THEODORE BASS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Theodore Bass appealed his first-degree murder conviction, arguing the trial judge improperly modified the Allen jury instruction by emphasizing the expense of retrying the case. The Florida appellate court reversed and remanded for a new trial, finding the modified instruction constituted reversible error because it coerced the deadlocked jury.
The modified Allen instruction constituted reversible error requiring reversal and remand for a new trial. While Allen charges are approved in Florida, deviations from the standard instruction can constitute reversible error when the words coerce the jury into believing it must reach a verdict, particularly when the court emphasizes the expense of retrying the case.
[1] An Allen charge, designed to encourage deadlocked juries to reach a unanimous verdict, may constitute reversible error if modified to coerce the jury.
[2] Emphasizing the expense of a retrial in an Allen charge instruction can coerce a jury into reaching a verdict.
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Join FLexlaw to unlock all legal intelligence“An Allen charge is designed to cause deadlocked juries to attempt to reconcile their differences and to arrive at a unanimous verdict.”
Establishes the purpose of Allen charges in Florida law
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Join FLexlaw to unlock all legal intelligenceDuring jury deliberations, the jury sent a note indicating it was deadlocked 5-7 with little chance of minds being changed. The trial judge responded …
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FRANK, Acting Chief Judge.
Theodore Bass appeals from his conviction for first degree murder. Because the deadlocked jury was inappropriately instructed, we reverse.
During its deliberations the jury sent the judge a note stating it was split 5 to 7, “with little chance of minds being changed.” The jury was brought into the courtroom so the judge could respond to this note and one other he had received. The court gave the jury an Allen charge.1 Such charge is codified in Florida Standard Jury Instruction (Criminal) 3.06. An Allen charge is designed to cause deadlocked juries to attempt to reconcile their differences and to arrive at a unanimous verdict. In this case, however, the judge modified the charge and expanded its prescribed bounds by urging the jurors to consider the expense that a new trial would involve. At his first opportunity, the defense attorney objected to the instruction, and specifically to the court's “telling them that it’s expensive to try.”
The use of an Allen charge has been specifically approved in Florida at least since the 1974 case of State v. Bryan, 290 So. 2d 482 (Fla.1974). A deviation from the standard instruction can constitute reversible error, however, where the words tend to coerce the jury into believing that it must reach a verdict. Warren v. State, 498 So. 2d 472 (Fla. 3d DCA 1986). As in Warren, in certain circumstances the error may be fundamental when the court insists that it desires a verdict and emphasizes “the needless cost involved in retrying 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 identification of the defendant by witness Mary Brannen.
Accordingly, we reverse and remand this matter for a new trial.
PATTERSON and BLUE, JJ., 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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McKINNEY v. State, 640 So. 2d 1183 (Fla. 2d DCA 1994)…of a juror who is pressured to agree simply for the sake of a verdict. Thus, a judge must be especially cautious during an Allen charge to insure that his or her words and actions do not improperly affect the jury’s deliberations. See Bass v. State, 611 So. 2d 611 (Fla. 2d DCA 1993). In 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…
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Palmer v. State, 681 So. 2d 767 (Fla. 5th DCA 1996)…s have demonstrated extreme sensitivity to the potential coercive effect of such jury charges, and instructions containing elements broadly similar to the Eleventh Circuit’s have been held to be reversible error in Florida. See, e.g., Bass v. State, 611 So. 2d 611, 611-12 (Fla. [*768] 2d DCA 1993) (modified Allen charge “urg[ed] the jurors to consider the expense that a new trial would involve”); Hollywood Corp. Circle Assocs. v. Amato, 604 So. 2d 888, 891 (Fla. 4th DCA 1992) (modified Allen charge informed t…
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Goodwin v. State, 717 So. 2d 561 (Fla. 2d DCA 1998)…ere required to reach a verdict even if that meant compromising their positions. It is reversible error to deviate from the standard jury charge and give improper admonitions which make it clear that the jury must reach a verdict. See Bass v. State, 611 So. 2d 611, 612 (Fla. 2d DCA 1993); Dixon v. State, 603 So. 2d 86, 88 (Fla. 5th DCA 1992); Warren v. State, 498 So. 2d 472, 476 (Fla. 3d DCA 1986). Accordingly, because defense counsel properly objected to the wording of the modified jury charge, we are compe…
Authorities Cited
- Allen v. United States, 164 U.S. 492 (U.S. 1896)
- State v. Bryan, 290 So. 2d 482 (Fla. 1974)
- 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)
- McELRATH v. State, 516 So. 2d 276 (Fla. 2d DCA 1987)