State v. Medina

Decision Date23 April 1987
Docket NumberNo. 20629,20629
Citation738 P.2d 1021
PartiesSTATE of Utah, Plaintiff and Respondent, v. Jerry Joe MEDINA, Defendant and Appellant.
CourtUtah Supreme Court

Kenneth R. Brown, Jerold D. McPhie, for defendant and appellant.

David L. Wilkinson, Earl F. Dorius, for plaintiff and respondent.


Defendant Jerry Joe Medina appeals from a conviction of murder in the second degree. He contends that the trial court impermissibly interfered with his right to a jury trial when it gave the jury a modified version of the "dynamite" or "Allen " charge. 1 He also argues that his trial counsel's failure to object to the giving of the charge was so improper as to deny him the effective assistance of counsel. We affirm.

There is no need to discuss the circumstances of the crime with which defendant was charged. For purposes of this appeal, only the circumstances surrounding the giving of the modified Allen charge are pertinent.

The jury began its deliberations at 10:30 a.m. on Friday, March 1, 1985. At approximately 6:10 p.m., after deliberating for almost eight hours, the jury sent the following question to the judge: "What procedure do we follow if because of lack of evidence either way we keep coming up with an uneven vote. At what point are we hung?" The judge recalled the jury to the courtroom at 6:30 p.m. for the purpose of giving it a modified Allen charge. The court had previously distributed copies of the proposed instruction to counsel for the prosecution and defense. It then asked if either side had any objection to the proposed instruction. Defense counsel replied, "I have no objection. I have read it," and the State also answered, "I have no objection." The court then gave the charge. The jury returned to deliberate at 6:35 p.m., and at 8:30 p.m., it returned a verdict of guilty.

Defendant Medina's brief sets forth additional facts taken from his own affidavit, which accompanied a motion filed with this Court to remand the matter for an evidentiary hearing. In the affidavit, Medina asserts that after the jury sent out its question and the possibility of a hung jury became apparent, a discussion ensued between Medina and his counsel over the wisdom of permitting the court to give the Allen charge. Medina states that his counsel did not want to object to the instruction, but Medina clearly instructed his counsel that he wanted a new trial and did not want further instructions given to the jury. The affidavit asserts that Medina was betrayed when his counsel registered no objection to the giving of the Allen charge.

Most of the arguments before this Court are directed to whether any form of dynamite charge is permissible and, if so, whether the modified Allen charge given below was acceptable. We do not have occasion to reach that issue today because it was not properly preserved below.

The usual rule is that "[n]o party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury is instructed, stating distinctly the matter to which he objects and the ground of his objection." Utah R.Crim.P. 19(c) (codified at Utah Code Ann. § 77-35-19(c) (1982)). In the present case, defense counsel not only failed to object to the proposed instruction, but she affirmatively stated that after reading it, she had "no objection." Only at this point did the judge give the jury the instruction.

Medina recognizes that the failure to object to the instruction presents a barrier to our consideration of the propriety of the modified Allen charge. See, e.g., State v. Malmrose, 649 P.2d 56 (Utah 1982). However, he attempts to overcome this obstacle by relying on an exception to the general rule of Utah Rule of Criminal Procedure 19(c), which is contained in the last sentence of that rule. That sentence reads: "Notwithstanding a party's failure to object, error may be assigned to instructions in order to avoid a manifest injustice." Utah Code Ann. § 77-35-19(c) (1982).

It is true that in reliance on this provision, we have considered the propriety of instructions with respect to which an objection has not been made below. However, uniformly these have been situations where counsel for the party complaining on appeal merely remained silent at trial. See, e.g., State v. Lesley, 672 P.2d 79, 81 (Utah 1983); State v. Smith, 90 Utah 482, 62 P.2d 1110 (1936). The instant case presents a very different situation. Here, defense counsel did not remain silent; rather, she actively represented to the court that she had read the instruction and had no objection to it. Apparently, Medina's counsel considered the issue and consciously decided that it was in Medina's interest to have the instruction given. Although in retrospect this decision may appear to have been ill-advised, the fact remains that counsel consciously chose not to assert any objection that might have been raised and affirmatively led the trial court to believe that there was nothing wrong with the instruction. Under such circumstances, we decline to review the instruction under the manifest error exception to Rule 19(c).

Medina also seeks reversal on the ground that he was denied effective assistance of counsel when his lawyer violated his express instructions and refused to object to the Allen charge. This contention must be rejected for two reasons. First, it is based almost entirely on self-serving affidavits that are not part of the record. For obvious reasons, we cannot accept after-the-fact claims that there was a conflict with counsel, unless the defendant has made his disagreement with counsel apparent on the record. See State v. Wood, 648 P.2d 71, 91 (Utah 1982) (conflict between defendant...

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  • State v. Dunn
    • United States
    • Utah Supreme Court
    • March 18, 1993
    ...denied, 497 U.S. 1024, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990); State v. Butterfield, 784 P.2d 153, 157 (Utah 1989); State v. Medina, 738 P.2d 1021, 1023 (Utah 1987); Perdue, 813 P.2d at 1205; State v. Morgan, 813 P.2d 1207, 1211 (Utah Ct.App.1991). Of course, if counsel's decision in leadin......
  • State v. Bullock
    • United States
    • Utah Supreme Court
    • October 18, 1989
    ...35-36 (Utah 1989) (plain error explained), cert. denied, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (Oct. 2, 1989); State v. Medina, 738 P.2d 1021, 1023-24 (Utah 1987) (manifest error and ineffective assistance claims asserted to avoid effect of failure to object).8 Verde, 770 P.2d at 121.9......
  • State v. Harry
    • United States
    • Utah Court of Appeals
    • June 12, 2008
    ...pressure jurors to give up their sincere convictions simply because a majority takes a different view.'" Id. (quoting State v. Medina, 738 P.2d 1021, 1022 n. 1 (Utah 1987)). Nevertheless, this court "uph[e]ld the non-coercive use of Allen charges because we believe such charges to be a reas......
  • State v. Hamilton
    • United States
    • Utah Supreme Court
    • May 9, 2003
    ..."failure to object to the instruction presents a barrier to our consideration" under the general rule of 19(e), State v. Medina, 738 P.2d 1021, 1023 (Utah 1987), he seeks review under the manifest injustice ¶ 54 To review an instruction under the manifest injustice exception, counsel must h......
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