Winters v. United States, No. 6658.

Docket NºNo. 6658.
Citation317 A.2d 530
Case DateMarch 20, 1974
CourtCourt of Appeals of Columbia District

Page 530

317 A.2d 530
Frank C. WINTERS, Appellant,
No. 6658.
District of Columbia Court of Appeals.
Reargued en banc July 2, 1973.
Decided March 20, 1974.

James F. Bromley, Washington, D. C., appointed by this court, for appellant.

David G. Larimer, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry and Richard L. Cys, Asst. U. S. Attys., were on the brief, for appellee.

Before REILLY, Chief Judge, and KELLY, FICKLING, KERN, GALLAGHER, NEBEKER, PAIR, YEAGLEY and HARRIS, Associate Judges, sitting en banc.

NEBEKER, Associate Judge:

The court, sua sponte, reheard this case en banc to consider a renewed attack on the traditional and so-called Allen charge.1

Page 531

Appellant's point, as he views that instruction, is that it unconstitutionally invades the province of the jury and thus denies a trial by jury. In a word, appellant says that the instruction is coercive. He urges that we follow other courts, particularly the United States Court of Appeals for the District of Columbia Circuit, and command use of the anti-deadlock variation of the Allen charge as approved by the American Bar Association.2

Of course, at the time the instruction was given in this case, it was in conformity with Simms v. United States, D.C.App., 276 A.2d 434 (1971), and not erroneous per se. In the context of this case we are not persuaded to hold the instruction to be error. Moreover, in the circumstances of its use in this case we do not find it coercive to the point of requiring reversal of the conviction.

As a result of a cutting incident outside a neighborhood bar, appellant was charged with assault with a dangerous weapon,3 and with carrying a dangerous weapon.4 The actual trial lasted about 5 hours. The victim testified that although there had been some past differences between them, appellant, without provocation, cut him on the side of the face as they left the bar. The victim saw no knife but the cut was extensive. The defense was alibi; it was presented through only a single witness, a friend of the accused.

After about 20 minutes of deliberation on the afternoon of the trial, the jury sent a note asking questions as to which hospital the victim had been taken for treatment, whether they could view the victim's scars at close range, and whether they could see the lineup photograph exhibit. Only the latter request was honored. The jury was excused for the night after only about 20 or 25 minutes of further deliberation. The following morning, after about 45 minutes of additional deliberation, the jury, by note asked for further instructions, which were given without objection. The jury renewed deliberations at 11:20 a. m. After one hour devoted to lunch, deliberations were again undertaken. At 1:50 p. m. another note arrived stating that the jury had reached a verdict on count 2 (carrying a dangerous weapon), but "Can't reach decision on charge # 1 (ADW) . . . Shall we continue or adjourn?" The court took the verdict, an acquittal on count 2, and then gave the standard Allen charge over appellant's objection. The jury resumed its deliberations and, within 25 minutes, returned a verdict of guilty on the remaining count.

In Simms v. United States, supra, this court specifically approved the traditional Allen charge. We also quoted with approval the admonitions of Chief Justice Burger when, as a member of the United States Court of Appeals for the District of

Page 532

Columbia Circuit, he observed that to avoid a possible charge of coercion, the trial judge should give the traditional Allen charge without variation. Fulwood v. United States, 125 U.S.App.D.C. 183, 186, 369 F.2d 960, 963 (1966). In the instant case the trial court judge gave the Allen charge without variation as we advised in Simms. While the inconsistency of the verdicts in this case does reveal a curious course of reasoning, we cannot hold that the wide power of the jury, in deliberation, is so severely restricted by its decision to acquit on the weapon count that a verdict on the assault count had to be one of acquittal also. See Branch v. United States, D.C.App., 263 A.2d 258 (1970).

In this case, some of the factors which produce our conclusion that the verdict is not infested with error by the antideadlock instruction or its timing are worth listing. The trial was relatively short and the factual dispute narrowly defined. The jury spent about 2 hours and 20 minutes deliberating before announcing deadlock, and another 25 minutes thereafter — about half as long as the trial itself. The jury had not been sequestered. Moreover, a verdict favoring appellant was taken just before the jury received the challenged instruction. See United States v. Birrell, 447 F.2d 1168, 1173 (2d Cir. 1971). Under these circumstances we cannot agree with appellant that the jury verdict was the product of a coercively applied anti-deadlock charge.

Indeed, at oral argument counsel for appellant agreed that the major coercive force in a seemingly deadlocked jury is the obvious existence of a disagreement among the jurors. It is not hard for anyone to understand that in cases of deliberative group decisions a coercive force naturally exists when those in disagreement must deal face-to-face with those of opposite persuasion. It is not whether the charge supplies coercion, for that element is already present from a desire for a decision and disagreement as to it. The issue in all these cases is whether the instruction would objectively appear to force a juror to abandon his honest conviction as a pure accommodation to the majority of jurors or the court. We see nothing of constitutional magnitude in the reference in the Allen charge to the existence and juxtaposition of a majority and minority.

Because of the recurring nature of this question and its recognized drain on judicial resources,5 we think it now serves the administration of justice to adopt a rule for future cases. Because such a rule will not be a holding in this case, due to our affirmance of the conviction, we propound it in the exercise of our superintendent responsibility.6 We have examined the very contemplative opinions of the courts which have wrestled with this problem. Until recently the major emphasis has been on deciding between the Allen charge and the variation approved by the American Bar Association. Indeed, that is the choice offered by the parties. The option has been between a charge which specifically refers to a majority-minority polarization and a charge in which that probability is totally deemphasized in preference to highlighting the duty of the individual juror to listen but make independent judgment. But of late the court which gave birth to the Allen charge, or the Tuey charge as it is known in Massachusetts,7 has taken an imaginative step to gently discipline its potentially errant offspring. See Commonwealth v. Rodriquez, 300 N. E.2d 192 (Mass.1973). There, as here, the court affirmed a conviction in which the Tuey charge was given to the deadlocked jury. That court went on, in the exercise of its superintendent power, to adopt for the future a variation of the Tuey charge in

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which the majority-minority phrasing was eliminated. In so doing, the Massachusetts court took note of the criticism leveled at the Tuey charge:

. . . [T]he Tuey charge invites the members of the tentative minority to reconsider their position in the light of the views of the tentative majority, but does not invite the majority members to reciprocate toward the minority (except as it asks each juror to listen to the others). The imbalance and weakness of this part of the Tuey charge have now been widely recognized. Judge McGowan has remarked that it "has widely been thought to contain the true dangers to free and unfettered exercise of individual judgment and expression of conscience which is at the very core of the jury system. Many trial judges, although still using the Allen charge, have abandoned this element of it long ago." United States v. Johnson, 139 U.S.App. D.C. 193, 432 F.2d 626, 633. It has been said to "assume an inherently faulty major premise," namely, "the majority is right and has reached its preliminary inclination by appropriately inspired processes, and that the minority in a given group possesses attributes of spurious rationality"; it is "a direction that . . . [jurors] be influenced by some sort of Gallup Poll conducted in the deliberation room"; it "serves to substitute the coercive influence of any early polling of the jury for the give and take of group deliberation,14 a basic attribute of

14 The possible effect of the majority-minority phase of the charge on the individual juror has been thus depicted: "The majority think he is guilty; the Court thinks I ought to agree with the majority so the Court must think he is guilty. While the Court did tell me not to surrender my conscientious convictions, he told me to doubt seriously the correctness of my own judgment. The Court was talking directly to me, since I am the one who is keeping everyone from going home. So I will just have to change my vote." State v. Voeckell, 69 Ariz. 145, 157, 210 P.2d 972, 980 (dissenting opinion). Arizona later abandoned the Tuey charge in its conventional form. State v. Thomas, 86 Ariz. 161, 342 P.2d 197.

the jury system often expressed as a major characteristic justifying its continuance in our judicial system." Aldisert, J., in United States v. Fioravanti [412 F.2d 407, 416, 417 (3d Cir. 1969)]. . . .

Commonwealth v. Rodriquez, supra, 300 N.E.2d at 201 (emphasis and footnote as in original). Moreover, an inaccurate but fundamental assumption in any charge phrased exclusively in terms of majority-minority views ignores the possibility that a jury of even number membership may be equally divided. In that event, such an instruction logically falls on deaf ears and may tend to confuse the jury.

We are persuaded that the...

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