State v. Perry
| Citation | 131 Vt. 337,306 A.2d 110 |
| Decision Date | 05 June 1973 |
| Docket Number | No. 148-71,148-71 |
| Parties | STATE of Vermont v. Carroll L. PERRY. |
| Court | United States State Supreme Court of Vermont |
Robert I. Tepper, State's Atty., for the State.
Langrock & Sperry, Middlebury, for defendant.
Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.
In the course of a burglary in Shrewsbury the owner unexpectedly appeared and was shot and wounded. The respondent was accused of being one of the participants, and was charged with assault and armed robbery, and with breaking and entering in the nighttime. After a three day trial the jury found him guilty of the breaking and entering charge, but could not reach a verdict on the assault and armed robbery charge.
On appeal, the respondent first urged that the failure to honor his motion for a hearing on probable cause was error. This Court concurred, and remanded the matter for such a hearing on the authority of Swenson v. Stidham, 409 U.S. 224, 93 S.Ct. 359, 363, 34 L.Ed.2d 431, 436 (1972). See State v. Perry, 131 Vt. 75, 300 A.2d 615 (1973). The hearing was held, the issue of probable cause adequately tested, and its presence confirmed by findings based on evidence. With the facts and conclusions now before us, it is clear that the existence of probable cause is fully demonstrated, and the right to have the issue judicially examined in response to motion has been fulfilled. See In re Morris, 126 Vt. 297, 298, 229 A.2d 244 (1967).
The matter having been promptly remanded here, the other issues in the case can now be considered. The respondent claims that the jury, having revealed that it was having difficulty reaching a verdict, was improperly coerced into agreement by a charge from the trial court. The jury had deliberated several hours, and at 8:30 P. M. it informed the trial court that it was having problems. Just at that point the trial judge interrupted, and reminded the jurors that a failure to reach a verdict brings about a mistrial, which puts the respondent and the state to the burden of a retrial, with no assurance that any other jury could do any better. So saying, the judge then asked them to deliberate another half hour to see if they could arrive at a verdict on either or both of the charges. Shortly before the expiration of that time the jury reported a disagreement on the armed robbery count, but that a verdict of guilty had been reached on the breaking and entering charge.
The respondent claims that this instruction to the jury so closely resembles the famous charge reported in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), as to be subject to condemnation. That condemnation has not come from the United States Supreme Court, which upheld the charge in the Allen case, but from other jurisdictions and numerous commentators. See, e. g., ABA Project on Minimum Standards for Criminal Justice, Trial by July, § 5.4, Commentary.
The Allen charge criticisms are well-founded, and the use of such a charge that departs from the substance of the ABA Standards just noted is disapproved. Whether, in a given case, reversible error can be predicated on the use of such a charge must be tested by the circumstances, however. See State v. Jackson, 127 Vt. 237, 238, 246 A.2d 829 (1968).
The condemnation of the Allen charge has two aspects. The first is that it seems to make the duty of a juror to reach a verdict so strong an obligation that he must compromise his convictions to do so. The second is that it similarly lays a burden on the minority of a divided jury not only to reexamine their position, which is proper, but seemingly to yield those convictions produced in them by the facts, when the same facts bring the majority to an opposite result. Missing is a balanced appeal to the majority to reexamine the validity of their position, and an injunction not to abandon honest convictions merely to reach a verdict. After all, the burden is on the state to persuade an entire jury of guilt. Whether its failure to do so is partial, as in a disagreement, or total, as in a not guilty verdict, the respondent is entitled to the benefit of the consequences. All of these concerns are more safely met by the language in § 5.4(a), ABA Standards, Trial by Jury, supra, § 5.4(a).
But the charge given here was not the Allen charge. It did not urge, in any way, that convictions be abandoned, or honestly held positions be accommodated, for verdict purposes. It merely called to the jury's view the undeniable fact that the...
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