McGilberry v. State

• Decision Date: 28 July 1987
• Docket Number: 1 Div. 471
• Citation: 516 So.2d 907
• Parties: Glenn McGILBERRY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 907

516 So.2d 907

Glenn McGILBERRY v. STATE.

1 Div. 471.

Court of Criminal Appeals of Alabama.

July 28, 1987.

Rehearing Denied Sept. 8, 1987.

Certiorari Denied Nov. 20, 1987

Alabama Supreme Court 86-1616.

Ian Gaston of Gaston & Gaston, Mobile, for appellant.

Don Siegelman, Atty. Gen., and Rosa Davis, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, Glenn McGilberry, was convicted of sexual abuse in the first degree, in violation of § 13A-6-66, Code of Alabama (1975), and sentenced to a term of two years; he was to serve twelve months in the Mobile County Jail, with the balance of the sentence suspended for a five-year period.

I

The appellant argues that the trial court's administering of an Allen charge to the jury under the circumstances of this case was impermissibly coercive. The record indicates that on December 15, 1986, the jury began deliberations at 4:15 p.m. At 5:05 p.m., the jury had not yet reached a verdict and the trial court declared a recess until the following morning. The jury continued deliberations at 9:00 a.m. on December 16, 1986. At 10:50 a.m., the foreman informed the trial court that the jury was unable to reach a unanimous decision. The trial court gave the following charge:

"Well, have a seat. Let me talk with you all about that. And let me say this to you all up front: That we are not going to keep any of you here. We are not going to keep you here to irritate you or to put you under pressure. We are not going to do that. But I want to discuss with you the significance of failing to reach a verdict. When you all were impanelled, I was quite excited about the composition of the jury because you look like an excellent jury. During the course of the trial, you proved to be an excellent jury.... You all have invested a day, a little bit more than a day in this case and have done it well. If we have to re-try this case, I don't know that I could get a jury as fine as this one. And if we don't get a jury as fine as this one, then the product of the deliberations would not be as fair and the product of the deliberations that you all can perform in this case. And the wonderful work that you have done so far would be wasted, I mean utterly wasted. That would be a real shame. That would be kind of a blow to the parties in this case and a blow to our system of trying to resolve conflicts by having a trial of impartial people. Now, I am going to talk to you a little bit about unanimous verdicts. As I have said, your verdict does have to be unanimous and I don't want for anything that I say in this case to detract from the law which is that for you to find the defendant guilty, each and every one of you must be convinced beyond a reasonable doubt and to a moral certainty of his guilt. That is true. And, likewise, to find him not guilty each and every one of you must harbor a reasonable doubt as to his guilt. That is true. But when we speak of proof beyond a reasonable doubt and when we speak of reasonable doubt, we mean not doubt on a personal--We mean not your being convinced or your harboring a doubt on a--measured by a personal standard, but rather measured by an objective standard. In other words, when you are trying to determine whether you harbor a doubt or whether you are convinced beyond a reasonable doubt, the question is not really your personal leanings or predilections. Its how would a fair and reasonable person view the evidence.... But remember that none of us are here--that none of you are hearing this case or trying this case really because you want to except insofar as you want to do your duty to your community. You are hearing this case because we have to hear the case and the judgment you make is not going to be a happy thing either way. Either way, one side or another is going to be bitterly disappointed and they will either be--One side or the other will either be bitterly disappointed by your verdict or we will have to retry this case with another jury, possibly not nearly as wise and attentive as this one. And then they will have to be bitterly disappointed at that point. One side is going to--the complaining witness's side or the defendant's side--one or the other will win, one or the other will lose. So it's not as if there is going to be an outcome that's happy for everybody at any point in these proceedings. I am going to--I will ask you if you can do it, think about your position and consider reevaluating it against the standard of what would the average, fair, and reasonable person think of the evidence.... Another thing that I would like for all of you to bear in mind is this: changing your position is no personal disgrace. In fact, some of the greatest leaders down through history have followed a procedure of decision-making which almost inherently and invariably required them to change position. Some of our greatest leaders, ones that pop into mind right now are Abraham Lincoln, John Kennedy, Dr. Martin Luther King. Those are three I can think of right now who when they were faced with a difficult decision would get their advisors around them, whether they be cabinet members of other advisers. We get their advisors around and would throw out an idea for discussion. The leader, himself, would throw out the idea for discussion and let his advisors just tear it to pieces.... And then the leader would look among all the different thoughts that had been proposed and would pick out the best and frequently would say, 'Well, yeah, the position I originally took did have a lot of flaws. Let's take this other position. It looks like the right one, having considered everything.' And those people became famous for making good decisions, sound decisions. And they got themselves a place in history by virtue of the interesting process by which they would examine an idea, by adopting the wrong one first, tearing it to pieces, and then finding the right one from there. That dynamic process is one that you jurors can use to reach a verdict which will be truly unanimous in the heart of each and every one of you, measured by an objective standard of how the average, reasonable and fair person would view the evidence. Would you all be willing to bear that in mind? I understand Commissioner Mason is under the gun to some extent because he has to go up to Montgomery. I don't want for that pressure to be creating a problem. It might be that we could put you ladies and gentlemen in recess until such time as Commissioner Mason could get back from Montgomery, depending on how long your trip would be, Jim,--

"JUROR MASON: Judge, I am willing to go back in and see if we can reach an agreement. As far as that goes, I can postpone it. I am not under that much pressure to go. So, I would like to try to resolve this.

"THE COURT: We are deeply grateful for your service on the jury and for your service as a commissioner and we want to fit the two together compatibly if we can. If you all find you are making progress and you also find you are under time constraints with regard to your trip, as I say, if need be, we can put the jury into recess for a day or two so that you could run up and do that. Would all of you be willing to take a fresh look at the case and each one of you evaluating your position and see if you can reach a unanimous verdict. Is there anybody that thinks it wouldn't be a good idea to do that?"

Thereafter the defense counsel objected and took exception to the trial court's reference to Commissioner Mason and his personal business "with time constraints" in that such might "put undue pressure on the jury to compromise even further possibly to the detriment of the defendant." At 11:05 a.m., approximately five minutes later, the jury returned with a verdict of guilty.

The propriety of the trial judge's inquiry and statements concerning the particular jury member should be determined under a "totality of the circumstances" test. Ex parte Showers, 407 So.2d 169 (Ala.1981).

" 'While the trial judge is vested with large discretion in the conduct of the trial and may admonish the jury as to the desirability and importance in agreeing on a verdict, he may also urge jurors to make every effort consistent with their consciences to reach such verdict. He may request jurors to lay aside mere pride of judgment and listen to what the other jurors believe from the evidence. The judge may ask the jurors to reason together in a spirit of fairness and candor and, if possible, harmonize them. However, it is not proper to give an instruction censoring jurors for not agreeing with the majority.' "

Richardson v. State, 508 So.2d 289 (Ala.Cr.App.1987), quoting Showers v. State, 407 So.2d 167, 169 (Ala.Cr.App.1980), reversed on other grounds, 407 So.2d 169 (Ala.1981).

" ' "It is quite clear that under Alabama law a trial judge may urge a jury to resume deliberations and cultivate a spirit of harmony so as to reach a verdict, as long as the court does not suggest which way the verdict should be returned and no duress or coercion is used." Showers v. State, 407 So.2d 169, 171 (Ala.1981).' " Harris v. State, [Ms. 6 Div. 176, April 28, 1987] (Ala.Cr.App.1987), quoting Channell v. State, 477 So.2d 522, 531 (Ala.Cr.App.1985).

In the present case, the numerical division of the jury was never indicated in the record. Harris v. State, supra slip at 7. Furthermore, the trial court did not indicate to the jury through words or conduct that it "expected" a verdict. Channell v. State, supra at 531; Orr v. State, 40 Ala.App. 45, 111 So.2d 627 (1958), affirmed, 269 Ala. 176, 111 So.2d 639 (1959). While it is true that the verdict was returned very soon following the trial court's comments concerning the jury member, Gidley v. State, 19 Ala.App. 113, 95 So. 330, 331 (1923), under the totality of the circumstances of the judge's charge, we do not find that the "trial court's instructions encouraging [the] jury to arrive at a unanimous verdict exceeded the bounds of permissible...