Petition — Ellis v. Reed

i" Bupreme Bowst, U,

t FILED

i4

i) AUG 10 1979 i

In The |

MIGHAR AODAXK, JR., CLERK

Supreme Court of The United States __

October Term, 1979

No. 49-222

BRUCE E. ELLIS,

Petitioner,

-VS-

AMOS E. REED, Secretary of

Corrections, and the Attorney General

of the State of North Carolina,

Respondents.

Petition for a Writ of Certiorari

to the

United States Court of Appeals

for the Fourth Circuit

ROGER W. SMITH

300 Branch Bank Building

Raleigh, North Carolina 27602

Telephone: (919) 821-4711

Counsel for Petitioner

ee CeCe a sk Sadak ice cnvcacessasceess 4

eed hd ed se vcd soc banded sensescrs 4

EEE 4

Constitutional Provisions Involved ..................45. 4

Ne acess seenecescsccscsess )

Nature and Course of the Proceedings ............ 5

i EE ieee nce seco sccicessccccecs 6

ge ha 8

I. The Court of Appeals’ Decision Misinterprets

the Rule Established by This Court in Brasfield

ead ekaedessseeseecccssess 8

II. The Court of Appeals’ Decision That the

Inquiry By a Criminal Trial Judge Into the

Numerical Division of a Jury Followed by the

Giving of an “Allen Charge” is Not Coercive

is in Conflict With the Decisions of This Court ... 12

III. The States Are in Conflict Over the Basis of

This Court’s Decision in Brasfield v. United

tok ccebanvavestocers 13

CITATIONS

Pages

Alford v. United States. 282 U.S. 687 (1930) ............ 9

Allen v. United States, 164 U.S. 492 (1896) ............. 12

Barren v. Baltimore, 7 Pet. 243 (1833)... 1... ccc wcees 9

Betts vo. Brady, SIG US. GO (IPA) 2. ci ccccvccvcasccscs 9

Brasfield v. United States, 272 U.S. 448 (1926) .... 8 thru 14

Burton v. United States, 196 U.S. 283 (1905) ........... 11

Davis wv. Alasicn, 415 US. BOB (IGTS) occ ccc ccc cicccnccns 10

Duncan v. Louisiana, 391 U.S. 145 (1968) ............... 9

Jenkins v. United States, 380 U.S. 445 (1965) ........... 13

Johnson v. Louisiana, 406 U.S. 356 (1972) .............. 12

Jones v. Norvell, 472 F. 2d 1185 (6th Cir. 1973) ........ 13

Kersey v. State, 525 S.W. 2d 139 (Tenn. 1975) .......... 14

McNabb v. United States, 318 U.S. 332 (1943) .......... i)

Palko v. Connecticut, 302 U.S. 321 (1937) ............... 9

Patton v. United States, 281 U.S. 276 (1929) ............ 10

People v. Wilson, 213 N.W. 2d 193 (Mich. 1973) ......... 13

Pointer v. Texas, 300 U.S. 400 (1964)... ccc ccc ccccccess 10

Sinclair v. United States, 279 U.S. 749 (1928) ........... 11

Sharpin v. State, 330 So. 2d 591 (Miss. 1976) ........... 14

smith o. IWinole, 30 US. 120 (IGGBY on. cc cease esc cecs 10

State v. Aragon, 547 P. 2d 574 (N.M., 1978) ............. 13

State v. Cornell, 266 N.W. 2d 15 (Iowa, 1978) ........... 14

State v. Morriss, 476 S.W. 2d 485 (Mo. 1971) ............ 14

Taylor v. State, 299 A. 2d 841 (Md. 1973) ............... 13

Turner v. Louisiana, 379 U.S. 466 (1965) ............... 12

United States v. Cardello, 316 F. 2d 606 (2nd Cir. 1963) ... 10

United States v. Lester, 248 F. 2d 239 (2nd Cir. 1957) ..... 10

United States v. Massino, 275 F. 2d 129 (2nd Cir. 1960) ... 10

United States v. Wood, 299 U.S. 147 (1936) ............. 10

Williams v. Florida, 399 U.S. 78 (1970) ..............05. 12

In The

Supreme Court of The United States

October Term, 1979

No.

BRUCE E. ELLIS,

Petitioner.

-VS-

AMOS E. REED, Secretary of

Corrections, and the Attorney General

of the State of North Carolina,

Respondents.

Petition for a Writ of Certiorari

to the

United States Court of Appeals

for the Fourth Circuit

The Petitioner Bruce E. Ellis respectfully prays that a Writ

of Certiorari issue to review the judgment and opinion for

the United States Court of Appeals for the Fourth Circuit

entered in this proceeding on April 25, 1979.

OPINIONS BELOW

The Order of the District Court for the Eastern District of

North Carolina, Raleigh Division, dismissing the Petitioner's

Petition for a Writ of Habeas Corpus, is unreported. It was

entered on March 21, 1978 and is set forth in the Appendix to

this Petition, infra (App. at pp. I-IV).

The Opinion of the Fourth Circuit Court of Appeals in

which that court affirmed the order of the District Court in

denying the Writ of Habeas Corpus is reported at 596 F.2d

1195 (4th Cir. 1979), and is set forth in the Appendix to this

Petition, infra (App. at pp. V-XVII).

JURISDICTION

The judgment of the United States Court of Appeals for

the Fourth Circuit was entered April 25, 1979. A timely Peti-

tion for rehearing was denied June 11, 1979, and this Petition

was filed within 90 days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1).

QUESTION PRESENTED

Is the Brasfield Rule, prohibiting numerical division

inquiry of a federal criminal jury, applicable.to state court

criminal proceedings?

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides:

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offense to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use without just

compensation.

The Sixth Amendment to the United States Constitution

provides:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assist-

ance of Counsel for his defense.

The Fourteenth Amendment to the United States Con-

stitution, Section One, provides: :

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No

state shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

STATEMENT OF THE CASE

Nature and Course of the Proceedings

The Petitioner was charged in a bill of indictment,

returned by the grand jury of Vance County, North Carolina,

at the January 1975 Session of Vance Superior Court, with

embezzling $18,799.50 from the Provident Finance Company.

The case came on for trial at the October 11, 1976 Session

of Vance Superior Court. The Petitioner entered a plea of not

guilty. The jury returned a verdict of guilty. The Court

entered judgment that the Petitioner be imprisoned in the

custody of the North Carolina Department of Correction for

not less than three nor more than five years.

The Petitioner gave notice of appeal to the North Caro-

lina Court of Appeals. In an opinion filed on July 20, 1977, that

Court found no error in the trial. State v. Ellis, 33 N.C.

App. 667, 236 S.E. 2d 299 (1977)

The Petitioner petitioned the Supreme Court of North

Carolina for a Writ of Discretionary Review of the decision of

the North Carolina Court of Appeals. That petition was

denied on August 17, 1977. State v. Ellis, 293 N.C. 255 (1977)

The Petitioner petitioned the United States District

Court for the Eastern District of North Carolina, Raleigh

Division, for a Writ of Habeas Corpus, on December 29, 1977.

By Judgment and Order entered on March 21, 1978, the

Court, The Honorable F. T. Dupree, Jr., Judge Presiding,

dismissed the petition. Petitioner gave notice of appeal on

March 30, 1978, and the District Court certified, on April 7,

1978, that there was probable cause for the appeal. In an

opinion filed on April 25, 1979, Judge Hoffman, joined by

Chief Judge Haynesworth, affirmed the decision of the

District Court. Judge Winter filed a dissenting opinion.

The Petitioner’s petition for rehearing was denied on

June 11, 1979.

Statement of the Facts

The Petitioner's trial in Vance County Superior Court

began on the morning of Wednesday, October 13, 1976. The

State offered in evidence ijorty-three documentary exhibits

and the testimony of nine witnesses. This evidence tended to

show that, from July 6, 1970 to May 7, 1974, Petitioner was

manager of the Henderson, North Carolina office of The

Provident Finance Company, and that, during that period, he

made loans to non-existent persons. The Petitioner offered in

evidence nine documentary exhibits and the testimony of

twelve witnesses. This evidence tended to show that fictitious

loans were made by the Petitioner but the loans were made

with the knowledge and approval of Petitioner's supervisor

and only for the purpose of temporarily covering delinquent

accounts and with no personal financial benefit to the

Petitioner.

Following the arguments of counsel, the Court instructed

the jury and it retired to deliberate. Thereafter, it returned to

the courtroom for additional instructions and retired to

resume deliberations. It then returned to the courtroom

again. The Court then inquired about the numerical division

of the jury and gave the “dynamite” instruction. The jury

then retired, deliberated, and returned to the courtroom with

a verdict of guilty.

The length of time of these three periods of deliberation

is not indicated in the Record on Appeal of this case in the

North Carolina Court of Appeals. In his Petition in Federal

District Court, the Petitioner alleged that the first period was

approximately one hour, the second period was approxi-

mately one hour, and the last period, after the inquiry into

numerical division and the “dynamite” instruction, was

approximately eight minutes. The Respondent denied this

allegation.

In the District Court, there was no evidentiary hearing

and the Court based its decision ‘‘on the record”. For pur-

poses of its decision, the Court proceeded on the premise that

the inquiry about division and the “dynamite” instruction

occurred after approximately three hours of continuous jury

deliberation (except for a brief interval during which the

jury had requested and received supplemental instructions

on the question of embezzlement).

It is clear that, when the jury returned to the courtroom

after the second period of deliberation, the following

occurred:

COURT: Mr. Foreman, have you reached a verdict?

JURY FOREMAN: No, Your Honor, we have not.

COURT: Will you tell me numerically what is the division;

not what each of you were, but the numerical division.

JURY FOREMAN: Eleven to one.

COURT: Well, I presume, ladies and gentlemen, that you

realize what a disagreement means; that the time of the

Court will again have to be consumed in the trial of this

action. I don’t want to force you or coerce you or attempt

to do so in any way to reach a verdict but it is your duty

to try to reconcile your differences and to reach a verdict

if it can be done without the surrender of anyone's con-

scientious convictions; and you heard the evidence in

this case, and a mistrial will mean that another jury will

have to be selected to hear this case and the evidence

again: and it’s long and complicated. The Court recog-

nizes sometimes that there are reasons why jurors

cannot agree, but I want to emphasize the fact that it is

your duty to do whatever you can to reason this matter

over as reasonable men and women and attempt to

reconcile your differences if it is possible without the

surrender of any conscientious convictions on the part of

any member of the jury. I will let you resume your

deliberations and see if you can reach a verdict.

The jury then retired, deliberated (Petitioner alleged, for

eight minutes), and returned the verdict of guilty.

REASONS FOR GRANTING THE WRIT

I. THE COURT OF APPEALS’ DECISION MISINTER-

PRETS THE RULE ESTABLISHED BY THIS COURT IN

BRASFIELD V. UNITED STATES.

In Brasfield v. United States, 272 U.S. 448 (1926), the Court

held that the inquiry by a federal criminal trial judge, into

the numerical division of a deliberating jury, was coercive

and constituted, by itself, grounds for reversal.

The Court of Appeals held that the rule stated in

Brasfield has no application to state court criminal proceed-

ings. The Court recognized that the Sixth Amendment right

to trial by an impartial jury applies to state court criminal

trials by virtue of the Fourteenth Amendment. But the

majority reasoned that Brasfield announced a rule only of

supervisory, not constitutional, dimension.

This conclusion, disputed in the dissenting opinion, mis-

interprets the fundamental meaning of Brasfield. Clearly,

the Court in Brasfield was concerned with the coercive effect

of the trial judge’s inquiry, and its destructive effect on a

criminal defendant’s right to an impartial jury. The Court

reasoned as follows:

We deem it essential to the fair and impartial conduct of

the trial, that the inquiry itself should be regarded as

ground for reversal. Such procedure serves no useful

purpose that cannot be attained by questions not requir-

ing the jury to reveal the nature or extent of its division.

Its effect upon a divided jury will often depend upon cir-

cumstances which cannot properly be known to the trial

judge or to the appellate courts and may vary widely in

different situations, but in general its tendency is

coercive.

272 U.S. at 450.

In holding that this language was not of constitutional

import, the majority below relied on the fact that no pro-

vision of the Constitution was cited. That, however, is not

decisive. The absence of constitutional reference in Brasfield

reflects nothing more than that, at the time of the decision in

Brasfield, (1) the supervisory-constitutional distinction was

insignificant, and (2) the Court frequently determined

matters of constitutional import without reference to

specific constitutional provisions.

(1) Today, every ruling by this Court concerning jury

trial procedure in federal courts takes on a significance for

state courts, depending upon whether the ruling is premised

upon the Court’s authority to interpret and apply the United

States Constitution, or upon its supervisory power over the

lower federal courts. If a ruling is based upon the Court's

interpretation of the requirements of the Sixth Amendment,

its holding is necessarily binding upon the states. Duncan v.

Louisiana, 391 U.S. 145 (1968). If, however, its ruling is based

upon the Court’s supervisory powers, the states are not

bound thereby. At the time Brasfield was decided, however,

such a distinction was unnecessary, because as of that time,

the understanding of this Court was that the Sixth Amend-

ment laid down no rule of conduct for the states.'! Palko v.

Connecticut, 302 U.S. 321 (1937); cf. Barron v. Baltimore, 7 Pet

243 (1833). Consequently, while the Court today may find it

useful to emphasize the basis of the authority it is exercising

when reviewing trial proceedings from lower federal courts,

such a distinction was unnecessary for the Court in 1926.

(2) In Alford v. United States, 282 U.S. 687 (1930) the

same Court that decided Brasfield held that it was reversible

error for a federal trial court judge to refuse to allow the

defense counsel in a criminal trial to ask a prosecution

witness where that witness resided. The Court reasoned:

To say that prejudice can be established only by showing

that the cross-examination, if pursued, would necessarily

have brought out facts tending to discredit the testimony

in chief, is to deny a substantial right and withdraw one of

'The majority below cites the landmark decision in McNabb v. United States.

318 U.S. 332 (1943). That case is generally regarded as the first case from this

Court to articulate the distinction between constitutional interpretation and

the long-standing role of this Court in supervising the administration of

criminal justice in the federal courts. The McNabb case, as well as many

subsequent cases that cite the supervisory principle articulated in McNabb,

specifically relied upon this Court’s supervisory power over the lower

federal courts to avoid espousing a constitutional rule that might be binding

upon the state courts as well as the federal courts. At the time Brasfield was

decided, however, there could be no concern on the part of the Court to

avoid establishing a constitutional rule that might be binding upon the state

courts, because at that time the ruling of this Court was that the Sixth

Amendment applied only to trials in federal courts, and the due process

clause of the Fourteenth Amendment did not incorporate the specific guar-

antees of the Sixth Amendment. See generally, Betts v. Brady, 316 U.S.

460 (1941); Palko v. Connecticut, 302 U.S. 321 (1937) and cases cited therein.

Accordingly, whether the Court of 1926 rebuked a federal criminal trial

court judge based upon its interpretation of the Sixth Amendment or upon

its authority of supervision over the lower federal courts made very little

difference.

the safeguards essential to a fair trial. (Emphasis added)

282 US. at 693.

Although, as in Brasfield, the Court found it unnecessary

to cite any constitutional provisions in making its determina-

tion, few would argue that Alford was based upon the Court’s

supervisory powers rather than its interpretation of the

mandates of the Sixth Amendment. Alford has consistently

been regarded as having stated a constitutional principle.

Davis v. Alaska, 415 U.S. 308 (1973); Smith v. Illinois, 390 U.S.

129 (1968); United States v. Cardello, 316 F.2d. 606 (2nd Cir.

1963); United States v. Massino, 275 F.2d. 129 (2nd Cir. 1960);

United States v. Lester, 248 F. 2d 239 (2nd Cir. 1957); see also

Pointer v. Texas, 380 U.S. 400, 404, 405 (1964).

It is particularly revealing that Alford cites Brasfield for

the principle that reversal is mandated where a trial court

removes a safeguard “essential to a fair trial.” 282 U.S. at 693.

In United States v. Wood, 299 U.S. 147 (1936) substantially

the same Court that decided Brasfield reviewed a federal

statute that permitted government employees to sit as

jurors in federal criminal cases. In that case, the Court, in

expressly stating that it was reviewing the constitutionality

of the statute under the Sixth Amendment, stated:

The ultimate question is not whether Congress has

changed a common law rule, but whether in reason, an

absolute disqualification of governmental employees to

serve as jurors in criminal cases is essential to the impar-

tiality of the jury. (Emphasis added)

299 US. at 148.

The “ultimate question” in Wood closely resembles the

language that the Court used in Brasfield in holding that the

numerical division inquiry rule was “essential to the fair and

impartial conduct of the trial . . .” 272 U.S. at 450.

In Patton v. United States, 281 U.S. 276 (1929), the same

Court that decided Brasfield, set out what it deemed to be

the elements of a jury trial as mandated by the Sixth Amend-

ment. To each element which the Court deemed required by

the Sixth Amendment, it attached the adjective essential.

Further, in discussing the safeguards guaranteed to criminal

defendants by the Sixth Amendment, the Court stated:

The aim of the constitutional safeguards in question is a

full, fair, and public trial, and one which shall reasonably

and in all substantial ways safeguard the interests of the

10

state and the life and liberties of accused parties. (Em-

phasis added) [quoting the dissenting opinion of Aldrich,

J., in Dickinson v. United States, 159 F. 801 (1st Cir. 1908)]

281 U.S. at 294.

Such language gives further evidence of the constitutional

importance that the Court in Brasfield attached to its ruling

when it said ‘‘We deem it essential to the fair and impartial

conduct of the trial...”

The Court of Appeals in this case noted that in Burton v.

United States, 196 U.S. 283 (1905) the Court. in condemning an

inquiry by a federal trial judge into the numerical division of

a jury stated that ‘we do not think that the proper adminis-

tration of the law requires such knowledge or permits such a

question on the part of the presiding judge.” 196 US. at 308.

The majority below relied on this language to support the

position that the Brasfield rule is supervisory. (App. p. IX)

Such a reliance is misplaced. In Sinclair v. United States, 279

U.S. 749 (1928) the same Court that decided Brasfield stated:

The jury is an essential instrumentality — an appendage

— of the Court, the body ordained to pass upon guilt or

innocence. Exercise of calm and informed judgment by

its members is essential to proper enforcement of law.

(Emphasis added)

279 U.S. at 765.

By the majority’s reasoning, this language from Sinclair

would be of a supervisory rature only. Yet, the principle in

Sinclair clearly is of constitutional significance. Mr. Justice

Stewart, speaking for this Court in Turner v. Louisiana, 379

U.S. 466 (1965) stated:

The requireinent that a jury’s verdict ‘““must be based

upon the evidence developed at the trial’’ goes to the

fundamental integrity of all that is embraced in the

constitutional concept of trial by jury. “The jury is an

essential instrumentality — an appendage — of the court,

the body ordained to pass upon guilt or innocence. Exer-

cise of calm and informed judgment by its members is

essential to proper enforcement of law.” Sinclair v.

United States, 279 U.S. 749, 765, 73 L. Ed. 938, 946, 49 S. Ct.

471, 63 ALR 1258. (Emphasis added)

379 U.S. at 429.

In relying on the absence of any constitutional language

in Brasfield, on the “administration of the law” language of

Burton, and on subsequent decisions of this Court concerning

1]

the formal aspects of the jury? the majority has misinter-

preted the fundamental importance of the Brasfield rule.

Because this is the first Court of Appeals’ decision to pass on

this precise question, this Court should resolve the issue and

make it clear that state court criminal] defendants, like

federal court criminal defendants. are entitled to trial by a

constitutionally impartial jury.

II. THE COURT OF APPEALS’ DECISION THAT THE

INQUIRY BY A CRIMINAL TRIAL JUDGE INTO THE

NUMERICAL DIVISION OF THE JURY FOLLOWED BY

THE GIVING OF AN “ALLEN CHARGE” IS NOT COER-

CIVE IS IN CONFLICT WITH THE DECISIONS OF THIS

COURT.

The Court of Appeals’ majority held that neither the

inquiry by the trial judge into the numerical division of the

jury, nor the giving of the “Allen Charge’? immediately

following the inquiry, had the coercive effect attributed to

them by the petitioner. (App. p. XIV) Such a holding is in

conflict with the prior decisions of this Court.

That the inquiry by the trial judge into the numerical

division of the jury alone is an “improper influence upon the

jury” as being coercive, and deprives the defendant of a safe-

guard “essential to the fair and impartial conduct of the

trial,” is settled. Brasfield v. United States, 272 U.S. 448 (1926).

If a practice has a coercive effect on federal court jurors, then

it has a coercive effect on state court jurors who are, after all,

drawn from the same pool of citizens as federal court jurors.

*The majority below cites Williams v. Florida, 399 U.S. 78 (1970) and Johnson

v. Louisiana, 406 U.S. 356 (1972) in noting the distain this Court may have

for “creating a constitutional Strait-jacket for the states.” (App. p. XI) Yet

what Judge Winter stated in his dissenting opinion is true:

The majority cites two subsequent cases in which the Supreme Court

has permitted states to deviate, within certain limits, from federal

practice with regard to the number of jurors and the requirement of

unanimous verdicts. Williams v. Florida, 399 US. 78 (1970); Johnson v.

Louisiana, 406 U.S. 356 (1972). I think these cases inapposite. They were

concerned solely with formal aspects of the jury. I do not read them to

Suggest that a judge may, consistently with the Fourteenth Amend-

ment, conduct an inquiry of the jury which has a “coercive” effect.

(App. p. XVI)

3Allen v. United States, 164 US. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).

12

It is equally clear that under some circumstances, the

giving of an improper “Allen Charge” is coercive by itself,

and is grounds for automatic reversal. Jenkins v. United

States, 380 U.S. 445 (1965). As this Court noted in Jenkins.

supra:

Of course, if this Court should conclude that the judge’s

statement had the coercive effect attributed to it, the

judgment should be reversed and the cause remanded for

a new trial; the principle that jurors may not be coersed

into surrendering views conscientiously held is so clear as

to require no elaboration. (quoting the Solicitor General

of the United States).

380 U.S. at 446.

In this case, the jury failed to reach a verdict after more

than two hours of deliberation. After the inquiry into the

numerical division of the jury and the giving of the “Allen

Charge’”’, the jury returned a verdict in only eight minutes.

In its context, and under all the circumstances, the coercive

effect of the trial judge’s statements may be reasonably

inferred. Cf. Jones v. Norvell, 472 F.2d 1185 (6th Cir. 1973)

And, in any case, a coercive effect, though not demon-

strable, may be inferred as a matter of common sense. As the

Court in Brasfield stated:

[The] effect upon a divided jury .. . cannot properly be

known to the trial judge or to the appellate courts... but

in general its tendency is coercive.”

272 U.S. at 450.

III. THE STATE COURTS ARE IN CONFLICT OVER

THE BASIS OF THIS COURT'S DECISION IN BRASFIELD

V. UNITED STATES.

As the Court of Appeals noted, there is a sharp division of

authority on the issue of whether Brasfield, supra, states a

constitutional rule to be followed in all criminal trials, or an

administrative rule to be followed only in the federal courts.

(App. p. VIII) The Supreme Courts of at least three states are

of the opinion that Brasfield announces a rule of constitu-

tional dimension, and that the inquiry into the numerical

division of the jury violates a criminal defendant’s constitu-

tional rights. State v. Aragon, 89 N.M. 91, 547 P. 2d 574 (1976);

People v. Wilson, 213 N.W. 2d 193 (Mich. 1973); Taylor v. State,

299 A.2d. 841 (Md. 1973). Still another state, on the authority of

13

ee

Brasfield, has held that the inquiry into the numerical

division of the jury by a trial judge must constitute error and

grounds for reversal. Kersey v. State, 525 S.W.2d 139 (Tenn.

1975). On the other hand, other states allow the inquiry on the

theory that Brasfield states a rule applicable only to the

federal courts. State v. Cornell, 266 N.W.2d 15 (Iowa 1978);

State v. Morris, 476 S.W.2d 485 (Mo. 1971): Sharplin v. State.

330 So.2d 591 (Miss. 1976).

_ The issue should be resolved by this Court so that the

Sixth Amendment right to trial by jury is of equal signif-

icance In ti. > criminal courts of all the states.

CONCLUSIONS

For all the above reasons, this Court should issue a Writ

of Certiorari to the Court of Appeals for the Fourth Circuit. to

review the judgment and opinion of that Court.

Respectfully submitted,

ROGER W. SMITH

300 Branch Bank Building

Raleigh, North Carolina 27602

Telephone: (919) 821-4711

Counsel for Petitioner

August, 1979

14

APPENDIX

OPINIONS BELOW

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

NORTH CAROLINA

RALEIGH DIVISION

No. 77-392-HC

Bruce E. Ellis,

Petitioner.

vs

Amos E. Reed, et. al..

Respondents.

Petitioner in this habeas corpus action was convicted of

embezzlement in the Vance County Superior Court on

October 15, 1976. The North Carolina Court of Appeals

affirmed his conviction, State v. Ellis, 33 N.C.App. 667 (1977),

and the Supreme Court of North Carolina declined certiorari.

State v. Ellis, 293 N.C. 255 (1977). Petitioner alleges that his

constitutional right to trial by impartial jury was violated by

the trial judge’s inquiry into the numerical division of a dead-

locked jury and his subsequent giving of the Allen or ‘‘dyna-

mite’’ charge. By order of December 29, 1977, this court

allowed petitioner to continue at liberty on bond pending a

determination on the merits of his habeas corpus action.

Respondents have now answered and moved to dismiss the

petition. No factual issues being in dispute in this matter, the

matter is before the court for decision on the record.

Petitioner’s argument arises entirely from the following

exerpt from the trial record (Record, pp. 115-116) which

occurred after approximately three hours of continuous jury

deliberation (except for a brief interval during which the

jury had requested and received supplemental instructions

on the definition of embezzlement):

COURT: Mr. Foreman, have you reached a verdict?

JURY FOREMAN: No, Your Honor, we have not.

COURT: Will you tell me numerica!ly what is the division:

not what each of you were, but the numerical division.

JURY FOREMAN: Eleven to one.

Appendix

COURT. Well, I presume, ladies and gentlemen, that you

realize what a disagreement means; that the time of the

Court will again have to be consumed in the trial of this

action. I don’t want to force you or coerce you or attempt

to do so in any way to reach a verdict but it is your duty

to try to reconcile your differences and to reach a verdict

if it can be done without the surrender of anyone's con-

scientious convictions; and you heard the evidence in

this case, and a mistrial will mean that another jury will

have to be selected to hear this case and the evidence

again; and it’s long and complicated. The Court recog-

nizes sometimes that there are reasons why jurors

cannot agree, but I want to emphasize the fact that it is

your duty to do whatever you can to reason this matter

over as reasonable men and women and attempt to

reconcile your differences if it is possible without the

surrender of any conscientious convictions on the part of

any member of the jury. I will let you resume your

deliberations and see if you can reach a verdict.

Based on this colloquy and instruction, petitioner asserts

that the supplemental charge was unconstitutionally

coercive and the inquiry into numerical split per se

constitutional error under Brasfield v. United States. 272 US.

448 (1926).

ALLEN CHARGE

“A calmly dispassionate balanced effort on the part of a

trial judge to induce a verdict does not seem to us to invade

the province of the jury.” United States v. Sawyers, 423 U.S.

1335, 1342 (4th Cir. 1970). The charge given in petitioner’s case

fits this rule. Although informing the jury of their duty to

attempt a reconciliation of their differences, the trial judge

twice cautioned that this should not be done at the price of a

juror’s honestly-held belief: Thus this court agrees with the

North Carolina Court of Appeals’ conclusion in petitioner's

case that the supplemental charge of the trial judge was not

coercive, in that “he assiduously stressed to the jury that its

verdict was not to be bought at the price of the surrender of

any of its members’ conscientious convictions.” State v. Ellis,

supra, at 671. This contention warrants petitioner no relief.

>

a

Appendix

INQUIRY INTO NUMERICAL SPLIT

In Brasfield v. United States, 272 U.S. 448 (1926), a federal

trial judge inquired how a split jury was divided numerically,

and was informed that it stood nine to three, without

indication of which number favored acquittal. The Supreme

Court thought the question improper, stating:

‘We deem it essential to the fair and impartial conduct of

the trial, that the inquiry itself should be regarded as

ground for reversal. Such procedure serves no useful pur-

pose that cannot be attained by questions not requiring

the jury to reveal the nature or extent of its division.” At

450.

The Brasfield rule is routinely accepted in federal trial

practice, and numerical inquiries are not made. However.

it is unsettled whether the Supreme Court in Brasfield was

merely propounding a supervisory rule for its own trial

courts, or was instead delineating a general constitutional

principle applicable to the states through the Fourteenth

Amendment. The state supreme courts are divided, with

some adhering to Brasfield, Taylor v. State, 299 A.2d 841 (Md.

1973); People v. Wilson, 213 N.W.2d 193 (Mich. 1973); Kersey v.

State, 525 S.W.2d 139 (Tenn. 1975), and others regarding it only

as a rule of federal practice. People v. Carter, 442 P.2d 353

(Cal. 1968); Joyner v. State, 484 P.2d 560 (Okla. 1971); Huffaker

v. State, 168 S.E2d 895 (Ga. 1969), State v. Morris, 476 S. W.2d

485 (Mo. 1977); Sharplin v. State, 330 So.2d 591 (Miss. 1976). The

clearest statement of the latter position is in Sharplin, supra,

at 596:

“We conclude that Brasfield was not grounded in a

svecific constitutional provision that has subsequently

been applied to the states through the Fourteenth

Amendment, but was announced asa rule of procedure to

be followed in the federal courts. We decline to follow this

federal procedural rule because we believe that receipt of

the jury’s numerical division serves a legitimate purpose

consonant with the trial judge’s broad powers of control

over the conduct of a trial: it enables the trial judge to

ascertain the likelihood of agreement among the jurors.”

The only federal consideration of this precise issue in a

habeas context similarly concluded that Brasfield expounds

only a supervisory federal rule. Marsh v. Cupp, 392 F.Supp.

1060 (D.Ore. 1975), aff'd, 536 F.2d 1287 (9th Cir. 1976).

Appendix

The court concludes that Brasfield is not controlling in

this case. Its requirement of reversal upon the mere inquiry

itself, independent of the background of the particular case in

which it is made, is logically viewed as an example of the

Supreme Court's setting of rigorous standards for its own

trial courts rather than as a decision on the lowest common

denominator permitted the states by the Constitution. The

practice is not so unduly coercive as to require a finding that

it deprives a defendant of an impartial jury trial whenever it

occurs.

The Fourth Circuit's opinion in United States v. Sawyers,

423 F.2d 1335 (4th Cir. 1970), undercuts petitioner’s contention

that the combination of numerical inquiry and Allen charge

is constitutional error where either alone would not be. In

Sawyers, the trial judge, prior to giving the Allen charge, not

only knew that the jury was split ten to two, but know that

the larger number favored a conviction. The Fourth Circuit

thought the judge’s knowledge of the division irrelevant in

assessing the impact of the charge on the jury. 423 F.2d at

1340.

For the foregoing reasons, the court concludes that peti-

tioner’s constitutional right to trial before an impartial jury

was not abridged in his conviction for embezzlement. Accord-

ingly, respondents’ motion to dismiss his petition is allowed

and the action is dismissed.

SO ORDERED.

/s/F. T. Dupree, Jr.

F. T. DUPREE, JR.

United States District Judge

March 20, 1978.

Appendix

United States Court of Appeals

FOR THE FOURTH CIRCUIT

No. 78-6175

Bruce E. Ellis, Appeilant,

V.

Amos E. Reed, Secretary of

Corrections, and The Attorney

General of the State of North

Carolina, Appellees.

Appeal from the District Court of the United States for the

Eastern District of North Carolina, Raleigh Division.

Submitted November 14, 1978 Decided April 25, 1979

Before HAYNSWORTH, Chief Judge, WINTER, Circuit

Judge, and HOFFMAN, Senior District J udge.

Roger W. Smith (Robert L. McMillan, Jr. on brief) for

Appellant; (Rufus L. Edmisten, Attorney General of North

Carolina, Richard N. League, Assistant Attorney General on

brief) for Appellees.

‘HOFFMAN, District Judge:

Appellant stands convicted in the North Carolina state

court of embezzling $18,799.50 from a finance company. On

*Senior United States District Judge for the Eastern District of Virginia,

sitting by designation.

Appendix

direct appeal to the North Carolina Court of Appeals, the

court found no error in the trial. State v. Ellis, 33 N.C. App.

667, 236 S.E.2d 299 (1977). Discretionary review was denied by

the Supreme Court of North Carolina. The district court

denied appellant's petition for a writ of habeas corpus by

order entered on March 21 1978.

The issues in this case arise from questions and instruc-

tions put to the jury by the trial judge after the jury had

retired to consider the case. Appellant contends that it was

error for the court to inquire into the numerical division of

the jury, a practice which has been prohibited in the federal

courts since the decision in Brasfield v. United States, 272 U.S.

448 (1926). Appellant also assigns as error the giving of a

supplemental modified version of the “Allen charge’

instruction.

Appellant’s trial lasted three days. Following arguments

of counsel, the court instructed the jury and it retired to

deliberate. Appellant alleged in his petition that after about

an hour of deliberation, the jury retuned to the courtroom

for additional instructions. After retiring and deliberating for

another hour the jury again returned to the courtroom. At

this time the following colloquy occured:

COURT: Mr. Foreman, have you reached a verdict?

JURY FOREMAN: No, Your Honor, we have not.

COURT: Will you tell me numerically what is the division:

not what each of you were, but the numerical division.

JURY FOREMAN: Eleven to one.

COURT: Well, I presume, ladies and gentlemen, that you

realize what a disagreement means; that the time of the

Court will again have to be consumed in the trial of this

action. I don’t want to force you or coerce you or attempt

to do so in any way to reach a verdict but it is your duty

to try to reconcile your differences and to reach a verdict

if it can be done without the surrender of anyone’s con-

scientious convictions; and you heard the evidence in

'Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed 528 (1896).

Vi

Appendix

this case, and a mistrial will mean that another jury will

have to be selected to hear this case and the evidence

again; and it’s long and complicated. The Court recog-

nizes sometimes that there are reasons why jurors

cannot agree, but I want to emphasize the fact that it is

your duty to do whatever you can to reason this matter

over as reasonable men and women and attempt to

reconcile your differences if it is possible without the

surrender of any conscientious convictions on the part of

any member of the jury. I will let you resume your

deliberations and see if you can reach a verdict.

The jury then retired, deliberated, and returned a

verdict of guilty within eight minutes, according to the

appellant.

Appellant did not interpose an objection to either the

numerical division inquiry or the supplemental charge to the

jury.

The length of time of the three periods of deliberation by

the jury is not indicated in the North Carolina record on

appeal. Since the court below dismissed the petition for the

writ without an evidentiary hearing, we accept the alleged

times as being true for the purpose of this appeal.

It is the rule of this circuit that a “calmly dispassionate

balanced effort on the part of a [federal] trial judge to induce

a verdict does not seem to us to invade the province of the

jury.’ United States v. Sawyers, 423 F.2d 1335. 1341-42 (4th

Cir. 1970). We agree with the district court that the charge

given in appellant's case fits within this rule. In the brief

charge that was given, the trial judge twice cautioned that it

was the duty of the jurors to attempt a reconciliation of their

differences, if it was possible without the surrender of any

conscientious convictions on the part of any member of the

jury. We find no error in the instruction and do not feel that

the instruction was coercive in any manner. Indeed, as to the

‘effect of the modified version of the “Allen charge’’, the

intermediate North Carolina appellate court héld-that it was

not coercive, but did not discuss the issue of the numerical

standing inquiry although that fact is mentioned in the

opinion.

We are concerned, however, by appellant’s allegation

that it was error for the trial court to inquire as to the

Vil

Appendix

numerical division of the jury.? Appellant urges this court to

hold that the rule announced by the Supreme Court in

Brasfield, supra, is a rule of constitutional interpretation

grounded in due process requirements, and therefore appli-

cable to the states by reason of the Fourteenth Amendment

to the United States Constitution. We disagree and hold that

the Brasfield rule is one of judicial administration based on

the supervisory powers of the Supreme Court over the

federal court system. The strong language of the Court's

opinion in Brasfield merits our careful consideration of this

issue as we note that there is a sharp division of authority on

the question.

In Burton v. United States. 196 U.S. 283 (1905). the

Supreme Court condemned the practice of inquiring of a

federal jury the extent of its numerical division, even though

a response indicating the vote for or against conviction was

neither sought nor obtained. 196 U.S. at 307. The conviction

in Burton was reversed on other grounds, however. and

federal courts of appeals remained in substantial disagree-

ment as to whether the rule against inquiry constituted

reversible error, or whether the expressions in Burton were

hortatory only. The Supreme Court put an end to the uncer-

tainty by holding in Brasfield that such inquiry of the jury

constituted error per se:

We deem it essential to the fair and impartial conduct of

the trial, that the inquiry itself should be regarded as

ground for reversal. Such procedure serves no useful

purpose that cannot be attained by questions not

*A review of the briefs submitted to the North Carolina Court of Appeals

on direct appeal and to the Supreme Court of North Carolina on application

for discretionary review indicates that the Brasfield question was not

specifically raised on appeal. No reference is made to Brasfield. However,

the facts surrounding the numerical inquiry of the jury were before the

state courts in conjunction with the consideration of the propriety of the

watered-down Allen charge. The language of the North Carolina provisions

for post-conviction relief, 1 C Gen.Stat.N.C. § 15A-1419, and the restrictive

interpretation placed upon post-conviction relief statutes by the North

Carolina Supreme Court, State v. White. 274 N.C. 220, 162 S.E. 2d 473. 480

(1968), make it extremely unlikely that appellant has available any avenues

of relief in the state courts. We therefore decline to dismiss or remand this

issue for non-exhaustion of state remedies. See: The North Carolina

Post-Conviction Hearing Act: A Procedural Snare. 55 N.C. L. Rev. 653. et

seq. Moreover, the petitioner's sentence would probably be terminated

before the precise issue can be decided. While this would not moot the

question, it is additional reason for us to decide the case at this time.

Vill

Appendix

requiring the jury to reveal the nature or extent of its

division. Its effect upon a divided jury will often depend

upon circumstances which cannot properly be known to

the trial judge or to the appellate courts and may vary

widely in different situations, but in general its tendency

is coercive. It can rarely be resorted to without bringing

to bear in some degree, serious although not measurable,

an improper influence upon the jury, from whose

deliberations every consideration other than that of the

evidence and the law as expounded in a proper charge,

should be excluded. Such a practice, which is never useful

and is generally harmful, is not to be sanctioned.

272 U.S. at 450.

The language “essential to the fair and impartial conduct

of the trial’’ might be read to impart a rule of constitutional

interpretation, although not necessarily so. We note that no

provisions of the Constitution are cited in Brasfield. The

succint, two-page opinion of the Court in Brasfield should~be

read in conjunction with the Court's opinion in Burton, from

which the rule evolved. In Burton the Court stated that “we

do not think that the proper administration of the law

requires such knowledge or permits such a question on the

part of the presiding judge.” 196 U.S. at 308. This language

lends support to the view that the rule is an administrative

one which is supervisory rather than constitutional.

Following the decision in Burton, the federal circuits

split over whether noncompliance with the Court's

admonition constituted reversible error, or was merely

hortatory. Brasfield put an end to the uncertainty. Similarly,

state courts are now in disagreement as to whether the rule

in Brasfield is applicable to state trials. The district court

below, in a carefully researched opinion, noted three cases

where state courts have adhered to Brasfield; they are Taylor

v. State, 299 A.2d 841 (Md. 1973); People v. Wilson, 213 N.W.2d

193 (Mich. 1973); Kersey v. State, 525 S.W.2d 139 (Tenn. 1975).

- Subsequent to the decision of the district court, the Court of

Appeals of New Mexico wholeheartedly adopted Brasfield in

State v. Aragon, 89 N.M. 91, 547 P.2d 574 (1976). Of the four

decisions adhering to Brasfield, only two courts (Michigan

and New Mexico) adopted Brasfield as a constitutional rule.

The Tennessee court mentioned Brasfield, but then based its

holding on the “inherent and the statutory supervisory

power of this Court.” 525 S.W.2d at 141. The Maryland opinion

Appendix

discussed Brasfield at length, but considered “the total

conduct of the trial judge” in holding that the appellant's

constitutional right to a fair and impartial jury trial had

been violated. 299 A.2d at 845. On the other hand. several

courts have specifically considered Brasfield to be based on

the Supreme Court's administrative power over the federal

courts, State v. Cornell, 266 N.W.2d 15, 19 (Iowa 1978): State v.

Morris, 476 S.W.2d 485, 489 (Mo. 1971):3 Sha rplin v. State, 330

So.2d 591, 596 (Miss. 1976). Others have allowed inquiry of the

jury in the absence of coercion. Joyner v. State, 484 P.2d 560,

962 (Okl.Cr. 1971); People v. Carter. 69 Cal. Rptr. 297, 442 F.2d

353, 356 (1968); Huffaker v. State, 119 Ga.App. 742, 168 S.E.2d

895, 896 (1969); Lowe v. State, 488 P.2d 559, 561 (Col. 1971).

Only two federal courts have reached the Brasfield

problem in habeas corpus petitions from state convictions. In

Jones v. Norvell, 472 F.2d 1185 (6th Cir. 1973), the court

reversed a lower court decision and ordered entry of the writ

where the state court had said “it is incumbent on you to

reach a verdict.” The court found that the facts of the case

indicated an invasion of jury secrecy, inquiry into the

numerical division of the jury, a coercive jury charge, anda

speedy return of a verdict subsequent to the charge. 472 F.2d

at 1186. The court held that the “totality of the

circumstances” violated the appellants’ rights to a fair and

impartial jury trial. Thus the Brasfield problem was not held

to require reversal per se. In the only other consideration of

the problem, the District of Oregon held that the Brasfield

rule was based on the supervisory powers of the Supreme

Court. Marsh v. Cupp, 392 F.Supp. 1060, 1063 (D.Ore. 1975). On

appeal the Ninth Circuit upheld the decision of the district

court, but erroneously concluded that no Brasfield problem

was presented by the facts of the case.’ Marsh v. Cupp, 536

F.2d 1287, 1291, fn 9 (9th Cir. 1976).

In Jenkins v. United States, 380 U.S. 445 (1965), the

Supreme Court considered a case in which the trial judge,

*Missouri has had a problem with the question. In State v. Sanders, 552

S.W.2d 39 (Mo. 1977), the jury had advised the court that it stood 9 to 3 for

conviction, following which the court gave the “hammer instruction” which

the court held was error. In a later case, State v. Smith. 556 S.W.2d 484 (Mo.

1977), the court approved of the numerical division inquiry and distin-

quished Sanders, supra. ;

‘The state trial judge had made inquiry as to the numerical standing of

the jury, but not whether they were for conviction or acquittal.

En ee ee ee

Appendix

without making inquiry as to the numerical standing, stated

to a divided jury: ‘Now, I am not going to accept this. You

have got to reach a decision in this case.” The Court found

reversible error in that, ‘in its context and under all the cir-

cumstances the judge’s statement had the coercive effect

attributed to it.” 380 U.S. at 446. This “totality of the circum-

stances” test has been used frequently by courts which have

had to consider the effect of allegedly coercive instructions or

comments to the jury. We mention the Jenkins test because

the state and federal courts which have declined to hold that

the Brasfield rule per se requires reversal have instead

looked to the totality of the circumstances in order to deter-

mine whether an inquiry into the numerical division of the

jury may have had a coercive effect. Courts have most fre-

quently found such coercive effect when the inquiry is

accompanied by an Allen instruction.

During the fifty-three years since Brasfield was decided,

the Supreme Court has not had occasion to discuss the rule’s

applicability to state trials. In recent years, however, the

Court has considered at length the relationship between

requirements of the federal Constitution and state jury trials.

In Duncan v. Louisiana, 391 U.S. 145, 148 (1968), the Court

firmly held that trial by jury in criminal cases is fundamental

to the American system of justice, and that the Fourteenth

Amendment guarantees a right of jury irial in all state

criminal cases which would come within the Sixth Amend-

ment’s guarantee were they to be tried in a federal court. The

Sixth Amendment right to jury trial in federal cases had

always been held to be “trial by jury as understood and

applied at common law,” requiring a jury of twelve persons

and a unanimous verdict. Patton v. United States, 281 U.S.

276, 288 (1930). Nevertheless, the Court held in decisions

subsequent to Duncan that states may provide for juries of

less than twelve persons, Williams v. Florida, 399 U.S. 78

(1970), and for less than unanimous verdicts, Johnson v.

Louisiana, 406 U.S. 356 (1972), without denying due process.

' Duncan and Williams are notable for the concurring opinions

of Mr. Justice Black advocating his incorporation theory that

the Fourteenth Amendment incorporated the Bill of Rights

and made it applicable to the states, and for the dissenting

opinions of Mr. Justice Harlan which warned that the Court

was creating a constitutional straitjacket for the states and

doing great harm to the federal system.

Xl

Appendix

In Cupp v. Naughten, 414 U.S. 141 (1973), the Court con-

sidered the effect of an instruction to the jury that every

witness is presumed to speak the truth, in a trial in which the

defendant elected not to testify. The appellant argued that

such an instruction shifted from the state its burden to prove

a defendant's guilt beyond a reasonable doubt. The Supreme

Court held that the instruction did not offend the require-

ments of due process, and discussed the supervisory functions

of appellate courts in a federal system:

Within such a unitary jurisdictional framework the

appellate court will, of course, require the trial court to

conform to constitutional mandates, but it may likewise

require it to follow procedures deemed desirable from

the viewpoint of sound judicial practice although in

nowise commanded by statute or by the Constitution.

Thus even substantial unanimity among federal courts of

appeals that the instruction in question ought not to be

given in United States district courts within their

respective jurisdictions is not, without more, authority

for declaring that the giving of the instruction makes a

resulting conviction invalid under the Fourteenth

Amendment. Before a federal court may overturn a

conviction resulting from a state trial in which this

instruction was used, it must be established not merely

that the instruction is undesirable, erroneous, or even

“universally condemned,” but that it violated some right

which was guaranteed to the defendant by the

Fourteenth Amendment.

414 US. at 146.

Thus the Supreme Court, in Duncan, has required states

to provide criminal defendants with the Sixth Amendment

right to jury trials, but has in subsequent cases granted the

states significant leeway in matters related to the jury trial.

An inquiry during deliberations as to the numerical split of a

jury is in the nature of a supplemental instruction, and is

most closely analogous to the situation before the Court in

Cupp v. Naughten. We are of the opinion that the inquiry is

essentially procedural in nature, absent any overt coercion

upon the minority jurors. In any event, the jury knew how it

was divided. Keeping in mind the admonitions of Mr. J ustice

Harlan in Duncan and Williams, we feel that under the

principles of federalism the decision whether to allow the

inquiry is best left to the supervising state court. Indeed, we

XI

Appendix

have expressed the opinion that there is some value to the

inquiry in a federal case when the trial judge is deciding

whether to declare a mistrial or otherwise excuse the jurors

for dinner. United States v. Rogers, 289 F.2d 433, 435 (4th Cir.

1961).5

We assume that the Supreme Court, in Brasfield, had in

mind the Supreme Court's limited corrective power over

state courts which, in criminal cases, is narrower than that

which the Court exercises over lower federal courts. In

United States v. Mitchell, 322 U.S. 65, 67-68 (1944), the Court

said, “Our sole authority [in state court proceedings] is to

ascertain whether that which a state court permitted violated

the basic safeguards of the Fourteenth Amendment.” And in

the landmark case of McNabb v. United States, 318 U.S. 332

(1943), it is said:

For, while the power of the Court to undo convitions in

state courts is limited to the enforcement of those “funda-

mental principles of liberty and justice,”. .. which are

secured by the Fourteenth Amendment, the scope of our

reviewing power over convictions brought here from the

federal courts is not confined to ascertainment of Consti-

tutional validity. Judicial supervision of the administra-

tion of criminal justice in the federal courts implies the

duty of establishing and maintaining civilized standards

of procedure and evidence.

318 U.S. 340.

Later, in Rochin v. California, 342 U.S. 165, 168 (1952), Mr.

Justice Frankfurter, speaking for the Court, has this to Say:

Accordingly, in reviewing a State criminal conviction

under a claim of right guaranteed by the Due Process

Clause of the Fourteenth Amendment, from which is

derived the most far-reaching and most frequent basis of

challenging State criminal justice, “we must be deeply

mindful of the responsibilities of the States for the

enforcement of criminal laws, and exercise with due

*The Rogers case, in an opinion by Judge Haynsworth, involved an inquiry

as to the substantial majority-minority standing of the jury, followed by the

Allen charge which was incomplete and onesided, thus requiring a new

trial. However, it is clear that the Rogers court applied the totality of

circumstances rule and did not rest its decision solely on Brasfield. Indeed,

the numerical division inquiry is minimized in Rogers.

XII

Appendix

humility our merely negative function in subjecting

convictions from state courts to the very narrow scrutiny

which the Due Process Clause authorizes.” . . . Due

process of law, “itself a historical product,” . .. is not to be

turned into a destructive dogma against the States in the

administration of their systems of criminal justice.

For these reaons we are convinced that Brasfield was

intended to formulate a policy for the federal courts to follow,

and is not applicable per se to the state courts. Likewise,

viewed within the totality of the circumstances, United

States v. Jenkins, supra, neither the inquiry as to the

numerical division of the jury nor the supplemental modest

charge had the coercive effect attributed to them by the

appellant. We look with particular favor upon the two

admonitions in the modified Allen charge that no juror

surrender any conscientious convictions.

The order of the district court denying the writ of habeas

co is is affirmed.

AFFIRMED.

WINTER, Circuit Judge, dissenting:

I respectfully dissent.

There is no dispute between the majority and me that

Brasfield v. United States, 272 U.S. 448 (1926), does not

invalidate the state conviction in the instant case unless

Brasfield was decided on constitutional grounds. Although

_ the question is certainly not free from doubt, I, unlike the

majority, think that application of the authority which

controls our decision leads to the conclusion that the

Brasfield rule is a rule of constitutional interpretation of the

due process clause of the Fifth Amendment and it is

therefore applicable to the states under the Fourteenth

Amendment. I would therefore invalidate the conviction and

direct that the writ issue unless North Carolina concludes to

try Ellis anew.

i.

As the majority points out, Brasfield resolved the

conflicting decisions which had been generated by the dictum

in Burton v. United States, 196 U.S. 282 (1905), as to whether

an inquiry into the numerical division of an undischarged

XIV

Appendix

jury constituted reversible error. It held that, in the event of

conviction, such an inquiry was reversible error, and it is

clear that it held that such an inquiry alone constituted

reversible error. In addition to the inquiry made during the

jury's second day of deliberations, the trial court had given a

form of Allen charge, see 8 F.2d 472 (9 Cir. 1925), but this fact

was not mentioned by the Supreme Court, although argued

to it; see 71 L. Ed. 345. After deciding that the inquiry

required reversal, the Court added ‘“‘[i]t is unnecessary to

consider other assignments of error directed to the instruc-

tions given the jury at the time of its recall."’ 272 U.S. at 450.

Admittedly, the Supreme Court did not specify whether

its decision was based upon its view of the requirements of

the Fifth Amendment or was amerely an exercise of its

supervisory power over inferior federal courts. All that it said

was:

We deem it essential to the fair and impartial conduct of

the trial, that the inquiry itself should be regarded as

ground for reversal. Such procedure serves no useful pur-

pdse that cannot be attained by questions not requiring

the jury to reveal the nature or extent of its division. Its

effect upon a divided jury will often depend upon circum-

stances which cannot properly be known to the trial judge

or to the appellate courts and may vary widely in

different situations, but in general its tendency is

coercive. It can rarely be resorted to without bringing to

bear in some degree, serious although not measurable, an

improper influence upon the jury, from whose delibera-

tions every consideration other than that of the evidence

and the law as expounded in a proper charge, should be

excluded. Such a practice, which is never useful and is

generally harmful, is not to be sanctioned.

272 U.S. at 450.

Since the Supreme Court did not identify the basis of its

decision (constitutional or supervisory), one must look to the

‘ language it employed to determine that basis. If the inquiry it

condemned “is coercive” and it is “essential to the fair and

impartial conduct of the trial” that the inquiry alone be

regarded as ground for reversal, I can only conclude that

Brasfield rests on constitutional grounds. Duncan v.

Louisiana, 391 U.S. 145, 149 (1968), held that the right toa jury

trial in a criminal case is “fundamental to the American

XV

Appendix

scheme of justice,” so that the Fourteenth Amendment

gwarantees that the right attaches in all criminal cases in

state courts where, were the case tried in a federal court. the

Sixth Amendment guarantee to a jury trial would apply. In

reaching that conclusion, the Court spoke to the instances in

which rights guaranteed, inter alia, by the Fifth Amendment

are also protected against abridgment by the states. Its

language bears repeating:

The test for determining whether a right extended by the

Fifth or Sixth Amendments with respect to federal

criminal proceedings is also protected against state action

by the Fourteenth Amendment has been phrased in a

variety of ways in the opinions of this Court. The question

has been asked v ’.ether a right is among those “ ‘funda-

mental principles of liberty and justice which lie at the

base of all our civil and political institutions.” Powell v.

Alabama, 287 U.S. 45, 67 (1932); whether it is “basic in our

system of jurisprudence,” In re Oliver, 333 U.S. 257, 273

(1948); and whether it is “‘a fundamental right, essential to

a fair trial,” Gideon v. Wainwright, 372 U.S. 335, 343-344

(1963); Malloy v. Hogan, 378 US. 1, 6 (1964); Pointer v.

Texas, 380 U.S. 400, 403 (1965). The claim before us is that

the right to trial by jury guaranteed by the Sixth Amend-

ment meets these tests should this be. . . . Because we

believe that trial by jury in criminal cases is fundamental

to the American scheme of justice, we hold that the

Fourteenth Amendment guarantees a right of jury trial

in all criminal cases which — were they to be tried in a

federal court — would come within the Sixth Amend-

ment’s guarantee. (Footnotes eliminated.)

391 U.S. at 148-49.

Certainly Duncan holds that the right to trial by jury in

criminal cases is a fundamental right.* Thus, I think it follows

that a practice condemned because it is “coercive” and

*The majority cites two subsequent cases in which the Supreme Court

has permitted states to deviate, within certain limits, from federal

practice with regard to the number of jurors and the requirement of

unanimous verdicts. Williams v. Florida, 399 U.S. 78 (1970); Johnson

v. Louisiana, 406 U.S. 356 (1972). I think these cases inapposite. They were

concerned solely with formal aspects of the jury. I do not read them to

Suggest that a judge may, consistently with the Fourteenth Amendment,

conduct an inquiry of the jury which has a “coercive” effect.

XVI

Appendix

destroys the “fair and impartial conduct of the trial” is con-

demned on constitutional grounds. Preservation of the purity

of the jury’s deliberations is furtherance of a constitutional

objective, not merely the exercise of supervisory power for a

desirable but non-constitutiona! purpose.

United States Court of Appeals

FOR THE FOURTH CIRCUIT

No. 78-6175

Bruce E. Ellis, Appellant,

VS.

Amos E. Reed, et al., Appellee.

ORDER

Upon consideration of the petition for rehearing, no

request for a poll of the court being made on the suggestion

for rehearing en banc, and with the concurrence of J udge

Winter and Judge Hoffman.

IT IS ORDERED that the petition be, and the same is

hereby, denied.

FOR THE COURT:

/s/Clement F. Haynesworth, Jr.

Chief Judge, Fourth Circuit

June 11, 1979

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