U.S. v. Taylor

• Decision Date: 15 April 1976
• Docket Number: No. 75--2491,75--2491
• Citation: 530 F.2d 49
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold James TAYLOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 49

530 F.2d 49

UNITED STATES of America, Plaintiff-Appellee, v. Harold James TAYLOR, Defendant-Appellant.

No. 75--2491.

United States Court of Appeals, Fifth Circuit.

April 15, 1976.

David B. Byrne, Jr., Montgomery, Ala., for defendant-appellant.

Ira DeMent, U.S. Atty., D. Broward Segrest, Asst. U.S. Atty., Montgomery, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before MORGAN, CLARK, and TJOFLAT, Circuit Judges.

PER CURIAM:

Harold James Taylor was indicted along with Woodrow Hunter on February 19, 1974, for an alleged violation of 18 U.S.C. § 2113 (armed bank robbery). They were both convicted by a jury on April 23, 1974. Because the trial court erroneously denied Taylor's motion to sever, we reversed his conviction and remanded for a new trial. 508 F.2d 761 (5th Cir. 1975). The second trial lasted from May 5, 1975, to May 8, 1975. Jury deliberation began on May 7 at 2:30 p.m. At 5:07 p.m. the jury returned for a short consultation with the judge ¹ and then returned to deliberate until 6:00 p.m. The jury returned the following morning at 8:55 a.m. and deliberated until 10:20 a.m. when they reported they could not reach a verdict. Judge Varner then gave further instructions ² and sent the jury back for further deliberation. He allowed them a one-hour recess for lunch at 1:00 p.m. ³ They returned after lunch and reached a verdict at 2:35 p.m. The defendant appeals contending that the supplemental instructions given by Judge Varner were so coercive that they taint the verdict. ⁴

The prosecution argues that the issue cannot be raised, because the defense failed to object at trial. In United States v. Taylor, 513 F.2d 70, 72 (5th Cir. 1975), we pointed out that when the defendant fails to object to an Allen Charge, ⁵ the court may reverse under Fed.R.Crim.P. 52(b) only if the charge constitutes plain error, that is, "only where the error complained of seriously affects the fairness or integrity of the trial and the appellate court must take notice of it to avoid a clear miscarriage of justice. Moore v. United States, 399 F.2d 318, 319 (5th Cir. 1968), cert. denied,393 U.S. 1098, 89 S.Ct. 893, 21 L.Ed.2d 789." To determine whether an Allen charge is plain error, we must evaluate whether the particular charge is coercive in light of the facts and circumstances of the case and whether further instructions following timely objection could correct the problem.

Although this court upheld the use of the Allen charge in United States v. Bailey, 480 F.2d 518 (5th Cir. 1973) (en banc), our later cases ⁶ leave little doubt that our decision was commanded by a Supreme Court decision and was not an expression of our approval of the use of the Allen charge. Consequently, any variation from the classic Allen language will be subject to intense scrutiny. United States v. Cheramie, 520 F.2d 325, 330 (1975); United States v. Amaya, 509 F.2d 8, 12--13 (5th Cir. 1975). A charge will only survive this scrutiny if after examining the facts and circumstances, the court is convinced that the charge will not coerce the jury. United States v. Taylor, 513 F.2d 70, 72 (5th Cir. 1975). United States v. Cheramie,520 F.2d 325, 328 (5th Cir. 1975).

The supplementary charge in this case, including the story of the judge's first case, an assault case in which the defendant had allegedly struck his victim with an ax, is certainly not the classic Allen charge. Examining the charge and surrounding circumstances we must conclude that it was unduly coercive. First, time pressures were created by a variety of factors. After five hours of deliberation, the ax story was told suggesting that the judge would not consider it excessive to hold the jury for more than eight hours. He then did not excuse them for lunch until 1:00 p.m., an hour later than normal and the time at which three of the jurors were due for jury duty on another trial. When a mistrial was not declared at that time, they could have perceived that they were 'in for the duration.' These time pressures certainly could have coerced members of the jury.

Second, the 'ax story' involved long deliberations over a case in which the judge seemed to think there was little doubt. By repeating it here, he suggests that the Taylor case is an easy one. Thus, if the minority was holding out for the defendant in this case, they might be more easily persuaded to change their positions if they thought the defendant was probably guilty but were not convinced beyond a reasonable doubt. Third, the trial judge strongly emphasized to the jury that another trial would involve enormous expense and inconvenience. These statements could scarcely have avoided creating the impression that there might be something 'improper, questionable, or contrary to a good conscience for a juror to cause a mistrial . . .' Thaggard v. United States, 354 F.2d 735, 739 (5th Cir. 1965), cert. denied,383 U.S. 958, 86 S.Ct. 1222, 354 F.2d 735 (1966). Taken in combination, these factors lead to the conclusion that the charge may have been coercive and therefore reversible error. This error is plain error unless instructions could have cured the error. We believe, however, that where a judge has created time pressures and has implied his opinion of the correct outcome of the case, no further instructions could have undone the problem.

Accordingly, we REVERSE and REMAND for a new trial.

1 THE COURT: Now before you ask any questions, let the record show that the Defendant in the Taylor case and his attorneys and the Government attorneys are in the courtroom. Let me warn you that you should not inform anyone as to how you stand, how you have voted, if you have voted, and it would not be alarming to me if you have not voted. But you have to very careful not to tell the Court and anybody here what you have done back there. All you may do properly is ask a question. And if you try to give me information and give the wrong information the affect of it is to have a mistrial, which means that we would have to simply start all over again, spend all of the money getting all of the witnesses and jurors and another jury would have to consider the case. So, do not tell me how you stand. Do not give me any information about what took place in the jury room. Simply ask the question that you wish to ask if you can do that subject to those instructions.

JUROR: No, sir, you have answered the question.

THE COURT: Have I answered the question you had in mind?

JUROR: Yes, sir.

THE COURT: All right. Now, I am going to tell you this. I am...