v. Black, 2020 COA 136

Defendant Latrice Black was found asleep in the driver’s seat of her car in a Wal‑Mart parking lot next to two small whiskey bottles; officers removed and arrested her for DUI and related offenses.
During removal she scratched Officer Corey’s forearm while handcuffed; the scratch was faint with no broken skin. Prosecutors charged second‑degree assault (later tried as third‑degree), DUI, and resisting arrest counts.
At trial the prosecution introduced officers’ bodycam footage but not the Wal‑Mart surveillance video; an officer testified about that video instead.
After several hours of deliberation the jury sent the court this question: “What happens if we can’t come to a unanimous decision on only one charge?” Black requested a modified‑Allen instruction; the court, without asking jurors about the likelihood of progress, simply instructed: “please continue with your deliberations.” Thirty minutes later the jury returned guilty verdicts on all counts.
On appeal the court reversed all convictions, holding the trial court abused its discretion by failing to determine whether further progress toward unanimity was likely before directing continued deliberation; the court also held the evidence was sufficient to permit retrial on the assault charge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court erred by telling the jury to continue deliberating without first determining if progress toward unanimity was likely	The jury’s question was hypothetical; no clear impasse and an instruction to continue was proper	Jurors asked about an inability to reach unanimity on one charge and defense requested modified‑Allen; court should have inquired into intractability first	Reversed: court must first determine likelihood of progress; failing to do so is abuse of discretion
Whether that instructional error was harmless	Any error was harmless beyond a reasonable doubt	Instruction risked coercion; cannot be deemed harmless	Not harmless; reversal required
Whether evidence supported third‑degree assault (for retrialability)	Evidence (officer testimony and photos) supported bodily injury	Scratch was minor and produced no bleeding; argued insufficient	Evidence sufficient to permit retrial on third‑degree assault
Other contested trial rulings (surveillance testimony, expert lay testimony, sentencing)	Sought to uphold convictions and rulings	Raised multiple evidentiary and sentencing challenges	Court did not resolve those merits because reversal was required on instructional error; only sufficiency was addressed for retrial purposes

People v. Munsey, 232 P.3d 113 (Colo. App. 2009) (addressed permissibility of court responses to jury questions about a hung jury)
Lowe v. People, 488 P.2d 559 (Colo. 1971) (trial court should inquire about likelihood of progress before supplemental instructions)
People v. Schwartz, 678 P.2d 1000 (Colo. 1984) (modified‑Allen may mitigate but can still coerce a hopelessly deadlocked jury)
People v. Lewis, 676 P.2d 682 (Colo. 1984) (additional instructions to avert deadlock should be preceded by inquiry into progress)
United States v. Zabriskie, 415 F.3d 1139 (10th Cir. 2005) (coercive jury instructions implicate due process and unanimity rights)
Germany v. People, 599 P.2d 904 (Colo. 1979) (reversal required where modified‑Allen charge to absent defendant may have prejudiced verdict)
People v. Hines, 572 P.2d 467 (Colo. 1977) (bodily injury includes even slight physical pain for assault statute purposes)