TOMMY MCELRATH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tommy McElrath appeals his convictions for robbery and two counts of assault, challenging the trial court's remarks to a deadlocked jury after an Allen instruction. The appellate court affirmed, finding the remarks neither egregious nor constituting fundamental error because they did not require a verdict and substantial deliberation followed.
The appellate court held that the trial court's remarks did not constitute fundamental error. While some observations about time and money spent were improper, the remarks as a whole did not require a verdict, the judge had explicitly offered to declare a mistrial if the jury could not agree, and the single post-instruction encouragement followed by substantial additional deliberation distinguished this case from reversible error situations.
[1] Remarks made to a deadlocked jury after an Allen instruction are not fundamental error unless egregious.
[2] Encouragement to a deadlocked jury to listen to each other's views and try again to reach a verdict, without requiring a verdict, does not constitute fundamental error.
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Join FLexlaw to unlock all legal intelligence“The remarks, taken in their entirety, did not purport to require the jury to reach a verdict.”
The court's holding that the trial judge's statements did not constitute fundamental error despite some improper observations about time and money spent.
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Join FLexlaw to unlock all legal intelligenceFollowing an Allen instruction, the jury retired for fifteen minutes and then sent a communication stating it could not agree that the defendant was t…
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LEHAN, Judge.
Defendant appeals from his convictions for robbery and two counts of assault, contending that the trial court erred in her remarks made to the deadlocked jury after an Allen
instruction had been given. We do not conclude that the remarks were so egregious as to constitute fundamental error. See Warren v. State, 498 So. 2d 472, 477 (Fla. 3d DCA 1986).
Following the Allen instruction and before those remarks were made, the jury had retired for only fifteen minutes. The essence of the remarks was encouragement to the jury to listen to the views of each juror concerning the evidence while trying again to reach a verdict. After the remarks were made, the jury retired for another fifty-five minutes before rendering its guilty verdict.
While the observations in those remarks that “[t]here has been a good bit of time and a good bit of money spent presenting this case to you” were not proper, Warren at 476, we conclude that the remarks, taken in their entirety, did not purport to require the jury to reach a verdict. The trial judge had also specifically said, as a part of the Allen charge, “[I]f you simply cannot reach a verdict, then return to the courtroom and I will declare that the case has been mistried, and I will discharge you with my sincere appreciation for your services.”
The situation in this case was in contrast to that in Warren in which fundamental error was found to have occurred from repeated attempts having been made by the trial judge to require a verdict. In that case the trial judge's efforts along those lines were characterized as having been made “over and again.” Id. at 477. In this case the attempt following the Allen charge was made on only one occasion after which substantial additional deliberation time ensued.
We do not conclude that simply by reading aloud to the jury, prior to the giving of the Allen instruction, the jury’s communication that “[t]he jury cannot agree that [defendant] was the person who took the pocketbook. Yes, five; no, one” and asking for an explanation of the communication the trial judge improperly pressured or embarrassed one juror. Compare Lewis v. State, 369 So. 2d 667 (Fla. 2d DCA 1979).
Accordingly, we conclude that the situation in this case was more akin to that in Kelley v. State, 486 So. 2d 578 (Fla.1986), in which the trial judge’s remarks to a deadlocked jury which constituted a departure from the standard jury instruction were found to have not constituted reversible error. Included among those remarks in that case was the comment that “[i]f you fail to reach a verdict, there is no reason to believe the case can be tried again any better or more exhaustively than it has been.” Id. at 584. Here, as in Kelley, “[T]he jury continued to deliberate for a considerable period of time after receiving the instruction_” Id. at 585.
Affirmed.
SCHOONOVER, A.C.J., and FRANK, J., concur. . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Scoggins v. State, 726 So. 2d 762 (Fla. 1999)…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 following Allen instruction, while not proper, were not so egregious as to amount to fundamental error). . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). . See also…
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McKINNEY v. State, 640 So. 2d 1183 (Fla. 2d DCA 1994)…Lewis v. State, 369 So. 2d 667 (Fla. 2d DCA 1979), this court reversed for a new trial because the modified Allen charge specifically included a reference to the fact that only one juror was in disagreement. On the other hand, in McElrath v. State, 516 So. 2d 276 (Fla. 2d DCA 1987), we upheld a verdict after the judge read aloud the jury’s own note that voluntarily revealed the numerical split among the jurors. Thus, the events in this case fall somewhere in between Lewis and McElrath. In McElrath, this cou…
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Bass v. State, 611 So. 2d 611 (Fla. 2d DCA 1993)…g the case in the event of a hung jury — both of which are strictly forbidden comments in an ‘Allen’ charge under Florida law.” 498 So. 2d at 477-78. Although our court has found less egregious remarks not to be fundamental error, McElrath v. State, 516 So. 2d 276 (Fla. 2d DCA 1987), in this case, as we have noted, the defense attorney specifically objected. Bass has raised two other issues on appeal, neither of which has merit. In particular we hold that there was no error in the admission of the in-court i…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Allen v. United States, 164 U.S. 492 (U.S. 1896)
- Kelley v. State, 486 So. 2d 578 (Fla. 1986)
- Lewis v. State, 369 So. 2d 667 (Fla. 2d DCA 1979)
- Morales v. Four Star Poultry & Provision Co., Inc., 498 So. 2d 472 (Fla. 3d DCA 1986)
- Warren v. State, 498 So. 2d 472 (Fla. 3d DCA 1986)