Appendix — Ohio v. Howard

= - |

~ FILED

PETITION FOR CERTIORARI | JUL 17 1S

IN THE SUPREME COURT OF THE UNITED | SRABSBS&r. seanio_, sr.

CLERK

Seeeteen

NO.

October Term, 1989

STATE OF OHIO,

Petitioner

Respondent

APPENDIZ

KATHI L. MCNABB

Assistant Prosecutor

Mahoning County Courthouse

120 Market Street

Youngstown, OH 44503

Telephone: (216) 740-2332

COUNSEL FOR PETITIONER

RANDALL M. DANA

Ohio Public Defender

ROBERT L. LANE

Chief Appellate Counsel

Ohio Public Defender Commission

8 East Long Street

Columbus, OH 43266-0587

Telephone: (614) 466-5394

COUNSEL FOR RESPONDENT

{os

APPENDIX A

STATE OF OHIO V. HOWARD

42 Ohio Sst. 3a 18 (1989)

APPEAL from the Court of Appeals for Mahon-

ing County, No. 86 CA 82.

On January 21, 1981, Raymond L. Howard, ap-

pellee herein, was indicted by the Mahoning

County Grand Jury for the aggravated murder of

Glenn Howard Frank in violation of R.C.

2903.01(A). Kathy Ortenzio was also named in

the indictment; however, this appeal does not

include her.

After extensive pre-trial maneuvering, ap-

pellee went to trial on July 20, 1981. Follow-

ing six days of testimony, final argument was

heard and jury instructions were given on July

29, 1981.

Late in the afternoon of July 29, 1981, the

court received a statement from the jury in-

Gicating that the jury was unable to reach a

unanimous verdict on the aggravated murder

charge. With consent of both counsel, the trial

16.

judge entered the jury room and gave a sup-

plemental charge, reiterating that the jurors

must each decide the case for themselves but

that they should consider the opinions of fellow

jurors. (1)

Shortly after receiving the supplemental

instruction, the jury recessed for the evening.

Deliberations continued on July 30 and well into

the afternoon of July 31 without a verdict being

returned. At approximately 3:00 p.m. on July

31, 1981, the court again received a note from

the jury indicating that a unanimous verdict

could not be reached on the aggravated murder

charge. The trial judge, in chambers, informed

counsel that he intended to give the jury a

charge "*** short of the Allen charge, but none-

theless one which does a little bit more than

encourage them to decide this case." Appellee's

counsel objected to this proposed supplemental

instruction.

The jury was returned to the courtroom for

purposes of receiving a second supplemental in-

struction. The text of this instruction, and

the subject of this appeal, are as follows:

"THE COURT: You have transmitted to the

Court, ladies and gentlemen, a statement; that

after lengthly [sic] discussion, you cannot

reach a unanimous verdict on the charge of ag-

gravated murder, and you asked me for further

instructions. Everybody associated with this

case realizes that it's a most difficult,

indeed, matter to decide.

"Now the only method that is provided by

our Constitution and our Laws, ladies and

gentlemen, for deciding questions of fact is by

a verdict of a jury. And in a large proportion

of cases and strictly speaking in all cases, ab-

solute certainty cannot be obtained or even ex-

pected. Although the verdict to which a juror

agrees must be, of course, his own verdict, the

result of his own convictions and not a mere ac-

quiescence in the conciusion of his fellows;

yet, in order to bring 12 minds to a unanimous

18.

verdict you must examine the question submitted

to you with candor and with a proper regard in

defference [sic] to the opinions of each other.

If you should fail to agree upon a verdict, the

case is left open and undecided. Like all

cases, this case must be disposed of sometime.

You, ladies and gentlemen, were selected in the

same manner and from the Same source from which

any future jury must be, and there is no reason

to suppose that the case will ever be submitted

to 12 more men and women who are more intel-

ligent, more impartial or more competent to dis-

pose of it, or that more or clearer evidence

will be produced on one side or the other. You

have heard the evidence. Now with this view, it

is your duty, ladies and gentlemen, to dispose

of the case if you can consciously [sic] do so.

In order to make a decision more practicable,

the law imposes the burden of proof on one party

or the other. In all cases that is true. Now

in this case the burden is upon the State to es-

tablish every part of every essential element,

of which you are well aware, beyond a reasonable

19.

doubt. Now if you are left in doubt, ladies and

gentlemen, as to any essential element, the

defendant is entitled to the benefit of that

doubt. But in conferring together, ladies and

gentlemen, you ought to pay proper respect to

each other's opinions; you must listen with a

Gisposition to be convinced by each others' ar-

guments. And on the one hand, if much the

larger number of your panel are on one side or

the other, a dissenting juror should consider

whether his position is a reasonable one when it

makes no impression upon the minds of men and

women equally honest, equally intelligent and

who have heard the same evidence with the same

attention, with an equal desire to arrive at the

truth and under the sanction of the same oath.

And on the other hand, if a majority have

reached a verdict, the minority ought seriously

ask themselves whether or not they may

reasonably and ought not to doubt the correct-

ness of the judgment which is not concurred in

with most of those with whom they are associated

20.

and/or distrust the weight or sufficiency of

that evidence which fails to convince the minds

of their fellows.

"Now with these instructions in mind,

ladies and gentlemen, you will please return to

your deliberation room and continue your

Geliberations."

AS. 3:20 Wsx, the jury retired to

deliberate further. Barely one hour later, the

jury returned with a verdict of guilty to the

aggravated murder charge. (2)

On appeal, appellee's conviction was af-

firmed by the court of appeals. On October 5,

1983, this court denied appellee's motion for

leave to appeal.

Subsequently, appellee filed a petition for

post-conviction relief pursuant to R.C. 2953.21,

claiming ineffective assistance of counsel. The

state filed a motion to dismiss the petition.

The motion to dismiss was granted by the Court

of Common Pleas of Mahoning County on May 13,

1986. Appellee again appealed to the Court of

Appeals for Mahoning County.

ans

On appeal, the court held that the sup-

plemental instruction given by the trial judge

to the jury on July 31, 1981 "*** so coerced and

infected the process of jury deliberation so

jealously revered in the law, that it con-

stituted prejudicial error affecting ***

[appellee's] substantial rights to a fair and

impartial jury and cannot be allowed to stand."

Consequently, the court found that appellee's

counsel failed to raise this issue on direct ap-

peal and this failure constituted ineffective

assistance of counsel. As a result, the convic-

tion was reversed and the cause remanded for new

trial.

The cause is now before this court upon the

allowance of the state's motion to certify the

record.

DOUGLAS, J. The sole issue before this

court is whether the supplemental jury instruc-

tion given to the jury on July 31, 1981 was

coercive in the sense that it pressured members

of the jury who were in the minority to abandon

their positions. The essential question becomes

aa

whether the supplemental instruction given to

the jury by the trial judge, known as the -P len

charge, is allowed in Ohio.

The Allen charge or "dynamite" charge, as

it is also known, arises from Allen v. _United

States (1896), 164 U.S. 492. In Allen, the

United States Supreme Court set forth a summary

of the supplemental instruction given by the

trial court:

"*x** [A]lthough the verdict must be the

verdict of each individual juror, and not a mere

acquiescence in the conclusion of his fellows,

yet they should examine the question submitted

with candor and with a proper regard and

Geference to the opinions of each other; that it

was their duty to decide the case if they could

conscientiously do so; that they should listen,

with a disposition to be convinced, to each

other's arguments; that, if much the larger num-

ber were for conviction, a dissenting juror

should consider whether his doubt was a

reasonable one which made no impression upon the

minds of so many men, equally honest, equally

intelligent with himself. If, upon the other

hand, the majority was for acquittal, the

minority ought to ask themselves whether they

might not reasonably doubt the correctness of a

judgment which was not concurred in by the

majority.***" Allen, Supra, at 501.

This is, in essence, what the supplemental

jury instruction in the case before us stated.

In fact, the complete language of the supplemen-

tal instruction given by the judge in Allen is

nearly, though not exactly, the same as the Jan-

guage of the supplemental instruction given in

this case.(3)

Although the trial judge gave a supplemen-

tal charge to the jury that substantially con-

formed to the traditional Allen charge, it is

clear that Ohio has neither adopted nor rejected

the Allen charge as a proper supplemental in-

struction. As we stated in State v. Maupin

ee

(1975), 42 Ohio St. 2d 473, 484, 71 0.0. 2d 485,

491, 330 N.E. 2d 708, 715, "*** the original Al-

len charge has never been a part of Ohio

jurisprudence." We now directly meet the issue

and find that the trial judge's supplemental in-

struction was improper.

The Allen charge has long been the subject

of criticism from legal scholars.(4) The brunt

of this criticism is directed at the potentially

coertive impact the language of the Allen charge

can have on a jury. The criticism centers on

the effect of language advising the jury that a

decision must be reached, thereby depriving

either the state or the defendant of the pos-

sibility of a hung jury and a mistrial. In ad-

Aaition, and of particular importance to this

court, is the criticism that the Allen charge is

unduly coercive to members of the jury in the

minority because it, in effect, orders those

members to reevaluate their position in light of

i

the fact that fellow jurors are unswayed, but

Goes not require jurors in the majority to un-

dertake a corresponding reevaluation. The ef-

fect of this charge is to place the authority of

the trial judge behind the position of the

majority. This, potentially, creates a force

that few dissenting jurors can resist. Lt

subtly changes the requirement that the jury

verdict be unanimous to one more closely resem-

bling majority rule.

The criticism of the Allen charge has not

fallen on deaf ears. Many jurisdicitons have

either modified the Allen charge or abandoned it

entirely because, as the state of Arizona con-

cluded in abandoning Allen, in State v. Thomas

(1959), 86 Ariz. 161, 166, 342 P. 2d 197, 200,

"**k* the evils far outweigh the benefits ***" of

continuing its use. Other jurisdictions aban-

doning or modifying the Allen charge are the

District of Columbia in Winters v. United

States (D.C. App. 1974), 317 A. 2a 530, Colorado

in Taylor v. People (1971), 176 Colo. 316, 490

26.

P. 2d 292, and California in People v. Gainer

(1977), 19 Cali. 3€@ 635, 139 Cali. Rptr. G61, see

FP. 26 997.(5)

In addition to the foregoing states that

have acted to abandon or modify the Allen

charge, several federal courts have taken the

same steps. Using supervisory power over courts

within their circuits, federal courts of appeals

have prohibted use of the Allen charge, to the

extent that it tends to coerce jurors in the

minority to defer to those in the majority, in

United States v. Silvern (C.A. 7, 1973), 484 F.

2d 879, United States v. Thomas (C.A.D.C. 1971),

449 F. 2d 1177, and United States v. Fioravanti

(C.A. -3,. 1969), 432 FF. 26 407. Other circuits

have limited the use of Allen charges. See

United States v. Scott (C.A. 6, 1977), 547 F. 2d

334, and United States v. Angiulo (C.A. 1,

1973), 463 fF. 26 37.

In short, we firmly position ourselves with

those jurisdictions that have abandoned the

traditional Allen charge. (6) Our reasoning

today echoes the criticism of the Allen charge

ais

voiced by this court in Maupin, supra, at 483,

71 0.0. 2a@ at 490, 330 N.E. 2d at 715, where we

stated:

"*x** The principle [sic] and most frequent

reason advanced (for rejecting the Allen charge]

is that it lacks balance, that the thrust of the

Allen instruction is directed to the minority

jurors only and is potentially coercive upon

them to agree with those jurors constituting the

majority." (Citations omitted. )

Accordingly, since we find that the use of

the Allen charge was improper, we agree with the

court of appeals that failure by appellee's

former counsel to raise this error on direct ap-

peal, for whatever reason, constituted ineffec-

tive assistance of counsel, in violation of

appellee's rights as guaranteed by the Sixth and

Fourteenth Amendments to the United States Con-

stitution, and Section 10, Article I of the Ohio

Constitution. Certainly the facts of this case,

where only one hour after the Allen charge was

given, a unanimous verdict was reached when

nearly two and one-half days of deliberation had

28.

failed to produce agreement, raise at least the

inference of coercion affecting appellee's sub-

stantial right to a fair and impartial jury.

"The test in determining if the accused had ef-

fective retained counsel is whether the accused,

under all the circumstances, including the fact

that he had retained counsel, had a fair trial

and substantial justice was done." State v.

Hester (1976), 45 Ohio St. 2d 71, 74 0.0. 2d

156, 341 N.E. 2d 304, paragraph four of the syl-

labus. We agree with the court of appeals that

substantial justice was not accorded to the ap-

pellee herein and that his case should be

remanded to the trial court for a new trial.

Though we have determined that the use of

the traditional Allen charge is improper, our

aQuty is not yet complete. We would be remiss in

our responsibility of supervising lower courts

if we did not provide a supplemental instruction

that, in our opinion, avoids the pitfalls of the

traditional Allen charge.

y » I

In formulating such an instruction, we are

cognizant of several conflicting considerations.

On one hand, a supplemental instruction must not

be coercive by stressing that the jury must

reach a verdict, a clear misstatement of law. (7)

On the other hand, the instruction must allow

the trial judge to remind the jury of the reason

a jury is assembled, namely, to reach a unani-

mous decison if each juror can conscientiously

agree to a verdict.

Finally, and most significant to our

decison, the supplemental instruction must be

balanced and neutral. It cannot, like Allen,

single out jurors in the minority and urge them

to reconsider their position. To be balanced,

it must urge jurors in the majority to do the

same.

Several approaches have been taken by

jurisdictions in moving away from the tradi-

tional Allen charge. The most popular approach

has been to adopt the standard proposed in the

American Bar Association Project on Minimum

Standards for Criminal Justice, Standards Relat-

ing to Trial by Jury (1968) 145-146, Standard

5.4. First proposed in 1968, the most recent

version of the ABA standard is found in 3

American Bar Association Standards for Criminal

Justice (2 Ed. 1986) 15-133. The ABA standard

reads:

"Stand@dara@ 15-4.4. Length of deliberations;

deadlocked jury

"(a) Before the jury retires for delibera-

tion, the court may give an instruction which

informs the jury:

"(i) that in order to return a verdict,

each juror must agree thereto[; }

"(ii) that jurors have a duty to consult

with one another and to deliberate with a view

to reaching an agreement, if it can be done

without violence to individual judgment;

"(iii}) that each juror must decide the case

for himself or herself but only after an impar-

tial consideration of the evidence with the

other jurors;

cs

"(iv) that in the course of deliberations,

a juror should not hesitate to reexamine his or

her own views and change an opinion if the juror

is convinced it is erroneous; and

"(v) that no juror should surrender his or

her honest conviction as to the weight or effect

of the evidence solely because of the opinion of

the other jurors, or for the mere purpose of

returning a verdict.

"(b) If it appears to the court that the

jury has been unable to agree, the court may re-

quire the jury to continue their deliberations

and may give or repeat an instruction as

provided in paragraph (a). The court shall not

require or threaten to require the jury to

Geliberate for an unreasonable length of time or

for unreasonable intervals.

"(c) The jury may be discharged without

having agreed upon a verdict if it appears that

there is no reasonable probability of

agreement."

ke

The ABA also recommends, as complying with

this standard, Instruction 8.11 found in Mathes,

Jury Instructions and Forms for Federal Criminal

Cases (1961), 27 F.R.D. 39, 97-98. See 3

American Bar Association Standards for Criminal

Justice (2 Ed. 1986) 15-134. The recomi.ended

instruction reads:

"The verdict must represent the considered

judgment of each juror. In order to return a

verdict, it is necessary that each juror agree

thereto. Your verdict must be unanimous.

"It is your duty, as jurors, to consult

with one another and to deliberate with a view

to reaching an agreement, if you can ado so

without violence to individual judgment. Each

of you must decide the case for yourself, but do

so only after an impartial consideration of the

evidence with your fellow jurors. In the course

of your deliberations, do not hesitate to

reexamine your own views and change your opinion

if convinced it is eroneous. But do not sur-

render your honest conviction as to the weight

ck

or effect of evidence solely because of the

opinion of your fellow jurors, or for the mere

purpose of returning a verdict.

"You are not partisans. You are judges -

judges of the facts. Your sole interest is to

ascertain the truth from the evidence in the

case."

A large number of states have abandoned the

Allen charge by adopting the ABA standard. From

California, in People v. Gainer, supra, to New

Jersey, in State v. Czachor (1980), 82 N.J. 392,

413 A. 2d 593, states are disapproving of the

Allen charge due to its coercive potential. (8)

While we likewise disapprove of the tradi-

tional Allen charge, we do not believe the ABA

standard is the answer. Though we would not

disapprove of its use, we believe a standard

that more emphatically encourages the jury to

reach a decision, if they can conscientiously do

so, is preferable.

In searching for the proper balance in a

supplemental instruction, we agree with United

States v. Johnson (C.A.D.C. 1970), 432 F. 2a

34.

626, 633, that the ABA standard is in reality a

modified Allen charge. The major area of dif-

ference between the ABA standard and the tradi-

tional Allen charge is that the ABA standard

Goes not require jurors in the minority to

reconsider their opinions out of deference owed

to the majority. We agree that jurors in the

Minority should not be singled out as being re-

quired to rethink their position; to our mina

this is the most objectionable aspect of the

traditional Allen charge. We search now for a

"modified" Alien charge that eliminates this

aspect while still encouraging a verdict, if a

verdict can be conscientiously reached.

In promulgating a supplemental instruction

to be used by this state's trial courts in

situations where it is appropriate, we are mind-

ful of our two stated goals. It must encourage

a verdict where one can conscientiously be

reached. In addition, the instruction must be

balanced, asking all jurors to reconsider their

opinions in light of the fact that others do not

agree. This even-handed treatment of all jurors

>

would stand in contrast to the traditional Allen

charge, as we noted in Maupin, supra, at 484,

71 0.0. 24 at 491, 330 B.E. 246 et 715.

Toward this end we propose a supplemental

instruction that uses portions of the Allen

charge language while ratifying the principle of

neutrality contained in the ABA standard. In

place of the traditional Allen charge, we ap-

prove the following supplemental instruction:

"The principal mode, provided by our Con-

stitution and laws, for deciding questions of

fact in criminal cases, is by jury verdict. In

a large proportion of cases, absolute certainty

cannot be attained or expected. Although the

verdict must reflect the verdict of each in-

Gividual juror and not mere acquisescence in the

conclusion of your fellows, each question sub-

mitted to you should be examined with proper

regard and deference to the opinions of others.

You should consider it desireable that the case

be decided. You are selected in the same man-:-

ner, and from the same source, as any future

jury would be. There is no reason to believe

sa 36.

the case will ever be submitted to a jury more

capable, impartial, or intelligent than this

one. Likewise, there is no reason to believe

that more or clearer evidence will be produced

by either side. It is your duty to decide the

case, if you can conscientiously do so. You

should listen to one another's arguments with a

disposition to be persuaded. Do not hesitate to

reexamine your views and change your position if

you are convinced it is erroneous. If there is

disagreement, all jurors should reexamine their

positions, given that a unanimous verdict has

not been reached. Jurors for acquittal should

consider whether their doubt is reasonable, con-

sidering that it is not shared by others,

equally honest, who have heard the same

evidence, with the same desire to arrive at the

truth, and under the same oath. Likewise,

jurors for conviction should nek themselves

whether they might not reasonably doubt the cor-

rectness of a judgment not concurred in by all

other jurors."

It is of interesting historical note to

consider that in Allen, supra, at 501, the

United States Supreme Court affirmed a sup-

plemental instruction that was "*** taken

literally from a charge in a criminal case which

was approved of by the Supreme Court of Mas-

sachusetts in Commonwealth v. Tuey [(1851), 62

Mass. 1), 8 Cush. 1 ***," The Massachusetts

court subsequently reconsidered the position it

had taken in Tuey and, in Commonwealth v. Rodri-

quez (1973), 364 Mass. 87, 300 N.E. 2d 192,

adopted a modified supplemental instruction that

is similar to the instruction we adopt today.

In conclusion, we hold that the traditional

Allen chage is not a proper supplemental charge

to be given to juries in Ohio which have become

deadlocked on the question of conviction or ac-

quittal. Further, we reiterate that the sup-

plemental instruction given by the trial judge

in this case was improper and that appellee was

denied effective assistance of counsel when the

issue was not raised on appeal. Therefore, we

affirm the judgment of the court of appeals

38.

granting post-conviction relief and remand this

case for a new trial. Our judgment shall have

only prospective effect.

Judgment affirmed and cause remanded.

MOYER, C. J., SWEENEY, WRIGHT and H. BROWN,

J. J., Concur.

HOLMES, J., dissents.

RESNICK, J., dissents with opinion.

ALICE ROBIE RESNICK, J., dissenting. I

respectfully dissent from the majority's hold-

ing. On January 13, 1988 the United States

Supreme Court considered this issue in Lowen-

——- -—-- —

field v. Phelps (1988), 484 U.S. , , 98 L.

Ed. 2€ 568, 576-577, 108 S. Ct. 546, 550, and

held that when considered "in *** context and

under all the circumstances," the two jury polls

and the supplemental charge did not impermis-

Sibly coerce the jury to return a death sen-

tence. The supplemental charge in Lowenfield

J?

was similar to the traditional Allen charge long

approved by that court on the ground that it was

an attempt to secure jury unanimity.

The majority has considered the supplemen-

tal instruction here without addressing "all the

circumstances" which must be considered before

the so-called Allen charge can be termed coer-

cive and thus reversible error.

Appellee, Raymond L. Howard, was convicted

by a jury of aggravated murder in violation of

R.C. 2903.01(A) on July 31, 1981. Appellee's

trial counsel was appointed to also represent

him in the direct appeal. On May 9, 1983, the

court of appeals affirmed the judgment of the

trial court. In that appeal the supplemental

instruction to which a general objection had

been made was not raised as error or considered

by the appellate court. A motion for leave to

appeal to this court from the decision of the

appellate court was denied on September 14, 1983

(case No. 83-1042).

40.

Appellee, pro_se, filed a petition for

post-conviction relief on April 8, 1985. This

petition was withdrawn apparently because ap-

pellee chose instead to seek a writ of habeas

corpus in this court. However, on December 26,

1985, this court dismissed such writ without

consideration on the merits (case No. 85-1121).

Appellee subsequently filed a second petition

for post-conviction relief on February 13, 1986

alleging that appellee's trial counsel was inef-

fective prior to, during, and on appeal, for

various reasons.

This case presents a troublesome question

which frequently occurs in appellate courts:

Should the issue of ineffectiveness of counsel

be raised, sua sponte, by the appellate court on

direct appeal, when the same attorney represents

the accused both at trial and on appeal so that

this issue can be addressed in a timely manner?

In the case before us, more than five years

had elapsed before the question of ineffective

trial counsel was brought to the attention of a

court. The better practice would be to require

41.

appellate courts to consider the entire record

with a view to issues involving ineffectiveness

of counsel when the same attorney represents the

accused both at trial and on appeal. If error

is then found, it can be treated in a timely

manner and not, as here, after eight years have

elapsed causing retrial to be almost impossibie.

The trial judge in this case, at the re-

quest of the accused, had the petition for

post-conviction relief reassigned to another

judge for dispostion. The newly assigned judge

issued findings of fact and conclusions of law

on May 13, 1986, which detemined that counsel

was not ineffective in that his tactics were

those of trial strategy. The judge further

found that the supplemental charge to the jury

was not coercive. Appellee appealed the deci-

sion to the court £ appeals. On November 12,

1987, the appellate court, in a two-to-one

opinion, reversed the decision of the trial

court and granted appellee's petition for post-

conviction relief, finding that the trial

court's modified Allen charge was clearly

42,

directed to the minority jurors, thus holding

that the charge was coercive and that counsel

was ineffective in that he did not raise this

issue on direct appeal.

In Lowenfield, supra, at , 98 L. EG. 2a

at 579, 108 St. Ct. at 552, the United States

Supreme Court noted when faced with a lack of an

ojection under similar circumstances that:

"We are mindful that the jury returned with

its verdict soon after receiving the supplemen-

tal instruction, and that this suggests the pos-

sibility of coercion. United States Gypsum Co.,

supra, [438 U.S.J, at 462, 57 L. Ed. 2d 854, 98

BS: Ct. 2866. We note, however, that defense

counsel did not object to either the polls or

the supplemental instruction. We do not suggest

that petitioner thereby waived this issue,

Wainwright v. Witt, 469 U.S. 412, 431, n. 11, 83

L. Ed. 2a 841, 105 S. Ct. 844 (1985), but we

think such an omission indicates that the poten-

tial for coercion argued now was not apparent to

43.

one on the spot.*** Id. at 430-431, 83 L. Ed.

26 661, i105 8. ¢t., 646, ean@ nm. 11.° (Emphasis

added and footnote omitted. )

The court found that the lack of an objec-

tion from counsel who was present at the time of

the giving of the supplemental instruction does

not necessarily indicate coercion in the charge.

In the instant case trial counsel entered a

general objection but then did not raise the

supplemental instruction as error on appeal.

Considering all the circumstances of this case,

it could be concluded that counsel did not

believe the supplemental charge given caused the

jury to reach its ultimate verdict of guilty.

Hence the supplemental charge was not coercive.

After a thorough review of case law in this

area it becomes apparent that the mere giving of

an Allen-type charge should not result in rever-

sal of the conviction unless it can be shown

based upon all circumstances that the jury was

coerced in arriving at its verdict solely due to

the supplemental jury instruction.

44.

The Lowenfield court further stated at ‘

98 L. Ed. 2d at 576-577, 108 S. Ct. at 550:

"Our review of petitioner's contention that

the jury was improperly coerced requires that we

consider the supplemental charge given by the

trial court ‘in its context and under all the

circumstances.' Jenkins v. United States, 380

U.S. 445, 446, 13 &:. 8@. 26 937, oe es Ge. seen

(1965) (per curiam). The use of a supplemental

charge has long been sanctioned. Nearly a cen-

tury ago in Allen v. United States, 164 U.S.

492, 41 L. Ed. S28, 17 8S. Ct. 154 (1896), this

Court reviewed a charge similar but by no means

identical to that given to the Louisiana jury

here, and concluded that it was not reversible

error even within the federal system."

In numerous cases where trial courts have

given a supplemental jury instruction containing

language similar to that in this case which

directs dissenting or minority jurors to recon-

sider their positions, courts have found, in its

context and under all the circumstances that the

instruction was not prejudicially coercive. See

45.

State v. Maupin (1975), 42 Ohio St. 2d 473, 71

0.0. 2a 485, 330 N.E. 2d 708; Commonwealth v.

Rodriquez (1973), 364 Mass. 87, 300 N.E. 2d 192;

United States v. Burke (C.A. 2, 1983), 700 F. 2d

70, certiorari denied (1983), 464 U.S. 816

(supplementary charge not set out); _Unites

States v. Fioravanti (C.A. 3, 1969), 412 F. 2d

407, certiorari denied sub nom. Panaccione v.

United States (1969), 396 U.S. 837; United

States v. Sawyers (C.A. 4, 1970), 423 F. 2a

1335, 1342-1343 ("{Alppropriate use of the pure

Allen charge [given when jury indicates that it

is dead-locked] is not per se reversible error.

Even so, we strongly recommend use of a modified

version ofAllien that ***" mentions duty of

Majority to listen and consider any minority

viewpoint and does not direct a juror to dis-

trust his own judgment if he finds a large

majority of jurors taking a view different from

his own.); United States v. Kelly (C.A. 5,

1986), 783 F. 2d 575, certiorari denied (1986),

479 U.S. 889; United States v. Silvern (C.A. 7,

1973), 484 F. 2a 879 (en banc) (requires

46.

prospective use of ABA-approved standard sup-

plementary Allen-type instruction); United

States v. Brown (C.A. 7, 1969), 411 F. 2d 930;

United States v. McKinney (C.A. 10, 1987), 822

F. 2d 946; United States v. Rey (*.A. 11, 1987),

811 F. 2a 1453, certiorari denied (1987), 484

U.s. , 98 L. Ed. 2a 63, 108 S. Ct. 103; Ful-

wood v. United States (C.A. D.C. 1966), 369 F.

2d 960, certiorari denied (1967), 387 U.S. 934.

Today, the majority approves of a modified

supplemental instruction similar to that adopted

by the Supreme Judicial Court of Massachusetts

in Commonwealth v. Rodriquez (1973), 364 Mass.

87, 300 N.E. 2d 192. In Rodriquez the Mas-

sachusetts court amended the charge it had ap-

proved in Commonwealth v. Tuey (1851), 62 Mass.

... @ Geek... ‘3s These amendments, however, were,

in the interests of the better administration of

criminal justice, to apply to future cases.

Rodriquez, supra, at 98, 300 N.E. 2a at 200.

The Rodriquez court held that the defendant's

exception to the terms, timing, and setting of

the giving of the "Tuey" charge fails "*** be-

47.

"ARTO

cause our decided cases have held the Tuey lan-

guage to be nonprejudicial, and we do not find

enough in the circumstances of its use here to

render it coercive to the point of-calling for

reversal of the judgments. ***" (Emphasis

added.) Id. ~

A nearly identical charge to the one before

us and to the one deemed nonprejudicial in

Rodriquez was given by the trial court anda

reviewed by this court in State v. Maupin,

supra, at 482-483, 71 0.0. 2d 485, 490-491, 330

N.E. 2a 708, 714-715, fn. 3. This court held

that the supplemental instruction was not

prejudicially coercive and, under the cir-

cumstances, the court's giving of the charge was

not an abuse of discretion. Id. There, the

court was notified by the jury that it was

having difficulty reaching an agreement after

deliberations of approximately two and one-half

hours. The court gave an Allen charge, the jury

retired to further deliberate, and returned with

a verdict of guilty in less than one-half hours.

Id. at 477, 71 0.0. 2d at 487, 330 N.E. 2d at

48.

7aaeriviea. There were no other circumstances

present with the potential of coercion of the

jury. Id. at paragraph four of the syllabus.

cr. State v. Sabbah (1982), 13 Ohio App. 3a

124, 13 OBR 155, 468 N.E. 2d 718.

Similarly, in this case, a supplemental

charge was given when the jury indicated to the

court that it was having difficulty reaching a

unanimous verdict as to the aggravated murder

charge after several hours of deliberations.

The jury then retired to deliberate further.

Subsequently a modified Allen charge was given

after the jury again indicated difficulties fol-

lowing nearly two additional days of delibera-

tions. As in Maupin, no inquiry was made as to

the numerical @Givision of the jury. Upon retir-

ing, the jury returned with its verdict in ap-

proximately one hour, a longer period of further

deliberations than in the Maupin case and many

of the other cases previously cited.

In conclusion, I do not find that the trial

court committed reversible error by giving the

modified Allen charge in this case. The use of

49.

such a charge did not constitute reversible er-

ror in and of itself. The entire charge which

was given must be considered, not simply a por-

tion thereof. The trial judge did in fact

remind the jurors that the burden of proof was

upon the state to prove each and every element

of the crime beyond a reasonable doubt. Fur-

ther, he told them if they are in doubt, the

defendant is entitled to the benefit of that

doubt. In addition he told them that the ver-

Gict "to which a juror agrees must be, of

course, his own verdict." It cannot be presumed

that any juror was coerced into agreeing to the

guilty verdict solely due to the modified Allen

charge. State v. Moon (1911), 20 Idaho 202, 117

PP. Fears

After a thorough review of the record in

this case, I find that there was proof beyond a

reasonable doubt establishing each and every

element of the crime charged. In fact it was

not even a close case. Therefore, it cannot be

said with certainty that the jury returned a

verdict of guilty, in less than one hour from

50.

receiving the modified Allen charge, due to

being coerced by that supplemental instruction.

I do not find that the appellee's constitutional

rights have been violated, and hence the giving

of this supplemental charge was not reversible

error.

I would, therefore, reverse the judgment of

the court of appeals and reinstate the convic-

tion.

FOOTNOTES

1

This first supplemental charge was essen-

tially the same as the charge in State v. Maupin

(1975), 42 Ohio St. 2d 473, 71 0.0. 2d 485, 330

N.E. 2d 708. The pertinent part of the judge's

supplemental instruction was:

"Now ladies and gentlemen, I have told you

this before, and you are all intelligent human

beings, and I hesitate to repeat it but I'm

going to anyway. I told you, ladies and

gentlemen, to consult with each other and con-

sider each other's opinions and views and

deliberate with an attempt to reaching an agree-

ment, of course, if you can do so without dis-

turbing your individual judgment. Each of you

must decide this case for yourself, but you

should do so only after a thorough consideration

of the case with your fellow jurors. Now, don't

hesitate to change your opinion if, within

reason, you are convinced that it is wrong. I'm

going to give you a little more time and I'll be

back in a little bit to ask you if you want to

continue to deliberate or if you want to quit

for the evening. I woulda urge you to continue,

however, at this paint."

2

A verdict sheet, finding appellee guilty

of aggravated murder and signed by all members

of the jury, was time-stamped and filed with the

Clerk of Mahoning County Court of Common Pleas.

The verdict was filed at 4:26 p.m. on July 31,

1981.

3

The pertinent text of the supplemental in-

struction in Allen, supra, reads as follows:

"'The only mode provided by our Constitu-

tion and laws for deciding questions of fact in

criminal cases is by the verdict of a jury. In

a large proportion of cases, and perhaps,

strictly speaking, in all cases, absolute cer-

tainty can not be attained or expected. Al-

52.

though the verdict to which a juror agrees must,

of course, be his own verdict, the result of his

own convictions, and not a mere acqui[fe]s[c]Jence

in the conclusion of his fellows, yet, in order

to bring twelve minds to a unanimous result, you

must examine the questions submitted to you with

candor, and with a proper regard and deference

to the opinions of each other. You should con-

sider that the case must, at some time, be

Gecided; that you are selected in the same man- ;

ner, and from the same source from which any fu-

ture jury must be; and there is no reason to

suppose that the case will ever be submitted to

twelve men more intelligent, more impartial, or

more competent to decide it; or that more or

clearer evidence will be produced on the one

Side or the other. And with this view it is

your duty to @gecide the case if you can con-

scientiously do so. In order to make a decision

more practicable the law imposes the burden of

proof on one party or the other in all cases.'

In the present case the burden of proof is upon

the Government of the United States. ‘But in

conferring together you ought to pay proper '

respect to each other's opinions, and listen, |

with a disposition to be convinced, to each

other's arguments. And, on the one hand, if

:

:

at A Nabe ae 9 as ue

much the larg@r number of your panel are for a

conviction, a dissenting juror should consider

whether a doubt in his own mind is a reasonable

one which makes no impression upon the the [sic]

minds of so many men, equally honest, equally

intelligent with himself, and who have heard the

same evidence with the same attention, with an

equal desire to arrive at the truth, and under

the sanction of the same oath. Ana, on the

other hand, if a majority are for acquittal, the

Minority ought seriously to ask themselves

whether they may not reasonably, and ought not

to, dagoubt the correctness of a judgment which is

not concurred in by most of those with whom they

are associated, and distrust the weight or suf-

ficiency of that evidence which fails to carry

conviction to the minda@s of their fellows.'"

ik

ee! ee

renee Hr

Ab otek oti 44am erinie

Brief for United States at 29, Allen v. United

States, reprinted in Briefs and Records of the

United States Supreme Court, Part V.

This charge to the jury was omitted in

printing the transcript of record of the Allen

case. See Briefs and Records of the United

States Supreme Court, Part V, Allen v. United

States, Record at 127; Brief for United States

at 2. However, the charge was reprinted in the

brief of the United States, filed with the Clerk

of the Supreme Court of the United States on Oc-

tober 21, 1896. See Brief for United States,

supra, at 29.

4

See Note, Deadlocked Juries and Dynamite:

A Critical Look at the "Allen Charge" (1964), 31

U. Chi. L. Rev. 386; Hennessey, The Allen

Charge; Dead Law a Long Time Dying (1972), 6

U.S.F.L. Rev. 326; Note, The Allen Charge:

Recurring Problems and Recent Developments

(1972), 47 N.Y.U.L. Rev. 296, 316-317; Marcus,

The Allen Instruction in Criminal Cases: Is the

Dynamite Charge About to be Permanently Defuseda?

(1978), 43 Mo. L. Rev. 613; O'Sullivan, Dead-

locked Juries and the Allen Charge (1985), 37

Me. L. Rev. 167.

5

For a more complete list of jurisdictions

that have abandoned or modified the Allen

charge, see Annotation (1980), 97 A.L.R. 3d 96.

6

We are not unmindful that the United

States Supreme Court still views Allen as good

law. "The continuing validity of this Court's

observations in Allen are beyond dispute ***,"

Lowenfield v. Phelps (1988), 484 U.S. . .

38 Lb. BG. 264 SEG, ST7, 1086 8. CE. 348, Baa.

However, close scrutiny of the charge given in

Lowenfield reveals that it was not the tradi-

tional Allen charge. The charge did not speak

specifically to minority jurors. Id. at , 98

L. Ed. 2d at 575, 108 S. Ct. at 549.

7

The trial judge in the case at bar went

even further than the traditional Allen charge.

When giving the second supplemental instruction,

the judge said, "If you should fail to agree

upon a verdict, the case is left open and un--

Gecided. Like all cases, this case must be dGis-

posed of sometime. ***"

8

See Annotation (1980), 97 A.L.R. 3a 96,

for a more complete listing of states.

> bo

APPENDIX B

THE SUPREME COURT OF OHIO

1989 TERM

To wit: May 17, 1989

STATE OF OHIO Case No. 87-2154

APPELLANT

=~ REHEARING ENTRY

RAYMOND L. HOWARD (Mahoning County)

me ee ee ee ee eee

APPELLEE

IT IS ORDERED by the Court that rehearing

in this case be and the same is hereby, denied.

(Court of Appeals No. 86 CA 82)

ss:

THOMAS J. MOYER

Chief Justice

56.

APPENDIX C

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO,

CASE NO. CA 82

PLAINTIFF-APPELLEE

-v- OPINION

RAYMOND L. HOWARD

me ee ee ee ee ee ee

DEFENDANT-APPELLANT

O'NEILL, J.

This is a timely appeal from a judg-

ment of the Mahoning County Court of Common

Pleas which sustained the State's motion to dis-

miss appellant's petition for post conviction

relief.

Appellant, Raymond L. Howard, was indicted

by the Mahoning County Grand Jury for aggravated

murder pursuant to R.C. 2903.01(A). Appellant

was represented by counsel throughout discovery

and his subsequent trial which commenced on July

20, 1981. After an extensive trial, the jury

returned a verdict of guilty as charged and

24

judgment was thereafter entered upon the ver-

dict. Appellant then filed a timely notice of

appeal to this court.

Appellant was again represented by counsel

during the direct appeal. This court subse-

quently affirmed appellant's conviction (State

-v- Howard [CA 7, 1983] Case No. 81 CA 109,

unreported). Further leave to appeal was denied

on July 5, 1983, by the Ohio Supreme Court.

On February 13, 1986, appellant filed a

petition for post conviction relief pursuant to

R.¢. 2933.22. Appellant's grounds for relief

were posited upon a claim of ineffective assis-

tance of counsel. By judgment entry of May 13,

1986, the trial court filed its findings of fact

and conclusions of law and sustained a motion to

dismiss filed by the State of Ohio.

| A timely notice of appeal was filed from

the trial court's judgment entry on May 23,

1986.

While much of appellant's argument concerns

his claim of ineffective assistance of counsel,

both at trial and on direct appeal, the sole and

58.

a

determinative issue which underlies this claim

is whether the trial court's use of the sup-

plemental "Allen" or "dynamite charge" con-

stitutes plain error requiring a reversal.

The term "Allen charge" derives from Allen

-v- United States (1896), 164 U.S. 492, in which

a supplemental instruction regarding the jurors'

duties in attempting to reach a verdict was ap-

proved. The "Allen charge" read:

"* * * although the verdict must be the

verdict of each individual juror, and not

a mere acquiescence in the conclusion of

his fellows, yet they should examine the

question submitted with candor and with a

proper regard and deference to the

opinions of each other; that it was their

duty to decide the case if they could

conscientiously do so; that they should

listen, with a disposition to be con-

vinced, to each other's arguments; that,

if much the larger number were for con-

viction, a dissenting juror should con-

sider whether his doubt was a reasonable

one which made no impression upon the

minds of so many men, equally honest,

equally intelligent with himself. LE,

upon the other hand, the majority was for

acquittal, the minority ought to ask

themselves whether they might not

reasonably doubt the correctness of a

judgment which was not concurred in by

the majority."

39%

In State -v- Maupin (1975), 42 Ohio St. 2d

473, the Ohio Supreme Court noted, "* * * the

original Allen charge has never been a part of

Ohio jurisprudence." Maupin, supra, at 484.

The court's reasons for so finding were based

upon what it perceived to be increasing

criticism warranting a rejection of the charge

as given in Allen.

"The principal and most frequent reason

advanced is that it lacks balance; that

the thrust of the Allen instruction is

directed to the minority jurors only and

is potentially coercive upon them to

agree with those jurors constituting the

majority. * * *.

———

"The second difficulty judicially noted

with Allen arises from modification and

variations, with resultant appeals, in

language utilized by trial courts which

either omits parts of the Allen charge

which tend to avoid any coercive effect

or the utilization of language which has

the effect of enhancing its potential for

coercion. * * *," Maupin, supra at 483.

The Maupin court went on to uphold the par-

ticular supplemental charge at issue therein as

it found that charge bore little resemblance to

the pure "Allen charge." It found the par-

ticular charge noncoercive as it was directed to

all the jurors, and hence neutral, rather than

60.

being directed to a minority. Additionally, the

court also found the supplemental charge to have

been given in close proximity to the general

charge such that each juror heard the repeated

refrain to consult with each other and consider

each other's views, but without disturbing or

surrendering their individual convictions or

judgment. Nonetheless, a different result is

warranted in the case sub judice.

In the instant case, appellant was tried

for aggravated murder. Trial commenced on July

20, 1981; the jury received the case for

deliberations on July 29, 1981; the jury

returned a guilty verdict on July 31, 1981. No

issue has been raised regarding the trial

court's general charge to the jury, and, upon

our review of that charge, we believe none would

have been warranted.

Before a luncheon break on the first day of

deliberations, the jury posed three questions to

the court to clarify the court's initial in-

structions on the elements of aggravated murder.

Near the end of the first day the jury sent a

note to the court stating:

"Cannot reach unanimous decision on first

charge (aggravated murder) and doubtful

if more deliberation will change that."

(Tr. 1399; 1408).

With the approval of appellant's counsel,

the judge entered the jury room with the court

reporter, reinstructed the jury on how to

proceed before considering the lesser offense of

murder, rendered what is in essence an accept-

able supplemental charge per Maupin, supra, and

urged the jurors to continue deliberations.

(Tr. 1399-1400).

Within thirty minutes, though the record is

unclear whether the trial court re-entered the

jury room or summoned the jury out, the court

interrupted the deliberations, inquired whether

the jury would reach a verdict within 20-30

minutes, and then decided to adjourn for the day

(Tr. 1400-140).

62.

The transcript of proceedings indicates

there were no further questions or requests for

additional instruction from the jury throughout

its deliberations on July 30, and throughout the

morning and most of the afternoon of July 31,

1981. Nonetheless, by its journal entry of

August 3, 1981, the trial court found the jury

had deliberated on July 28, 29, 30 and reached

its verdict of guilty on July 31, 1981.

On July 31, 1981, at 3:10 P.M., the court

stated it had received several other questions

from the jury and a statement which read:

"After lengthy discussion we cannot reach

a unanimous verdict on the charge of ag-

gravated murder. Please advise of fur-

ther instructions." (Tr. 1402; 1408).

The court then stated:

"* * * TIT have decided to bring the jury

into the courtroom and read to them a

charge, in my opinion, short of the Allen

charge, but nonetheless one which does a

little bit more than encourage them to

decide this case." (Tr. 1402) (Emphasis

added. )

Appellant's counsel entered a general ob-

jection. Nonetheless, the court read the fol-

lowing charge to the jury:

63.

"* * * And in a large proportion of cases

and strictly speaking in all cases, ab-

solute certainty cannot be obtained or

even expected. Although the verdict to

which a juror agrees must be, of course,

his own verdict, the result of his own

convictions and not a mere acquiescence

in the conclusion of his fellows; yet, in

order to bring 12 minds to a unanimous

verdict you must examine the question

submitted to you with candor and with a

proper regard in deference to the

opinions of each other. If you should

fail to agree upon a verdict, the case is

left open and undecided. Like all cases,

this case must be disposed of sometime.

You, ladies and gentlemen, were selected

in the same manner and from the same

source from which any future jury must

be, and there is no reason to suppose

that the case will ever be submitted to

12 more men and women who are more intel-

ligent, more impartial or more competent

to dispose of it, or that more or clearer

evidence will be produced on one side or

the other. You have heard the evidence.

Now with this view, it is your duty,

ladies and gentlemen, to dispose of the

case if you can consciously do so. In

order to make a decision more prac-

ticable, the law imposes the burden of

proof on one party or the other. In all

cases that is true. Now in this case the

burden is upon the State to establish

every part of every essential element, or

which you are well aware, beyond a

reasonable doubt. Now if you are left in

doubt, ladies and gentlemen, as to any

essential element, the’ defendant is en-

titled to the benefit of that doubt. But

in conferring together, ladies and

gentlemen, you ought to pay proper

respect to each others' opinions; you

must listen with a disposition to be con-

vinced by each others' arguments. And on

the one hand, if much the larger number

64.

|

of your panels are on one side or the }

other, a dissenting juror should consider

whether his position is a reasonable one

when it makes no impression upon the

minds of men and women equally honest, ;

equally intelligent and who have heard

the same evidence with the same atten-

tion, with an equal desire to arrive at

the truth and under the sanction of the

Same oath. And on the other hand, if a

majority have reached a_verdict, the

minority ought seriously ask themselves

whether or not they may reasonably and

ought not to doubt the correctness of the

judgment which is not concurred in with

most of those with whom they are as-

sociated and/or distrust the weight or

sufficiency of that evidence which fails

to convince the minds of their fellows.

"Now with these instructions in mind,

ladies and gentlemen, you will please

return to your deliberation room and con-

tinue your deliberations." (Tr. 1403-

1405). (Emphasis added.).

This final transcript of proceedings entry

ended with the jury being returned to delibera-

tions at 3:20 p.m. on July 31, 1981 (Tr. 1405).

Appellant contends the jury returned and ren-

dered its verdict of guilty of aggravated murder

against him within forty minutes. Obviously,

the transcript of proceedings is inconclusive on

this assertion. However, the record does other-

wise indicate that the jury's verdict form,

Signed by all of the jurors, was filed with the

65.

clerk on July 31, 1981 at 4:26 p.m.; little more

than one hour after the final supplemental

charge in issue.

Unlike Maupin, supra, we find the sup-

plemental charge in issue to mirror the very

evils complained of in that court's rejection of

the "Allen charge." In the case sub judice, the

trial court's supposedly modified "Allen charge"

was Clearly directed to the minority jurors. It

matters not whether the minority was for or

against. conviction or acquittal; it is enough

that the process of jury deliberations was

coerced by the court.

Unlike Maupin, supra, we cannot rely upon

either the trial court's initial charge, or its

first supplemental charge in the jury room near

the end of the first day of deliberation, to

cleanse or minimize the prejudicial effect of

its "Allen charge." The second supplemental

charge in issue lacked the neutrality of the

Maupin charge; it lacked the repeated cautioning

of the Maupin charge for the jurors to stand by

66.

their honestly held convictions; and it lacks

the closeness in time to the general charge

which was a factor in the Maupin decision.

In Maupin the jury was charged regarding

drug law violations, received the case for

deliberations at 11:40 a.m., and was given the

supplemental charge complained of therein,

within four hours.

Here, the jury was instructed initially on

aggravated murder and its elements, murder and

its elements, the defense of alibi, a plethora

of instructions regarding burdens of proof,

reasonable doubt and the mechanics of delibera-

tions and reaching a verdict. In short, the

jury in the instant case received a detailed and

protracted instruction and, as appears from

their several questions to the court, struggled

to digest it and balance it along with the facts

of the case which took eight days to present.

One full day of deliberations intervened between

the general charge and the first supplemental

charge in the jury room. Another two days of

deliberations passed between this short, first

67.

we

oe ee Ol

——

AT Ante te bapa Sell Hd te 8 an lA

ae ely athe

supplemental charge and the "Allen Charge" com-

plained of herein. Hence, we find the time be-

tween the charges given to be too remote and at-

tenuated to in any way minimize the prejudicial

effect of the objected to charge.

Moreover, it is this very same great span

of time between the general charge and the

prejudicial "Allen charge," and the then very

short span of time between the prejudicial-

charge and the verdict, which further evidences

the truly sahabieses otkens of the "Allen

charge" in issue. Finding no Ohio case on

point, we have reviewed the case of People -v-

Richards (1968), 95 Ill. App. 2d 430, 237 N.E.

2a 848, and adopt its rationale.

In that case, the defendant was charged

with attempted robbery. At the conclusion of

the trial, the jury was charged by the court.

The jury deliberated for two and one-half hours

before being summoned back to court. Upon in-

quiry from the bench, the foreman informed the

court the jury was hopelessly deadlocked. The

court then gave the jury an "Allen" type sup-

68.

plemental charge over defendant's objection.

The jury then returned to deliberations and,

after only eighteen additional minutes, found

defendant guilty as charged.

In reversing defendant's conviction and

remanding the case for a new trial, the Illinois

Appellate Court did so solely upon the basis of

the prejudicial effect of that trial court's

"Allen charge" and without otherwise finding it

necessary to balance the error against the facts

of that case to determine whether such was

prejudicial error.

"We cannot dissuade ourselves from the

position that this supplemental instruc-

tion as given * * * was the singularly

procuring factor occasioning the verdict

returned. We would furthermore consider

it a practice in naivete by our court to

accede unhesitatingly to the palpable

vice of this oft criticized "dynamite

charge* (a term used to categorize its

blasting effect upon the jury), under the

circumstances as they exist here. x *

Lest we are to abandon the safeguards in-

herent in unanimity of jury verdicts in

this State, in the final analysis the

question must always be whether the

recitation of the words of this sup-

plemental charge, or its equal, in the

court's estimation, adversely affected

independent jury deliberation and

thinking." Richards, 237 N.E. zd at 852.

69.

Oe Se Oe Pane

"We are of the opinion that an inference

of such coercion upon the minority juror

arises, simply by virtue, of the marked

brevity of deliberation following the

delivery of the charge.

ue & *,

"Under such circumstances, the use of the

‘Allen type' charge must be deemed to

have been tantamount to an exercise of

judicially sanctioned undue influence or

coercion upon the jury which the law can-

not condone." Richards, supra, at 853.

In again comparing the issue of the case

sub judice with Maupin, supra, we note an addi-

tional basis for finding the "Allen charge" in

issue to be prejudicial error. The clear import

and language of the objected to charge went even

further awry in that it urged the minority

jurors to go so far as to disregard or distrust

the weight and sufficiency of the evidence they

had relied upon simply because the majority dis-

agreed with its import.

In State -v- Sabbah (1982), 14 Ohio App. 3d

124, the court considered a defendant's appeal

based upon, ameng other claimed errors, the

trial court's use of an "Allen charge." Sabbah,

supra, is factually distinguishable from the in-

70.

stant case only in that the jury there was more

explicit in informing that court it could not

reach a verdict. Nonetheless, noting that the

"Allen charge" had been rejected in Ohio on the

authority of Maupin, supra the Sabbah court

held:

"The additional fact that the court gave

no neutral supplementary instruction only

enhanced the coercive effect of the other

circumstances. Even if the jury had not

articulated its inability to reach a fair

verdict, we must conclude that in the ab-

sence of the appropriate supplementary

instructions for situations such as this,

the trial court's statements unneces-

sarily and prejudicially exacerbated the

potential for coercion." Sabbah, supra,

at i323.

Accordingly, and for all the reasons

stated, we find the trial court's second sup-

plemental charge not to be a "modified" Allen

charge," but in fact a charge that went even

beyond the evils complained of in the "Allen

charge." Hence, it did, as the trial court

stated it was intended to do, a little bit more

than just encourage the jury to decide the case.

However, in doing so, it so coerced and infected

the process of jury deliberation so jealously

revered in the law, that it constituted prejudi-

cial error affecting appellant's substantial

rights to a fair and impartial jury and cannot

be allowed to stand.

Holding as we do, we further find

appellant's counsel should have raised the issue

on direct appeal and the failure to do so con-

stitutes ineffective assistance of counsel.

The constitutional right under the Sixth

Amendment of the United States Constitution "to

have the assistance of counsel for his defense,"

which has been made obligatory upon the States

by the Fourteenth Amendment of the United States

Constitution, implies adequate representation by

efficient counsel and efficiency of counsel im-

plies skill and preparation in endeavoring to

produce the desired result; and where the record

demonstrates that such legal representation was

not provided to defendant by his counsel, then

the defendant has been deprived of his constitu-

tional rights to due process and assistance of

counsel as guaranteed to him by the Sixth and

Fourteenth Amendments of the United States Con-

Fae

stitution, and by Sections 10 and 16 of Article

I of the Constitution of the State of Ohio.

State -v- Cutcher (1969), 17 Ohio App. 2d 107.

Balancing the rights of the accused and of the

public, the test is whether the accused, under

all the circumstances including the fact that he

had counsel, had a fair trial and substantial

justice was done. State -v- Hester (1976), 45

Ohio St. 2d 71, paragraph 4 of the syllabus.

The error which we have previously con-

sidered to have intervened in the trial judge's

instructions can only be classified as substan-

tial error interfering with substantial justice.

The jury in this case, on July 29, 1981, in-

formed the trial court that it could not reach a

unanimous decision and that it was doubtful if

more deliberation would change that. The jury

continued to deliberate on July 30, 1981 and

throughout the morning and most of the afternoon

of July 31, 1981. Again, on July 31, 1981, the

jury informed the court that a unanimous deci-

sion could not be reached. The period of

Geliberations and the statements of the jury ob-

as

viate a conclusion that there was no resistance

amongst the members of the jury to reach a ver-

dict of guilty. Obviously, the erroneous charge

of the trial court influenced the verdict

finally returned by the jury. The trial counsel

objected. The error was so grievous that it

should have been raised on direct appeal and

could have been raised on direct appeal for the

reason that it appeared as part of the original

record. The failure to raise it denied the

petitioner substantial justice to the extent

that if the error had been raised upon direct

appeal, very obviously, the judgment of the

trial court would have been reversed.

For all reasons stated, the judgment of the

trial court sustaining the State of Ohio's mo-

tion to dismiss appellant's petition is

reversed. Appellant's petition for post convic-

tion relief is hereby granted, his conviction

upon the jury verdict is reversed and the cause

is remanded for a new trial.

Cox, P. J., concurs.

Donofrio, J., dissents. See cissenting opinion.

74.

Approved:

SS:

JUDGE

DONOFRIO, JR., DISSENTING

I respectfully dissent from the majority

opinion in this matter for the following reason.

The United States Supreme Court has ap-

proved the "Allen charge," as such. No case has

been brought to our attention wherein the Ohio

Supreme Court has said that a charge is exactly

that as the Allen charge and, therefore, it is

erroneous and prejudicial.

In State -v- Maupin, cited by the majority

in this court, there is some dicta and a state-

ment that the Allen charge has never been a part

of Ohio jurisprudence, but neither has the

Supreme Court spoken on a particular charge as

being too coercive. The court discusses the Al-

len charge as having been criticized because of

Cee

es ee

at SAI Stak EN AE ode “ae ar

xs Se eee ee ae a»

a lack of balance. The court, then, in Maupin

proceeded to uphold a charge that was used

therein as not being coercive.

I find that the trial court's charge in the

instant case is sufficiently balanced and,

therefore, not prejudicial. The trial court

stated, as part of its instructions, at

transcript 1403 to 1405, as follows:

"x * * Now in this case the burden is

upon the State to establish every part of

every essential element * * * beyond a

reasonable doubt. Now if you are left in

doubt, ladies and gentlemen, as to any

essential element, the defendant is en-

titled to the benefit of that doubt."

He emphasized twice the fact that appellant

is entitled to the benefit of a doubt, and that

it was the State's burden to prove and establish

every part of every element beyond a reasonable

doubt. The judge did not use the term that if

the majority were for conviction or if the

majority were for acquittal. He stated the fol-

lowing:

"*x * * (T)he defendant is entitled to the

benefit of that doubt. But in conferring

together, ladies and gentlemen, you ought

to pay proper respect to each others'

opinions; you must listen with a disposi-

tion to be convinced by each others' ar-

76.

guments. And on the one hand, if much

the larger number of your panel are on

one side or the other, a dissenting juror

should consider whether his position is a

reasonable one when it makes no impres-

sion upon the minds of men and women

equally honest, equally intelligent and

who have heard the same evidence with the

same attention, with an equal desire to

arrive at the truth and under the sanc-

tion of thé same oath. And on the other

hand, if a majority have reached a ver-

dict, the minority ought seriously ask

themselves whether or not they may

reasonably and ought not to doubt the

correctness of the judgment which is not

concurred in with most of those with whom

they are associated and/or distrust the

weight or sufficiency of that evidence

which fails to convince the minds of

their fellows." (Tr. 1404-1405.)

The United States Supreme Court stated in

llen, supra, at 501-502:

"While, undoubtedly, the verdict of the

jury should represent the opinion of each

individual juror, it by no means follows

that opinions may not be changed by con-

ference in the jury-room. The very ob-

ject of the jury system is to secure una-

nimity by a comparsion of views, and by

arguments among the jurors themselves.

It certainly cannot be the law that each

juror should not listen with deference to

the arguments and with a distrust of his

own judgment, if he finds a large

majority of the jury taking a different

view of the case from what he does hinm-

self. It cannot be that each juror

should go to the jury-room with a blind

determination that the verdict shall rep-

resent his opinion of the case at that

moment; or, that he should close his ears

as

as

AEC Pel BP ls,

to the arguments of men who are equally

honest and intelligent as himself. There

was no error in these instructions."

Essentially, then, the trial judge was as-

king the jurors to consider the collective wis-

dom of his or her fellow jurymen. Considering

the trial judge's emphasis as to the presumption

of innocence and the duty of the prosecutor to

prove every essential element beyond a

reasonable doubt, I find, therefore, that the

instruction by the trial judge was sufficiently

balanced to be non-prejudicial.

I would, therefore, affirm the judgment of

the trial court.

APPROVED:

ss:

JOSEPH DONOFRIO, JUDGE

78.

APPENDIX D

THE SUPREME COURT OF OHIO

1989 TERM

To wit: April 12, 1989

STATE OF OHIO Case No. 87-2154

APPELLANT

“y= JUDGMENT ENTRY

RAYMOND L. HOWARD

APPEAL FROM THE

COURT OF APPEALS

APPELLEE

me ee ee ee eee ee

This cause, here on appeal from the Court

of Appeals for Mahoning County, was considered

in the manner prescribed by law. On considera-

tion thereof, the judgment of the Court of Ap-

peals is affirmed and the cause is remanded con-

sistent with the opinion rendered herein.

It is further ordered that the appellee

recover from the appellant its costs herein ex-

pended; and that a mandate be sent to the Court

of Common Pleas for Mahoning County to carry

this judgment into execution; and that a copy of

this entry be certified to the Clerk of the

Court of Appeals for Mahoning County for entry.

79.

(Court of Appeals No. 86 CA 82)

THOMAS J. MOYER

soci Chief Justice

80.

CERTIFICATE OF SERVICE

Three copies of the foregoing Appendix has

been sent by ist class mail (postage prepaid),

to Randall M. Dana, Ohio Public Defender, and

Robert L. Lane, Chief Appellate Counsel, Ohio

Public Defender Commission, 8 East Long Street,

Columbus, OH 43266-0587, this /% day of

July, 1989.

“so ¢ ’

KATHI L. MCNABB

Assistant Prosecutor

Counsel for Petitioner

DATE: Y Ls z

I Le Rig PAR td Hh 0 ne