State v. Howard

• Decision Date: 12 April 1989
• Docket Number: No. 87-2154,87-2154
• Parties: The STATE of Ohio, Appellant, v. HOWARD, Appellee.
• Court: Ohio Supreme Court

Page 18

42 Ohio St.3d 18

537 N.E.2d 188

The STATE of Ohio, Appellant, v. HOWARD, Appellee.

No. 87-2154.

Supreme Court of Ohio.

Submitted Jan. 18, 1989

Decided April 12, 1989.

Syllabus by the Court

1. The traditional Allen charge (Allen v. United States [1896], 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528) is not a proper supplemental charge to be given to juries in Ohio which have become deadlocked on the question of conviction or acquittal.

2. In place of the traditional Allen charge, we approve the following supplemental instruction: "The principal mode, provided by our Constitution and laws, for deciding questions of fact in criminal cases, is by jury verdict. In a large proportion of cases, absolute certainty cannot be attained or expected. Although the verdict must reflect the verdict of each individual juror and not mere acquiescence in the conclusion of your fellows, each question submitted to you should be examined with proper regard and deference to the opinions of others. You should consider it desirable that the case be decided. You are selected in the same manner, and from the same source, as any future jury would be. There is no reason to believe the case will ever be submitted to a jury more capable, impartial, or intelligent than this one. Likewise, there is no reason to believe that more or clearer evidence will be produced by either side. It is your duty to decide the case, if you can conscientiously do so. You should listen to one another's arguments with a disposition to be persuaded. Do not hesitate to reexamine your views and change your position if you are convinced it is erroneous. If there is disagreement, all jurors should reexamine their positions, given that a unanimous verdict has not been reached. Jurors for acquittal should consider whether their doubt is reasonable, considering that it is not shared by others, equally honest, who have heard the same evidence, with the same desire to arrive at the truth, and under the same oath. Likewise, jurors for conviction should ask themselves whether they might not reasonably doubt the correctness of a judgment not concurred in by all other jurors."

On January 21, 1981, Raymond L. Howard, appellee herein, was indicted by the Mahoning County Grand Jury for the aggravated murder of Glenn Howard Frank in violation of R.C. 2903.01(A). Kathy Ortenzio was also named in the indictment; however, this appeal does not include her.

After extensive pre-trial maneuvering, appellee went to trial on July 20, 1981. Following six days of testimony, final argument was heard and jury instructions were given on July 29, 1981.

Late in the afternoon of July 29, 1981, the court received a statement from the jury indicating that the jury was unable to reach a unanimous verdict on the aggravated murder charge. With consent of both counsel, the trial judge entered the jury room and gave a supplemental charge, reiterating that the jurors must each decide the case for themselves but that they should consider the opinions of fellow jurors. ¹

Shortly after receiving the supplemental instruction, the jury recessed for the evening. Deliberations continued on July 30 and well into the afternoon of July 31 without a verdict being returned. At approximately 3:00 p.m. on July 31, 1981, the court again received a note from the jury indicating that a unanimous verdict could not be reached on the aggravated murder charge. The trial judge, in chambers, informed counsel that he intended to give the jury a charge " * * * short of the Allen charge, but nonetheless one which does a little bit more than encourage them to decide this case." Appellee's counsel objected to this proposed supplemental instruction.

The jury was returned to the courtroom for purposes of receiving a second supplemental instruction. The text of this instruction, and the subject of this appeal, are as follows:

"THE COURT: You have transmitted to the Court, ladies and gentlemen, a statement; that after lengthly [sic ] discussion, you cannot reach a unanimous verdict on the charge of aggravated murder, and you asked me for further instructions. Everybody associated with this case realizes that it's a most difficult, indeed, matter to decide.

"Now the only method that is provided by our Constitution and our Laws, ladies and gentlemen, for deciding questions of fact is by a verdict of a jury. And in a large proportion of cases and strictly speaking in all cases, absolute certainty cannot be obtained or even expected. Although the verdict to which a juror agrees must be, of course, his own verdict, the result of his own convictions and not a mere acquiescence in the conclusion of his fellows; yet, in order to bring 12 minds to a unanimous verdict you must examine the question submitted to you with candor and with a proper regard in defference [sic ] to the opinions of each other. If you should fail to agree upon a verdict, the case is left open and undecided. Like all cases, this case must be disposed of sometime. You, ladies and gentlemen, were selected in the same manner and from the same source from which any future jury must be, and there is no reason to suppose that the case will ever be submitted to 12 more men and women who are more intelligent, more impartial or more competent to dispose of it, or that more or clearer evidence will be produced on one side or the other. You have heard the evidence. Now with this view, it is your duty, ladies and gentlemen, to dispose of the case if you can consciously [sic ] 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 that is true. Now in this case the burden is upon the State to establish every part of every essential element, of which you are well aware, beyond a reasonable doubt. Now if you are left in doubt, ladies and gentlemen, as to any essential element, the defendant is entitled to the benefit of that doubt. But in conferring together, ladies and gentlemen, you ought to pay proper respect to each other's [sic] opinions; you must listen with a disposition to be convinced by each others' arguments. And on the one hand, if much the larger number of your panel are on one side or the other, a dissenting juror should consider whether his position is a reasonable one when it makes no impression upon the minds of men and women equally honest, equally intelligent and who have heard the same evidence with the same attention, 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 have reached a verdict, the minority ought seriously ask themselves whether or not they may reasonably and ought not to doubt the correctness of the judgment which is not concurred in with most of those with whom they are associated and/or distrust the weight or sufficiency of that evidence which fails to convince the minds of their fellows.

"Now with these instructions in mind, ladies and gentlemen, you will please return to your deliberation room and continue your deliberations."

At 3:20 p.m., the jury retired to deliberate further. Barely one hour later, the jury returned with a verdict of guilty to the aggravated murder charge. ²

On appeal, appellee's conviction was affirmed by the court of appeals. On October 5, 1983, this court denied appellee's motion for leave to appeal.

Subsequently, appellee filed a petition for post-conviction relief pursuant to R.C. 2953.21, claiming ineffective assistance of counsel. The state filed a motion to dismiss the petition. The motion to dismiss was granted by the Court of Common Pleas of Mahoning County on May 13, 1986. Appellee again appealed to the Court of Appeals for Mahoning County.

On appeal, the court held that the supplemental instruction given by the trial judge to the jury on July 31, 1981 " * * * so coerced and infected the process of jury deliberation so jealously revered in the law, that it constituted prejudicial error affecting * * * [appellee's] substantial rights to a fair and impartial jury and cannot be allowed to stand." Consequently, the court found that appellee's counsel failed to raise this issue on direct appeal and this failure constituted ineffective assistance of counsel. As a result, the conviction was reversed and the cause was remanded for new trial.

The cause is now before this court upon the allowance of the state's motion to certify the record.

Gary L. VanBrocklin, Pros. Atty., Mary Jane Stephens, Youngstown, and Kathi McNabb, Akron, for appellant.

Randall M. Dana, Public Defender, and Robert L. Lane, Columbus, for appellee.

DOUGLAS, Justice.

The sole issue before this court is whether the supplemental jury instruction given to the jury on July 31, 1981 was coercive in the sense that it pressured members of the jury who were in the minority to abandon their positions. The essential question becomes whether the supplemental instruction given to the jury by the trial judge, known as the Allen charge, is allowed in Ohio.

The Allen charge or "dynamite" charge, as it is also known, arises from Allen v. United States (1896), 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528. In Allen, the United States Supreme Court set forth a summary of the supplemental instruction given by the trial court:

" * * * [A]lthough the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; 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...