People v. Gainer

Decision Date31 August 1977
Docket NumberCr. 19660
Citation139 Cal.Rptr. 861,566 P.2d 997,19 Cal.3d 835
CourtCalifornia Supreme Court
Parties, 566 P.2d 997, 97 A.L.R.3d 73 The PEOPLE, Plaintiff and Respondent, v. Robert GAINER, Jr., Defendant and Appellant.

Craig Harris Collins, San Mateo, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Derald E. Granberg and David Schneller, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

In January 1975 defendant Robert Gainer, Jr., was tried in the Superior Court of Contra Costa County on a charge of murder. (Pen. Code, § 187.) 1 The taking of the testimony of more than 30 witnesses consumed 12 days, concluding on the 28th of January. On the 13th day of trial, at 10:30 in the morning, the case went to the jury. Four times during that day the jury interrupted their deliberations to ask that various portions of the testimony be reread. At 5:05 p.m. the jurors were sent home without having reached a verdict.

On the morning of their second day of deliberations the jurors again heard testimony read by request, and returned to the jury room. At 4:45 p.m., when the jury sent in a note asking for the rereading of an instruction, the trial judge inquired as to the numerical division of the panel. He was informed that the last ballot stood nine to three. The jurors, having failed to agree, again were excused and permitted to return home for the night.

On the morning of January 31, the 15th day of trial and the 3d day of deliberations, the jury heard one witness' testimony read and continued deliberating. At 11 a.m. the jurors were reassembled in the courtroom where the foreman indicated they were having difficulty reaching a verdict. The judge again inquired as to their numerical count, and the foreman replied, 'Eleven to one.' At this point the judge read the following instruction:

'Ladies and Gentlemen of the Jury:

'In a large proportion of cases and perhaps strictly speaking, in all cases, absolute certainty cannot be attained or expected. Although the verdict to which a juror agrees must, of course, be his own verdict, the result of his own convictions and not a mere acquiescence in the conclusion of his or her fellows, yet in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided, that you are selected in the same manner and from the same source from which any future jury must be selected, and there is no reason to suppose the case will ever be submitted to twelve men or women more intelligent, more impartial or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other. And, with this view, it is your duty to decide the case, if you can conscientiously do so.

'In order to make a decision more practicable, the law imposes the burden of proof on one party or the other in all cases. In the present case, the burden of proof is on the People of the State of California to establish every part of it beyond a reasonable doubt. And, if in any part of it you are left in doubt, the defendant is entitled to the benefit of the doubt and must be acquitted. But in conferring together, you ought to pay proper respect to each other's opinions and listen with a disposition to be convinced to each other's arguments.

'And, on the other hand, if much the larger of your panel are for a conviction, a dissenting juror should consider whether a doubt in his or her own mind is a reasonable one, which makes no impression upon the minds of so many men or women equally honest, equally intelligent with himself or herself, and (who) have heard the same evidence with the same attention and with an equal desire to arrive at the truth and under the sanction of the same oath.

'And, on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably and ought not to doubt the correctness of a judgment, which is not concurred in by most of those with whom they are associated, and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.

'That is given to you as a suggestion of the theory and rationale behind jurors coming to a decision one way or the other.

'So, Ladies and Gentlemen of the Jury, I'm going to ask you--after lunch--to retire and continue with your deliberations and see if it is at all possible to resolve the matter.

'I understand that, of course, on occasions it is impossible to do so, but--based upon the instruction I have just given to you--I would appreciate that after lunch--if you would go back and resume your deliberations and see if you can arrive at a verdict and that the deadlock can be broken.'

After lunch--a total of two hours and 55 minutes after resuming deliberations--the jury returned a verdict of guilty of murder in the second degree, with a finding that defendant was armed with a deadly weapon at the time of the offense and that he used a firearm in committing the offense.

On appeal from the judgment entered on this verdict, we consider for the first time the permissibility of the final instruction given to the jury shortly before they returned a verdict on the third day of deliberations. 2 The instruction, which is of a type commonly referred to either as the 'Allen charge' or the 'dynamite charge,' has had a controversial history since it was cursorily approved by the United States Supreme Court in the case of Allen v. United States (1896) 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528. Because it instructs the jury to consider extraneous and improper factors, inaccurately states the law, carries a potentially coercive impact, and burdens rather than facilitates the administration of justice, we conclude that further use of the charge should be prohibited in California.

In reviewing defendant's contention that the charge was erroneous as a matter of law, it will be helpful to trace the history of the instruction from its relatively innocuous origin, through its heyday as a popular technique for extracting verdicts from deadlocked juries, and into its twilight years as a prolific generator of appellate controversy. In the process we shall identify and assess those aspects of the charge which are the central objects of defendant's attack.

Genesis of the 'Allen Charge'

The Allen case from which the instruction takes its name is a most unprepossessing leading authority. Alexander Allen was a 14-year-old boy who had been convicted of murder. His conviction was reversed by the United States Supreme Court because of a faulty jury instruction (Allen v. United States (1893) 150 U.S. 551, 14 S.Ct. 196, 37 L.Ed. 1179), and after a retrial his second conviction was reversed by the Supreme Court because of another erroneous instruction (Allen v. United States (1895) 157 U.S. 675, 15 S.Ct. 720, 39 L.Ed. 854). After a third conviction his case went again to the Supreme Court. (Allen v. United States (1896) 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528.) No counsel appeared for Allen, and the court declared itself 'somewhat embarrassed . . . by the absence of a brief on the part of the plaintiff in error . . ..' (Id. at p. 494, 17 S.Ct. at p. 154.) Nevertheless, the court did consider 18 assignments of error in the record the last 2 of which concerned the instruction now known as the 'Allen charge.' The court noted that the instruction was 'taken literally from a charge in a criminal case which was approved of by the Supreme Court of Massachusetts in Commonwealth v. Tuey, 8 Cush. 1 . . ..' (Id. at p. 501, 17 S.Ct. at p. 157.) 3

After paraphrasing the instruction, the court reasoned that 'While, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury-room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the juryroom with a blind determination that the verdict shall represent his opinion of the case at that moment; or, that he should close his ears to the arguments of men who are equally honest and intelligent as himself. There was no error in these instructions.' (Id. at pp. 501--502, 17 S.Ct. at p. 157.)

Given this procedural history, and the Allen court's brief treatment of the elaborately crafted collection of nuances and intimations composing the challenged instruction, 'there is little wonder that many doubt whether the case would not be decided differently today. (Citation.) But that it should have become the foundationstone of all modern law regarding deadlocked juries is perhaps the greatest anomaly of the Allen case.' (United States v. Bailey (5th Cir. 1972) 468 F.2d 652, 666.)

Nevertheless, the Allen charge won relatively quick adoption in some 10 states. (See Note, An Argument for the Abandonment of the Allen Charge in California (1975) 15 Santa Clara Law. 939, fn. 3; Annot., 100 A.L.R.2d 177--217.) California was not among the early enthusiasts. Undoubtedly the popularity of the instruction stemmed from its perceived efficiency as a means of 'blasting' a verdict out of a deadlocked jury in a manner which had the imprimatur of the highest court in the land. 4 At the same time, trial judges were not averse to adding their own embellishments to the approved text, frequently in...

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