Lewis v. State, No. 781S201

• Docket Nº: No. 781S201
• Citation: 424 N.E.2d 107
• Case Date: July 31, 1981
• Court: Supreme Court of Indiana

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424 N.E.2d 107 Tony Monroe LEWIS, Appellant,
v.
STATE of Indiana, Appellee. No. 781S201. Supreme Court of Indiana. July 31, 1981.

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M. Anne Wilcox, Ralph Ogden, John W. DuMond, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Frank A. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

This cause comes to us on the State's petition to Transfer from the Fourth District Court of Appeals. Defendant-Appellant Tony Monroe Lewis was convicted of burglary and theft in Marion Criminal Court. One of the issues raised on appeal was the giving by the trial court of a supplemental "Allen charge" to the jury after the jury had indicated they were having difficulty arriving at a verdict. The Court of Appeals found that giving this charge constituted reversible error, in that it violated Lewis' 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 appellate courts of this State, as well as those of the federal and state courts of all other jurisdictions. For this reason and in view of the State's claim that an apparent conflict exists between the Lewis decision and a prior decision of the Court of Appeals, First District, in Guffey v. State, (1979) Ind.App., 386 N.E.2d 692, we feel obligated to write on this subject. Accordingly, we grant transfer and vacate the opinion of the Court of Appeals.

I.

The "Allen charge," a designation given to a supplemental charge given by a trial judge to an apparently deadlocked jury, is named after the first major case which considered such a charge, Allen v. United States, (1896) 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528. Although the content of these instructions has varied throughout the years from the substance of the instruction considered in Allen v. United States, they are still referred to generally as the "Allen charge." Significantly, Lewis has cited us no case, including the Allen case itself, in which a court has found that the language used in the typical "Allen charge" constituted a per se violation of the defendant's Sixth Amendment rights.

The question involved is whether the trial judge abused his discretion by unduly commenting on, or giving emphasis to, certain matters of evidence by mandating a jury to act and deliberate in a certain manner or by intimidating the minority jurors into voting with the majority in order to reach a conclusion of the case, even though they might feel inclined to decide the case otherwise.

An instruction identical to the charge given in the case before us was considered by the First District Court of Appeals in Guffey v. State, (1979) Ind.App., 386 N.E.2d 692. Although the Court of Appeals in the Guffey case cautioned trial judges as to the use of certain portions of the instruction, the Court further found that the giving of the instruction was not reversible error.

The Guffey court noted that courts and commentators have found the greatest potential harm in "Allen" type instructions was that they contain an appeal to the jurors holding the minority position to reconsider their viewpoint in light of the majority's stance. The Court of Appeals, in Guffey, recognized that such an appeal was not included in the instruction in question there. Likewise, no such appeal is contained in the instruction we examine here. The Guffey court further found that the language had been refined to the extent that the evils found in the original "Allen" charge were not found in the charge in question there:

"The instruction at issue does contain elements not found in the original Allen charge and we must therefore carefully examine them. The original Allen charge, as paraphrased, stated that it was the jury's 'duty to decide the case if they

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could conscientiously do so.' This language has, on occasion, been turned into a mandate by trial court judges to the jury to decide the case or has led to language that the case must be decided sometime. These embellishments have been criticized as inaccurate; the case does not have to be decided or retried. The case can end in a hung jury and the prosecutor can decline to retry the case. The language used here that the case must be 'disposed of sometime' has been approved, but the trial court here added, 'Another trial would be a heavy burden on both sides.' This implication of another trial does not, in our view, rise to the level of a mandate to decide or a statement that the case will be retried and thus is not a misstatement of the law.

The second paragraph of the instruction dangerously approaches commenting on the evidence and the conduct of the trial and we do not recommend its use. It is, however, of such a general nature that we conclude it is not reversible error. We note that in United States v. Brown (7th Cir. 1969), 411 F.2d 930, the court found such a statement in an Allen charge did not violate sixth amendment constitutional rights."

Guffey v. State, (1979) Ind.App., 386 N.E.2d 692 at 697-98.

The second paragraph of the instruction read as follows:

"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."

Guffey, supra, Ind.App., 386 N.E.2d 692, 695.

We agree with the Court of Appeals that even though the second paragraph of the instruction is of a general nature, it still dangerously approaches commenting on the evidence and the conduct of the trial. A trial judge, of necessity, must have some flexibility in his discretionary authority and responsibility to preside over the trial. However, that discretion must be exercised in such a manner that he does not step over the bounds that limit him in the proper conduct of a trial. He must refrain from imposing himself and his opinions on the jury. Brannum v. State, (1977) Ind., 366 N.E.2d 1180; Kennedy v. State, (1972) 258 Ind. 211, 280 N.E.2d 611.

In Cameron v. State, (1979) Ind., 383 N.E.2d 1039, 1041, which involved a consideration by this court of a trial judge's lengthy dialogue with a jury concerning an insanity instruction this court stated:

"The law is clear that final instructions are not to be...