stating that a “Winters instruction ... should only be given after considering the nature of the ease and the time spent in deliberation”
How later courts described this case
- stating that a “Winters instruction ... should only be given after considering the nature of the ease and the time spent in deliberation”
- trial judge decision to give Winters charge was not abuse of discretion
- “please continue” not an anti-deadlock charge
Written by the judges who cited it.
The opinion
GALLAGHER, Associate Judge,
concurring:
I concur and offer a few brief comments. It seems to me that, cutting through to the bone of the case, it was simply a situation where due to the theatrics of one juror a vote by the entire jury was being held up. The dissent is inaccurate in referring to the juror as a “hold out.” The actuality is that she was delaying things by not facing up to her duty to cast her vote.
While it goes without saying that all criminal cases are serious, the fact remains *358 that, relatively speaking, this was an uncomplicated, minor criminal case involving a charge of marijuana possession. The trial judge was simply attempting to get the difficult juror to do her job. This culminated in this note which the court received from her.
Your Honor,
Please excuse this inconvenience because I am not able to come to a conclusion at this time, I guess you know that I am the only hold up and the rest of the jury are ready with their verdict and it would be best for all that I be removed or given another day to decide. (Emphasis supplied).
It being late in the afternoon, the court excused the jury until the following day. Early the next morning the jury returned a guilty verdict. I see nothing in this case which sanctions coercion. We are simply affirming the effort of the seasoned, experienced trial judge to do a conscientious job in running his courtroom in a sensible way.