Thornton v. State
| Decision Date | 11 April 1978 |
| Docket Number | No. 3,No. 55547,55547,3 |
| Citation | 145 Ga.App. 793,245 S.E.2d 22 |
| Parties | Jackie THORNTON v. The STATE |
| Court | Georgia Court of Appeals |
Gilberg, Kraselsky & Owens, Larry B. Owens, Albany, for appellant.
William S. Lee, Dist. Atty., Hobart M. Hind, Asst. Dist. Atty., Albany, for appellee.
The defendant was convicted of violating the Georgia Controlled Substances Act. He appeals the denial of his motion for new trial.
After deliberating approximately two hours, the jury returned to the courtroom, and the foreman told the judge that the jury was unable to reach a verdict. The judge inquired as to their numerical division, and the foreman replied that they stood 11:1. The judge ordered a luncheon recess and instructed the jury to resume its deliberations at 2:00 p. m. Defense counsel then asked the court's permission to present a motion before the jury resumed its afternoon deliberations. Although it is not absolutely clear from the record, the judge apparently consented to his request.
The jury returned to the jury room at 2:00 p. m., but the judge did not return to the courtroom until 2:40 p. m. Defense attorney claims that the bailiff instructed the jury that it could not resume deliberations until he received further orders from the judge, which orders were received and communicated to the jury around 2:40 p. m. Upon being questioned by the judge, the bailiff stated that he did not instruct the jury to delay its deliberations; rather, he said he had informed the jury that he could not give them a copy of the indictment until receiving further instructions from the judge. The judge then proceeded to hear defense attorney's motion that the jury be given additional instructions pertaining to its deadlock. As the motion was being discussed, the jury returned with its verdict. The defendant alleges that the verdict was invalid since it was reached without benefit of the additional instructions which he had requested.
Defense counsel's motion asked that the court question the foreman to "find out whether he does, indeed, feel that they have reached a dead end." In response to this motion, the district attorney volunteered to go get his copy of the "Allen" or "dynamite" charge. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). The "Allen" charge is a charge given to juries which emphasizes their duty to reach a verdict, if at all possible, without requiring any juror to surrender his honestly held conviction. The defendant argues that the trial judge must in all cases either dismiss the jury and declare a mistrial or give them further instructions once they have advised the judge that they are deadlocked. He contends that to instruct the jury to continue its deliberations without any comment misleads the jury into believing they must reach a verdict and that this is especially coercive when the jury's announced numerical division is 11:1. He further argues that the silence of the trial judge in this case resulted in a denial of his Sixth Amendment right to a fair and impartial jury.
The decision of whether to give a jury in disagreement the "Allen" charge is generally left in the discretion of the trial judge. See Parker v. The Georgia Pacific Ry. Co., 83 Ga. 539(9), 10 S.E. 233 (1889); Yancy v. State, 173 Ga. 685(5), 160 S.E. 867 (1931); Ponder v. State, 229 Ga. 720(2), 194 S.E.2d 78 (1972); Willingham v. State, 134 Ga.App. 603(5a), 215 S.E.2d 521 (1975); Still v. State, 142 Ga.App. 312(4), 235 S.E.2d 737 (1977). The federal courts also recognize the trial judge's discretion to give the "Allen" charge in appropriate situations. See, for example, Powell v. United States, 297 F.2d 318 (5th Cir. 1961); United States v. See, 505 F.2d 845 (9th Cir. 1974).
In reference to the judge's discretion the District of Columbia Circuit Court of Appeals has ruled that "(W)hen a jury reports that they are unable to agree the court is faced with the alternative of discharging them or directing them to continue their deliberations . . . In order to determine the likelihood of an agreement it is obviously necessary in...
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...jurors individually, the trial court determined that further deliberations would be "fruitless"). See also Thornton v. State, 145 Ga.App. 793, 794, 245 S.E.2d 22 (1978).5 The trial court should also consider the length of time the jury deliberated before declaring itself deadlocked and whet......
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Zerbarini v. State
...discretion to give the Allen charge, even if trial counsel had vigorously objected during the conference. See Thornton v. State , 145 Ga. App. 793, 794, 245 S.E.2d 22 (1978) ("The decision of whether to give a jury in disagreement the ‘Allen’ charge is generally left in the discretion of th......
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Romine v. State
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