Fletcher v. State

¹⁵⁴ Morton, J., delivered the opinion of the Court. The appellants, John Francis Fletcher, Benjamin Ignatius Nichols and George Arthur Hamilton, were convicted of grand larceny in a joint trial by a jury in the Circuit Court for Prince George’s County. It is contended, inter alia, that the presiding judge abused his discretion by “giving, sua sponte, the ‘Allen charge’ after only fifty-five minutes of jury deliberation.” * From the record before us, it would appear that upon completion of the testimony, the judge gave his advisory instructions on the law to the jury and .respective counsel then presented oral arguments. The jury, thereafter, began its deliberations at 3:45 p.m.

At 4:50 p.m. the same day, the judge, on his own motion, according to appellants, interrupted the jury’s deliberations and recalled the members to the courtroom. In open court and, presumably, with all appellants and counsel present, he then gave the following supplemental instructions to the jury: “THE COURT: Mr. Foreman, Members of the jury, the Court observes that you have had this case under consideration now for about an hour and a half. We do not feel that there is anything technical to be decided here. It’s a question of arriving at a judgment.

For that reason we instruct you that there are many cases in which absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror as a result of his own convictions and not a mere acquiescence in the conclusions of his fellows, each one of you should examine the questions submitted with candor and with a proper regard and deference to the opinion of the others. “It is your duty to decide this case if you ¹⁵⁵ can conscientiously do so, and you should listen with a disposition to be convinced to each other’s arguments. If your views are contrary to those of the vast majority, you should consider whether your views, which make no impression on the minds of so many equally intelligent jurors, are correct. “So you will return to the jury room and deliberate further in light of these instructions.” This type of instruction is generally referred to as the “Allen charge” and derives the appellation from the decision of the Supreme Court of the United States in Allen v. United States, (1896) 164 U. S. 492 , wherein the giving of such a charge by the trial judge in that case was approved. The use of this type of instruction has been upheld by a substantial number of State and Federal courts throughout the country where it is apparent that the jury in a criminal case is encountering difficulty in reaching a verdict.

Whether there should be a resort to this charge and the circumstances under which it should be given is a matter generally considered to be within the sound discretion of the presiding judge. Annotation: Dissenting Jurors — Instructions, 100 A.L.R.2d 177 . The ultimate test, however, is whether the wording of the charge and the time, circumstances and conditions under which it is given would threaten or tend to coerce the jury into reaching a verdict which is contrary to any individual juror’s free will and judgment. Otherwise stated, whether the giving of the instruction constitutes reversible error in a given case depends not only upon the language used but upon the conditions and attendant circumstances under which the instruction is given.

The question to be determined is whether resort to the instruction forced or helped to force an agreement which would not otherwise have been reached except for the intimidating or coercive effect of the charge upon some jurors or whether it merely initiated a new train of real deliberation which ended the disagreement and enabled ¹⁵⁶ each juror conscientiously and freely to subscribe to the unanimous verdict. Although some courts have held that the charge may be incorporated in the original instruction to the jury, 1 its use in this State, so far as we are aware, has been substantially confined to 'those occasions where the court is either informed by the jury that it is deadlocked and unable to reach unanimous agreement or where it becomes apparent that the jury is having difficulty in reaching a verdict by the excessive length of time consumed in its deliberations. 2 The use of the “Allen charge,” in both civil and criminal causes, has been approved by our Court of Appeals in Leupen v. Lackey, 248 Md. 19 , with the following admonition (p. 25) : “It must not be supposed that an Allen charge is proper in every case. There well may be facts and circumstances in a given case which would make such a charge either inadvisable or require the trial judge to exercise great care and restraint in presenting it to the jury.” The use of the charge has been roundly condemned by some courts. For example, in Green v. United, States, 309 F. 2d 852 (5th Cir. 1962), Judge Wisdom, in speaking for the Court, termed it the “dynamite charge” since it “is designed to blast loose a deadlocked jury” and found that “ [t] here is small, if any, justification for its use.” In Colorado it is called the “third degree instruction,” Leech v. People, 146 P. 2d 346 ; in New Mexico, the “shotgun instruction,” State v. Nelson, 321 P. 2d 202 .

It has also been referred to as the “nitroglycerin charge.” Huffman v. United States, 297 F. 2d 754 , dissenting opinion by Brown, J. The Supreme Court of Arizona has abolished its use altogether, State v. Thomas, 342 P. 2d 197 ; ¹⁵⁷ as has the United States Circuit Court of Appeals for the Third Circuit, United States v. Fioravanti, 412 F. 2d 407 (1969). Against this background, we have carefully examined, initially, the wording of the charge given by the presiding judge in the case at bar. With the exception of the statements: “We do not feel there is anything technical to be decided here. It’s a question of arriving at a judgment.” — we can find no fault with the language employed since it is identical to the language approved by the Court of Appeals in Leupen v. Lackey, supra.

We are concerned, however, with the coercive effect it may have had upon the jury in the circumstances and conditions under which it was given. This Court had occasion to review the