State v. Medina, 20629

CourtSupreme Court of Utah
Writing for the CourtZIMMERMAN; HALL, C.J., STEWART
Citation738 P.2d 1021
PartiesSTATE of Utah, Plaintiff and Respondent, v. Jerry Joe MEDINA, Defendant and Appellant.
Docket NumberNo. 20629,20629
Decision Date23 April 1987

Page 1021

738 P.2d 1021
STATE of Utah, Plaintiff and Respondent,
Jerry Joe MEDINA, Defendant and Appellant.
No. 20629.
Supreme Court of Utah.
April 23, 1987.

Page 1022

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

Page 1023

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...

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27 cases
  • State v. Bullock, No. 870053
    • United States
    • Supreme Court of Utah
    • October 18, 1989
    ...29, 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 ......
  • State v. Dunn, No. 17571
    • United States
    • Supreme Court of Utah
    • 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. Harry, No. 20070025-CA.
    • United States
    • Court of Appeals of Utah
    • 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 r......
  • State v. Blubaugh, No. 940060-CA
    • United States
    • Utah Court of Appeals
    • September 28, 1995
    ...injustice exception has no application in cases in which the defendant invited the very error complained of on appeal. State v. Medina, 738 P.2d 1021, 1023 (Utah 1987) (court refused to consider manifest injustice exception where defense counsel stated she had no objection to the instructio......
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