State v. Marsh

CourtSupreme Court of Oregon
Citation260 Or. 416,490 P.2d 491
PartiesSTATE of Oregon, Respondent, v. Roger MARSH, Petitioner,
Decision Date05 November 1971

Gary D. Babcock, Public Defender, Salem, argued the cause and filed briefs for petitioner.

W. Michael Gillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.


TONGUE, Justice.

This is an appeal from a conviction for rape in the front seat of a 'Mustang' automobile. Defendant's conviction was affirmed by the Court of Appeals, Or.App., 92 Adv.Sh. 1638, 485 P.2d 1253 (1971).

In support of his petition for review by this court defendant has contended: (1) that the trial court erred in denying his motion for directed verdict because 'the state's proof is utterly unreasonable and contrary to all human experience'; (2) that the trial court erred in instructing the jury that ten of their number could find defendant guilty, contrary to defendant's contention that the Sixth Amendment right to trial by jury includes the right to an unanimous verdict in all criminal cases, and (3) that the trial court erred in urging the jury to make a decision by a modified 'Allen' or 'dynamite' charge, after being informed by the jury that it was deadlocked. The petition for review was granted by this court primarily because of defendant's last contention.

At the time of oral argument it was conceded by the Public Defender, who appeared as attorney for defendant, that the State's evidence was sufficient to support the verdict. In view of defendant's original contention, however, we have examined the entire record in this case and find that there was ample testimony, if believed by the jury, to support its verdict, including evidence to corroborate the testimony of the complaining witness.

In Rostad v. Portland Ry. etc. Co., 101 Or. 569, 576, 201 P. 184, 185 (1921), this court has held that it was proper to instruct the jury '* * * (to) bring to your assistance your experience as men of affairs * * *.' In so holding we said (at 578, 201 P. at 187) that '* * * any juror must consider the testimony in the light of that knowledge and experience which is common to all men * * *.' See also McCormick on Evidence 691, § 323. That case may have been tried before an all-male jury and was decided by this court before the advent of 'woman's lib.'

Nevertheless, because the men and women who sit as members of a jury do so as representatives of the community and because under our system the jury is the exclusive judge of the facts, it is not for the members of this court to substitute their judgment, based upon their knowledge and experience for that of the jurors in this case and to say that in this day and age a charge of rape in the front seat of a 'Mustang' automobile is 'utterly unreasonable and contrary to all human experience.' 1

In State v. Gann, 254 Or. 549, 463 P.2d 570 (1969), we held that the constitutional right of a defendant to trial by jury in a criminal case does not require conviction by an unanimous verdict or forbid conviction by a ten to two verdict, as provided by the Oregon Constitution. 2 Unless and until the Supreme Court of the United States holds otherwise, we abide by that decision.

This leaves for consideration defendant's contention that the trial court erred in giving a so-called 'Allen' or 'dynamite' instruction to 'blast' loose the deadlocked jury. 3 In considering this contention it is necessary to understand not only the terms of the particular instruction as given in this case, but also the circumstances under which it was given, including the failure of defendant's attorney to make any proper exceptions to the instruction at that time.

Instruction Given and Circumstances Under Which Given.

At about 4:20 p.m. the trial judge completed his original instructions to the jury and it then retired for deliberation. At 8:45 p.m. (after the jury had been sent out for dinner) the jury sent the following note to the court: 'Our discussion is six guilty, six not guilty.'

The trial judge then informed counsel that he 'propose(d) to call the jury in and instruct them,' after which 'each side may be permitted to take whatever exception it feels it should.' Neither attorney objected to such a procedure. The trial judge then instructed the jury as follows:

'Members of the jury, it is now not quite 9:00 o'clock. You have been at work since about 4:30 this afternoon, omitting the dinner hour. The note you have sent in a moment ago indicates that your number stands six for one side and six for the other.

'It is my duty to urge you to reach a decision on this case. This case has to be tried either now or later. It is unlikely that this case will ever be tried by any jury more competent and more representative of the community than yourselves. It is unlikely that the evidence would be any different before any later trial than it was before this one and so it is important that the matter be resolved. Those of you who stand on one side of the question should give respectful attention and consideration to the views of those opposed. And vice-versa.

'None of this, however, should be construed by you as suggesting that I believe that you should not vote any other way than your own conscience based upon the evidence and the instructions in this case. None of us expect you to do anything other than that. But I am sure that you realize along with me that this case should be decided. It ought not to be decided unless it is decided by the appropriate number ten to two and it ought not to be decided unless those ten of you who concur, if you do, each reach your decision honestly base (sic) upon the evidence and the law and your own view of the matter; so nothing I say should be taken as meaning that I want any of you to vote other than what your own good judgment dictates. But for the reasons I have mentioned I urge you to go back and to deliberate further and see if you can reach a verdict. You may now be excused to the jury room.'

The jury then retired again and the court asked if there were any exceptions. No exceptions were taken by either attorney.

At shortly after 11:00 o'clock p.m. the court sent the following note to the jury, with consent of counsel: 'Without indicating how your vote stands as to guilty or not guilty, please indicate how many are on one side and how many on the other.' That note was sent back stating that nine were on one side and three on the other. The court then sent a further note, also with consent of counsel, asking if there was 'any reasonable chance of arriving at a verdict in the next thirty minutes.' In response the jury sent out a note which read: 'If there is no resistance for a time and then just before penetration there is resistance, does it still constitute rape?'

Defendant then moved for a mistrial. That motion was denied, in effect, by the trial judge in stating that he proposed to reinstruct on rape. Defendant took a further exception to such an instruction, which was then given. The court then, at 12:10 a.m., gave the additional instruction on rape and concluded with the following:

'Further, I will repeat to you what I told you earlier this evening at about 9:00 o'clock. What we ask of you is the honest, conscientious individual vote of each one of you for any given verdict. We ask each of you on one side to carefully consider the discussions, points of view of those on the other side. And we point out to you that this case ought to be decided. If it is tried again in all likelihood the jury will be no better equipped than yourself, the jury will be similarly selected as you were in all likelihood, the evidence will be the same. And therefore, it is incumbent upon you to reach a verdict. Bearing in mind, however, that we do not expect any of you to vote one way or the other except according to your own conscience based upon the evidence and upon these instructions. I will now ask you to retire to deliberate further.'

No exception was taken to this instruction as an 'Allen' or 'dynamite' charge, as now contended. 4

At 12:28 a.m. the jury notified the bailiff that it had a verdict. Defendant's counsel then renewed his motion for a mistrial. 5

The jury then returned a verdict of guilty by a vote of ten to two and was then excused. No further exceptions or motions for mistrial were made at that time by defendant.

Origin and History of 'Allen' Charge--Recent Criticism.

The 'Allen charge,' often called the 'dynamite charge' is a supplemental instruction given to encourage deadlocked juries to reach agreement. The first reported case of such an instruction was in an 1851 Massachusetts case. 6 In 1896 an almost identical charge was approved by the Supreme Court of the United States in Allen v. United States. 7

The central idea of the instruction is that although no juror is expected to yield a conscientiously held opinion, the jury has a duty to decide the case if it can conscientiously do so and that if a majority of the jury is for either conviction or acquittal, the minority ought to consider whether a contrary view may be reasonable and correct. 8

In recent years the 'Allen charge' has been the subject of considerable discussion, including increasing criticism upon the ground that it is improperly coercive. 9

In order to evaluate the use of the 'Allen charge,' or of any supplemental instructions to deadlocked juries, it is necessary to bear in mind the many variations of the 'Allen charge,' as well as the fact that the extent to which such an instruction may be coercive depends largely upon the factual context or setting in which the charge is given in a particular case.

Variations in Terms of 'Allen' or 'Dynamite' Instructions.

As might be expected, over the years the various courts have developed many different...

To continue reading

Request your trial
46 cases
  • People v. Gainer, Cr. 19660
    • United States
    • United States State Supreme Court (California)
    • August 31, 1977
    ...N.H. 115, 305 A.2d 300; State v. Minns (1969) 80 N.M. 269, 454 P.2d 355; State v. Champagne (N.D.1972) 198 N.W.2d 218; State v. Marsh (1971) 260 Or. 416, 490 P.2d 491, cert. den. Sub nom. O'Dell v. Oregon (1972) 406 U.S. 974, 92 S.Ct. 2420, 32 L.Ed.2d 674; Commonwealth v. Spencer (1971) 442......
  • State v. Flint, 16266
    • United States
    • United States State Supreme Court of Idaho
    • June 30, 1988
    ...315 So.2d 639 (La.1975); State v. White, 285 A.2d 832 (Me.1972); State v. Martin, 297 Minn. 359, 211 N.W.2d 765 (1973); State v. Marsh, 260 Or. 416, 490 P.2d 491 (1971), cert. denied sub nom, 406 U.S. 974, 92 S.Ct. 2420, 32 L.Ed.2d 674 112 Idaho at 263, 731 P.2d at 806. However, in State v.......
  • Kelly v. State, 253
    • United States
    • Court of Special Appeals of Maryland
    • January 5, 1973
    ...P.2d 1064 (Nev.1972); Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971); Fields v. State, 487 P.2d 831 (Alas.1971); State v. Marsh, 490 P.2d 491 (Or.1971); Taylor v. People, 490 P.2d 292 (Colo.1971); People v. Mills, 131 Ill.App.2d 693, 268 N.E.2d 571 (1971); State v. Ferguson, 84 S......
  • State v. Czachor
    • United States
    • United States State Supreme Court (New Jersey)
    • April 2, 1980
    ......534, 353 P.2d 1054 (Sup.Ct.1960); State v. Garza, 185 Neb. 445, 176 N.W.2d 664 (Sup.Ct.1970); Azbill v. State, 88 Nev. 240, 495 P.2d 1064 (Sup.Ct.1972); State v. Blake, 113 N.H. 115, 305 A.2d 300 (Sup.Ct.1973); State v. Minns, 80 N.M. 269, 454 P.2d 355 (Ct.App.1969); State v. Marsh, 260 Or. 416, 490 P.2d 491 (Sup.Ct.1971), cert. den. sub nom. O'Dell v. Oregon, 406 U.S. 974, 92 S.Ct. 2420, 32 L.Ed.2d 674 (1972); Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (Sup.Ct.1971); State v. Patriarca, 112 R.I. 14, 308 A.2d 300 (Sup.Ct.1973); Kersey v. State, 525 S.W.2d 139 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT