State v. Fajardo
| Decision Date | 07 May 1985 |
| Docket Number | No. 9739,9739 |
| Citation | 67 Haw. 593,699 P.2d 20 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Eliseo Fuentes FAJARDO, also known as Leo, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Whether or not a case must be retried is not something that a jury should consider in its deliberations, and it is error for a trial court to comment on the possible effects of a hung jury.
2. The numerical split of the jurors on the guilt or innocence of a defendant has no bearing on the reasonableness of a juror's position, and it is error for the trial court to encourage jurors to consider such a factor in their deliberations.
3. The use of an Allen instruction shall no longer be tolerated and approved by this court.
Lynette Mah, Deputy Public Defender, Honolulu (Richard W. Pollack, Deputy Public Defender, Honolulu, with her on briefs), for defendant-appellant.
Ernest J. Freitas, Jr., Deputy Pros. Atty., Honolulu, for plaintiff-appellee.
Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.
Eliseo Fuentes Fajardo (hereinafter "Appellant") was convicted of manslaughter in the death of Robert John Tavares. For the reasons stated below we reverse the conviction.
On April 30, 1983, Appellant and Tavares got into a verbal altercation at the Atlantis discotheque in the Pacific Beach Hotel in Waikiki. They decided to settle the matter outside and walked out to the hallway by the entrance of the discotheque. A fight ensued. Appellant pulled out a knife and stabbed Tavares to death.
Appellant was charged with the murder of Tavares in violation of Hawaii Revised Statutes § 707-701 (1976). He claimed self-defense. The first trial ended in a mistrial on December 7, 1983. A second trial followed in the same courtroom on December 12-16, 19, 21-23 and 27, 1983. The trial court gave the jury its instructions on the law on Wednesday, December 21, 1983. The jury commenced deliberations that afternoon.
The jury could not reach a verdict by 3:55 p.m. on Friday, December 23, 1983. Appellant moved for a mistrial. The trial court denied the motion and released the jury for the long Christmas weekend.
The jury resumed deliberations at 8:30 a.m. on Tuesday, December 27, 1983. At 10:23 a.m. the jury sent a communication to the court:
Your Honor:
After a period of deliberation, self examination, contemplation and meditation, we the jury have arrived at decisions which are not unanimous. Each juror became more convinced in the decision they had reached on 12/21/83.
Our deliberations serve no purpose at this time and instruction is requested.
A chambers conference was called to discuss this communication. The court indicated its intention to give the jury a supplemental instruction. Appellant objected that it was "improper to add another instruction in the middle of deliberations...." Transcript, December 27, 1983, at 3. He asked for a mistrial. The motion was denied.
The trial court gave the following supplemental instruction to the jury:
Ladies and gentlemen, I am going to at this time give you another instruction. I am going to ask that you continue your deliberations in an effort to agree upon a verdict, and I have additional comments I would like you to consider as you do so.
If you cannot reach a verdict, this case must be tried again. Any future jury must be selected in a same manner and from the same source from which you were chosen. There is no reason to believe that this case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it.
During your deliberations, you, as jurors, have a duty to consult with one another and to deliberate with the view to reaching an agreement if you can do so without violating your individual judgment. Although each juror must decide the case for himself, this should be done only after consideration of the evidence with his fellow jurors.
In the course of your deliberations, a juror should not hesitate to re-examine his own views and change his opinion if convinced it is erroneous. Each juror who finds himself to be in the minority should reconsider his views in the light of the opinion of the jurors of the majority. Conversely, each juror finding himself in the majority should give equal consideration to the views of the minority.
No juror should surrender his belief as to the weight or effect of the evidence for the mere purpose of returning a verdict.
Applying these additional comments together with all the instructions which I have previously given you, I wil now ask that you retire once again and continue your deliberations and exercise your very best effort to reach a verdict.
Transcript, December 27, 1983, at 4-5 (emphasis added).
Court was recessed at 1:40 p.m. (Transcript, December 27, 1983, at 5), and the jury communicated to the court at 2:40 p.m. that it had reached a verdict (Record at 284).
Appellant was convicted of the lesser-included offense of manslaughter. Sentencing was set for January 30, 1984, but it was continued to February 3, 1984. The record does not contain any motion or order for this continuance, but the continuance was apparently granted to allow the State to file a motion for revocation of probation with sufficient notice to Appellant.
The motion for revocation was heard immediately prior to the sentencing for the manslaughter conviction. The trial court revoked Appellant's probation for a prior conviction (Cr. No. 54365). It resentenced Appellant to twenty years imprisonment for robbery in the first degree and five years imprisonment for carrying a firearm on the person without permit or license. These terms were to run concurrently. Then the trial court sentenced Appellant to ten years imprisonment for the manslaughter conviction. This term was to run consecutively to the sentence for Cr. No. 54365.
Appellant filed a timely appeal of his conviction and raised three issues. He argued that the trial court erred in giving the supplemental instruction, known commonly as an Allen instruction, to the deadlocked jury. Then, Appellant argued that the trial court abused its discretion in continuing the sentencing to accommodate the State's motion for revocation of probation. Finally, he argued that the trial court erred in finding that Appellant had been convicted of a felony while on probation, a requirement to revoke his probation, when no sentence had been imposed in the manslaughter case.
Because we reverse the judgment of the trial court on the impropriety of the Allen instruction, it will not be necessary for us to reach the final two issues raised by Appellant.
In Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), the United States Supreme Court affirmed the murder conviction of a teenager after reviewing eighteen assignments of error raised in the record. 1 Two of the assignments of error involved supplemental instructions given by the trial court to the jury.
After stating the standard admonition that each juror must come to his own conclusion while heeding other arguments with proper regard, the trial court gave further instructions which were summarized by the Supreme Court:
that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.
Allen, 164 U.S. at 501, 17 S.Ct. at 157, 41 L.Ed. at 531.
The Court gave a brief analysis of the legality of the instructions and concluded that there was no error in them. This case became the foundation of all modern law on instructions to deadlocked jurors.
Since Allen, such instructions to deadlocked jurors became increasingly popular apparently because of "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." People v. Gainer, 19 Cal.3d 835, 844, 139 Cal.Rptr. 861, 865, 566 P.2d 997, 1001 (1977) (footnote omitted).
Given the basic formulation in Allen, most judges add their own modifications to the instruction so there is no such thing as a standard Allen instruction. Marcus, The Allen Instruction in Criminal Cases: Is the Dynamite Charge About to be Permanently Defused?, 43 Mo.L.Rev. 613, 617 (1978) (hereinafter "Marcus"). Here, the trial court gave an Allen admonition to the minority. In addition it stated: "If you cannot reach a verdict, this case must be tried again." Transcript, December 27, 1983, at 4.
Contrary to the Allen case, the only appellate decision in Hawaii on an Allen -type instruction disapproved such an instruction. Marks Construction Co. v. Maser, 30 Haw. 163 (1927). Marks was a civil case where the court instructed a deadlocked jury that "it is the duty of the court to point out to you, gentlemen of the jury, that disputes have got to end somewhere, and some jury has got to decide this case, as near right as jurors can decide it." Id. at 167.
After a juror spoke up and said it seemed to be hopeless to agree, the court added:
On that question of hopelessness to agree, let me again appeal to your sense of American systems, that we rule by majorities, and, again, we rule by intelligent minorities. Sometimes the reasoning of the minority, if deliberately expressed, convinces one's mind, sometimes it does not, but the majority, by reason of the fact of their being a majority, thinking along one line, has its weight; it is not a coercive weight, but it has and should have its place in deliberative bodies.
Marks, 30 Haw. at 168 (emphasis added).
In disapproving the instruction, this court stated:
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