Lewis v. State, 781S201

• Decision Date: 31 July 1981
• Docket Number: No. 781S201,781S201
• Citation: 424 N.E.2d 107
• Parties: Tony Monroe LEWIS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 107

424 N.E.2d 107

Tony Monroe LEWIS, Appellant, v. STATE of Indiana, Appellee.

No. 781S201.

Supreme Court of Indiana.

July 31, 1981.

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 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 orally qualified, modified, or in any manner orally explained to the jury by the trial judge. Ind.Code § 35-1-35-1 (Burns 1975). Instructions given to the jury should be considered and construed as an entirety. Bowers v. State, (1925) 196 Ind. 4, 146 N.E. 818. Thus, by calling back the jury during deliberations, and emphasizing a particular instruction or a particular aspect of the case, the trial court commits reversible error. See Brannum v. State, (1977) Ind., 366 N.E.2d 1180, 184-85, and cases cited therein."

Attempts to revise and construct an "Allen"-type charge that would give the hoped-for aid to the jury and yet not make the cure worse than the disease by improperly influencing the jury, have created problems through the years in all jurisdictions. The Court of Appeals here, in Lewis followed many jurisdictions in this country in directing that when a trial judge faces an apparently deadlocked jury it follow the procedure set forth in United States v. Silvern (7th Cir. 1973) 484 F.2d 879. That procedure limited the giving of any supplemental instruction to an instruction based on the American Bar Association Standards for Criminal Justice and emphasized that this instruction be given as a supplementary instruction only if it had been given prior to the time the jury retired.

The American Bar Association Standard is:

"(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 or herself but only after an impartial consideration of the evidence with the other jurors;

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

(v) that no juror should surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of other 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 paragraph (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."

American Bar Ass'n Project on Minimum Standards for Criminal Justice, Stds. Relating to Trial By Jury § 5.4 at 145-46, (1969 Edition). (Standard 15-4.4 at 133, 1980 Edition).

The American Bar Association Standards further suggest Instruction 8.11 of Jury Instructions and Forms for Federal Criminal Cases, 27 F.R.D. 39, 97-98 (1961) as a charge that is consistent with these standards. That instruction reads as follows:

"The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.

It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial...