Mitchell v. State

BELL, Judge, dissenting, in which ELDRIDGE, Judge, joins. When, after four hours of deliberations, during the course of which it asked two questions pertaining to the petitioner’s criminal responsibility, the jury inquires as to the effect of a hung jury, in context, it is obvious that the jury’s focus was on an issue within its province to resolve. While the question, on its face, was concerned with an issue outside the jury’s area of responsibility, the resolution of that issue had a direct and significant impact on the very issue that jury was required to decide, ie., whether the petitioner was criminally responsible when the charged offenses were committed. In this case, it is precisely because the jury wished to avoid speculating about the “extraneous” issue that it asked the subject question; the jury was attempting to discharge its responsibility, rather than abdicate it, for want of what it perceived to be necessary ⁵⁴⁴ information.

Where the very real possibility exists that the failure to answer a question from the jury will, due to jury speculation as to the matter about which inquiry was made, unfairly impact one of the parties, 1 it is not enough for the court to inform the jury that the issue about which inquiry has been made is not a matter for its resolution; in that circumstance, the court must, in addition, answer the question. When it is the defendant who is placed at a disadvantage, to do otherwise creates an unacceptable risk that the jury will resolve the doubt in favor of the State, rather than in favor of the defendant as it is required to do. There can be no serious question, as the petitioner points out, that the jury was struggling with the question of the petitioner’s criminal responsibility. The petitioner having all but conceded that he committed the offenses, criminal responsibility was, in reality, the only issue before the court, as the two notes that the jury sent the trial judge reflect.

Thus, the jury’s inquiry whether the petitioner would “walk” in the event of a hung jury must be considered and interpreted in that light. The court having instructed the jury as to the effect of a finding of a lack of criminal responsibility, the jury was not concerned about what would happen if it found the petitioner not criminally responsible; rather, it was concerned about what would happen if there could be no agreement on that issue: would, in effect, the petitioner be acquitted if the jury disagreed as to the petitioner’s criminal responsibility? Given the unmistakable impression, conveyed by its question, that the jury did not want the petitioner to “walk,” a verdict was simply not possible until the jury was satisfied that that would not occur. In other words, a prerequisite to a fair consideration of the only issue in the case was the jury’s understanding of the ramifications of being unable to resolve that issue. ⁵⁴⁵ While, as I have indicated, the effect of a hung jury ordinarily is not a matter of concern for the jury, under these circumstances, an honest answer to the question was necessary if the jury were to be able to answer fairly the very question which was within its province — the criminal responsibility of the petitioner.

I repeat, it is not enough to tell the jury that it is not within its province to consider the effect of a hung jury; the court must also have informed it that it was the State’s decision whether