Nelson v. State, 82-1045

• Decision Date: 19 October 1983
• Docket Number: No. 82-1045,82-1045
• Citation: 438 So.2d 1060
• Parties: Berry NELSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1060

438 So.2d 1060

Berry NELSON, Appellant, v. STATE of Florida, Appellee.

No. 82-1045.

District Court of Appeal of Florida,

Fourth District.

Oct. 19, 1983.

Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Grace M. Gonzalez, Asst. Atty. Gen., West Palm Beach, for appellee.

GLICKSTEIN, Judge.

The jury found the defendant guilty of murder in the first degree, and the state waived the death penalty, whereupon the defendant was sentenced to life imprisonment with a 25-year minimum. The defendant raises a number of grounds for reversal. One of them, in our opinion, warrants such action; namely, the trial court's instruction to the jury. Accordingly, we reverse and remand, finding the instruction to be coercive in effect.

The jury commenced deliberations before lunch on May 3, 1982. At 4:25 p.m., they sent out a note, ultimately the first of three, and asked for a clearer definition of premeditation. The trial court referred them to its previously given instruction. The second question, tendered at 11:00 a.m. the following morning, requested a dictionary if such were permitted. The court told them to rely on the instructions already given and on common sense, and asked if there was a word holding them up. A juror replied that there were two words. The judge again told them to rely on common sense and asked if the jury was still making progress. The juror said yes, to an extent.

The third note, tendered at 3:00 p.m. on May 4, 1982, indicated the jury had been at impasse for about twelve hours, and suggested that further deliberation would be fruitless. The trial court gave an Allen charge, amplified by certain language of its own. The court prefaced the standard deadlock charge with the following:

I received your note which has already been read into the record. I want to give you some instructions. I don't think that anybody here would be served by you all not arriving at a verdict. It would be wasting your time for whatever period of time which I guess is I guess seven days now. Nobody can repeat this testimony and exhibits placed before you. If you all cannot arrive at a verdict, then something is wrong. I am giving you an instruction at this time.

The court also appended the following to the standard charge:

I do want you to understand though that a lot of differences that might exist may be for reasons of your own without there being reasons of either law or evidence to support your own conclusions. That is the reason you are taking this position to go back into that jury room and tell the other jurors about the weaknesses of your own position because it is by your works and your unanimity....

A juror informed the trial court that there was a question about the definitions of "premeditation" and "reflection," two words in the charge of murder in the first degree. The trial court said it was for the jury to interpret whether there was reflection, and that if there was doubt, "you must find for the Defendant." It further said what was being raised was a question of fact, not of law. The jury then returned to its deliberations.

After a short while the trial judge called the jury in and said he would send them home for the night. His remarks are as follows:

THE COURT: I remember a man once who announced his position very clearly. He announced it so loud and strong and clear that later he was afraid to refute it. That is probably not poetic, but it may fit in somewhere.

I will do you this favor. I am going to send you home tonight at this time because I know you have struggled long and hard.

I am going to ask you to come back tomorrow at 8:30. I read you a charge that I thought pretty well hit everything on the head. I ad-libbed a little whereby I thought it even hit more on the head. Anything that you have a question in your mind about that particular evening has not been proven beyond a reasonable doubt if you had that doubt about it. However, please stop and think about your position. Stop and think about your fellow man's and woman's position. Sleep on it tonight and come back tomorrow.

You just don't understand what happens if we had to retry this case. It is not just reproducing the witnesses here from Alabama or wherever but it is going through this whole reppertoire [sic] again for you or for someone else when it is really not necessary. You have heard all of the law. That is all the evidence there is. That is it as far as what was presented here before you.

We look to you for the resolution of this case. It is that pure and simple.

You all were selected because we thought, and the attorneys thought, that you could approach this in a common-sense manner.

So, I am going to ask that you go home and we will see you at 8:30 in the morning. I am going to ask that you not discuss it with anybody nor to probe it in your minds until we see you then at 8:30. Come right into the courtroom. I will have to do some shuffling tomorrow. I just don't want to let it go unless it is impossible. I can't see that it would be impossible when we have just such a fine jury here.

We will see you at 8:30 in the morning. Thank you.

At that point a juror again raised the question of the definitions of the two words, which he said was the source of the impasse on the jury. The trial court re-read the standard instructions which indicate that there is no fixed amount of time required for premeditation, and that whether there was premeditation is a question of...