Goodmuth v. State

ELDRIDGE, Judge. The single issue in both of these criminal cases is whether the trial judges erred in giving traditional Allen instructions 1 before the juries began their deliberations. In No. 38, Charles Goodmuth was indicted in the Circuit Court for Howard County on charges of burglary, theft and malicious destruction of property, and he elected a jury trial. After defining the offenses charged, the trial judge concluded his jury instructions with the following language: “You are instructed that your verdict must be unanimous.

You are further instructed 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 conviction and not a mere acquiescence of the conclusions of his fellows, each one of you should examine the questions submitted with candor and with proper regard and deference to the opinion of your fellow jurors. It is your duty to decide this case if you can conscientiously do so, and you should listen with a disposition to be convinced to each other’s argument. 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." (Emphasis added.) Defense counsel objected to the instruction, but his objection was overruled. ⁶¹⁵ Following closing arguments, the jury retired.

After slightly more than two and one-half hours of deliberation, the jury returned its verdicts. The defendant Goodmuth was found guilty on the charges of burglary and malicious destruction of property. He was also found guilty on one charge of theft and not guilty on two other theft counts. On appeal Goodmuth argued inter alia that the above-quoted jury instruction should not have been given.

The Court of Special Appeals, however, affirmed in an unreported opinion. While acknowledging that the instruction was identical to the instruction disapproved by this Court in Burnette v. State, 280 Md. 88 , 371 A.2d 663 (1977), and that the “trial judge was skating on thin ice in giving the instruction,” the intermediate appellate court held that reversal was not required because the instruction, instead of being given to a deadlocked jury, was given before the jurors began to deliberate. Thereafter we granted Goodmuth’s petition for a writ of certiorari. In No. 76, Kenneth Franklin Pierce Beach was charged, also in the Circuit Court for Howard County, with rape and related offenses, and he elected a jury trial.

As in Goodmuth, before the jury in the Beach case retired the trial judge gave an instruction concerning the jurors’ responsibilities with regard to their deliberations. While given by a different trial judge, the instruction was absolutely identical to the previously quoted instruction in the Goodmuth case. Beach’s attorney objected to the instruction, and the objection was overruled. The jury acquitted Beach of first degree rape but convicted him of a second degree sexual offense and related crimes.

Beach appealed to the Court of Special Appeals, raising several issues including the propriety of the above-discussed jury instruction, and the intermediate appellate court affirmed in an unreported opinion. The Court of Special Appeals, relying upon language in Kelly v. State, 270 Md. 139, 144 , 310 A.2d 538 (1973), held that the trial court’s instruction was appropriate because it “was given before ⁶¹⁶ the jury retired.” Beach then filed a petition for a writ of certiorari. We granted the petition and ordered that the case be heard at the same time as the Goodmuth case. The jury instruction challenged in these cases was essentially the same as the instruction approved in Allen v. United States, 164 U.S. 492, 501 , 17 S.Ct. 154, 157 , 41 L.Ed. 528 (1896).

This instruction, often called the “Allen charge” or “traditional Allen charge,” has been heavily criticized in recent cases as coercive. The principal focus of the criticisms has been the instruction’s emphasis on the deference to be given to other jurors’ opinions, its advice that one should listen to others with a “disposition to be convinced,” and the admonition that those in the minority should reconsider their views which have made “no impression on the minds of so many equally intelligent jurors.” See Burnette v. State, supra, 280 Md. at 93-100 , 371 A.2d 663 ; Kelly v. State, supra, 270 Md. at 140-144 , 310 A.2d 538 . On the other hand, instructions concerning the responsibilities of jurors in the course of their deliberations, which have been modified by deleting the coercive language of the instruction given in the Allen case, have generally been approved in recent years. Such non-coercive instructions are sometimes referred to as “Allen -type charges” or “modified Allen charges” as opposed to “traditional Allen charges.” Burnette, 280 Md. at 96-97 , 371 A.2d 663 ; Kelly, 270 Md. at 143-144 , 310 A.2d 538 .

The first case in which this Court considered the propriety of a traditional Allen charge, and the only case in which this Court has upheld the use of the traditional charge, was Leupen v. Lackey, 248 Md. 19 , 234 A.2d 573 (1967). Leupen was a civil action for damages for a back injury allegedly incurred in a motor vehicle accident. The jury, after three hours of deliberation, sent a note to the court stating: “If the jury is deadlocked but in favor of the defense does the verdict go to the defense?” 248 Md. at 21-22 , 234 A.2d 573 . The court, in response and over the plaintiff’s objection, gave the jury a traditional Allen instruction.

Then, after further deliberations, the jury re ⁶¹⁷ turned with a verdict in favor of the plaintiff. The plaintiff, dissatisfied with the amount of the award, took an appeal, contending that the instruction should not have been given. This Court upheld the use of the traditional Allen charge under the circumstances, relying upon cases in the United States Court of Appeals for the Fourth Circuit. See 248 Md. at 24-25 , 234 A.2d 573 . 2 Nevertheless, the Court in Leupen did issue a caution regarding the traditional Allen charge (id. at 25-26, 234 A.2d 573 ): “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. In any case, however, it would be well for the court to keep in mind the language found in 1 Branson’s Instructions to Juries (3rd ed. A. Reid 1960 Replacement). ‘The trial judge may advise an unagreed jury of the importance of their reaching a verdict, if they can do so without surrendering their conscientious convictions. But he cannot go beyond that and say anything to the prejudice of either party.

There is no prescribed language that he must use in this connection. What he may with propriety say must in a large measure be left to his good judgment. But as the exclusive right to agree or not to agree rests with the jury, the judge must not by threat or entreaty attempt to coerce a verdict or to exert his authority to force an agreement; nor must ⁶¹⁸ he under any circumstances or in any manner indicate the character of verdict that the jury should return.’ ” The next case in this Court to consider the matter was Kelly v. State, supra, 270 Md. 139 , 310 A.2d 538 . Unlike the challenged instructions in Leupen and in the present case, the instruction at issue in Kelly was not a traditional Allen charge.

The trial court in Kelly , before the jury began its deliberations, gave an Allen -type instruction regarding the jurors’ responsibilities concerning deliberations. The instruction, however, did not contain the coercive language of the traditional Allen charge that a juror should deliberate “with proper regard and deference to the opinion of your fellow jurors” or that a juror should listen with a “disposition to be convinced,” or that jurors in the minority “should consider whether your views, which make no impression on the minds of so many equally intelligent jurors, are correct.” Instead, the charge in Kelly , while pointing to the need to consult with each other and the need to listen, emphasized that a juror should adhere to his conscientious opinion. The charge did not suggest deference to other opinions; it was not specifically directed to the minority as the group which should reconsider its views. 3 ⁶¹⁹ The Court in Kelly , in an opinion by Judge Digges, began by stating that it would “extrapolate from and expand upon the precepts established by this Court in Leupen v. Lackey____” 270 Md. at 140 , 310 A.2d 538 , emphasis added. The Court then pointed to the criticisms of the Allen charge and the decisions of several courts “that they would only accept a recitation of the charge as circumscribed by the American Bar Association’s Standards Relating to Trial by Jury (Standards), § 5.4 (1968).” Id. at 141, 310 A.2d 538 .

The Court went on to agree with the ABA Standards that it is often appropriate for a trial court to instruct the jury on its responsibilities in the course of deliberations. Therefore, the Court said, an Allen-type charge should not be eliminated as a matter of law. Id. at 142 , 310 A.2d 538 . Whether or not to utilize an Allen -type charge, and the particular words selected in giving an Allen -type charge, were deemed to be initially matters of trial court discretion, subject to reversal if abused.

Id. at 143, 310 A.2d 538 . Next, the Kelly opinion suggested “guidelines for employment of the Allen -type charge.” 270 Md. at 143 , 310 A.2d 538 . First, it stated that “it is always proper to use the ... ABA approved Allen -type instruction before the jury begins its deliberations,” ibid. 4 The Court further said ⁶²⁰ that if the trial judge desires “to personalize his Allen-type instruction, he has greater latitude in doing so when the charge is given before the jury retires to consider the case.” Id. at 144, 310 A.2d 538 .

Then, in a sentence seized upon by the Court of Special Appeals in the Beach case and by the State in both cases before us, the Kelly opinion commented that before the jury retires “the use of language at variance with that recommended by the ABA is nevertheless acceptable if it is similar to that approved by this Court in Leupen,” ibid. The Court in Kelly went on to state that, after the jury has retired to deliberate, “a trial judge, who decides to give an Allen -type charge because of an apparent deadlock, should closely adhere to the wording of the ABA recommended instruction.” Ibid. Applying these guidelines, the Court upheld the instruction given in the Kelly