Petition for a Writ of Certiorari — Norvell v. Jones

INDEX

Opinions Below .........seeceeccceccecsscreces

f(T g ffe) Col 5 C0) s

Question Presented .......ccccccccccccccccccee

Statutory and Rule Provisions Involved ..........

ee ov ccccccesevecatecccceseue

Reasons for Granting the Writ ................ .

Conclusion ...... LOR RAMEE EENe Ree RR Oe

APPENDICES

Appendix A -J. W. Jones, Pursie Gibson &

Nobel Moody v. J. W. Norvell,

Warden, No. 72-1469, Opinion

of the Sixth Circuit .....ccccccces

Appendix B - J. W. Jones, Pursie Gibson &

Nobel Moody v. J. W. Norvell,

Warden, No. 72-1469, Order

Denying Petition for Writ of

Habeas Corpus, United States

District Court for the Western

District of Tennessee ............

Appendix C - Nobel Moody, Pursie Gibson,

and J. W. Jones v. State of

Tennessee, Opinion of Tennessee

Court of Criminal Appeals ........

Appendix D - Nobel Moody, Pursie Gibson and

J. W. Jones, v. State of Tennessee,

Excerpts from State Trial

13

15

19

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

NO. ,

J. W. NORVELL, Warden,

Petitioner,

as

J. W. JONES, PURSIE GIBSON &

NOBEL MOODY,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The petitioner, J. W. Norvell, Warden, Fort Pillow

State Prison Farm, respectfully prays a writ of certiorari

issue to review the judgment and opinion Of the United

States Court of Appeals for the Sixth Circuit entered in

this proceeding January 5, 1973 overruling the District

Court's denial of a writ of habeas corpus for three State

prisoners.

a

2

OPINIONS BELOW

The opinion of the Sixth Circuit, __. F.2d ___, not yet

reported, is reproduced as Appendix A. The order of

the United States District Court for the Western District

of Tennessee is not reported and is reproduced as Appen-

dix B. The opinion of the Tennessee Court of Criminal

Appeals, filed August 20, 1971 is not reported and is re-

produced as Appendix C.

JURISDICTION

The decision of the United States Court of Appeals for

the Sixth Circuit was entered January 5, 1973. This peti-

tion for certiorari is timely filed within ninety (90) days

of that date. Jurisdiction is invoked under 28 U.S.C.

§1254(1).

QUESTION PRESENTED

Whether a U. S. District Court, in exercise of its habeas

corpus jurisdiction, may void a State criminal conviction

on the grounds that an Allen -type instruction was given to

a jury known to be deadlocked eleven to one.

STATUTORY AND RULE PROVISIONS INVOLVED

United States Constitution Amendment VI:

"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 ...."

United States Constitution Amendment XIV, §1:

" * * * 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."

28 U.S.C. 2241:

(a) "Writs of habeas corpus may be granted by the

Supreme Court, any Justice thereof » the district courts

and circuit judge within the respective jurisdictions.

The order of a circuit judge shall be entered in the

records of the district court of the district wherein the

restraint complained of was had.

(c) The writ of habeas corpus will not extend to a pris -

oner unless ——

(3) He is in Custody in violation of the constitution or

laws or treaties of the United States;"

28 U.S.C. 2254:

"(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application

for a writ of habeas Corpus in behalf of a person in

custody pursuant to the judgment of a State court only

on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States."

STATEMENT OF THE CASE

The three respondents were convicted of robbery in the

Criminal Court of Henderson County, Tennessee and sen-

tenced to serve five years in the Tennessee State Peniten-

iary. Their conviction was unanimously affirmed by

es g

4

the Tennessee Court of Criminal Appeals in its opinion

of August 20, 1971 [Appendix C]. The Tennessee Su-

preme Court denied certiorari on January 18, 1972 with-

out opinion. Among the errors assigned was the pro-

priety of two mild versions of the Allen charge given to

a jury deadlocked eleven toone. After this unfavorable

decision, the respondents petitioned for the writ of habeas

corpus in the United States District Court for the Western

District of Tennessee. Their petition was dismissed by

the United States District Judge, the Honorable Harry W.

Wellford, on the ground that the contested jury instructions

were notimproper. The case was argued in the Sixth

Circuit before Judges Edwards, McCree and Cecil. The

decision of the District Court was reversed and the case

remanded for entry of the writ of habeas corpus, unless

the State saw fit to retry the appellants within a reasonable

time.

In its per curiam opinion, the Court of Appeals held

that the facts of this case "constitute a totality of circum-

stances which violate the constitutional rights of appellants

to a fair and impartial jury trial under the Sixth and Four-

teenth Amendments." The Court stated that the identifi-

cation of a deadlocked jury's majority — minority count

plus the coercive jury charge constituted a totality of cir-

cumstances amounting to a denial of a constitutional right.

The challenged instructions are set forth in Appendix D.

_—

REASONS FOR GRANTING THE WRIT

I, THE DECISION OF THE SIXTH CIRCUIT IS UNPRECE-

DENTED AND PRESENTS AN IMPOR TANT QUESTION OF

FEDERAL LAW WHICH HAS NOT BEEN, BUT SHOULD

BE SETTLED BY THE COURTS.

The present case breaks new ground, Despite much

criticism of the Allen charge, and its abolishment in

several U. S. circuits, no court has held that the charge

is so coercive as to amount to a denial of a constitutional

right. Shaw v. Robbins, 338 F. Supp. 756, 758-759 (D.

Maine 1972). Each of the circuits which has abolished

or revised the Allen charge has done So in the exercise

of its inherent Supervisory powers. For example, of

the thirteen decisions cited by the Fifth Circuit in its re-

view of the positions of the eleven U. S. Circuit Courts

of Appeal in its highly critical (but affirming) decision in

United States v. Bailey, 468 F.2d 652 (Sth Cir. 1972),

none involved a federal court exercising its habeas corpus

power to review state criminal convictions; and none held

that use of the Allen charge was an infringement of a con-

Stitutional right. See id, at 667-668.

This case has significance beyond the interests of the

immediate parties. Many state and federal convictions

may be collaterally attacked and voided in reliance on it.

5

Il. THE DECISION OF THE SIXTH CIRCUIT CONF LICTS

WITH OTHER COURTS OF APPEAL.

In addition to the fact that no court has held the use of

the Allen charge violates a constitutional right, the cir -

cuits are divided over the limits of the Proper use of such

a charge in exercise of their Supervisory authority over

the lower federal courts ‘

66% ru tact Fh Det One he eee et

e—

6

The First Circuit: The First Circuit, despite its

recognition of the criticisms and abandonment of the Allen

charge in other circuits, noted the value of the Allen charge,

“refuse[d] to restrict [its] trial judges" and reaffirmed

the use of an Allen-type instruction in future cases.

United States v. Flannery, 451 F.2d 880 (lst Cir. 1971).

The Second Circuit: The Second Circuit has approved

the Allen charge. United States v. Hynes, 424 F.2d 754

(2nd Cir. 1970), cert. denied 399 U.S. 933 (1970). It is

also the position of this circuit that where the charge is

tempered, as here, by the inclusion of the statement that

the juror is not expected to abandon his conscientious con-

viction, it is a fortiori non-coercive. See United States

v. Kahaner, 317 F.2d 459, 484 (2nd Cir. 1963), cert.

denied, 375 U.S. 835; United States v. Curcio, 279 F.2d

681 (2nd Cir. 1970), cert. denied 364 U.S. 824; United

States v. Thomas, 282 F.2d 191 (2nd Cir. 1960). The

Court in United States v. Martinez, 446 F.2d 118 (2nd

Cir. 1971) cert. denied, 404 U.S. 944 again affirmed the

use of the Allen charge.

The Third Circuit: The Third Circuit has rejected

the Allen charge in favor of the language from Federal

Jury Practice and Instructions, Mathes & Devitt, 1965

875.01. United States v. Fiorvanti, 412 F.2d 407 (3rd

Cir. 1969) cert. denied 396 U.S. 837." _It should be

noted that the convictions in this case were not reversed.

* The Court's rationale is set forth at 412 F.2d 418: “In addition to the

unsettling effect which a strategically inserted Allen charge might have

on the constitutional requirement of unanimity, its effect on the necessity

for proof beyond a reasonable doubt make: ** doubly circumspect. “

(Emphasis added). Neither of these arguments has any validity after

Louisiana v. Johnson, 406 U.S. 356 (1972) and Apodaca v. Oregon, 406

U. S. 404 (1972).

7

The Fourth Circuit: In United States v. Sawyers,

423 F.2d 1335 (4th Cir. 1970) and in United States v.

Williams, |., F.2d... (4th Cir. No. 71-2120, filed

July 3, 1972), the Fourth Circuit affirmed the use of the

Allen -type charge in a deadlocked situation.

The Fifth Circuit: Although the Fifth Circuit has re-

cently roundly criticized the use of an Allen -type charge,

it has refused to overturn a conviction of this basis and

has never held that use of an Allen charge constituted an

abridgement of a constitutional right. Seee.g., United

States v. Bailey, 468 F.2d 652 (Sth Cir. 1972) rehearing

en banc pending; United States v. Sutherland, 463 F.2d

641 (Sth Cir. 1972); United States v. Bredy, 455 F.2d

1382 n.1. (Sth Cir. 1972); United States v. Roberts,

455 F.2d 930, 932 (Sth Cir. 1972); United States v. George,

450 F.2d 269, 270 (Sth Cir. 197 1); United States v. Wil-

liams, 440 F.2d 894, 898, 900 (Sth Cir. 1971).

The Sixth Circuit: To our knowledge, this is the first

Allen-type charge appeal in the Sixth Circuit during the

last two and a half years. The Sixth Circuit has been

quick to criticize any unauthorized embellishments of the

Allen charge itself. See €.&-, United States v. Harris,

291 F.2d 348, 355 (6th Cir. 1968); United States v. Smith,

399 F.2d 896, 899 (1968); United States v. Barnhill, 305

F.2d 164 (1962) cert. denied 371 U.S. 865; Israel v.

United States, 3 F.2d 743, 745-746 (6th Cir. 1925).

Until the present case, there has been no Suggestion by

the Sixth Circuit that use of the Allen charge constituted

an abridgement of a constitutional right.

The Seventh Circuit: The Seventh Circuit has advised

its trial courts under its supervisory authority not to use

the Allen charge. The Court Stated that instead, district

courts should comply with the Standards suggested by the

re ma

8

American Bar Association. Brown v. United States,

411 F.2d 930 (7th Cir. 1969), cert. denied 396 U.S. 1017,

The Court did not reverse the conviction in this decision,

however, and there are no Seventh Circuit cases which

suggest that use of the Allen charge represents the abridge-

ment of a constitutional right.

The Eighth Circuit: The Eighth Circuit position was

stated in Hodges v. United States, 408 F.2d 543, 552

(8th Cir. 1969) (Blackmun, J.) in which a slightly embel-

lished Allen charge was given: " * * * The Supreme

Court has not yet seen fit to disavow it. So long as it

stands approved in decided Supreme Court cases, we are

not to resolve that issue contrarily." See also Pope v.

United States, 415 F.2d 685 (8th Cir. 1969), cert. denied

397 U.S. 950; United States v. Robinson, 419 F.2d 1109,

1112 (8th Cir. 1969). Although the Allen charge was dis-

cussed and criticized in these cases, there were no re-

versals on this basis, and no intimation that use of the

Allen charge presented a constitutional question.

The Ninth Circuit: The Ninth Circuit has approved

the delivery of supplemental charges similar to those given

in this case. See United States v. Moore, 429 F.2d 1305,

1306 (9th Cir. 1971); Dearinger v, United States, 378

F.2d 346, 347-348 n.2 (9th Cir. 1967) cert. denied 389

U.S. 885.

The Tenth Circuit: In United States v. Seasholiz,

435 F.2d 4, 7 n.4 (10th Cir. 1970) the Court approved a

mild Allen instruction. Earlier the Court had approved

the use of ABA standards. See United States v. Wynn,

415 F.2d 135 (10th Cir. 1969); see also United States v,

Winn, 411 F.2d 415 (10th Cir. 1969). None of these

cases involved a reversal on the basis of the improper

instructions. The Court has concluded that there is no

9

ritual of words which must be followed and has taken an

ad hoc approach to the problem: "The question is whether

the language used was coercive, not whether the Judge used

the magic words." at 417. See also Munroe v. United

States, 424 F.2d 243 (10th Cir. 1970); United States v.

Seasholtz, supra; United States v. Calley, 452 F.2d 243,

249 (10th Cir. 1971),

The District of Columbia Circuit: The District of

Columbia Circuit's 5-4 decision barring the use of the

Allen charge was predicated “on the needs of judicial ad-

ministration." United States v. Thomas, 449 F.2d 1177

at 1177 at 1187 (D.C. Cir. 1971) (en banc). However,

the Court placed heavy emphasis in its opinion on the un-

animous jury requirement in federal cases; Saying:

“Every defendant in a federal criminal case has the

right to have his guilt found, if found at all, only by

the unanimous verdict of the jury of his peers. Any

undue intrusion by the trial judge into this exclusive

province of the jury is error of the first magnitude.

When efforts to secure a verdict from the jury reach

a point that a single juror may be coerced into surrend-

ering views conscientiausly entertained, the jury's

Province is invaded and the requirement of unanimity

is diluted." (Id at 1181.)

Your petitioner submits this logic cannot be applied to the

States after Apodaca v. Oregon, 406 U.S. 404 (1972) and

Johnson v. Louisiana, 406 U.S. 356 (1972), where it was

held that unanimity is not required in state jury verdicts.

il. THE SIXTH CIRCUIT OPINION IN THIS CASE IS IN

CONFLICT WITH APPLICABLE DECISIONS OF THIS COURT

AND SETTLED CASE LAW.

A. Authorities from this Court.

os

10

Authorities from this Court include the leading case of

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

the charge to which the present jury instructions were

fairly compared by the Sixth Circuit. Similar charges

were approved in Lias v. United States, 284 U.S. 584

(1931) and Kawahita v, United States, 343 U.S. 717.

This Court's decisions in Johnson v, Louisiana, 406 U.S.

356 (1972) (approving 9 to 3 verdicts) and Apodaca v.

Oregon, 406 U.S. 404 (1972) seem to foreclose any finding

that the jury instructions in this case or the identification

of a deadlocked jury's majority-minority count presents a

constitutional question. The Allen charge is mentioned

with apparent approval in Johnson v. Louisiana, supra,

406 U.S. at 362.

Although the court's inquiry into the numerical division

of a deliberating jury was criticized in Burton v. United

States, 196 U.S. 283 (1904), and, when combined with an

Allen charge, constituted grounds for reversal in Bvas-

field v, United States, 272 U.S. 448 (1926), it has been

held there are often situations when such an inquiry is

permissible. The Brasfield rule is not inflexible. There

are situations when the inquiry is harmless error. See

United States v. Meyers, 410 F.2d 692 (2nd Cir. 1969),

Beale v.. United States, 263 F.2d 215 (Sth Cir. 1959);

Butler v.. United States, 254 F.2d 875 (Sth Cir. 1958);

Bowen v.. United States. 153 F.2d 747 (8th Cir. 1946).

Compare United States v. Rogers, 289 F.2d 433, 435-436

(4th Cir. 1965) where it was held that an inquiry about the

numerical division of a deadlocked jury was "a trifling

addition to the impact of the Allen charge."

B. Other Authorities.

In only six states, to our knowledge — Arizona, Penn-

sylvania, Alaska, Illinois, Maine, and Montana—have

ll

instructions patterned Substantially after the Allen charge

been disapproved. State v. Thomas, 86 Ariz. 161 (1959),

Commonwealth v. Spencer, 42 Pa. 325 (1971); Fields v.

State, 487 P.2d 831 (Alas. 1971); People v. Mills, _..

Ill. App.2d .,. (3rd Dist. Ct. App. 1971); State v.

Randall, 137 Mont. 534, 540-542 (1970). State v. White,

285 A.2d 832 (Me. 1971).

Twenty-nine states have approved the use of Allen -

type instructions Substantially like that in the present

case. See e.g., Bufkins v. State, 20 Ala. App. 457,

460-461 (1924); McGaha v. State, 216 Ark. 165, 172

(1949); People v. Baumgartner, 166 Cal. App. 2d 103,

105-108 (1958); Sevilla v. People, 65 Colo. 437, 441-

442 (1918), reaffirmed in Mills v. People, 146 Colo. 457,

462-463 (1961), certiorari denied, 369 U.S. 841: State

v. Walters, 145 Com. 60, 62-64 (1958), appeal dismissed,

358 U.S. 46; State v. Maclary, 193 A. 2d 195 (Del. 1963);

Yancy v. State, 173 Ga. 685, 689-692 (1931); State v.

Tope, 86 Idaho 462, 468-469 (1963); State v. Bogardus ,

188 Iowa 1293, 1298-1301 (1920); Abbott v. Common-

wealth, 352 S.W.2d 552, 554 (Ky. 1961); State v. Dudous-

sat, 47 La. Ann. 977, 998-999 (1895); State v. Pike, 65

Me. 111, 116 (1876); Commonwealth v. Tuey, 8 Cush.

(62 Mass.) 1, 2-4 (1851), reaffirmed in Highland Foundry

Co. v. New York, New Haven, and Hartford R.R. Co. :

199 Mass. 403, 407 (1908), and Commonwealth v. Hassan,

235 Mass. 26, 33 (1920); People v. Chivas, 322 Mich.

384, 392-395 (1948); State v. Doan, 225 Minn. 193, 202-

206 (1947); State v. Bozarth, 361 S.W.2d 819, 826 (Mo.

1962); State v. Williams, 39 N.J. 471, 481-485 (1963),

certiorari denied, 374 U.S. 855; Territory v. Donahue ,

16 N.M. 17, 26-28 (1911), reaffirmed in State v. Horton,

57 N.M. 257, 261-262 (1953); State v. Pugh, 183 N.C.

800, 802 (1922); Montgomery v. State, 19 Okla. Cr. 224,

——y

12

227-229 (1921); State v. Butler, 96 Ore. 219, 237-242 (1919).

State v. Scott, 123 Atl. 292 (R.I. 1924); State v. Pulley,

216 S.C. 552, 555-557 (1950); State v. Egland, 23 S.D.

323, 326-328 (1909); Simmons v. State, 198 Tenn. 587,

594-596 (1955); Rippetoe v. State, 67 Tex. Cr. 192, 1%-

197 (1912); State v. Gorham, 67 Vt. 365, 371-372 (1894);

State v. Thomas, 63 Wash. 2d 59, 65-67 (1963); Boyd v.

State, 217 Wis. 149, 158-159 (1935); Nicholson v. State,

24 Wyo. 347, 356-358 (1916). Cf. People v. Faber, 199

N.Y. 256, 260-261 (1910) @ictum).

CONCLUSION

The Sixth Circuit decision in this case not only conflicts

with other Courts of Appeal, but breaks new ground in the

direction of further supervision of state criminal proceed-

ings by federal courts in an area which had previously been

thought to present no constitutional questions. In addition,

this case presents a good opportunity for the Court to con-

sider and resolve the constantly recurring problem of Allen-

type charges—an area where the state of the law is un-

usually clouded and about which the circuits disagree.

Respectfully submitted,

W. HENRY HAILE

Assistant Attorney General

420 Supreme Court Bldg.

Nashville, Tenn. 37219

Tel. (615) 441-2640

DAVID M. PACK

Attorney General

13

APPENDIX A

No. 72-1469

UNITED STATES COURT OF APPEALS

For the Sixth Circuit

J. W. JONES, PURSIE GIBSON, |

and NOBEL MOODY,

Plaintiffs-Appellants,

Vv.

J. W. NORVELL, Warden,

Defendant-Appellee. 7

+ NO. 72-1469

Decided and Filed January 5, 1973,

Before: Edwards and McCree, Circuit Judges, and

Cecil, Senior Circuit Judge.

PER CURIAM. This is an appeal from a decision of

the United States District Court for the Western District

of Tennessee denying a petition for writ of habeas corpus

without an evidentiary hearing.

On Appeal the only issue of substance pertains to ap-

Pellants' claims that their Fourteenth Amendment rights

were violated when the trial court judge at their state

14

Appendix A

court trial gave a version of the "Allen" charge to a dead-

locked jury. See Allen v. United States, 164 U.S. 492

(1896). On review of the state court trial proceedings,

it appears clear to this court that the trial judge was in-

formed by a court officer not only that the jury was dead-

locked, but that the jury stood 1l to 1. He then recited

that division to the jury and asked whether the court of-

ficer's report of 11 to 1 was correct. On receiving a

conditional affirmative, the trial judge said: "{I]t is your

duty to reach a verdict if you can possibly do so—you 12

people are the only ones that can do it. The Court can't

do it, nor anyone else. You twelve people are the only

ones." Subsequently he ascertained that the jury majority

was in favor of a guilty verdict and sent them back out to

“see if you can make any progress. As I told you, it is

your duty to decide this case, if you can do so." There-

upon within five minutes the jury returned with a verdict

finding all three defendants guilty and fixing the punish-

ment at five years in the state penitentiary.

The court believes that the facts recited above involved

the invasion of jury secrecy (See Parker v. Gladden. 385

U.S. 363 (1966); Turner v. Louisiana, 379 U.S. 466 (1965),

the identification of a deadlocked jury's majority-minority

count (See Brasfield v. United States, 272 U.S. 448, 450

(1926)), a coercive jury charge (See e.g., Jenkins v. United

States, 380 U.S. 445, 446 (1965)) and the speedy return of

a verdict subsequent to the charge (See e.g. United States

v. Rogers, 289 F.2d 433, 436-37 (4th Cir. 1961)). These

facts constitute a totality of circumstances which violate

the constitutional rights of appellants to a fair and impartial

jury trial under the Sixth and Fourteenth Amendments.

The decision of the District Court is reversed and the

case is remanded for entry of the writs prayed for, unless

the state sees fit to retry the appellants within a reasonable

time.

15

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

J. W. JONES, PURSIE GIBSON )

and NOBEL MOODY,

Petitioners,

in P NO. 2140

J. W. NORVELL, Warden,

Respondent. :

ORDER DENYING PETITION FOR

WRIT OF HABEAS CORPUS

(Filed March 21, 1972)

In this cause petitioners, J. W. Jones, Pursie Gibson

and Nobel Moody, have filed a Petition for Rehearing fol -

lowing the Court's denial of their Petition for Writ of

Habeas Corpus for failure to exhaust state remedies.

Petitioners allege that their Convictions for robbery in

the Criminal Court of Henderson County, Tennessee, were

unconstitutional in that: (1) the evidence clearly prepon-

derates against the verdict of the jury and in favor of the

innocence of petitioners; and (2) the trial court erred in

its use of the "Allen" charge. For the reasons set out

hereinafter the Court finds that the petition should be dis -

16

Appendix B

I. Sufficiency of the Evidence.

Federal habeas corpus does not serve as an additional

appeal from State court conviction. Fay v. Noia, 372

U.S. 391 (1963). "Sufficiency of evidence to support a

state conviction raises no Federal constitutional question,

and cannot be considered in Federal habeas proceedings

by state prisoners." Sinclair v. Turner, 447 F.2d 1158,

1161 (10th Cir. 1971); Young v. Alabama, 443 F.2d 854

(Sth Cir. 1971); Freeman v. Stone, 444 F.2d 113 (9th

Cir. 1971); Ballard v. Howard, 403 F.2d 653 th Cir.

1968); Phillips v. Tollett, 330 F. Supp. 776 (E.D. Tenn.

1971). A state prisoner is entitled to relief in Federal

courts only when rights guaranteed by the United States

Constitution have been denied. Sinclair v, Turner, supra;

Opie v. Meacham, 419 F.2d 465 (10th Cir. 1969), cert.

denied, 399 U.S. 927 (1970). To raise a constitutional

question, evidence of guilt must be totally devoid of value;

the test is not whether the verdict was against the weight

of evidence but whether there was any evidence to support

it. Mathis v, Colorado, 425 F.2d 1165 (10th Cir. 1970);

Holloway v. Cox, 437 F.2d 412 (4th Cir. 1971); McGhee

v. Sigler, 328 F. Supp. 538 (D.C. Neb. 1971); JU. S. v.

Yeager, 330 F. Supp. 802 (D.C. N.J. 1971).

An examination of the record indicates that there was

evidence at the trial, which if believed by the jury, would

support the petitioners’ conviction.

Il. Use of the "Allen" charge.

At the petitioners’ trial the Court instructed the jury

in pertinent part as follows:

“I would like to tell you this: While the verdict must

be the verdict of each individual juror, and not just a

——

17

Appendix B

mere acquisence in the conclusion of your fellow jurors,

yet you should examine the questions submitted with

candor and with a proper regard and deference to the

opinions of each other.

It would be an unusual thing for all 12 of you to go

to the jury room thinking exactly alike when you go in

there. That is one reason we discuss this matter, be-

cause some juror may think of Something that someone

else has overlooked, and others may think of some-

thing you have overlooked.

It is your duty to decide this case if you can con-

scientiously do so. You should listen with a disposi -

tion to be convinced to each other's arguments. If a

larger number are —if the larger number are for con-

viction or acquittal, a dissenting juror should consider

whether his or her doubt is a reasonable one, which

made no impression on the minds of so many other

jurors, equally honest and equally intelligent with him-

self.

The jury, of course, should not go contrary to their

convictions, but they should properly give heed to the

opinions of their fellow jurors, and by reasonable con-

cessions reach a conclusion, which although not origi -

nally entertained by them, nevertheless may be one to

which all can scrupulously adhere.

In other words, the minority should listen to the

views of the majority with a disposition to be convinced,

However, no one is expected to sacrifice their honest

convictions solely for the sake of reaching an agree -

ment,"

—

18

Appendix B

The above quoted charge is commonly referred to as

the "Allen" charge.’ As ably pointed out by respondent

in his answer to the petition, even though the Allen charge

has been the subject of much criticism in recent years,

charges similar to the above have been approved by the

Sixth Circuit Court of Appeals. [See e.g., Israel v. U. S.

3 F.2d 743 (6th Cir. 1925) and U. S. v. Barnhill, 305 F.2d

164 (6th Cir.); cert. denied, 371 U.S. 865 (1962)], and

the State of Tennessee [see, e.g., Simmons v. State, 198

Tenn. 587, 281 S.W.2d 487 (1955) and High v. Lenow,

195 Tenn. 158, 258 S. W.2d 742 (1953)].

’

The Tennessee Court of Appeals engaged in a complete

analysis of the use of the Allen charge in the petitioners'

trial and found no error in the application. Upon con-

sideration of the record the Court does not find that the

trial court's use of the charge was coercive or prejudicial.

Nor does the Court find that petitioners have been denied

due process of law or any other constitutional rights in

their state prosecutions. This Court does not feel the

language used abrogated the duty of each juror to decide

the case for himself.

On the basis of the foregoing, it is Ordered that the

Petition for Writ of Habeas Corpus be and the same hereby

is denied.

/s/ Harry W. Wellford

UNITED STATES DISTRICT JUDGE

Date: 3-21-72

1 The charge originated in the case of Allenv, U, S., 164 U.S. 492

(1896).

8

19

APPENDIX C

IN THE COURT OF CRIMINAL APPEALS

OF TENNESSEE

JACKSON, MARCH SESSION, 1971

NOBLE MOODY, PURSIE GIBSON

AND J. W. JONES, JR.,

Plaintiffs in Error

Henderson County

Criminal

V.

STATE OF TENNESSEE,

Defendant in Error :

(Filed August 20, 197 1)

For the Plaintiffs in Error:

Bill R. Martin

Lexington, Tennessee

For the Defendant in Error:

David M. Pack

Attorney General of Tennessee

Robert H. Roberts

Assistant Attorney General

David P. Murray

District Attorney General

OPINION FILED: Aug. 20, 1971

AFFIRMED

William S. Russell, Judge

—_ EATING PY SMI LENT TIRE NI EY

20

Appendix C

The three plaintiffs-in-error stand convicted of the

robbery of one Jerry Whittaker of the sum of three to five

dollars anda wrist watch. The punishment was set at

five years in the penitentiary for each.

Whittaker had spent a good part of the day in question |

drinking at a beer tavern, became involved in a fight, was |

asked to leave, and was walking along the highway toward

his home when Jones, Gibson and Moody came along in an

automobile. He thumbed them down. He says that he

was thereafter the victim of strong-arm robbery to the

extent of all of the money that he had plus his wrist watch.

All of the facts and circumstances do not lend credence

to Whittaker's story, as we readthe record. However,

he testified to a state of facts making out the robbery, the

jury and trial judge saw and heard and believed him, and

there was no contrary proof. The evidence would appear

to be legally sufficient to support the verdict and judgment.

The remaining questions presented by this record are

rooted in the following part of the transcript of the trial:

“Thereupon, the jury retired at 1:45 o'clock P.M.

to deliberate, and at 3:50 o'clock P.M. the Court re-

called the Jury, and the following transpired:

THE COURT: A few minutes ago I sent one of the

officers to check with you to see if you were making

any progress, and I believe he came back with the re-

port that you stood 1l toone. Idon't know whether

that's 11 for conviction, or 11 for acquittal —I have no

way of knowing and I'm not asking you to tell me.

I would like to tell you this: While the verdict must

be the verdict of each individual Juror, and not just a

mere acquisence in the conclusion of your fellow jurors,

———

—

21

Appendix C

yet you should examine the questions submitted with

candor and with a proper regard and deference to the

opinions of each other.

It would be an unusual thing for all 12 of you to go

to the Jury room thinking exactly alike when you go in

there. That is one reason we discuss this matter,

because some Juror may think of something that some-

one else has overlooked, and others may think of some-

thing that you have overlooked.

It is your duty to decide this case if you can con-

Scientiously doso. You should listen with a disposi-

tion to be convinced to each other's arguments. [If a

larger number are —if the larger number are for con-

viction or acquittal, a dissenting Juror should consider

whether his or her doubt is a reasonable one, which

made no impression on the minds of SO many other

Jurors, equally honest and equally intelligent with him-

self.

The Jury, of course, should not go contrary to their

convictions, but they should properly give heed to the

opinions of their fellow jurors, and by reasonable con-

cessions reach a conclusion, which, although not

originally entertained by them, nevertheless may be

one to which all can Scrupulously adhere.

In other words, the minority should listen to the views

of the majority with a disposition to be convinced.

However, no one is expected to sacrifice their honest

convictions solely for the sake of reaching an agree-

ment.

I did want to tell you that.

F a “oy fae eS RELY LT IG

TEE RIS EI IEE EI OLE BEI LN EB NEY BY NERS EY

= ee SH SRF ime te -

22

Appendix C

Now, I will ask you to go back to the Jury Room and

continue your deliberations.

THEREUPON, the Jury re-retired, and later returned

at 4:25 P.M., at which time the following transpired:

THE COURT: One of the officers tells me you want

to ask a question.

FOREMAN: It seems like we're not going to reach

a verdict.

THE COURT: Don't tell me how you stand with

reference to acquittal or conviction, but how do you

stand—is the officer's report of 11 to 1 correct?

FOREMAN: Well, on one condition. There are

two things there ——

THE COURT: Let me ask you this—it is your duty

to reach a verdict if you can possibly do so—you 12

people are the only ones that cando it. The Court

can't do it, nor anyone else. You twelve people are

the only ones.

Do any of you——let me ask you this —have you

reached a verdict—you know the Court told you you

could report one of three verdicts —one, guilty of

robbery; one, guilty of petit larcency, or one, not

guilty.

Have you reached a verdict with reference to the

robbery ?

FOREMAN: Yes, sir.

THE COURT: How do you find on that?

FOREMAN: Guilty.

23

Appendix C

THE COURT: You mean the majority?

FOREMAN: Yes.

THE COURT: I don't know of anything else to tell

you. How long have you all been deliberating —2-1/2

hours —3 hours ?

COURT REPORTER: They retired at 1:45.

JUROR: Could we ask the defendants one question,

under oath?

THE COURT: No, I am afraid you can't now, as

much as I'd like to let you do it. As a matter of fact

it is not permissible.

I can't talk to you about the facts, but on any ques -

tion of law I can talk to you.

I don't know whether your question is on a question

of law or a question of facts. [If it’s a Question of law,

I can talk to you. With reference to what happened —

what the facts are, I am not permitted to talk to you

about it; that's your decision, but if it's some technical

question about the law, then I can talk to you about it.

FOREMAN: It's a question of what happened.

THE COURT: Ask your question and if I can answer

it | will. Ican't talk to you about the facts —what hap-

pened.

(Discussion among jurors)

THE COURT: What was your question?

JUROR: Nothing, that's all.

THE COURT: Do any of you have any questions ?

JURY: No.

24

Appendix C

THE COURT: Go back to the Jury room and see if

you can make any progress.

As I told you, it is your duty to decide this case, if

you can do so.

THEREUPON, the Jury re-retired at 4:30 o'clock,

P.M. and returned into the Court Room at 4:35 o'clock,

P.M. and the following transpired:

THE COURT: Have you reached a verdict?

FOREMAN: We have.

THE COURT: What is your verdict?

FOREMAN: We find the three defendants guilty.

THE COURT: You find the three defendants guilty

of what?

FOREMAN: Robbery.

THE COURT: What punishment do you fix?

FOREMAN: Five years.

THE COURT: You find all three defendants guilty

of Robbery, and fix their punishment at 5 years in the

State Penitentiary?

FOREMAN: Yes.

THE COURT: That is your verdict?

JURY: Yes.

THE COURT: So say you all?

JURY: Yes.

THEREUPON, THE JURY WAS EXCUSED."

———

25

Appendix C

Error is assigned upon the use of the so-called "Allen"

Charge (Allen v. U. S., 164 U.S. 492, 17S. Ct. 154, 41

L. Ed. 528); upon the fact that the Supplemental charges

were not in writing, and upon the alleged coercion exer -

cised by the Court upon the lone dissenting juror by giving

the charges.

The giving of the first supplemental charge, sometimes

known as the "Allen" or “dynamite” charge, was ex-

pressly approved by our Supreme Court in the case of

Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487, citing

also the earlier Tennessee case of High v, Lenow, 195

Tenn. 158, 258 S.W.2d 742. Unquestionably, its use was

not error.

During the second dialogue with the jury, the judge said:

"——it is your duty to reach a verdict if you can

Possibly doso. You twelve People are the only ones

that can doit. The Court can't do it, nor anyone else.

You twelve people are the only ones. * * * * | don't

know of anything else to tell you. * * * * Go back to

the jury room and see if you can make any progress.

As I told you, it is your duty to decide this case, if

you can do so."

In Frady v. State, 67 Tenn. 349, we find the following:

“The judge of the criminal court, two days after he

had given his charge, upon their return into court and

announcing that they could not agree, stated to the jury

that ‘some twelve men had to settle the matter; that a

verdict should be rendered if you could do so without

violating their conscience, and under the oath they had

taken." After these remarks were made, the jury re-

tired, and in a few minutes returned with a verdict of

guilty, etc."

———ay

26

Appendix C

“It is urged that it was error in the judge thus to

address the jury, because it was improper influence

exerted upon them to produce an agreement, and be-

cause, also, in violation, of the statute requiring

‘every word of the judge's charge’ in a felony case to

be reduced to writing."

“We do not think there is anything in the objection

made. No improper motives for an agreement were

appealed to. The jury were simply told that it was

desirable that they should agree, if they could con-

scientiously do so. These remarks were not a part

of the instructions of the court to the jury. They were

not designed to instruct them in any question of law

arising in the case, and were not a part of the charge.

The purpose of the statute was to require the judge to

give written instructions upon all legal questions aris-

ing in the case, but not to prevent that necessary and

indispensible intercourse between judge and jury in the

progress of the trial being had verbally which relates

to their conduct or action in other particulars than in

regard to the rules of law by which they should be gov-

erned in rendering their verdict."

“All that relates to the principles of law by which

they shall be governed in arriving at and rendering

their verdict —the instructions of the court to the jury

—should be in writing. All other proper communica-

tions by the court to them may be verbally made."

"It is the instructions of the court upon the law of

the case that constitutes his charge."" (Emphasis sup-

plied.)

Under the authority of Frady v. State, supra, we hold

that this second dialogue with the jury was not coercive.

27

Appendix C

And it would appear that both supplemental instructions

would fall into that category said in Frvady not to be re-

quired to be in writing. Certainly the second falls under

the Frady rule. If the first, more formal, supplemental

charge (the "Allen" charge) should have been in writing,

under T.C.A. §40-2516, such technical error can hardly

be said to have been prejudicial, since it certainly did not

bring about a verdict; hence, we may apply the harmless

error doctrine, as was done in Munson v. State, 141 Tenn.

522, 213 S.W.2d 916, involving a technically improper

oral charge in a felony case. nd in Black v. State, 201

Temn. 15, 296 S.W.2d 833, our Supreme Court recognized

that T.C.A. §27-117, our “harmless error" statute, was

applicable in a proper case to a technical violation of

T.C.A. §40-2516. See also Gamble v. State, 215 Tenn.

26, 383 S.W.2d 48.

We affirm the judgment of the trial court.

/s/ William S. Russell,

William S. Russell, Judge

CONCUR:

/s/ Mark A. Walker

Mark A. Walker, Presiding Judge

/s/ Charles Galbreath

Charles Galbreath, Judge

— ——

—EE — -

— qa ee en

ea ——

—————

APPENDIX D

The instructions which provided the basis for the Court

of Appeals’ decision are found in the following part of the

trial transcript:

“Thereupon, the jury retired at 1:45 O'Clock, P.M. to

deliberate, and at 3:50 O'Clock, P.M. the Court re-

called the Jury, and the following transpired:

THE COURT: A few minutes ago I sent one of the of-

ficers to check with you to see if you were making any

progress, and I believe he came back with the report

that you stood 11 to one, _ I don't know whether that's

11 for conviction, or 11 for acquittal —I have no way

of knowing and I'm not asking you to tell me.

I would like to tell you this: While the verdict must be

the verdict of each individual Juror, and not just a

mere acquiesence in the conclusion of your fellow jurors,

yet you should examine the questions submitted with

candor and with a proper regard and deference to the

opinions of each other.

It would be an unusual thing for all 12 of you to go to

the Jury room thinking exactly alike when you go in

there. That is one reason we discuss this matter,

because some Juror may think of something that some-

one else has overlooked, and others may think of some-

thing that you have overlooked.

It is your duty to decide this case if you can conscien-

tiously do so. You should listen with a disposition to

be convinced to each other's arguments. Ifa larger

number are—if the larger number are for conviction

ati

ee!

.

gee TET.

_—

or acquittal, a dissenting Juror should consider whether

his or her doubt is a reasonable one, which made no

impression on the minds of so many other Jurors,

equally honest and equally intelligent with himself.

29

Appendix D

The Jury, of course, should not gO contrary to their

convictions, but they should properly give heed to the

opinions of their fellow jurors, and by reasonable con-

cession reach a conclusion, which, although not origi-

nally entertained by them, nevertheless may be one to

which all can Scrupulously adhere.

In other words, the minority should listen to the veiws

of the majority with a disposition to be convinced.

However, no one is expected to sacrifice their honest

convictions solely for the sake of reaching an agree -

ment,

I did want to tell you that.

Now, I will ask you to go back to the Jury Room and

continue your deliberations.

THEREUPON, the Jury re-retired, and later returned

at 4:25 P.M., at which time the following transpired:

THE COURT: One of the officers tells me you want

to ask a question.

FOREMAN: It seems like we're not going to reach a

verdict,

THE COURT: Don't tell me how you stand with refer-

ence to acquittal or conviction, but how do you stand —

is the officer's report 11 to 1 correct?

FOREMAN: Well, on one condition. There are two

things there —

—_— SRE ELE TLE LEE LTE EE LEE ETE EES TICS LOIRE BOLE SIE IA

“ ,

30

Appendix D

THE COURT: Let me ask you this —it is your duty

to reach a verdict if you can possibly do so—you 12

people are the only ones that cando it. The Court

can't do it, nor anyone else. You twelve people are

the only ones.

Do any of you—let me ask you this have you reached

a verdict —you know the Court told you you could re-

port one of three verdicts—one, guilty of robbery;

one, guilty of petit larceny, or one, not guilty.

Have you reached a verdict with reference to the rob-

bery?

FOREMAN: Yes, sir.

THE COURT: How do you find on that?

FOREMAN: Guilty.

THE COURT: You mean the majority?

FOREMAN: Yes.

THE COURT: I don't know of anything else to tell you.

How long have you all been deliberating—2-1/2 hours

—3 hours ?

COURT REPORTER: They retired at 1:45.

JUROR: Could we ask the defendants one question,

under oath?

THE COURT: No, I am afraid you can't now, as much

as I'd like to let you do it. As a matter of fact it is

not permissible.

I can't talk to you about the facts, but on any question

of law I can talk to you.

_—

I don't know whether your question is on a question of

law or a question of facts. If it's a question of law I

can talk to you. With reference to what happened —

what the facts are, I am not permitted to talk to you

about it; that's your decision, but if it's some technical

question about the law, then I can talk to you about it.

FOREMAN: It's a question of what happened.

THE COURT: Ask your question and if Ican answer

it I will. I can't talk to you about the facts —what

happened,

31

Appendix D

(Discussion among jurors)

THE COURT: What was your question?

JUROR: Nothing, that's all,

THE COURT: Do any of you have any questions?

JURY: No,

THE COURT: Go back to the Jury room and see if

you can make any progress.

As I told you, it is your duty to decide this case, if

you can do so,

THEREUPON, the Jury re-retired at 4:30 O'Clock,

P.M. and returned into the Court Room at 4:35 O'Clock,

P.M. and the following transpired:

THE COURT: Have you reached a verdict?

FOREMAN: We have.

THE COURT: What is your verdict?

FOREMAN: We find the three defendants guilty.

ec

32

Appendix D

THE COURT: You find the three defendants guilty of

what?

FOREMAN: Robbery.

THE COURT: What punishment do you fix?

FOREMAN: Five years.

THE COURT: You find all three defendants guilty of

Robbery, and fix their punishment at 5 years in the

State Penitentiary.

FOREMAN: Yes.

THE COURT: That is your verdict?

JURY: Yes.

THE COURT: So say you all?

JURY: Yes.

THEREUPON, THE JURY WAS EXCUSED."