State v. Raymond L. Howard

• Decision Date: 10 November 1987
• Docket Number: 87-LW-3905,86 C.A. 82
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Raymond L. HOWARD, Defendant-Appellant.
• Court: Ohio Court of Appeals

STATE of Ohio, Plaintiff-Appellee, v. Raymond L. HOWARD, Defendant-Appellant.

No. 86 C.A. 82. Judgment affirmed and cause remanded 42 Ohio St. 3d 18 (1989).

87-LW-3905 (7th)

Court of Appeals of Ohio, Seventh District Mahoning

November 10, 1987

Criminal/Civil Appeal (Postconviction) from the Common Pleas Court Case No 81-CR-6.

Gary L Van Brocklin, Prosecuting Attorney, Mary Jane Stephens, Asst. Prosecuting Attorney, Youngstown, for plaintiff-appellee.

Raymond L. Howard, pro se.

OPINION

Before COX, P.J., and O'NEILL and DONOFRIO, JJ.

O'NEILL Judge.

This is a timely appeal from a judgment of the Mahoning County Court of Common Pleas which sustained the State's motion to dismiss appellant's petition for post conviction relief.

Appellant, Raymond L. Howard, was indicted by the Mahoning County Grand Jury for aggravated murder pursuant to R.C. 2903.01(A). Appellant was represented by counsel throughout discovery and his subsequent trial which commenced on July 20, 1981. After an extensive trial, the jury returned a verdict of guilty as charged and judgment was thereafter entered upon the verdict. Appellant then filed a timely notice of appeal to this court.

Appellant was again represented by counsel during the direct appeal. This court subsequently affirmed appellant's conviction (State v. Howard [C.A. 7, 1983] Case No. 81 C.A. 109, unreported). Further leave to appeal was denied on July 5, 1983, by the Ohio Supreme Court.

On February 13, 1986, appellant filed a petition for post conviction relief pursuant to R.C. 2953.21. Appellant's grounds for relief were posited upon a claim of ineffective assistance of counsel. By judgment entry of May 13, 1986, the trial court filed its findings of fact and conclusions of law and sustained a motion to dismiss filed by the State of Ohio.

A timely notice of appeal was filed from the trial court's judgment entry on May 23, 1986.

While much of appellant's argument concerns his claim of ineffective assistance of counsel, both at trial and on direct appeal, the sole and determinative issue which underlies this claim is whether the trial court's use of the supplemental "Allen" or "dynamite charge" constitutes plain error requiring a reversal.

The term "Allen charge" derives from Allen v. United States (1896), 164 U.S. 492, in which a supplemental instruction regarding the jurors' duties in attempting to reach a verdict was approved. The "Allen charge" read:

" * * * although the verdict must be the verdict of each individual juror, and not a mere acquiesence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority."

In State v. Maupin (1975), 42 Ohio St.2d 473, the Ohio Supreme Court noted, " * * * the original Allen charge has never been a part of Ohio jurisprudence." Maupin, supra, at 484. The court's reasons for so finding were based upon what it perceived to be increasing criticism warranting a rejection of the charge as given in Allen.

"The principal and most frequent reason advanced is that it lacks balance; that the thrust of the Allen instruction is directed to the minority jurors only and is potentially coercive upon them to agree with those jurors constituting the majority. * * *.

"The second difficulty judicially noted with Allen arises from modification and variations, with resultant appeals, in language utilized by trial courts which either omits parts of the Allen charge which tend to avoid any coercive effect or the utilization of language which has the effect of enhancing its potential for coercion. * * *." Maupin, supra at 483.

The Maupin court went on to uphold the particular supplemental charge at issue therein as it found that charge bore little resemblance to the pure "Allen charge." It found the particular charge noncoercive as it was directed to all the jurors, and hence neutral, rather than being directed to a minority. Additionally, the court also found the supplemental charge to have been given in close proximity to the general charge such that each juror heard the repeated refrain to consult with each other and consider each other's views, but without disturbing or surrendering their individual convictions or judgment. Nonetheless, a different result is warranted in the case sub judice.

In the instant case, appellant was tried for aggravated murder. Trial commenced on July 20, 1981; the jury received the case for deliberations on July 29, 1981; the jury returned a guilty verdict on July 31, 1981. No issue has been raised regarding the trial court's general charge to the jury, and, upon our review of that charge, we believe none would have been warranted.

Before a luncheon break on the first day of deliberations, the jury posed three questions to the court to clarify the court's initial instructions on the elements of aggravated murder. Near the end of the first day the jury sent a note to the court stating:

"Cannot reach unanimous decision on first charge (aggravated murder) and doubtful if more deliberation will change that." (Tr. 1399; 1408).

With the approval of appellant's counsel, the judge entered the jury room with the court reporter, reinstructed the jury on how to proceed before considering the lesser offense of murder, rendered what is in essence an acceptable supplemental charge per Maupin, supra, and urged the jurors to continue deliberations. (Tr. 1399-1400).

Within thirty minutes, though the record is unclear whether the trial court re-entered the jury room or summoned the jury out, the court interrupted the deliberations, inquired whether the jury would reach a verdict within 20-30 minutes, and then decided to adjourn for the day (Tr. 1400-140.).

The transcript of proceedings indicates there were no further questions or requests for additional instruction from the jury throughout its deliberations on July 30, and throughout the morning and most of the afternoon of July 31, 1981. Nonetheless, by its journal entry of August 3, 1981, the trial court found the jury had deliberated on July 28, 29, 30 and reached its verdict of guilty on July 31, 1981.

On July 31, 1981, at 3:10 P.M., the court stated it had received several other questions from the jury and a statement which read:

"After lengthy discussion we cannot reach a unanimous verdict on the charge of aggravated murder. Please advise of further instructions." (Tr. 1402; 1408).

The court then stated:

" * * * I have decided to bring the jury into the courtroom and read to them a charge, in my opinion, short of the Allen charge, but nonetheless one which does a little bit more than encourage them to decide this case." (Tr. 1402) (Emphasis added.)

Appellant's counsel entered a general objection. Nonetheless, the court read the following charge to the jury:

" * * * And in a large proportion of cases and strictly speaking in all cases, absolute certainty cannot be obtained or even expected. Although the verdict to which a juror agrees must be, of course, 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 12 minds to a unanimous verdict you must examine the question submitted to you with candor and with a proper regard in deference to the opinions of each other. If you should fail to agree upon a verdict, the case is left open and undecided. Like all cases this case must be disposed of sometime. You, ladies and gentlemen, were selected in the same manner and from the same source from which any future jury must be, and there is no reason to suppose that the case will ever be submitted to 12 more men and women who are more intelligent, more impartial or more competent to dispose of it, or that more or clearer evidence will be produced on one side or the other. You have heard the evidence. Now with this view, it is your duty ladies and gentlemen, to dispose of the case if you can conciously do so. In order to make a decision more practicable, the law imposes the burden of proof on one party or the other. In all cases that is true. Now in this case the burden is upon the State to establish every part of every essential element, or which you are well aware, beyond a reasonable doubt. Now if you are left in doubt, ladies and gentlemen, as to any essential element, the defendant is entitled to the benefit of that doubt. But in conferring together, ladies and gentlemen, you ought to pay proper respect to each others' opinions; you must listen with a disposition to be convinced by each others' arguments. And on the one hand, if much the larger number of your panels are on one side or the other, a dissenting juror should consider whether his position is a reasonable one when it makes no impression upon the minds of men and women equally honest, equally intelligent and who have heard the same evidence with the same attention, with an equal desire to arrive at the truth and under the sanction of the same oath. And on the other hand, if a majority have reached a verdict, the minority ought seriously ask themselves whether or not they may reasonably and ought not to doubt the correctness...