State v. Harry

189 P.3d 98

2008 UT App 224

STATE of Utah, Plaintiff and Appellee, v. Russell David HARRY, Defendant and Appellant.

No. 20070025-CA.

Court of Appeals of Utah.

June 12, 2008.

Linda M. Jones and Brenda M. Viera, Salt Lake City, for Appellant.

Mark L. Shurtleff, atty. gen., and Jeffrey S. Gray, asst. atty. gen., Salt Lake City, for Appellee.

Before Judges BENCH, BILLINGS, and McHUGH.

OPINION

McHUGH, Judge:

¶ 1 Defendant Russell David Harry appeals his conviction for possession or use of a controlled substance, a third degree felony, see Utah Code Ann. § 58-37-8(2)(a)(i) (Supp. 2005). Harry argues that the trial court erred when it delivered a modified Allen instruction to a deadlocked jury. We agree. Accordingly, we reverse his felony possession conviction and remand for a new trial.

BACKGROUND¹

¶ 2 Around midnight on September 16, 2005, Utah Highway Patrol Officer Jared Garcia stopped the car driven by Harry when he noticed a cracked windshield, no front license plate, and an expired temporary permit. He conducted field sobriety tests after observing, among other things, Harry's slow speech, heavy breathing, shaking, bloodshot eyes, and dilated pupils. After completing the tests, Officer Garcia concluded that Harry was "unable to safely operate a motor vehicle," placed him under arrest, and performed a pat-down search during which he discovered no contraband or weapons. Officer Garcia testified at trial that he then brought Harry to his patrol car, showed him the "completely empty" backseat, and told him that taking any drugs or paraphernalia to the jail could result in "an extra penalty." The officer also testified that, while conducting an inventory search of Harry's vehicle, he "could see [his patrol car] moving." Upon further investigation, he found a bag on the back seat of the police cruiser, between Harry's immediate right and the door. Officer Garcia then found two additional bags in the back of the police vehicle, one of which contained a white crystal substance that later tested positive for methamphetamine.² Officer Garcia also testified that Harry admitted to using methamphetamine earlier that day and trying to hide the bags.³

¶ 3 Harry was ultimately charged with possession or use of a controlled substance, a third degree felony (Count I), see id., and driving under the influence of alcohol or drugs, a class B misdemeanor (Count II), see Utah Code Ann. § 41-6a-502 (2005). The jury deliberated for nearly three-and-a-half hours before notifying the trial court that they had reached a decision on the driving under the influence charge but were unable to reach a verdict as to the possession or use of a controlled substance charge.⁴ Specifically, the jury foreperson's note read as follows: "We have come to a unanimous decision on Count II. However for Count I we are 7-1 and the jurors is [sic] undecided and will not change."

¶ 4 The trial court brought the jury into the courtroom and, over defense counsel's objection, gave them a modified, supplemental Allen instruction.⁵ See generally Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896) (providing the substance of the pure Allen charge); United States v. McElhiney, 275 F.3d 928, 936 (10th Cir.2001) ("An instruction that departs from the pure [Allen] charge, whether by omission or embellishment, we call a `modified' Allen instruction."). After the judge delivered this instruction, the jury resumed its deliberations and returned with a guilty verdict on both counts in twenty-six minutes. When the verdict was read, defense counsel requested that the jury be polled, and the court clerk asked each juror, "Were these and are these now your verdicts?" Each juror individually replied, "Yes."

ISSUE AND STANDARD OF REVIEW

¶ 5 Harry argues that, due to the trial court's delivery of a modified Allen instruction after the jury was deadlocked, he was denied a fair trial.⁶ We review this issue for correctness. See State v. Clements, 967 P.2d 957, 959 (Utah Ct.App.1998).

ANALYSIS

¶ 6 This court has previously addressed whether a modified Allen charge was impermissibly coercive. See State v. Lactod, 761 P.2d 23, 29 (Utah Ct.App.1988).⁷ In doing so, we noted that "`many courts have expressed concern about the continued propriety of the [Allen] instruction because of its perceived tendency to pressure jurors to give up their sincere convictions simply because a majority takes a different view.'" Id. (quoting State v. Medina, 738 P.2d 1021, 1022 n. 1 (Utah 1987)). Nevertheless, this court "uph[e]ld the non-coercive use of Allen charges because we believe such charges to be a reasonable and proper exercise of the court's power to guide the jury to a fair and impartial verdict." Id. at 30 (following Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988)). Additionally, we "recognize[d] the other legitimate purposes served by such a charge, namely, `the avoidance of the societal costs of a retrial' both in time and money, and the `possible loss of evidence that a new trial would entail.'" Id. (citation omitted) (quoting Lowenfield, 484 U.S. at 238, 108 S.Ct. 546 (majority opinion), 252 (Marshall, J., dissenting)).

¶ 7 In upholding the modified Allen instruction in State v. Lactod, 761 P.2d 23 (Utah Ct.App.1988), we announced a two-part test based on decisions from the United States Supreme Court and the Tenth Circuit. See id. at 30-31 (citing Lowenfield, 484 U.S. at 237, 108 S.Ct. 546; United States v. Dyba, 554 F.2d 417, 421 (10th Cir.1977)). We therefore "consider [1] whether the language of the supplemental charge can properly be said to be coercive [per se], and [2] whether it is coercive under the specific circumstances of the case." Id. at 30. In evaluating the modified Allen instruction in the instant case, we will address each consideration in turn, including Harry's request that we adopt the American Bar Association (ABA) model instruction.

I. The Allen Instruction Is Not Coercive Per Se

¶ 8 Harry first argues that the modified Allen instruction in this case is coercive per se because it "overemphasized the importance of agreement"; "placed undue pressure on a dissenting juror"; "contained incorrect statements of law ... [and] improper and irrelevant information"; and "commented on the evidence" and "invaded the province of the jury." Based on existing precedent, we do not agree that the instruction is facially coercive.

A. The Instruction Did Not Overemphasize the Importance of Agreement

¶ 9 In Lactod, we noted that the inclusion of certain "ideas" in an Allen charge will make such an instruction "inherently coercive." Id. at 30-31. For example, an instruction that includes the statement "`[y]ou have got to reach a decision in this case'" has been held to be inherently coercive, id. at 31 (alteration in original) (quoting Jenkins v. United States, 380 U.S. 445, 446 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965) (per curiam)), because "[i]t is a misstatement of law that a criminal case must be decided at some time," id. (citing People v. Gainer, 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997, 1006 (1977)). The instruction "`should not overemphasize the importance of an agreement, suggest that any juror surrender his independent judgment, or say or do anything from which the jury could possibly infer that the court is indicating anxiety for or demanding some verdict, or subjecting the jury to the hardships of long deliberations.'" Id. (quoting State v. Thomas, 86 Ariz. 161, 342 P.2d 197, 200 (1959)).

¶ 10 The trial court here began its post-impasse charge to the jury by stating: "[1] Members of the jury, I'm going to ask that you continue your deliberations in an effort to agree upon a verdict and dispose of this case. I have a few additional comments I would like for you to consider as you do so." (Emphasis added.) The trial court merely asked the jurors to "continue [their] deliberations in an effort to agree upon a verdict." Other similar language has been upheld by this court. See, e.g., id. at 28, 31 ("`I want to encourage you as best you can to reach some kind of agreement....'").

¶ 11 We also note the trial court's obvious efforts to comply with the guidance provided by this court in Lactod, where we urged trial judges to "appropriately admonish the jury to `deliberate together in an atmosphere of mutual deference and respect giving due consideration to the views of others in the knowledge that in the end their verdict must reflect the composite views of all.'" Id. at 30 (quoting Burroughs v. United States, 365 F.2d 431, 434 (10th Cir.1966)). The trial court did so here, stating:

[4] In order to bring eight minds to a unanimous result, you must examine the questions submitted to you with candor and frankness and with proper deference to and regard for the opinions of each other. That is to say in conferring together, each of you should pay due attention and respect to the views of the others, and listen to each other's arguments with the disposition to re-examine your own views.

(Emphasis added.)

¶ 12 Furthermore, the trial court "counterbalance[d its] admonition with a charge to the jury members to not give up their conscientiously held opinions," id. at 30-31 (citing United States v. Dyba, 554 F.2d 417, 421 (10th Cir.1977); United States v. Winn, 411 F.2d 415, 417 (10th Cir.1969); Burroughs, 365 F.2d at 434). The court instructed:

[7] You are not partisans. You are judges; judges of the facts. Your sole interest here is to seek the truth from the evidence in the case. Remember at all times that no juror is expected to yield a conscientious conviction he or she may have as to the weight or effect of the evidence; but remember also that after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so without surrendering your conscientious conviction.

(Emphasis added.)

¶ 13 In addition, the trial court "remind[ed] the jurors of the...