People v. Lewis, 82SA466

Citation676 P.2d 682
Decision Date30 January 1984
Docket NumberNo. 82SA466,82SA466
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Patricia J. LEWIS, Defendant-Appellee.
CourtSupreme Court of Colorado

Norman S. Early, Jr., Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief App. Deputy Dist. Atty., Denver, for plaintiff-appellant.

Davis & Fritsche, William J. Fritsche, Morton L. Davis, Aurora, for defendant-appellee.

QUINN, Justice.

This appeal, which is brought by the People pursuant to section 16-12-102, C.R.S.1973 (1978 Repl.Vol. 8), raises the single question of whether the trial court, when the jury has been deliberating on the charge of first degree murder and lesser included offenses and there is no indication either that a unanimous verdict is unlikely if deliberations continue or that the jury is deadlocked solely on the issue of the defendant's guilt as to a greater or lesser offense, should instruct the jury that, if it is satisfied of the defendant's guilt of at least one of the offenses but has a reasonable doubt as to which offense, it has the duty to find the defendant guilty of the lesser offense only. Because we conclude that under the particular circumstances of this case the instruction was coercive and incompatible with the requirement of a unanimous verdict, we disapprove the judgment.

I.

The facts are undisputed. The defendant, Patricia J. Lewis, was charged with first degree murder by intentionally and after deliberation causing the death of her husband, Tom Lewis, Sr., on November 1, 1981. 1 After a trial resulting in a sanity verdict, trial on the merits commenced to a jury on September 8, 1982. Upon completion of the evidence, the trial court on September 14, 1982, submitted the case to the jury on the original charge of deliberated murder in the first degree and the lesser included offenses of murder in the second degree, 2 heat of passion manslaughter, 3 and criminally negligent homicide. 4

During the second day of its deliberations the jury wrote a note informing the court that nine jurors had agreed on one verdict and three jurors on another verdict and requesting directions as to the appropriate procedure. The court met with counsel and, after much discussion on whether additional instructions should be given, excused the jury from further deliberations until the following morning.

On the next day the court met with counsel and decided to give two additional instructions to the jury. One of the instructions, to which the People did not object, directed the jurors, if not satisfied of the defendant's guilt beyond a reasonable doubt as to murder in the first degree, to then consider her guilt as to the lesser offenses of murder in the second degree, heat of passion manslaughter, and criminally negligent homicide, in that order. The other instruction, No. 20, stated as follows:

"You are instructed that if you find that the Defendant Patricia Lewis is guilty of an offense that has been charged within the information, including the lesser included offenses, but entertain a reasonable doubt as to which offense she has committed, then you have the duty to find the Defendant Patricia Lewis guilty only of the lesser offense."

The prosecution objected to Instruction No. 20 as premature and potentially coercive, but the objection was overruled. The jury, after receiving the additional instructions, resumed deliberations and eventually returned a guilty verdict to heat of passion manslaughter. A judgment of conviction entered on the verdict and, after the imposition of sentence the People filed this appeal. 5

The People, as they did before the trial court, argue that Instruction No. 20 was both premature and coercive. It was premature, according to the People, because the trial court never determined whether further deliberations might be productive of a unanimous verdict and whether the jury impasse related to the issue of guilt or innocence or the level of offense. Also, in the People's view, the instruction was coercive because it required the jury to return a non-unanimous verdict on the lesser offense as long as all jurors were in agreement on the defendant's guilt to any one of the offenses submitted to them for their consideration. We agree with the People's arguments.

II.

We recognize that in these days of increasing litigation judicial proceedings must necessarily be conducted in a manner that achieves maximum efficiency. However, as has been cogently observed, "while there is need to expedite the work of the courts, this cannot be done at the expense of the call of conscience." United States v. Thomas, 449 F.2d 1177, 1184 (D.C.Cir.1971) (en banc). In Colorado, a verdict in a criminal trial must be unanimous. Crim.P. 23(a)(8) and 31(a)(3); section 18-1-406, C.R.S.1973 (1978 Repl.Vol. 8). Unanimity requires a free and untrammeled deliberative process that expresses the conscientious conviction of each individual juror. E.g., Lowe v. People, 175 Colo. 491, 488 P.2d 559 (1971); In re Allison, 13 Colo. 525, 22 P. 820 (1889). Any judicial effort to avert a deadlocked jury must be approached with a sensitive regard for a juror's right to hold to his or her honestly held beliefs about the particular case. An instruction that constrains an individual juror to surrender these beliefs merely for the sake of returning a verdict is, to that extent, antithetical to the unanimity requirement.

Because of the coercive effect of the so-called "Allen charge" or "third degree instruction," 6 the Chief Justice of the Colorado Supreme Court in 1971 issued a directive 7 proscribing the use of the Allen charge in all trials in this state and authorizing in its stead an instruction similar to Standard 5.4 of the ABA Standards Relating to Trial by Jury (1968). 8 For much the same reason we disapproved the so-called "time fuse" instruction, which told the jury that a mistrial would be declared in the event a verdict was not reached within a prescribed time limit. Allen v. People, 660 P.2d 896 (Colo.1983). Even in the case of a prolonged and unproductive deliberative process, we have cautioned that any additional instruction directed towards averting a deadlocked jury should be preceded by an inquiry "as to whether any progress has been made toward reaching an agreement and what the likelihood is for such future progress." Lowe v. People, supra at 495-96, 488 P.2d at 561.

Although these principles were formulated in the context of jury deadlocks on the issue of guilt or innocence, they should not be disregarded merely because the impasse centers on the particular degree of offense. In the latter instance, while there undoubtedly will be agreement on the guilt of the defendant to some offense, a judge must be careful not to preempt further deliberations by directing the jury to return a guilty verdict on the lesser offense when further deliberations might well be productive of a verdict truly reflective of the personal judgment of each individual juror. Care must also be taken that, in the event an additional instruction is given to avert a mistrial due to a jury deadlock, some jurors are not forced to join in a guilty verdict to a lesser offense that involves elements not necessarily included in a greater offense when these jurors are not satisfied of the existence of these additional elements.

III.

In this case the trial court unduly interfered with the deliberative process of the jurors when it submitted to them Instruction No. 20. The jury note that prompted this instruction merely stated that nine jurors agreed on one verdict and three on another verdict and requested some guidance from the court as to the appropriate procedure to follow in this situation. The court did not determine whether future deliberations might be productive of a verdict, nor did it inquire of the jury about the general nature of the impasse. Before considering any additional instruction, the court should first have asked whether any progress was being made towards reaching a unanimous verdict, what the likelihood was of a verdict being returned upon further deliberations, and whether the deadlock centered on the issue of guilt or innocence or the particular degree of guilt. Only if the jury indicated that further deliberations would be unavailing and that the deadlock related to the level of offense should the court have considered some additional instruction, but not the one given here.

The effect of the challenged instruction was to require those jurors favoring a guilty verdict on a greater inclusive offense to return a guilty verdict on the least serious offense on which one or more jurors agreed, as long as all jurors agreed on the defendant's guilt as to some crime, notwithstanding the fact that further deliberations might well have resolved the nine-three impasse in a manner satisfactory to all the jurors. Instruction No. 20, to this extent, required those jurors favoring a guilty verdict on a greater inclusive offense to surrender their honest convictions solely in the interest of reaching a verdict.

The defendant, in urging us to approve Instruction No. 20, argues that, because heat of passion manslaughter is a lesser included offense of first and second degree murder, all jurors favoring a guilty verdict on a greater inclusive offense would necessarily have determined the defendant's guilt on the lesser offense of manslaughter. Thus, the argument concludes, Instruction No. 20 did not undermine jury unanimity by coercing a compromise verdict. We find this argument unpersuasive.

As previously noted, the giving of Instruction No. 20 was itself an undue intrusion on the right of the jurors to deliberate without constraining pressures from the court because it was given without the court first determining whether there was some prospect of a unanimous verdict being reached, and, if not, whether the general nature of the deadlock centered on the level of offense...

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