State v. Bryan
| Decision Date | 20 February 1974 |
| Docket Number | No. 44237,44237 |
| Citation | 290 So.2d 482 |
| Parties | STATE of Florida, Petitioner, v. William Michael BRYAN, Respondent. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for petitioner.
Lacy Mahon, Jr., of Mahon & Mahon, and Joseph S. Farley, Jr., Jacksonville, of Mahon & Mahon, for respondent.
This cause comes to us on petition for writ of certiorari, asserting direct conflict between the decision below at 280 So.2d 25 (Fla.App.1st 1973), and Lee v. State, 239 So.2d 136 (Fla.App.1st 1970). Conflict exists and we have jurisdiction pursuant to Art. V, § 3(b)(3), Fla.Const., F.S.A.
Respondent was tried on a charge of 2nd degree murder. Testimony as to some of the critical events occurring at the time of the homicide was directly contradictory. After the jury had deliberated for some five and one-half hours, the court caused them to be returned to see if they were close to reaching a verdict. Upon learning that they were not, the judge delivered an 'Allen charge,' urging the minority jurors carefully to reconsider their position to see if they could conscientiously agree with that of the majority of the jury; this was a 'balanced' charge, and did not per se benefit either side nor urge any juror to abandon his position and merely accept the will of the majority. 1 The jury then retired to deliberate further. After an additional half hour of deliberation, they were again returned to the court, and were asked whether they were closer to reaching a verdict. It was indicated that they were closer to reaching a verdict, and the trial judge allowed them an additional twenty minutes to deliberate. After an additional seventeen minutes of deliberation, the jury returned a verdict finding respondent guilty of manslaughter, a lesser included offense. Respondent argues that the giving of the 'Allen charge' was error under the circumstances. We do not think so.
The charge as given by the trial court did not differ materially from the approved condensed charge found in Standard Jury Instruction 2.19. Although it is preferable to use the standard instructions where they are appropriate, as Mr. Justice Adkins pointed out in Rigot v. Bucci, 245 So.2d 51 (Fla.1971), and Standard Instruction 2.19 should be used in such cases as are appropriate henceforth, the charge given in the instant case was not erroneous. It was a balanced charge, urging neither acquittal nor conviction. The trial judge specifically stated that no juror was to abandon his conscientious convictions.
The use of the 'Allen charge' has been approved by the U.S. Supreme Court (Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)), and more recently by the 5th Circuit Court of Appeals (United States v. Bailey, 468 F.2d 652 (C.A. 5, 1972)). It has been implicitly approved in this state in the adoption of Standard Jury Instruction 2.19. We see no reason to disavow its use now. We are urged to disapprove of the use of the 'Allen charge' as was done in State v. Marsh, 490 P.2d 491 (Or.1971); however we note in that case the applicable Oregon law did not require a unanimous verdict in order to convict.
Even assuming arguendo that the trial court committed error in giving this charge, such error was harmless. Although respondent was charged with 2nd degree murder and there was no serious doubt that he had committed homicide of some sort, he was not convicted of murder, but of the lesser offense of manslaughter. More importantly, no motion was ever made for a mistrial on this ground, although a previous prosecution for the same acts ended in a mistrial, so that respondent was aware of his choice to move or not. Choices of ...
To continue reading
Request your trial
-
Lebron v. State
...give an Allen charge prior to declaring a mistrial. See Thomas v. State, 748 So.2d 970, 978 n. 7 (Fla.1999) (citing State v. Bryan, 290 So.2d 482 (Fla.1974)). However, as the trial court here noted, in some instances it may be error to give the charge due to its potentially coercive effect ......
-
Stephens v. State
...felony murder. The standard jury instructions are presumed correct and are preferred over special instructions. See State v. Bryan, 290 So.2d 482 (Fla.1974). Thus, Stephens has the burden of demonstrating that the trial court abused its discretion in giving standard instructions. See Philli......
-
Thomas v. State
...have held some supplemental instructions deviating from an Allen instruction not to be fundamental or reversible error. See State v. Bryan, 290 So.2d 482 (Fla.1974) (trial judge's modified instruction was a balanced charge which encouraged neither acquittal nor conviction and stated that no......
-
Scoggins v. State
...that the jury was required to reach a unanimous verdict or that the jurors had a duty to do so. Kelley, 486 So.2d at 584-85; State v. Bryan, 290 So.2d 482 (Fla.1974); Webb, 519 So.2d at 749; Nelson, 438 So.2d at 1062; Rodriguez, 462 So.2d at 1178; Bell v. State, 311 So.2d 179 (Fla. 1st DCA ......
-
The danger of deadlock: coercion in the courtroom.
...to continue with your deliberations.(12) This deadlock instruction was first approved by the Florida Supreme Court in State v. Bryan, 290 So. 2d 482 (Fla. 1974). In Bryan, after learning that the jury was not close to reaching a verdict despite five and a half hours of deliberation, the tri......