Bruсe E. ELLIS, Appellant, v. Amos E. REED, Secretary of Corrections, and The Attorney General of the State of North Carolina, Appellees.
No. 78-6175.
United States Court of Appeals, Fourth Circuit.
Decided April 25, 1979.
Submitted Nov. 14, 1978.
Roger W. Smith, Raleigh, N.C. (Robert L. McMillan, Jr., Raleigh, N.C., on brief), for appellant.
Rufus L. Edmisten, Atty. Gen. of N.C., Richard N. League, Asst. Atty. Gen., Raleigh, N.C., on brief, for appellees.
Before HAYNSWORTH, Chief Judge, WINTER, Circuit Judge and HOFFMAN,* Senior District Judge.
Appellant stands convicted in the North Carolina state court of embezzling $18,799.50 from a finance company. On 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 quеstions and instructions 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, 47 S.Ct. 135, 71 L.Ed. 345 (1926). Appellant also assigns as error the giving of a supplemental modified version of the Allen charge1 instruction.
Appellant‘s trial lasted three days. Fоllowing 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 returned 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 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 conscientious 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 recognizes 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 аnd 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 оf 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
We are concerned, however, by apрellant‘s allegation that it was error for the trial court to inquire as to the numerical division of the jury.2 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 applicable to the states by reason of the
In Burton v. United States, 196 U.S. 283, 25 S.Ct. 243, 49 L.Ed. 482 (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, 25 S.Ct. 243. The conviction in Burton was rеversed on other grounds, however, and federal courts of appeals remained in substantial disagreement 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 uncertainty 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 sеrves no useful purpose 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 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, 47 S.Ct. at 135-136.
Following the decision in Burton, the federal circuits split over whether noncompliаnce 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, 17 Md.App. 41, 299 A.2d 841 (1973); People v. Wilson, 390 Mich. 689, 213 N.W.2d 193 (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 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 Sharplin 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, 562 (Okl.Cr. 1971); People v. Carter, 68 Cal.2d 810, 69 Cal.Rptr. 297, 442 P.2d 353, 356 (1968); Huffakеr v. State, 119 Ga.App. 742, 168 S.E.2d 895, 896 (1969); Lowe v. State, 175 Colo. 491, 488 P.2d 559, 561 (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, and a speedy return of a verdict subsequent to the charge. 472 F.2d at 1186. The court held that the totality of the circumstances violаted 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.4 Marsh v. Cupp, 536 F.2d 1287, 1291, fn. 9 (9th Cir. 1976).
In Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965), the Supreme Court considered a case in which the trial judge, without making inquiry as to the numerical stаnding, 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,
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, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Court firmly held that trial by jury in criminal cases is fundamental to the American system of justice, and that the
In Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), the Court considered 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 requirements 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, еrroneous, or even universally condemned, but that it violated some right which was guaranteed to the defendant by theFourteenth Amendment .
414 U.S. at 146, 94 S.Ct. at 400.
Thus the Supreme Court, in Duncan, has required states to provide criminal defendants with the
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, 64 S.Ct. 896, 897, 88 L.Ed. 1140 (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, 63 S.Ct. 608, 87 L.Ed. 819 (1943), it is said:
For, while the power of the Court to undo convictions in state courts is limited to the enforcement of those fundamental 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 Constitutional validity. Judicial supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence.
318 U.S. 332, 340, 63 S.Ct. at 613.
Later, in Rochin v. California, 342 U.S. 165, 168, 72 S.Ct. 205, 207, 96 L.Ed. 183 (1952), Mr. Justice Frankfurter, speaking for the Court, had 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 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 reasons 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 thе 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 corpus is affirmed.
AFFIRMED.
I respectfully dissent.
There is no dispute between the majority and me that Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (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
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. 283, 25 S.Ct. 243, 49 L.Ed. 482 (1905), as to whether an inquiry into the numerical division of an undischarged 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 fоrm of Allen charge, see Brasfield v. United States, 8 F.2d 472 (9 Cir. 1925), but this fact was not mentioned by the Supreme Court, although argued to it; see 272 U.S. 448, 47 S.Ct. 135, 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 instructions given the jury at the time of its recall. 272 U.S. at 450, 47 S.Ct. at 136.
Admittedly, the Supreme Court did not specify whether its decision was based upon its view of the requirements of the
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 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, 47 S.Ct. at 135-136.
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, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), held that the right to a jury trial in a criminal case is fundamental to the American scheme of justice, so that the
The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal
criminal proceedings is also prоtected 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 whether a right is among those fundamental 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 [53 S.Ct. 55, 77 L.Ed. 158] (1932); whether it is basic in our system of jurisprudence, In re Oliver, 333 U.S. 257, 273 [68 S.Ct. 499, 92 L.Ed. 682] (1948); and whether it is a fundamental right, essential to a fair trial, Gideon v. Wainwright, 372 U.S. 335, 343-344 [83 S.Ct. 792, 9 L.Ed.2d 799] (1963); Malloy v. Hogan, 378 U.S. 1, 6 [84 S.Ct. 1489, 12 L.Ed.2d 653] (1964); Pointer v. Texas, 380 U.S. 400, 403 [85 S.Ct. 1065, 13 L.Ed.2d 923] (1965). The claim before us is that the right to trial by jury guaranteed by the Sixth Amendment meets these tests. . . . Becаuse we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that theFourteenth Amendment guarantees a right of jury trial in all criminal cases which — were they to be tried in a federal court — would come within theSixth Amendment‘s guarantee. [Footnotes eliminated.]
391 U.S. at 148-49, 88 S.Ct. at 1447.
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 destroys the fair and impartial conduct of the trial is condemned on constitutional grounds. Preservation of the purity of the jury‘s deliberаtions is furtherance of a constitutional objective, not merely the exercise of supervisory power for a desirable but non-constitutional purpose.