People v. Allen
| Decision Date | 24 September 1981 |
| Docket Number | No. 80CA0323,80CA0323 |
| Citation | 636 P.2d 1329 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jennifer Lee ALLEN, Defendant-Appellant. . I |
| Court | Colorado Court of Appeals |
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., William Morris, Asst. Atty. Gen., Denver, for plaintiff-appellee.
J. Gregory Walta, Colo. State Public Defender, Barbara S. Blackman, Deputy State Public Defender, Denver, for defendant-appellant.
Defendant, Jennifer Lee Allen, appeals the judgment of the trial court entered upon a jury verdict finding her guilty of introducing contraband, i. e., marijuana, into a detention facility. We affirm.
Defendant was charged with four counts of introducing contraband in the first degree in violation of § 18-8-203(1)(a), C.R.S.1973 (1978 Repl. Vol. 8). She testified at trial that she had mailed marijuana to the penitentiary because her husband, an inmate at the penitentiary, told her that he would be killed if she did not do so.
After being instructed by the court and hearing closing arguments of counsel, the jury retired to deliberate at 11:30 a. m. At 9:45 that night, the court inquired of counsel whether they objected to him calling the jury in to check their progress. The district attorney objected, although defense counsel did not. Upon being called into the court, the jury foreman informed the judge that he did not think there was a possibility of reaching a verdict. In the jury's absence, the court indicated to counsel that the jury would have another hour to deliberate, and immediately thereafter it informed the jury, Fifteen minutes later, the jury returned a verdict of guilty on all counts.
Defendant contends that the trial court's imposition of a time limitation on further jury deliberations coerced the jury into reaching a verdict. We disagree.
As a preliminary matter, the People contend that defendant who failed to make a contemporaneous objection to the trial court's remarks, waived any error. The People cite People v. Lovato, 181 Colo. 99, 507 P.2d 860 (1973) for the proposition that, absent contemporaneous objection an appellate court will not consider defendant's allegations of error regarding supplemental instructions to a deliberating jury concerning the jury's duty to return a verdict. Assuming without deciding that the "contemporaneous objection" rule is applicable to the "Allen" charge situation in Lovato, we conclude that the rule does not apply here.
First, here there was no "Allen" charge; rather, there were extemporaneous oral communications by the judge to the jury imposing a time limit to the jury's deliberations.
Second, the trial court first suggested to counsel outside the presence of the jury that if a verdict was not possible it would allow the jury to deliberate approximately another hour. However, later in the presence of the jury the trial court, without objection from counsel, told it to deliberate until ten o'clock, a period of approximately fifteen minutes. Under these circumstances, defendant's contention of error, which was raised in her motion for new trial, is properly before this court. Crim.P. 33(a).
Communications from a judge to the jury are coercive if they possess a substantial propensity to pressure the jurors to surrender conscientious beliefs and reach a verdict on some basis other than their conscientious beliefs, e. g., compromise or expediency. See Lowe v. People, 175 Colo. 491, 488 P.2d 559 (1971). See generally Jenkins v. United States, 380 U.S. 445, 85 S.Ct....
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Allen v. People
...Morris, John T. Hyland, Asst. Attys. Gen., Denver, for respondent. ERICKSON, Justice. We granted certiorari to review People v. Allen, 636 P.2d 1329 (Colo.App.1981). We reverse the court of appeals and return the case to the court of appeals with directions to remand to the district court f......