Walsh v. United States, 19950.
Decision Date | 13 February 1967 |
Docket Number | No. 19950.,19950. |
Citation | 371 F.2d 135 |
Parties | John Joseph WALSH, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Paul A. Renne, San Francisco, Cal., for appellant.
Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Robert J. Timlin, Asst. U. S. Atty., for appellee.
Before MERRILL, KOELSCH and BROWNING, Circuit Judges.
Appellant was charged with violating the Dyer Act, 18 U.S.C. § 2312, by transporting an automobile from New York City to Los Angeles, knowing it to have been stolen. The uncontradicted evidence established that appellant rented the vehicle from a car rental agency in New York City and drove it to Los Angeles where he was arrested. The sole issue was whether appellant acted with criminal intent.
Appellant's principal contentions on appeal relate to admission in evidence of incriminating statements made in absence of counsel. Appellant had been advised of his right to remain silent and of his right to consult counsel. Under the circumstances of this case, for the reasons set forth in Payne v. United States, 340 F.2d 748 (9th Cir. 1965), the statements were not rendered inadmissible by Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L. Ed.2d 977 (1964). While the warnings given were insufficient to meet the standards of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), trial here commenced September 1, 1964, and such standards are not to be retroactively applied. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).
In closing argument counsel for the Government stated:
"No one has shown a bit of evidence, particularly the defendant, that the defendant took one step to return the car."
Appellant asserts that this remark amounted to a comment on his failure to take the stand and as such constituted prejudicial misconduct.
The remark as a whole, while unfortunately and most ineptly phrased, was addressed to appellant's failure to establish a particular fact (a perfectly legitimate subject of comment) rather than to his failure to take the stand himself. Any improper collateral innuendo was, in our judgment, cured by the court's charge to the jury that the defendant need not testify and that no presumption or inference of any kind might be raised or drawn from such failure.
After the jury had been deliberating for close to six hours it reported itself unable to agree upon a verdict. The court nevertheless sent the jury back for further deliberation. Appellant asserts that the manner in which this was done was coercive. We cannot agree. We regard Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965), the case upon which appellant relies, as distinguishable. There — as appears from the dissenting opinion in the Court of Appeals 117 U.S.App.D.C. 346, 330 F.2d 220 (1964) — the trial judge had bluntly declared: Here the jury was not told that it must reach a verdict. Nor were the minority members of the jury singled out for a lecture, or urged to defer to the views of the majority. The jury was simply told to keep trying.
Judgment affirmed.
As the court notes, the sole issue was whether appellant acted with criminal intent. The testimony was brief, requiring less than one trial-day. The case was submitted to the jury at 11:55 a. m. At 3:13 p. m. the jury requested additional instructions on intent. At 3:31 p. m., at the request of defense counsel, the jury was recalled and was further instructed, at length, on this issue. One of the jurors (by his questions) indicated particular doubt as to the sufficiency of the evidence. At 4:45 p. m. the jury asked for a reading of the testimony of a key witness on intent.
At 5:45 p. m. the jury sent the court a note reading:
"We the jury find it impossible to reach a verdict in this case."
The court summoned the jury, and the following transpired:
At 9:20 p. m. the jury returned a verdict of guilty.
The court was not required to accept at once the jury's statement that it could not agree, but could insist that the jury deliberate further. See, e. g., DeVault v. United States, 338 F.2d 179, 182-183 (10th Cir. 1964); Mills v. Tinsley, 314 F.2d 311, 312 (10th Cir. 1963); 5 Wharton, Criminal Law & Procedure 300 (Anderson ed. 1957).
The difficulty with the court's response was that it implied that the jury must reach a verdict, either for the defendant or for the government. It may therefore have exerted a coercive influence upon individual jurors to relinquish their personal views in the interest of unanimity.
A similar situation was before the Supreme Court in Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059 (1965). There, as here, the trial court rejected the jury's announcement that it could not reach a decision the jury, in effect, that the case must be decided (see 330 F.2d at 221 n. 2). The Solicitor General conceded "the principle that jurors may not be coerced into surrendering views conscientiously held." The Supreme Court concluded that "in its context and in all the circumstances the judge's statement had the coercive effect attributed to it," and reversed per curiam.
It is clear from Jenkins, and prior authority, that forbidden coercion exists whenever pressure to reach agreement is exerted upon the jury, unless it is accompanied by a clear and unequivocal reminder of the overriding obligation of each juror to adhere to his own conscientious convictions and to refrain from joining in a verdict merely because the juror is in a minority, or stands alone. In United States v. Rogers, 289 F.2d 433 (4th Cir. 1961), cited with approval in Jenkins, the court stated that the "Allen charge" (Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896)), which contains language suggesting the desirability of agreement, approaches the limit of acceptability,2 and that the charge would constitute reversible error "if it were stripped of its complementary reminder that jurors were not to acquiesce in the views of the majority or to surrender their well-founded convictions conscientiously held."3 289 F.2d at 435. See also United States v. Smith, 353 F.2d 166, 168 (4th Cir. 1965); Powell v. United States, 297 F.2d 318, 321 (5th Cir. 1951); Rhodes v. United States, 282 F.2d 59, 62-63 (4th Cir. 1960); cf. United States v. Kenner, 354 F.2d 780, 783-784 (2d Cir. 1965), and cases cited. Such a charge is permissible only "so long as it makes plain to the jury that each member of the jury has a duty conscientiously to adhere to his own honest opinion and avoids creating the impression that there is anything improper, questionable, or contrary to good conscience for a juror to cause a mistrial" (Thaggard v. United States, 354 F.2d 735, 739 (5th Cir. 1965)); for, "indeed, a mistrial is as much a part of the jury system as a unanimous verdict." Williams v. United States, 119 U.S.App.D.C. 190, 338 F.2d 530, 533 (1964).4
1 The balance of the colloquy between the court and the jury was as follows:
If you have parking problems, why the marshal will help them take care of those situations.
The court will be in recess, subject to call, I will...
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