Brief Bank # B-812 (Re: PG IX(J)(7) [Both Minority And Majority Must Be Encouraged To Consider The Other’s Views]; F 17.15.55a [Jury Deadlock: Jurors Not To Surrender Honest Belief For Purpose Of Returning Verdict].)
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COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Appellant,
vs.
JOHN DOE,
Defendant and Appellant.
_____________________________________/
APPELLANT’S OPENING BRIEF
APPEAL FROM THE LOS ANGELES COUNTY SUPERIOR COURT,
HON. JAMES P. PIERCE, JUDGE
MARYLOU HILLBERG
State Bar No. 88645
P.O. Box 1879
Sebastopol, CA 95473
Tel: (707) 575-0393
Fax: (707) 545-4642
Attorney for Appellant
JOHN DOE
STATEMENT OF THE CASE
Appellant was charged with two counts of attempted robbery (Penal Code § 664/211, counts one and two.) It was also alleged that this was his third “strike” since he had two prior convictions for robbery. (I 1170.12, subd. (a)-(d); 667, subd. (b)-(i).) These two prior robbery convictions stemmed from one previous case and were alleged as one five year enhancement under section 667, subd. (a) and a one year enhancement pursuant to section 667.5, subd. (b).
Trial by jury was held. After both sides rested, the jury was instructed and retired to deliberate. Late in the afternoon of the second day of deliberations, the jury asked for the entire testimony of the victim to be reread.
The next afternoon (of the third day of deliberations), the jury sent in a note telling the judge that they were unable to reach a verdict. The trial court then admonished the jury to keep trying to reach a verdict and sent them back for further deliberations.
The afternoon of the fourth day of deliberations, the jury returned with five additional questions, primarily asking for guidance on the application of reasonable doubt to the evidence presented. The trial court told the jury that it could not clarify the instructions and the deliberations resumed.
The following day the jury returned with a guilty verdict on count one, the attempted robbery of Mrs. D, and a verdict of not guilty on count two, the attempted robbery of Ms. C. The question of the truth of the prior convictions was tried separately and the jury found both prior convictions to be true.
A motion for a new trial was made that claimed both insufficiency of the evidence and alleged jury misconduct as a juror claimed that he believed the defendant was not guilty of the crimes based on the evidence presented.
A hearing was held on this motion in which two jurors testified that they did not render their actual verdict. The trial court granted the motion for a new trial, finding substantial juror misconduct.
The People appealed this order. This court reversed the judgment of the trial court and ordered the conviction reinstated in an unpublished opinion in People v. Doe.
Appellant was thereafter sentenced to twenty-five years to life in prison. He was awarded a total of 1194 days credit for time served.
This appeal was filed on the same day as the sentence was pronounced.
ARGUMENT
I. APPELLANT’S RIGHTS TO DUE PROCESS OF LAW AND A TRIAL BY
A FAIR AND IMPARTIAL JURY, GUARANTEED BY THE FIFTH AND SIXTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION, WERE
VIOLATED BY THE “ALLEN” INSTRUCTION GIVEN HERE.
A. Factual Background.
The jury was sworn and began deliberations of the afternoon of October 21 st. (CT Case No. B000002, at p. 41.) After a full day of deliberations, the jury requested that the entirety of the complaining witness’s testimony be reread to them. (Ibid. ) Following the rereading of the testimony, the jury continued deliberations for another full day before returning to tell the court that they could not reach a verdict. (Id. at 46; RT Case no. B000002 at p. 283.)
The judge told the jury “ it hasn’t been that long; so let’s not give up just yet.” (Ibid.) After learning that the numerical breakdown of the jury was 10-2, the judge gave them the following modification of an Allen [Footnote 1] Instruction:
“Although the verdict to which a juror agrees must, of course, be his or her own verdict, the result of his or her own convictions, and not a mere acquiescence in the conclusion of his or her fellows, yet in order to bring 12 minds to a unanimous result, you must examine the question submitted to you with candor and with a proper regard and deference to the opinions of each other.
Remember that you are not partisans or advocates in thus matter, you are impartial judges of the facts. Each of you must consider the evidence for the purpose of reaching a verdict, if you can do so. Each of you must decide the case for yourself, but should do so only after discussing the evidence and the instructions with the other jurors, and with this view, it is your duty to decide the case, if you can conscientiously do so.
In conferring together you ought to pay proper respect to each other’s opinions and listen with a disposition to be convinced to each other’s arguments.” (Id. at pp. 284-85.)
The judge then excused the jury for the evening and sent the written form of this instruction into the jury room. (Ibid.; Aug CT at p. 39.) The jury went back to work the next day, but returned early that afternoon with a list of questions. (CT Case No. B000001 at p. 47.) Included was a request for the court to explain the Allen Instruction that they had been given. [Footnote 2] (Ibid.)
The court declined to elaborate on the instruction, stating: “These words are used for very specific reasons, and unless there is some particular phrase in there or definition of a word what [sic] you want me to break down, I think it speaks for itself.
After reading the whole thing out loud to each other in the jury room, and I would encourage you to do that . . . So, I’m sorry I wasn’t much help, but I’m going to ask you to continue deliberating and using the instructions as a whole as I gave you previously if [sic] resolving this matter.” (RT Case no. B0000027 at p. 292.)
Two hours later, the judge called the jury back into the courtroom to break for the day. (RT Case no. B000002 at p. 293.) The jury had only been cleared for service through the end of that day and the judge wanted to determine if any one of them had a problem with continuing to serve. (Ibid. ) Before asking them that question, however, the judge admonished them: “I strongly encourage you to continue your deliberations to resolve this matter.” (Id. at p. 294.) After two hours of deliberations the following morning, the jury convicted appellant. (Id. at pp. 296-97.)
B. Analysis.
The fundamental problem with an instruction such as that given here is that it “strongly encourages” the minority juror to capitulate to those in the majority so that they can complete their task and all go home. In an Allen charge, the court “instructs the jurors to work towards unanimity and the minority to reexamine its views. ” (Jiminez v. Myers, (9th Cir. 1993) 40 F.3d 976, 980.) This instruction has been upheld where the court’s request that those jurors in the minority re-examine their views was counterbalanced by a word of caution that no juror “should yield a conscientious conviction” in order to achieve unanimity. (United States v. Bonam, (9th Cir. 1985) 772 F.2d 1449, 1450-51.)
The written instruction given to the jury refers to “Lowenfield v. Phelps (1 988) 108 S. Ct. 546″. (Aug. CT at p. 39.) The actual instruction in that case, differed, however. It read, in pertinent part:
“When you enter the jury room it is your duty to consult with one another to consider each other’s views and to discuss the evidence with the objective of reaching a just verdict if you can do so without violence to that individual judgment.
Each of you must decide the case for yourself but only after discussion and impartial consideration of the case with your fellow jurors. You are not advocates for one side or the other. Do not hesitate to reexamine your own views and to change your opinion if you are convinced you are wrong but do not surrender your honest belief as to the weight and effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.” Lowenfield v. Phelps (1988) 484 U.S. 231,235, emphasis added.)
The instruction here did not contain this admonition for the jurors to hold on to their honest belief even if it meant the jury would not be able to return a verdict. While this jury was told they should decide the case for themselves as individuals, they were to reach their decisions only after discussing the case with the other jurors. (Aug CT at p. 39.) Further, the jury was told that “it is your duty to decide the case”,.if they could conscientiously do so. (Ibid. ) The jury was told to “listen [to the opinions of the other jurors] with a disposition to be convinced to each other’s arguments.” (Ibid. The instruction given in this case exerts considerably more pressure on the two hold out jurors to conform their opinions to the majority of the jury than did the instruction -approved in Lowenfield v. Phelps, supra, 484 U.S. at 235.)
Numerous courts have been critical of Allen instructions. The primary reason for judicial disfavor of an Allen charge such as that delivered in this case is its potentially coercive effect upon those members of a jury holding to a minority position at the time of the instruction. (United States v. Fioravanti, (3d Cir. 1969) 412 F.2d 407, 416-17 (Cert. denied, (1969) 396 U.S. 837); Note, Due Process, Judicial Economy and the Hung Jury: A Reexamination of the Allen Charge 53 Va. L. Rev. 123, 126 (1967). It is contended that the Allen charge persuades minority jury members to alter their individually held views not on the basis of evidence and law, but on the basis of majority opinion. (United Stated v. Beattie (9th Cir. 1980) 613 F.2d 762, 764; United States v. Wauneka, (9th Cir. 1988). 842 F.2d 1083, 1 088.)
In United States v. Sae-Chua, (9th Cir. 1984), 725 F.2d 530 an Allen charge was found to be unduly coercive where the judge knew eleven jurors favored conviction and the judge also knew the identity of the lone holdout juror. (Id. at 532.) “Under these circumstances the charge could only be read by the dissenting juror as being leveled at him. He could hardly escape reasoning that the judge was not likely to believe that he could persuade the opposing eleven to adopt his position . . . and that he, individually, was being urged by the judge to reconsider his vote..” (Ibid.) The same consideration is present here where there were only two jurors holding to their views against the majority of ten.
“These charges have been referred to as ‘dynamite charges,’ because of their ability to ‘blast’ a verdict out of a deadlocked jury. The charge has also been called the ‘third degree instruction,’ ‘the shotgun instruction,’ and ‘the nitroglycerin charge’.” (United States v. Mason (9th Cir. 1981) 658 F.2d 1263, 1265.)
Jiminez v. Myers, supra, 40 F.3d at p. 981 reversed where the trial court effectively instructed the jurors to make every effort to reach a unanimous verdict after disclosure that only one juror remained in the minority and urged continued “movement” toward unanimity. “A single vote stood between defendant and conviction. In such a case ‘the most extreme care and caution were necessary in order that the legal rights of the defendant should be preserved.’ The trial court’s failure to counterbalance the implication of its questions and comments by instructing the hold-out juror not to surrender his or her sincere convictions strongly supports the conclusion that the jury was impermissibly coerced to render a unanimous verdict.” (citations omitted.)
The timing of the instruction is also crucial. When dealing with a deadlocked jury, the coerciveness of any instructions given will be heightened if the judge gives new and unfamiliar instructions at the time of deadlock rather than simply repeating the part of the original jury instructions dealing with the jury’s duty to deliberate with an open mind. (See e.g. Romine v. Georgia (1988) 484 U.S. 1048, 1050.)
The Court stressed the importance of a balanced charge to the majority and minority jurors: “When a trial court gives an Allen charge, it ‘is essential in almost all cases to remind jurors of their duty and obligation not to surrender conscientiously held beliefs simply to secure a verdict for either party’. United States v. Mason, supra, 658 F.2d at p. 1268. A trial court’s failure to give such a cautionary instruction weighs heavily in favor of the conclusion that the defendant’s right to a fair trial and impartial jury has been violated. See United States v. Bonam, 772 F.2d 1449, 1450 (9th Cir. 1985).” (Jiminez v. Myers, supra, 40 F.3d at p. 981, fn. 5.)
In California courts this instruction has also been criticized. People v. Gainer (1977) 19 Cal.3d 835 disapproved the Allen instruction since it tended to coerce a subjugation of minority to majority opinion. The California Supreme Court has approved the Allen charge when it has been accompanied by supplemental instructions reminding jurors not to surrender their convictions simply because a majority of jurors has taken a different view of the case. (See People v. Sheldon, (1989) 48 Cal. 3d 935, 959 where the Allen instruction contained the caveat “you should not be influenced to decide any question in a particular way because a majority of the jurors, or any of them, favor such a decision.”; and People v. Keenan, (1988) 46 Cal. 3d 478, 529 where the court also specifically advised as follows: “Of course, by pointing out to you the desirability of your reaching a verdict, I am not suggesting to any of you that you surrender your honest convictions as to what the evidence in this case has disclosed and of the weight and effect of the evidence in the case.”)
Another concern here is that there was at least an implied time pressure since the jurors had not been cleared at the start of the trial for continuing service into the fourth day of deliberations, which fell on a Friday. (RT Case No. B000002, at pp. 294-95.) As the jurors were told to come back the next day, the judge told them “I strongly encourage you to continue your deliberations to resolve this matter”. (Id. at p. 294.) This statement told the jurors that they were going to be expected to spend considerably more time than they had originally committed to being jurors in this case and placed additional pressure on the hold out jurors to capitulate rather than be forced to return for further deliberations the following week. Placing time pressure on a deliberating jury is prohibited; comments such as those made here risk persuading legitimate dissidents, whatever their views, to abandon their views rather than continue indefinitely in limbo (See e.g. People v. Anderson (1990) 52 Cal.3d 453, 469, quoting People v. Keenan (1988) 46 Cal.3d 478, 534.) It is important that the trial court be very careful in fashioning an instruction to a deadlocked jury to ensure that the jury’s independent judgment is not displaced “in favor of considerations of compromise and expediency.” (People v. Miller (1990) 50 Cal.3d 954, 994; citation omitted.)
The judge must sufficiently remind “each of the jurors of his obligation to give ultimate controlling weight to his own conscientiously held opinion.” (Sullivan v. United States, (9th Cir. 1969). 414 F.2d 714, 718.) United States v. Kenner (2d Cir. 1965), 354 F.2d 780, 784 (cert. denied, 383 U.S. 958, 86 S. Ct. 1223, 16 L. Ed. 2d 301 (1966)) held the instruction must tell the minority not to abandon their conscientiously held views merely to secure a verdict. (See also United States v. Beattie, supra, 613 F.2d at 764.) Rodriguez v. Marshall (9th Cir. 1997) 125 F.3d 739 upheld the judicial inquiry during deadlocked deliberations where the court on four separate occasions reminded the jurors not to surrender their sincerely held beliefs under pressure from the majority. (Id. at p. 751.) A trial court’s failure to give such a cautionary instruction weighs heavily in favor of the conclusion that the defendant’s right to a fair trial and impartial jury has been violated. (See Jiminez v. Myers, supra 40 F.3d 976; see also United States v. Bonam (9th Cir. 1985) 772 F.2d 1449, 1450; United States v. Mason, supra, 658 F.2d at 1268.)
The cases grappling with Allen have a common thread, that the integrity of individual conscience in the jury deliberation process must not be compromised. These reminders to the minority jurors are precisely what was missing here. Although the jury was told to decide the case “if you can conscientiously do so”, the jury was not told to hold fast to their “sincerely held beliefs under pressure from the majority”. (RT Case No. B000002 at p. 285; c.f. Rodriguez v. Marshall, supra, 125 F.3d at p. 751.) Rather, the jury was told: “in conferring together you ought to pay proper respect to each other’s opinions and listen with a disposition to be convinced to each other’s arguments. (RT Case No. B000002 at p. 285.) The judge did not single out the minority jurors, but he did not need to; the message got through loud and clear that they were the ones holding up progress and if they wanted to be released from jury duty they had best change their position and reach a verdict. (See e.g. Jiminez v. Myers, supra, 40 F.3d at p. 981.)
C. Prejudice.
The court in People v. Gainer, supra, commented on the inherent difficulty of proving prejudice:
“Courts are generally unable to recreate effectively the events, subjective and objective, occurring during jurors’ deliberations in order to evaluate the actual effects of an instruction. Nor is it clear that even if judges were given such retrospective omniscience, they could agree on the point at which a juror was ‘coerced’ into changing his vote. Given the difficulties ordinarily facing such a determination, the duty of the courts to insure the fairness of criminal trials requires a broader inquiry, i.e., whether the instructions tend to impose such pressure on jurors to reach a verdict that we are uncertain of the accuracy and integrity of the jury’s stated conclusion. This determination of whether the instructions ‘operate to displace the independent judgment of the jury in favor of considerations of compromise and expediency’ is perhaps best characterized as requiring a generalized assessment of the potential effect of a given instruction on the fact finding process, rather than as an attempted inquiry into the actual volitional quality of a particular jury verdict.” (Id. at p. 850.)
Further, the Gainer Court noted restrictions on evidence of the thought process of jurors precluded the determination of this issue [Footnote 3]: “The limited admissibility of juror testimony under People v. Hutchinson (1969) 71 Cal.2d 342, 349, and Evidence Code section 1150, clearly does not enable an effective inquiry of this type. Under section 1150, subdivision (a), ‘any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.’ ‘Coercion,’ as used in this context, refers primarily to a process within the mind of the minority juror and responsive to statements made by the judge in open court. Thus, the evidence of ‘objective facts’ admissible under section 1150 and Hutchinson (supra, at p. 351) will not resolve the issue.” (Id. at p. 850, fn.11.)
In this case the jury returned the morning after being instructed with this Allen charge with a long list of questions. They were just further confused by this instruction and asked the court to explain it. (CT Case No. B000002 at p. 47.) Another question asked if the lack of evidence in the case was a proper rationale for the finding of a reasonable doubt of appellant’s guilt. (Ibid. )
In evaluating the coerciveness of an Allen charge the court must examine the instruction in context. United States v. Beattie, supra, 613 F.2d at p. 764. In United States v. Seawell (9th Cir. 1977) 550 F.2d 1159, 1160, the court concluded that the giving of a second modified Allen charge had such a coercive effect that it should, as a sound rule of practice, be prohibited. In this case, the judge compounded the error of the first Allen instruction by telling the jury that he “strongly encouraged you to continue your deliberations to resolve this matter” while he ordered the jury back for an additional day of deliberations, which was more than the jury service they had agreed to commit to. (RT Case no. B000002, at p. 294.) The effect of this second charge to the jury was the same as the second Allen instruction found coercive in United States v. Seawell, supra, 550 F.2d at 1162.
Additionally, the often repeated refrain of the State that the error was waived is inapplicable here. The lack of an objection does not waive the issue. (Lowenfield v. Phelps, supra, 484 U.S. at p. 240, citing Wainwright v. Witt, (1985) 469 U.S. 412, 431, n. 11.) People v. Gainer, supra, 19 Cal. 3d at p. 841, n 2 “Clearly defendants cannot be required to anticipate supplemental instructions a judge might give, upon pain of inviting error. Nor was defense counsel required to interrupt the judge’s charge at every controversial phrase, thereby courting the animosity of the jury and implying that the charge hurt his client’s case. Indeed common courtesy, and respect for the dignity of judicial proceedings, caution against interruption of a judge who is advising the jury.”
Appellant was prejudiced by the Allen instruction given in this case. The fact that the jury asked the judge to explain what this instruction meant and he declined to do so serves to underscore the effect this instruction had on the deliberation process of the jury. Since this affected the fundamental rights under the Fifth, Fourteenth and Sixth Amendments to the United States Constitution which protect fundamental fairness, e.g. due process of law, and the integrity of the fact finding process of the jury, reversal must be measured by the harmless error test from Chapman v. California (1967) 386 U.S. 18.
The State cannot prove beyond a reasonable doubt that this “dynamite charge” to the jury did not effect the process of their deliberations. The conviction must be reversed.
Dated: May 27, 1999
FOOTNOTES:
Allen v. United States, (1896) 164 U.S. 492.
The remaining questions from the jury are discussed in Part III, infra.
This Court is respectfully reminded that this was the very issue before it in Case No. B000002
