BETTY ANN LEWIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a modified 'Allen charge' that referenced a potentially non-unanimous verdict and tended to coerce a juror was impermissible and warranted reversal.
[1] Evidence of prior violent misconduct is admissible to show an established pattern of violent conduct when it occurs shortly before the charged offense.
[2] A trial court errs by giving a modified "Allen charge" that is not in accordance with standard jury instructions.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of aggravated battery after striking a victim with a bottle. During deliberations, the jury initially returned a guilty ve…
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RYDER, Judge.
Betty Ann Lewis was convicted and sentenced for the crime of aggravated battery. The record reveals that during an apparent social function at Ms. Lewis’ home, the victim, one James Gerard, was hit over the head with a bottle by Ms. Lewis. Mr. Gerard claims that Ms. Lewis threw the object at him while he was drinking and hugging and kissing Johnnie Mae Austin. The record also reflects that soon thereafter, Ms. Lewis struck him with a piece of firewood and poured gasoline or diesel fuel over him and that Ms. Lewis exclaimed, “I’m going to burn this son of a bitch up.”
Over defense objection, Nathan Giles testified that he was also at Ms. Lewis’ house on the day in question and observed Ms. Lewis strike one Abraham Jones, still another social guest, with a Vodka bottle a short time before the assault on Mr. Gerard.
After retiring to deliberate, the jury announced it had reached a verdict of guilty. However, when the jurors were individually polled as to the verdict, one juror who was. the foreman of the jury, stated that he did not concur in the verdict he had just delivered to the court. Appellant’s counsel moved for a mistrial. The court denied the motion. Instead, the. court further charged the jury and, after further deliberation, they again returned a verdict of guilty as charged. Ms. Lewis was adjudicated guilty and sentenced to prison.
Ms. Lewis contests the proceedings urging error in two areas. First, she would have us reverse her conviction alleging that the trial court erred by permitting the jury to hear testimony about the earlier assault and battery allegedly made by appellant upon Mr. Jones. We disagree. Her conduct and assault on Mr. Jones occurred just minutes before the assault on Mr. Gerard. It is obvious the testimony of Mr. Giles regarding Ms. Lewis’ action was admissible to show an established pattern of violent misconduct. Bryant v. State, 235 So. 2d 721 (Fla.1970). We find no error there and affirm the trial court’s ruling on that point.
However, appellant’s contention that the trial court erred in giving a modified “Allen charge”, we believe, has merit.
The use of the “Allen charge” (sometimes referred to as a “dynamite charge”) has been approved by the United States Supreme Court, Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), and more recently by the Fifth Circuit Court of Appeal, United States v. Bailey, 468 F. 2d 652 (C.A. 5, 1972), and by the Florida Supreme Court in State v. Bryan, 290 So. 2d 482 (Fla.1974). The “Allen charge” is included and set out in the Supreme Court approved Florida Standard Jury Instructions in Criminal Cases, Second Edition, as Instruction 2.21.1
Such a charge may be properly given depending on the circumstances of the particular case but only in limited circumstances, Flynn v. State, 351 So. 2d 377 (Fla. 4th DCA 1977); Kozakoff v. State, 323 So. 2d 28 (Fla. 4th DCA 1975).
In the case sub judice, however, the trial court did not follow the standard jury instruction but, instead, formulated a charge of its own.2
Comparing the approved “Allen charge” with the improvised “Allen charge” one quickly perceives the infirmities of the tailored charge. An “Allen charge” must not be calculated to coerce a jury into reaching a verdict or to lead them to believe they must reach a verdict. Kozakoff v. State, supra; Lee v. State, 239 So. 2d 136 (Fla. 1st DCA 1975). When the trial court gave its modified “Allen charge”, it also made reference to the fact that one member of the jury indicated the jury had less than a unanimous verdict. It is impermissible for a trial court to instruct in such a manner which tends to embarrass a single juror in holding to his honest convictions. Jones v. State, 92 So. 2d 261 (Fla.1957); Lee v. State, supra. A defendant has the right to have a hung jury, Kozakoff v. State, supra; Bell v. State, 311 So. 2d 179 (Fla. 1st DCA 1975) and “[njothing should be said by the trial court to the jury that would or could likely influence the decision of a single juror to abandon his conscientious belief as to the correctness of his position.” Lee v. State, supra, at 139.
REVERSED and REMANDED for a new trial.
HOBSON, Acting C. J., and OTT, J., concur. . 2.21 Jury deadlocked. It is your duty to agree on a verdict if you can do so without violating conscientiously held convictions that are based on the evidence or lack of evidence. No juror, from mere pride of opinion hastily formed or expressed, should refuse to agree. Yet, no juror, simply for the purpose of terminating the case, should acquiesce in a conclusion that is contrary to his own conscientiously held view of the evidence. You should listen to each other’s views, talk over your differences of opinion in a spirit of fairness and candor and, if possible, resolve your differences and come to a common conclusion, so that a verdict may be reached and this case may be disposed of.
You may retire to the jury room for further deliberations.
. The following is the instruction given by the trial court:
“. . Members of the jury, one of your members made an answer which indicates that you may not have reached a unanimous verdict. For this reason, I am asking you to return to the jury room for further consideration of your verdict. When you have reached a unanimous verdict, you may return it to the court. If you are not unanimous, then you should continue your deliberations. After you return to the jury room, any member is free to change his vote on any issue submitted to you. Each juror is free to change his vote until the jury is discharged. We’re going to retype that one verdict form and then we’ll get all the available verdict forms to you in just a moment.” .
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Jackson v. State, 522 So. 2d 802 (Fla. 1988)…80-81; Shriner v. State, 386 So. 2d 525, 533 (Fla.1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981); State v. Baker, 441 So. 2d 1102, 1103 (Fla. 5th DCA 1983), pet. for review denied, 450 So. 2d 485 (Fla.1984); Lewis v. State, 369 So. 2d 667, 668 (Fla. 2d DCA 1979). In addition, the trial court admitted references to Jackson possessing weapons and bulletproof vests. We agree with Jackson’s contention that this testimony was not relevant to any material fact in issue. Jackson’s objectio…
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Gahley v. State, 567 So. 2d 456 (Fla. 1st DCA 1990)…and (4) any implication of a false duty to decide. United States v. Cheramie, 520 F. 2d 325 (5th Cir.1975). See also Webb v. State, 519 So. 2d 748, 749 (Fla. 4th DCA 1988); Heddleson v. State, 512 So. 2d 957, 959 (Fla. 4th DCA 1987); Lewis v. State, 369 So. 2d 667, 669 (Fla.2d DCA 1979); United States v. Barshov, 733 F. 2d 842 (11th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 904, 83 L.Ed.2d 919 (1985). A trial court should say nothing to a jury that would influence a single juror to abandon his conscie…
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Scoggins v. State, 726 So. 2d 762 (Fla. 1999)…th Cir.1983); United States ex rel. Kirk v. Director, Dep’t of Corrections, 678 F. 2d 723, 727 (7th Cir.1982); Cornell v. Iowa, 628 F. 2d 1044, 1047 (8th Cir.1980); Ellis v. Reed, 596 F. 2d 1195, 1197, 1200 (4th Cir.1979). . Compare Lewis v. State, 369 So. 2d 667 (Fla. 2d DCA 1979) (reversing for new trial where trial court’s modified Allen charge made reference to single juror who voted against conviction), with McElrath v. State, 516 So. 2d 276 (Fla. 2d DCA 1987) (holding that judge's remarks to jury follo…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allen v. United States, 164 U.S. 492 (U.S. 1896)
- United States v. Darwin Clark Bailey, 468 F.2d 652 (5th Cir. 1972)
- State v. Bryan, 290 So. 2d 482 (Fla. 1974)
- Jones v. State, 92 So. 2d 261 (Fla. 1956)
- Kozakoff v. State, 323 So. 2d 28 (Fla. 4th DCA 1975)
- Ernie Lee Bell v. State, 311 So. 2d 179 (Fla. 1st DCA 1975)
- LEE v. State, 239 So. 2d 136 (Fla. 1st DCA 1970)
- Bryant v. State, 235 So. 2d 721 (Fla. 1970)
- Flynn v. State, 351 So. 2d 377 (Fla. 4th DCA 1977)