the use of the ABA standards, ¹¹ only a minority of jurisdictions have totally disallowed Allen. ¹²

That Allen was decided in 1896 does not make it lacking in precedential value. We note that the Supreme Court again approved Allen in Burton v. United States, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482 (1905), and in a per curiam opinion, Lias v. United States, 284 U.S. 584, 52 S.Ct. 128, 76 L.Ed. 505 (1931). Additionally, the Supreme Court has consistently denied certiorari in other cases which have presented Allen charge questions. ¹³

There is a growing belief that the present Supreme Court would reject Allen. Am.Crim.L.Rev., supra, at 665; Thaggard v. United States, 354 F.2d 735, 739 (5th Cir. 1965) (Coleman, J., concurring), cert. denied 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966). We do not share that belief, and we shall continue to follow Allen until such time as the Supreme Court of the United States or the Court of Appeals of Maryland says that it is improper to do so. We so hold, not because of any misguided concept of stare decisis, but because we believe in the fundamental soundness of the Allen...