State v. Silcox
| Decision Date | 23 August 1982 |
| Docket Number | No. 13376,13376 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. James Lee SILCOX, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Louis L. Uranga, Boise, for defendant-appellant.
David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Michael B. Kennedy, Deputy Atty. Gen., Boise, Thomas R. Cushman, Deputy Atty. Gen., Horseshoe Bend, for plaintiff-respondent.
On June 24, 1978, defendant James Lee Silcox attempted to place certain individuals under citizen's arrest. One of the individuals Silcox attempted to place under arrest, Leroy Burger, refused to acknowledge the arrest and fled the scene of the arrest. In the course of firing shots in the direction of Burger, Silcox shot Burger in the back. Silcox was subsequently charged with the offense of assault with a deadly weapon. I.C. § 18-906.
The matter was set for trial on February 8, 1979. The defendant filed a motion for an order staying the proceedings and an order dismissing the information on the grounds that there had been a substantial failure to comply with the Uniform Jury Selection and Service Act (I.C. § 2-201 et seq.) in selecting the jury for the scheduled trial. On February 7, 1979, the motion was brought on for hearing before the district court. The court found that the evidence presented established that the jury panel had not been selected in accordance with the Uniform Jury Selection and Service Act. Nonetheless, the court ruled that the defects could be cured without substantial prejudice to the defendant if the matter were stayed until April 2, 1979.
The matter was set for trial on that date. Three days prior to trial, the defendant's counsel filed another motion to stay the proceedings and to dismiss the information, alleging again a substantial failure to comply with the Uniform Jury Selection and Service Act. One of the bases of the allegation was the fact that one of the members of the Jury Commission, Dan O. Turnipseed, was absent during the compilation of the master list, master jury wheel and qualified jury wheel. On April 2, 1979, at the outset of the trial, the district court denied the defendant's motion. The trial lasted for two days.
On April 3, at 8:40 p.m., the jury began its deliberations. After several hours of deliberation, the jury returned to the courtroom in the early morning hours (3:46 a.m.) of April 4, 1979, announcing that the members of the jury were unable to agree on a verdict. At that time, the district court judge, after consultation with defense counsel and the prosecution, provided further instruction to the jury.
No objection was made to the instruction. After approximately two and one-half hours of further deliberation, at 6:24 a.m., the jury returned a verdict finding the defendant guilty of the lesser included offense of injuring another by discharge of aimed firearm. I.C. § 18-3306. From the entry of judgment of conviction, the defendant perfected the instant appeal.
Three issues are presented on appeal: (1) did the lack of participation by both members of the jury commission in the preparation and compilation of the master list, master jury wheel and qualified jury wheel constitute a failure to substantially comply with the Uniform Jury Selection and Service Act; (2) did the oral instruction given to the jury after it announced it was deadlocked have a coercive effect on their subsequent deliberations; and (3) did the district court utilize improper procedures in giving the oral instruction.
Jury Selection Process
At the time of the compilation of the master list, master jury wheel and qualified jury wheel, from which the jury was selected in the instant case, the Boise County Jury Commission consisted of the Boise County Clerk, Robert J. Tuffield, and the Boise County Jury Commissioner, Dan O. Turnipseed. It was the statutory obligation of the Jury Commission, acting as a body, to compile and maintain a master list, a master jury wheel and a qualified jury wheel. I.C. §§ 2-206, 207, 208 and 210. The record, however, establishes that one of the members of the Boise County Jury Commission, Mr. Turnipseed, did not physically participate in this process. The appellant submits that this lack of personal participation in the jury selection process by one of the members of the jury commission constitutes a failure to substantially comply with the Uniform Jury Selection and Service Act.
The policy of the Act is stated in I.C. § 2-202 as follows:
"It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity, in accordance with this act to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose."
The appellant has made no argument, nor does the record indicate, that the lack of participation by one member of the jury commission in the preparation and compilation of the jury lists affected the random nature or objectivity of the selection process. In this regard the instant case is nearly identical to the case of State v. Walters, 61 Idaho 341, 102 P.2d 284 (1940). The defendant in Walters challenged the jury selection process upon the basis that the county commissioners had not acted as a board in compiling a jury list as required under the existing statute. The court initially observed that the preparation of jury lists should be by the board, acting as a body, rather than by the individual members of the board acting independently. 61 Idaho at 348, 102 P.2d at 287. The court, however, affirmed the district court's denial of the defendant's motion to quash the jury panel, on the ground that the defendant had not sufficiently established any prejudice arising from non-compliance with the existing statute governing jury selection. Id. Specifically, it was stated:
61 Idaho at 347, 102 P.2d at 286.
As in the Walters case, we are of the view that even though it might have been preferable that there had been the actual participation of both members of the jury commission, the compilation of the jury lists by the one member unaided by the other member, was nonetheless valid since the defendant did not establish nor even argue that any prejudice resulted therefrom.
Turning next to the issue of the propriety of the oral instruction given to the jury after it announced it was deadlocked, while this instruction should not be considered as a model as to either form or procedure we are of the opinion that the instruction did not have a coercive effect on the jury's subsequent deliberations and does not require reversal.
Examining the circumstances surrounding the district court's decision to give the instruction and the wording of the instruction itself, the following factors attest that the instruction was proper and not coercive in effect: (1) before the instruction was given the jury had been deliberating for approximately seven hours; (2) the court, by way of its instruction, asked the jury to "keep trying, and hopefully you will be able to reach a verdict;" and (3) the court concluded the instruction with the statement to the jury that if they could not reach a verdict "we will discharge you." The instruction in no wise can be characterized as an admonition to the jurors in the minority that they should reconsider the reasonableness of their convictions when not concurred in by the majority.
As to this later point, it is to be noted that Idaho has adopted a variation of the "Allen" or "dynamite" instruction. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); State v. Bailey, 94 Idaho 285, 486 P.2d 998 (1971); Idaho Trial Judge's Manual, § 7.63; Idaho Jury Instructions, no. 131. The instant instruction being somewhat akin to an "Allen" or "dynamite" instruction, it is to be noted further that several courts have held that it is permissible for a trial judge to impress upon jurors, after they have been allowed to deliberate for a reasonable time, the importance of reaching a verdict, to point to the expense and time it has taken to try the case, and to note that the case may have to be decided by some jury and in all probability on the same pleadings and evidence. See, e.g., Hodges v. United States, 408 F.2d 543 (8th Cir. 1969); Plumley v. State, 4 Md.App. 671, 245 A.2d 111 (1968).
I.C.R. provides in pertinent part:
...
To continue reading
Request your trial
-
State v. Flint
...e.g., State v. Brown, 94 Idaho 352, 487 P.2d 946 (1971); State v. Byerly, 109 Idaho 242, 706 P.2d 1353 (Ct.App.1985); State v. Silcox, 103 Idaho 483, 650 P.2d 625 (1982). Unlike Silcox, however, defense counsel here did object to the dynamite instruction. Moreover, unlike Idaho Jury Instruc......
-
State v. Talmage
...a case of "overworking jurors at the expense of those jurors ... with [a] resultant unfair trial," State v. Silcox, 103 Idaho 483 at 492, 650 P.2d 625 (Idaho 1982) (Bistline, J., dissenting). The trial court did not abuse its discretion in declaring mistrial and the retrial violated no cons......
-
State v. Lopez
...showing, no purported error by the jury commissioners would afford a basis to disturb the judgments of conviction. See State v. Silcox, 103 Idaho 483, 650 P.2d 625 (1982). A potentially more troubling problem is presented by the jury commissioners' disregard of the statutory directive to fo......
-
State v. Clay
...the case. Our Supreme Court has called attention to the availability of this instruction in a criminal case. See State v. Silcox, 103 Idaho 483, 485, 650 P.2d 625, 627 (1982) (referring to identical former IDJI 131). Although the pattern instruction is free of any coercive language, judges ......