Lewis v. State, 2-1279A381

Decision Date25 September 1980
Docket NumberNo. 2-1279A381,2-1279A381
Citation409 N.E.2d 1276
PartiesTony Monroe LEWIS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

M. Anne Wilcox, Ralph Ogden, J. William DuMond, Wilcox, Ogden & DuMond, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Frank A. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Presiding Judge.

Tony Monroe Lewis appeals his conviction of burglary urging that the trial court erred in the following respects.

(1) Denying his motion for continuance;

(2) Giving a so-called "Allen" charge;

(3) Overruling his motion for dismissal at the close of the State's evidence;

(4) Entering a judgment for burglary, a Class B felony.

Because of our disposition of this matter it is only necessary to discuss the second issue raised by appellant. Appellant contends that the trial court's giving of an Allen charge was error and in violation of his rights to a fair and impartial trial by jury as guaranteed by the Sixth Amendment of the United States Constitution. The argument by appellant is similar to that made in the many cases, both state and federal, where the issue has been raised, namely, that such an instruction is coercive in that it unduly emphasizes the importance of reaching a verdict and is a forbidden judicial commentary upon the evidence.

Here, after the jury heard arguments and final instructions, they went to dinner at 5:45 p. m. under instruction to return within an hour to commence their deliberations. We assume they did so, although the record is not clear. At 10:50 p. m., the jury returned into open court and reported that it was unable to reach a verdict. 1 "Further instructions" were requested. 2 Over objection of defense counsel the following instruction was given:

This is an important case, to all parties involved, and 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.

There is no reason to believe that the case can be tried again any better or more exhaustively than it has been. There is no reason to believe that more evidence or clearer evidence would be produced on behalf of either side.

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 others (sic) 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.

Twenty minutes later, the jury reported that it had reached a verdict.

The propriety of this instruction was discussed recently in Guffey v. State, (1979) Ind.App., 386 N.E.2d 692 and, although the giving of the instruction was held not to be reversible error, it was not without criticism. "The second paragraph dangerously approaches commenting on the evidence and the conduct of the trial and we do not recommend its use." 386 N.E.2d at 698. The criticism of this type of instruction is that by its use the judge compels the jury to reach a verdict when it might otherwise not do so and thus denies the parties a fair trial. We agree with this additional criticism and hold that the continued use of this type of instruction is improper and should be discontinued.

Since deliberation of the jury is secret, it is impossible for any court, trial or appellate, to determine with any reasonable degree of accuracy what effect such an instruction may have on any jury. Any point made in the instruction might have the effect of persuading any of the jurors to reach a certain result. The relationship between the trial judge and the jury by its nature places the former in a uniquely dominating position. When the jury is deliberating, the role of the trial judge is most important. The jury is in the process of fact-finding. If frustrated in that process, it looks for direction. In providing guidance at this stage to the jury, the trial judge must, in light of his responsibility to ensure that the defendant obtain a fair trial, guard against improperly or unduly influencing the jury. Yet, there has to be a...

To continue reading

Request your trial
7 cases
  • Bailey v. State, 49S00-9509-CR-01046
    • United States
    • Supreme Court of Indiana
    • August 7, 1996
    ...Appeals rejected the use of all forms of the traditional Allen charge, advocating instead the use of the ABA standard. Lewis v. State, 409 N.E.2d 1276 (Ind.Ct.App.1980), vacated, 424 N.E.2d 107 In 1981, our court granted transfer and vacated the Court of Appeals decision in Lewis, disapprov......
  • Indiana State Highway Commission v. Vanderbur
    • United States
    • Court of Appeals of Indiana
    • March 16, 1982
    ...and opinion vacated, Ind., 426 N.E.2d 1314. However, the Fourth District of this court had taken a contrary view in Lewis v. State, (1980) Ind.App., 409 N.E.2d 1276, transfer granted and opinion vacated, Ind., 424 N.E.2d 107, and held that any verdict- urging instruction submitted to a dead......
  • Parker v. State
    • United States
    • Court of Appeals of Indiana
    • July 30, 1981
    ...of the typical Allen instruction at different times but it was the basis of reversal in the Fourth District opinion in Lewis v. State, (1980) Ind.App., 409 N.E.2d 1276 (transfer pending). The problem faced by Parker in this case is her failure to object to the instruction and thus a waiver ......
  • Lewis v. State, 781S201
    • United States
    • Supreme Court of Indiana
    • July 31, 1981
    ...right to a fair and impartial trial by jury as guaranteed by the Sixth Amendment to the United States Constitution. Lewis v. State, (1980) Ind.App., 409 N.E.2d 1276. The propriety of a trial court giving the "Allen" type charge has been an issue that has continued to frustrate the trial and......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT