State v. Martin

• Decision Date: 12 October 1973
• Docket Number: No. 43558,43558
• Citation: 211 N.W.2d 765,297 Minn. 359
• Parties: STATE of Minnesota, Respondent, v. James Andrew MARTIN, Appellant.
• Court: Minnesota Supreme Court

Page 765

211 N.W.2d 765

297 Minn. 359

STATE of Minnesota, Respondent, v. James Andrew MARTIN, Appellant.

No. 43558.

Supreme Court of Minnesota.

Oct. 12, 1973.

Syllabus by the Court

1. It was prejudicial error requiring a new trial to suggest to the jury that a minor defendant had a prior record by exposing to the jury's view his picture in a police photograph book and by permitting his character otherwise to be put in issue.

2. It is no longer proper to give deadlocked jurors the supplementary charge which was approved in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). A.B.A. Standards Relating to Trial by Jury, § 5.4 (Approved Draft, 1968), is now adopted for use in Minnesota.

C. Paul Jones, Public Defender, Doris O. Huspeni, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, George M. Scott, County Atty., Theodore R. Rix, Michael McGlennen, and Vernon E. Bergstrom, Asst. County, Attys., Minneapolis, for respondent.

Heard before KNUTSON, C.J., and OTIS, ROGOSHESKE, and MacLAUGHLIN, JJ., and considered and decided en banc.

OTIS, Justice.

This appeal from a conviction for robbery challenges the continued validity in Minnesota of the so-called 'Allen' charge directed at deadlocked jorors. We hold that such instructions are no longer consistent with our concept of a fair trial and adopt in their place A.B.A. Standards Relating to Trial by Jury, § 5.4 (Approved Draft, 1968). Because the Allen charge was here given, and evidence reflecting on defendant's character was improperly received, we reverse.

1. Defense counsel on cross-examination elicited from a prosecution witness testimony that she had identified defendant from a photograph. On redirect, over defendant's objection, the prosecutor handed the witness in full view of the jury a so-called police mug shot photograph album from which the witness selected defendant's picture. Later in an apparent effort to minimize the prejudice, defense counsel introduced testimony that the defendant's previous offense was an ordinance violation. Not only have we condemned such disclosures by the prosecution, State v. Madison, 281 Minn. 170, 160 N.W.2d 680 (1968), certiorari denied, 393 U.S. 102, 89 S.Ct. 904, 21 L.Ed.2d 796 (1969), but the prejudice here is compounded by the fact defendant was only 17 years of age, and under our law juvenile offenses are not crimes which can be used for impeachment.

Equally prejudicial was the unwarranted disclosure to the jury of defendant's narcotic addiction. In the course of cross-examining defendant about the presence of one Louis Smith in defendant's apartment, the following colloquy occurred:

'Q Louis said he shot L.S.D. when he got up there.

'A I don't know what Louis does. I never shot no L.S.D.

'Q Never shot any L.S.D.?

'A No.'

Again, over strenuous objection, the prosecutor was permitted to examine defendant in great detail concerning his prior use of drugs. The state attempts to justify the cross-examination because of defendant's volunteered answer, 'I never shot no L.S.D.' In State v. Flowers, 262 Minn. 164, 114 N.W.2d 78 (1962), we held it reversible error to allow an attack on defendant's character where precisely the same kind of a volunteered unresponsive answer was given. In State v. Sharich, Minn., 209 N.W.2d 907 (1973), we reaffirmed the rule that a general denial by defendant that he did a particular act is insufficient to put his character in issue. The state, on the other hand, relies on State v. Fulford, 290 Minn. 236, 187 N.W.2d 270 (1971). There, however, we simply approved a cross-examination which expanded on defendant's direct examination in which he admitted he 'reasoned' with a person from whom he sought money. The state was permitted on cross-examination to ask if in fact he didn't use a knife to coerce her. That cross-examination related to a single episode described by the defendant on direct. In the instant case, defendant's drug addiction had no relationship to the subject of the examination and his unresponsive answer, as we said in the Flowers case, was simply 'the use of colorful and emphatic language common to persons of his background.' 262 Minn. 170, 114 N.W.2d 82. Under the circumstances of this case, there was no justification for seizing on an isolated statement to impeach defendant's character.

2. After the jury had been out a little over 24 hours, they reported they were deadlocked. Counsel for defendant asked the court if it intended to set a time for giving 'a dynamite instruction,' adding, 'Not that I am in favor of it * * *.' The following day, after the jury had been out about 50 hours, the court did give such a charge in the following language:

'The Court: Previously you asked to see me, and this time I asked to see you. Ladies and gentlemen of the jury, at this time I don't want to inquire into the status of your thinking. I realize that you have been up until now unable to reach a conclusion, and that's all that I know or need to know, and I don't want to ask any questions. It would be improper of me to do it.

'But I do want to urge you with all the seriousness of which I am capable to attempt to come to a conclusion in this case or these cases, if you will. I am sure you appreciate that the jury room is no place for any pride of opinion or for taking a position and sticking to it or for espousing and maintaining in the spirit of controversy either side of a position. The single object and the sole purpose to be effected in the jury room is, of course, to arrive at a true verdict and this can only be done--I am sure you are coming to realize that--can only be done by serious deliberations, exchange of ideas, and sentiments, mutual concessions, and a due deference to the opinions of each other.

'You should consider that this case must at some time be decided, and that you have been selected in the same manner and from the same source from which any future jury will be selected. And there is certainly no reason to suppose that this case will ever be submitted or be capable of being submitted to 12 men and women more intelligent, more impartial, or more competent to decide it than you are, nor can we assume that more or clearer evidence will somehow or other be presented at a later date on either one side or the other.

'Now, though the verdict to which any individual juror agrees must, of course, be his or her own verdict, and the result of his or her own convictions, there shouldn't be a mere agreement in the conclusions that his or her fellow jurors have reached; yet in order to bring 12 minds to a unanimous result, this is not easy, I am sure we all recognize that, to get 12 people to agree on anything. In order to bring 12 minds to a unanimous result on any question, you must examine the questions that have been submitted to you with candor and with a proper regard and deference to the opinions of each other. Though no juror is required to sacrifice conscientious convictions of his or her own, the fact that a juror finds his or her judgment opposed to the judgment of a great majority or a large number of the jury ought to induce that particular juror, as a reasonable person, so far to doubt the correctness of his or her own views as to weigh carefully the opinions of his associates or her associates and the arguments and reasons upon which they are founded, and if upon due consideration that juror becomes convinced that others are probably right, and that he or she is in error, then it might become a duty to agree with those others.

'You should consider the time, the labor and the expense of this trial, and the time and labor and expense which another trial would no doubt entail. It is, therefore, your duty and I speak to you in all seriousness, and I am sure no one realizes it more than you do, to make all reasonable efforts which each and every one of you can conscientiously do to reach an agreement.

'Nothing I have had to say should be taken by you or any of you as somehow or other reflecting on your deliberations up until now. I have nothing but admiration for the serious approach which you are taking to your very, very serious job. Now, therefore, I ask you to retire again to the jury room and I ask all of you and I ask each and every one of you to make an earnest effort to reconcile your views, if you can conscientiously do so. You will now go back to the jury room and I know you will keep in mind what I have had to say.'

Two hours and 20 minutes later, the jury found defendant guilty on one court and not guilty on another, which defendant argues, with some validity, suggests a compromise induced by the so-called 'dynamite charge.' Although the record is not clear, apparently counsel was present when the charge was given and made no further objection other than the statement of disapproval to which we have alluded. Nevertheless, we regard the question as one so basic and the rights involved so fundamental that we deem it proper to consider the matter on appeal.

The Allen charge had its origin in Commonwealth v. Tuey, 62 Mass. (8 Cush.) 1 (1851). The charge in the Tuey case was as follows:

'The only mode, provided by our constitution and laws for deciding questions of fact in criminal cases, is by the verdict of a jury. In a large proportion of cases, and perhaps, strictly speaking, in all cases, absolute certainty cannot be attained or expected. Although the verdict to which a juror agrees must of course be 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 twelve minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided; that you are selected in the same manner, and from the same source, from which any future jury must be; and there is no...