Romine v. State

• Decision Date: 02 December 1986
• Docket Number: No. 43207,43207
• Parties: ROMINE v. The STATE.
• Court: Georgia Supreme Court

Page 446

350 S.E.2d 446

256 Ga. 521

ROMINE v. The STATE.

No. 43207.

Supreme Court of Georgia.

Dec. 2, 1986.

Reconsideration Denied Dec. 17, 1986.

J. Roger Thompson, Ellijay, Thomas P. Lenzer, Norcross, for Larry romine.

Roger G. Queen, Dist. Atty., Jasper, Michael J. Bowers, Atty. Gen., Paula K. Smith, Asst. Atty. Gen., for the State.

CLARKE, Presiding Justice.

This is the second appearance of this death penalty case. Previously, this court affirmed appellant's conviction on two After a retrial on the question of sentence, Romine has again been sentenced to death. We now affirm. ¹

counts of murder, but reversed the death sentences on the ground that appellant's presentation of potentially mitigating evidence was improperly restricted. See Romine v. State, 251 Ga. 208, 305 S.E.2d 93 (1983). The facts are set forth in our previous opinion. Stated briefly, appellant, Larry Romine, a former gospel singer and occasional preacher whose descent into a life of drugs and adultery met with severe parental disapproval and opposition, entered his parents' home one day while they were at work, waited for their return, and then killed them both with a .16 gauge shotgun.

1. In his first two enumerations of error, Romine argues that the trial court erred by directing the jury to continue its deliberations after the jury had communicated to the court "in clear and unambiguous language" that it was "hopelessly deadlocked," and further erred by subsequently giving the jury a so-called "Allen" charge. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

For reasons which follow, we conclude that the trial court did not abuse its discretion by directing further deliberations, and that, inasmuch as the charge subsequently given by the court contained none of the aspects for which Allen charges have been so often--and justifiably--criticized, it was not improper.

(a) We begin our analysis with an exposition of the relevant historical facts of the trial proceeding. The presentation of evidence began (after a lengthy voir dire session) on August 21, 1985. Closing arguments and the charge of the court concluded seven days later and the jury began its deliberations at 2:50 p.m. on August 28.

At 6:15 p.m., the court asked the jury if it was making any progress in its deliberations and if it would like to break for dinner at that time. The foreman answered, "We have a pretty wide division on it right now and the consensus of most everybody here is--" The court interrupted to ask the foreman not to tell "about your division of it," and the foreman continued, "I'm not. It's that they don't believe they can make a decision on it, about it."

The court sent the jury to dinner, with instructions to return at 7:30 p.m., stating, "That'll give you an hour and fifteen minutes. Then I'll let you all deliberate a while longer tonight. If you're not able to reach a verdict, then I'll, we'll talk about it later."

Shortly after 10:00 p.m., the court asked the jury if it had been able to make any progress since supper. The foreman answered, "some." The court asked whether the jury would like to continue their deliberations that evening, or to come back in the morning. The foreman answered, "I don't think staying here any longer tonight will change anyone's mind one way or the other." The trial court then recessed for the evening.

Deliberations resumed at 9:00 a.m. the next day. At 9:15, the court received a note from the foreman stating, "We are unable to reach a unanimous decision and are certain we will not ever be able to reach one."

At 10:00 a.m., the court discussed the note with the jury, in open court, as follows:

"The Court: Mr. Foreman, I have a note here that you had sent concerning your deliberations so far. Without telling me which way and what it is, can you just give me the numerical breakdown of how you stand? That's the only thing, just a numerical breakdown.

"The Foreman: Eleven to one.

"The Court: Eleven to one?

"The Foreman: Yes, sir.

"The Court: Uh, foreman, you all have only been deliberating about six and a half, seven hours and I would like you all to consider continuing your deliberations. See what you can do with it. I'm not putting any pressure on you one way or the other. Whatever your decision is, that's your decision, but I feel like you need to deliberate on it longer.

"The Foreman: Well, the six or seven hours is what we've been together. But everybody has thought about it in their own mind for, since 3:00 yesterday. I believe some people thought about it in their own minds very seriously last night.

"The Court: Well, still, uh ... I'm gonna leave you together for a while longer and see what you can do, sir."

Appellant made a motion for a mistrial, on the ground that the jury was deadlocked. The motion was denied.

At 11:00 a.m., the jury asked the court to give a re-charge on mitigating circumstances, and that was done.

At 3:30 p.m., after determining that the jury had not yet reached a verdict, the court gave the following instructions to the jury:

"Let me give you some other instructions at this time. You have now been deliberating upon this case for a considerable period of time. The court deems it proper to advise you further in regards to the desirability of agreement if possible.

"The case has been exhaustively and carefully tried by both sides and has been submitted to you for decision and verdict if possible.

"While the verdict must be the conclusion of each juror and not a mere acquiescence of the jurors in order to reach an agreement, it is still necessary for all of the jurors to examine the issues and questions submitted to them with candor and fairness and with proper regard and deference to the opinions of each other. A proper regard for the judgments of others will greatly aid us in forming our own judgments.

"Each juror should listen to the arguments of other jurors. If the members of the jury differ in their views of the evidence or the mitigating or aggravating circumstances, such differences of opinion should cause them all to scrutinize the evidence more closely and to re-examine the grounds of their opinion. It's your duty to decide the issues which have been submitted to you if you can conscientiously do so.

"Do not hesitate to change an opinion if convinced it is wrong. However, you should never surrender honest conviction or opinions in order to be congenial or to reach a verdict solely because of the opinions of other jurors.

"The aim ever to be kept in view is the truth as it appears from the evidence, examined in the light of the instructions of the court. Now upon our exit, you may again continue your deliberations for a reasonable period of time and examine your differences in a spirit of fairness and candor and try to arrive at a verdict in this case.

"I believe you've been going since lunch, haven't you? Since you came back from lunch?

"Why don't at this time we let you walk about, get you a Coke or a drink of water, use the restrooms and then come back in and let you start from the very beginning and see if there's any possibility of a verdict."

Appellant's objection to the charge was overruled, and his motion for mistrial was denied.

At 5:30 p.m., the jury informed the court that it had reached a verdict. The parties were assembled and the jury's verdict of death on both counts of murder was published at 6:00 p.m.

(b) Romine refers us to three death penalty cases from the states of Florida and Delaware involving deadlocked juries and Allen charges. See Patten v. State, 467 So.2d 975 (Fla.1985); Rush v. State, 491 A.2d 439 (Del.Supr.1985); and Rose v. State, 425 So.2d 521 (Fla.1982).

Delaware law makes no provision for a verdict of life; the jury is simply asked whether it unanimously recommends a death sentence. In Rush v. State, supra, the jury told the trial court that it was unable to reach a unanimous verdict and wished to know what to do about the verdict form. The Delaware Supreme Court held that the trial judge should have limited his response to the second paragraph of his supplemental instructions, viz: "Unlike an ordinary verdict where there must be unanimous agreement by all twelve jurors one way or the other, that is, guilty or not guilty, question 2 simply asks, 'Does the jury unanimously recommend that a sentence of death be imposed?' If there is not unanimous agreement to recommend a sentence of death, the answer to that question must be 'no.' "

Under Delaware law, when a jury decides that it cannot agree on a unanimous verdict of death, it has reached a verdict, and the trial court must accept it. Any instructions to deliberate further in an attempt to reach a unanimous verdict implicitly encourage the jury to reach a verdict of death, in view of the form of the verdict presented to a Delaware jury.

Romine points out that, in Georgia, where the sentencing jury is unable to agree on whether to recommend death or to recommend mercy, the trial court must sentence the defendant to imprisonment as provided by law. Miller v. State, 237 Ga. 557, 229 S.E.2d 376 (1976). He reasons that Georgia law is like Delaware law in that if the jury is unable to agree unanimously on death, the defendant is sentenced to life, and that we should follow the lead of the Delaware Supreme Court and hold that where the jury communicates to the court that it cannot agree on the sentence to be imposed, the trial court must accept this communication as a verdict and impose a life sentence.

Of course, the general rule in this state is that "a motion for mistrial based on the length of the jury's deliberation is within the sound discretion of the trial court. [cits.]" Cofield v. State, 247 Ga. 98, 113, 274 S.E.2d 530 (1981). Moreover, the trial court "is not bound to accept the jury's feeling that it is hopelessly deadlocked." Todd v. State, 243 Ga. 539, 542, 255 S.E.2d 5 (1979). Romine argues that the general rule is inapplicable to...