Commonwealth v. Greer

Pennsylvania, COMMONWEALTH

Appellee

Benjamin GREER, Appellant.

Superior Pennsylvania. Nov.

Submitted 2005.

Filed Feb.

Reargument April Denied Keenheel, Philadelphia, ap-

Mark S. pellant. Burns, Jr., District

Hugh Assistant J. Attorney, Philadelphia, Common- wealth, appellee. ELLIOTT, LALLY-

Before: FORD JOHNSON, GREEN, JJ. JOHNSON, Thereafter, BY OPINION J.: Officer Brian McMenamin up set surveillance in an unmarked vehi- ¶ 1 Benjamin judg- Greer appeals on the 1600 of Washington cle block ment imposed following of sentence Lane. Officer McMenamin had received convictions of criminal and conspiracy ag- waiting information he was for a assault. See 18 Pa.C.S. gravated §§ delivery man to come to the location 2702 (respectively). Greer contends the there prior had been a robbery not a declaring erred mistrial at the same location. after two jury notes to the court police, At Mr. agree disclosed that the could on not Zhang empty took an box to the loca- charges. verdict on all the Specifically, Upon tion. two arriving, ap- men the notes revealed the numerical break- Mr. proached Zhang and took his cell jurors charges down of the on the on One of phone. escaped. the men How- and identified ever, when the defendant tried to es- who doubts about the evi- Mr. cape, Zhang grabbed his clothing. dence. also Greer contends that the trial Both the defendant Zhang and Mr. fell supplemental re- instructions ground causing to the Zhang Mr. sponse to the notes were and coercive led Thereafter, his ankle. police break to the guilty finally verdicts. Greer apprehend were able to the defendant. tends that deprived he was of his Sixth (T.C.O.), Opinion Trial Court at 1- right Amendment to counsel because the (citations omitted). trial court did not reveal the extent of full charged explained Judge the Glazer jurors perpetrator. note that nine guilty. The stated of the note to counsel includ- ten a about the the contents and had reasonable doubt identity and the aggravated ing to assault the numerical division evidence. As the jurors. Judge and to Counsel jury the was divided eleven one the then discussed various alternatives guilty of a with Glazer favor proceed including taking to voting guilty. The court on how number ten robbery declaring and on the count told counsel that it had received note verdict counts, jury on the other two jury jury hung from the and robbery bringing jury back after the weekend charge reached a verdict on the deliberations, or another they having problem giving with for further but to reaching Spencer charge allowing jury and conspiracy a verdict on the and aggravated charges. Judge p.m., assault until 4:00 at which time Glazer deliberate The judge did not reveal the division to the verdict would be taken. numerical attorney. op- choice Judge sug- either Glazer then decided this third best p.m., Judge tion. At instruct- gested giving Spencer charge, a modified 3:13 Glazer little Spencer, longer 442 Pa. ed to deliberate for a see Commonwealth and their to reach a A.2d which is non- make best effort charge given juries they coercive to an agree- to deadlocked verdict as were close jurors Judge to which instructs be true to their ment. Glazer further instructed deeply-held convictions and also to reconsider their to not “surrender beliefs original opinion. get counsel out here and reach a verdict agreed Both to Thereafter, However, in Judge right.” decision. that’s not instructions, importance Judge Glazer told the about these also stat- Glazer reaching and them ed people “[t]his verdict asked is time try close, ego,” “you’re cigar,” deliberate and areas stand to resolve the on but jurors Judge “serving sys- difference. Glazer also said that the court does not tem in an effort to expect people to surren- Finally, deeply-held der their reach reach a verdict.” the court told views kept over Following Spencer charge, they would not be testimony requested additional the weekend. The resumed delib- ob- read back to them and erations at 3:20 Greer’s counsel another it jected charge arguing this charge conspiracy. on the of criminal directed at the two holdout requested testimony specifically court read back the jurors. counsel asserted that the supplied another instruction Greer’s not be allowed to deliberate conspiracy. of criminal should any the holdout further because ¶4 approximately p.m., Judge At rejected The court were identified. Glazer received another was not di- argument saying they explained why reach at the holdout rected aggravated a verdict on the assault and aas whole. charges. The note ex- conspiracy criminal Subsequently, p.m., at 3:53 plained that number nine had doubts into courtroom and testimony brought about officers’ and the was back police a unanimous discrepancies police announced had reached between officers’ verdict all A charges. found motion for a is mistrial within the guilty robbery Greer not and guilty of discretion of the A trial court. mistrial both criminal conspiracy aggravated upon parties motion of is assault. The court recorded the verdict required only when an incident is of jury. and dismissed the Greer’s counsel such a nature that its unavoidable effect again objection raised the court hav- deprive appellant of a fair and ing light taken of the fact impartial trial. It is within the trial Spencer the second was coer- court’s discretion to determine whether spoke only cive and to the two holdout prejudiced by a defendant was the inci- February On Greer filed dent that basis of motion for a notice extraordinary written relief appeal, mistrial. On our standard of again asserting court the trial should review is whether the trial court abused have declared a mistrial when that discretion. its revealed numerical division and the jurors. holdout The trial court denied this An of abuse discretion more than an 22, 2005, motion. March On the trial court judgment. error in appeal, On the trial years’ sentenced Greer to three to six in- court will not be found to have abused aggravated carceration for the assault con- its discretion unless the record discloses years’ viction and concurrent one to two judgment the trial exercised conspiracy incarceration criminal unreasonable, manifestly or viction. bias, of the result partiality, prejudice, ¶ appeals raising 6 now Greer the follow- or ill-will. ing questions for our review: 619, Tejeda, I. TRIAL Commonwealth v. 834 A.2d WHETHER [THE] COURT VIOLATED APPELLANT’S (brackets, footnote, DUE (Pa.Super.2003) 623 in- EQUAL PROCESS [AND] PROTEC- citations, ternal quotation marks omit- TION RIGHTS AND RIGHT TO ted). IN FAILING TO COUNSEL DIS- ¶ questions 8 As all of the arise from the PM NOTE [THE] CLOSE AND of contents the notes and the

2:50 PM FROM JURY DE- [NOTE] TO response, we will first address AND COUNSELS] FENDANT questions and third ar- together. Greer TRIAL II. THE WHETHER COURT gues that the trial court should have de- VIOLATED DEFENDANT DUE [sic] jury gave clared a mistrial when the EQUAL PROCESS [AND] PROTEC- numeric TION RIGHTS AND RIGHT breakdown its TO COUNSEL IN FAILING TO DE- deliberations that identified A CLARE MISTRIAL BASED ON the Brief minority. Appellant at 23. OF [THE] NOTES[?] CONTENTS Greer maintains that this information com- III. TRIAL [THE] WHETHER subsequent jury charge bined with the co- FURTHER COURT’S INSTRUC- alesced to have a effect on the coercive AFTER TIONS RECEIVING BOTH jurors. Appellant Brief for at 26. NOTES EFFECTIVELY COERCED

THE A JURY INTO VERDICT[?] ¶ deadlocked, 9 When a Appellant Brief for at 3. resulting jury charge follow the should guidelines forth Supreme set our standard review for Spencer. Spencer charge so-called determining whether mistrial should granted have been is well-settled: should all with one direct to consult such, appeals courts in an reach a unanimous various federal another effort to “rejected notion that have to individual decision without violence Brasfield’s must followed Moreover, approach se per reversal judgment. 275 A.2d at 305. on habe reviewing proceedings when state out jury charge single must not dis- 240 n. corpus.” Lowenfield, 484 U.S. at as instead, jurors, be direct- senting Scott, 546; Montoya v. 3, 108 e.g., S.Ct. see ed at all of the See id. 303-04. (5th Cir.1995); 405, 412 Jiminez v. F.3d effectively judge’s charge If (9th Cir.1993); 976, 980 n. 3 Myers, 40 jury’s the convic- coerces the then (6th Parke, 847, Williams reversed. See id. tions will be Cir.1984). Moreover, reading a close proposition, In support Greer indicates Brasfield States, 272 cites to v. United Brasfield prem explicitly of the United States 448, 47 71 L.Ed. 345 S.Ct. holding in the case on facts which ised dealt the coercive effects of asking for its involve a trial court asking trial court about nature 272 U.S. S.Ct. division. or extent of its numerical division. Here, into the inquire court did not Brasfield, U.S. at 47 S.Ct. 135. division, jury willingly rather the inquired trial court to how the However, the information. this divided after the informed the court into inquiry not end our this matter does that it was unable to on a verdict. of Supreme the United States as Court The jury See id. informed the that still that in stated Brasfield Lowenfield three, it split nine to potential dangers as of “instructive to many how of indicate were vot- Lowenfield, at jury polling.” 484 U.S. 240. ing guilty guilty. and not id. The See 108 S.Ct. 546. jury resumed deliberations and returned Lowenfield, 12 In trial court asked guilty with a verdict. See id. The Su- of to vote in individ- the members preme Court of the States conclud- United ually they whether written secret ballots ed this inquiry that warranted reversal thought would lead to further deliberations the question because was coercive and 234-35, 108 546. verdict. See id. at S.Ct. generally improperly would influence posi- of indicated a Eleven out the twelve 450, jury. id. at See 47 S.Ct. 135. negative tive answer while indicated ¶ 11 Greer contends court, using Brasfield id. The trial these one. See at hand holding applies per se to results, gave another of knowledge because trial court thirty after min- produced a verdict breakdown. While we find Supreme Court of the utes. See id. The claim, legitimate has a we decline to Greer poll- type that this States ruled United follow was de by See ing was sanctioned Brasfield Brasfield Brasfield. Supreme of the United cided Court 240, 108 Lowenfield, 484 S.Ct. 546. U.S. supervisory in States the exercise its that the combina- The Court further noted over Lowen powers along federal courts. See particular of this tion 239-40, Phelps, v. 484 108 coer- U.S. of the was not polling field (1988). Indeed, deny 98 L.Ed.2d 568 way S.Ct. Lowenfield cive rights. id. at Supreme Court United States See stitutional willing- no men holding has “makes demonstrates stated Brasfield any of the United Clause or tion of Due Process ness case on own facts. to decide each provision.” other constitutional Lowen States also 3, 108 holding id. The 240 546. As field, 484 n. S.Ct. See Lowenfield indicates that some instruc- these der circumstances was coercive and constituted error. reversible jury polling tions and will in a viola- result tion rights of constitutional while others Id.

may not. See id. In Ajiboye, United v. States (9th Cir.1992), F.2d the Ninth Circuit ¶ 13 Two cases the United States interpreted Aji- further In Sae-Chua. Circuit, Court of Appeals for the Ninth boye, sent a deliberating while not precedential this Common- judge indicating split the trial wealth, test, delineate a using the Bras- 9-3 convict on one count and 9-3 reasoning, determine whether a field on acquit the other. 961 F.2d at 893. jury is into giving coerced a verdict where judge gave After modified knowledge hung jury’s of a is volun- split jury requested testi- re-reading teered to trial court. United States mony. following day, See id. The (9th Cir.1984), guilty came back with verdicts they Ap- counts. informed both See id. peals distinguished case from Sae- 11-1 guilt. deadlocked favor Chua, concluding 725 F.2d at 531. The trial court then coerced into a verdict the court did not brought into the courtroom and jurors’ identity. know the holdout id. See poll conducted a determine of Appeals at 894. The Court further they thought further deliberations would jurors’ stated where the iden- one, produce verdict. See id. All but tity is not known to the trial court at the dissenter, presumably lone said made, the charge time thought further deliberations would lead to think that the was charge specifi- delivered a unanimous See The court id. id.; to him cally or her. See see also gave a charge jury modified to the and Lorenzo, United States v. later in day, jury the the with a came back (9th Cir.1995) (concluding the of guilty. unanimous verdict id. The See anonymity dissenting of the was an Court of Appeals the Ninth Circuit important concluding factor in the reversed stating: jury charge impermissibly coer- cive). The Court concluded the The would have been aware not [ ] impermissibly could not have been coerced only of the numerical division and the given charge. Ajiboye, the See majority fact that a of eleven favored at 894. The fac- Court listed certain conviction, the identity but sole determining tors to look at when whether dissenter. The dissenting was jury charge following a note the judge pos- aware of fact that the the judge indicating was to division knowledge. sessed this Under these cir- These factors include: coercive. See id. charge cumstances the could length of time the deliberated read dissenting being as following jury charge; hardly escape leveled at him. He could testimony to be jury asked read back reasoning likely that the jury charge; gave after to he persuade believe that part and whether instruc- opposing position to adopt eleven his tions told the members to ...; he, individually, being and that conviction as to the “surrender honest urged by judge to reconsider and to weight simply effect of the evidence giving charge vote.... un- reach verdict.” Id. [T]he Now, You’re bar, you’re almost there. there In the at the facts your But we need best on one count. deliberated for demonstrate you to This is need talk. half-day informing before efforts. We approximately on ego. to stand people that it not time judge, by p.m., a note at 12:80 depending people’s to lives are charge as There’s had reached decision your partic- and on your verdict was deadlocked 10-2 on one but fairly If you you if do so. charge. ipation, can and 11-1 on the other note jurors were in can. specific also indicated which inform minority. because, always that And there’s caveat the contents counsel on either side about said, you probably I know—this is as stating said note aside from people to fourth time—don’t ask third or on one had reached a verdict get to deeply-held beliefs surrender having problems and out of here and reach (“N.T.”), Transcript other two. Notes of right. that’s not 2/11/05, gave Glazer then Judge hand, you other each of has On the N.T., charge. initial Spencer just judging by the note views and what 72-75. The trial court never close, So says, you’re cigar. we to instructed the deliver another and to do you go try to back need describing division. After resolve case. the court asked I that’s —we’ve been here almost mean testimony for trial to be re-read addi of time. It’s a lot of It’s lot week. given tional instructions be I your everyday, I’m here work time. N.T., conspiracy. of criminal you system serving But here. 2/11/05, at 76-85. an effort reach deliberations, Following further fairly you if can do so. jury again came back the court with you go going So I’m to ask back. again another note indi- keep you here over going We’re not again cated the divisions in the that. worry Don’t about weekend. singled Judge out go ask back and going We’re the contents of the note to Glazer read it. But try I think can do including identity counsel on sides the both just mind. Listen to each keep open jurors. of the holdout After consult- two Okay? on. other. Go counsel, ing court to keep the decided N.T., 2/11/05, at 87-90. jurors until

the to determine N.T., they could reach ¶ second anti-deadlock 2/11/05, jurors the sending at 86. Before context and charge must be viewed deliberate, Judge out to Glazer anoth- this of under all of circumstances er This states in relevant charge. it was coercive. See determine whether part: States, Jenkins v. United 380 you go I’m that back going to ask (1965). 1059, 13 L.Ed.2d 957 indicates to little bit. What this that the trial court had Initially, we note talking me is not or is either someone majority by told twice that been And, you listening. is not someone jurors conviction of the favored par- know, you owe that to the I mean identity of the trial also knew court ties here. Moreover, ju- holdout jurors. holdout judge fact

rors aware of the ¶ given knew identities having their 19 As we merit in have found Greer’s assertions, only court a outlining divi- we find no need to reach the Therefore, of question. sions of merits his first also the reasons the reasons, judg- we jurors foregoing vacate the did favor convicting Greer. of ment sentence and remand the matter During new trial. for a keep did instruct their ¶20 Judgment of VACATED. sentence long-held beliefs and not to them give up REMANDED a new trial. Case Juris- N.T., 2/11/05, for any reason. at 89. RELINQUISHED. diction However, judge also stated that “each [juror] has views and what judging ¶ LALLY-GREEN, J., files but, note says, you’re cigar,” close Dissenting Statement. not time for people “[t]his is stand J., N.T., LALLY-GREEN, Dissenting. ego.” (emphasis at 89 added). Moreover, judge told also ¶ 1 I Because would conclude that the jurors system “are serving the coercive, I trial court’s instruction and the to reach an effort respectfully majority’s from the dissent verdict,” “listen to each other.” opinion. well-reasoned The majority rea- N.T., 2/11/05, at Although 89-90. under that the trial instruction sons ordinary type circumstances this improper light wording of its and in coercive, here, would not be light knowledge the court’s of the jury’s knew the two jury’s notes about the that, I totality under the division. believe majority division that the a convic favored circumstances, court’s sup- identity jurors. tion and the holdout plemental pursuant to Com- The fact identity knew the 442 Pa. Spencer, monwealth v. of the A.2d 299 holdout casts this instruction was within bounds of I Accordingly, the law. would affirm the as a whole in different light and shows it judgment trial court’s sentence. specifically be directed at the holdout See In Spencer, our Court set (concluding possessed that were the judge the proper supple- forth standards for a knowledge identity dissenting of the jury: mental to a deadlocked juror, resulting charge could (a) Before the retires for deliber- him). seen to be leveled at It ation, give may the court an instruction can hardly “escape reasoning that (i) jury: which informs the order likely that [the believe return each jurors] persuade oppos (ii) thereto; have ing jurors] to adopt [ten position[.]” [their] duty to one consult with another and to Moreover, 725 F.2d at 532. reaching deliberate with a an view only thirty-three deliberated for min if be agreement, it can done without utes following charge did (iii) judgment; violence to individual any testimony not for re-read ask to be juror that each decide the for before back with a as to all coming verdict himself, an impartial after charges. Looking at factors these sideration of the with his evidence fellow (iv) in totality, charge we conclude that the jurors; that in the course of deliber- ations, given under these was coer circumstances should not hesitate cive change and constitutes reversible error. reexamine his own views and his erroneous; of the case with impartial consideration if it is opinion convinced jurors. You are advo- (v) fellow not your his that no should surrender Do not or the other. or side weight as to cates honest conviction own your views to reexamine hesitate solely effect of the evidence if are change opinion you jurors, your and to opinion of his fellow or you wrong but do convinced are returning mere purpose (b) your honest belief as to it surrender If court appears solely be- agree, weight and effect of evidence jury has unable to the court been opinion your fellow require jury to their cause of may continue returning a may give purpose an or for the mere repeat deliberations and or (a). in provided instruction as subsection reject 235, 108 Spencer n. The

Id. at Court S.Ct. 546. Id. at charge Allen1 ed traditional 4 I would conclude employed in the courts been federal guide- is charge consistent found many Supreme Our decades. in The trial court forth Spencer. lines set in charge problematic Allen the traditional informed the simply appears its directed language their listen to one another use should minority jurors. specifically guide case, if possible, efforts to resolve the best in a trial Spencer lines set forth allow sacrificing deep their own beliefs. without charge supplemental issue a direct com- trial ju specifically minority is not directed minority jurors. Further- ments to P.L.S., also, rors. See Commonwealth v. more, in charge at issue Lowenfeld 2006). Super (February 2, PA similar to the issue strikingly ¶ 3 In Phelps, 484 in- instant matter. The Lowenfield 98 L.Ed.2d 568 ego,” not to “stand on structed the majority opinion, discussed detail deeply-held “surrender but further N.T., the United States Court conclud right.” .because that’s beliefs.. di following charge ed that further at 88-90. The minority jurors: rected at you serving system “But charged: effort to reach Gentlemen, Ladies and as I instructed (em- fairly do so.” you if can Id. verdict you earlier if the to unani- unable added). view, little my there is phasis mously agree on a recommendation instant between the substantive difference impose shall of Life sentence at issue in Lowen- and the Imprisonment of Proba- without benefit that the trial court’s I do not believe tion, Parole, Suspension or of Sentence. feld. mi- directed at charge was you it is When enter room nority jurors. duty your consult with one another to to dis- consider each other’s views and ¶ Moreover, persuaded that I am not objective of cuss the evidence with the divi- jury’s unsolicited disclosure if can do so reaching federal new trial. Several sion warrants judg- to that without violence individual determined that courts have circuit ment. of its division jury’s unsolicited disclosure giving a trial from preclude case for

Each of does decide See, charge. unobjectionable otherwise only after yourself but discussion States, (1896). 41 L.Ed. 528 Allen v. 164 U.S. United Norton, e.g., m complies respects United States v. 867 F.2d all with Spencer. (11th Cir.1989); Therefore, v. United agree Butler I Appellant do not is (5th States, Cir.1958); F.2d Bowen to a entitled new trial. (8th States,

v. United 153 F.2d 747 Cir. reasons, 7 For the I foregoing respect- 1946). The that an Bowen reasoned fully dissent. appropriate supplemental charge may serve to avoid the time of a expense

re-trial, especially guar since there is

antee that a retrial will produce less Bowen, jury.

divided 153 F.2d at 752. The

Court concluded that informa unsolicited

tion in not sufficient Likewise,

of itself to warrant retrial. Id. the Eleventh in Circuit Norton concluded Pennsylvania, COMMONWEALTH trial court’s instruc Appellee, tion in permissible was that it not “an exhortation the minority to reexamine in majority....” views deference to the KLEINICKE, Appellant. E. William Norton, 1366. These cases argue persuasively that a trial Superior Pennsylvania. jury’s knowledge simply division one factor determining to be considered in Argued March legality supplemental charge. aof 8, 2006. Filed March majority upon relies United Sae-Chua, (9th States v.

Cir.1984), authority persuasive for its

disposition of this matter. matter,

as well as in the instant the judge minority juror’s identity. aware of the

Likewise, was aware that juror’s identity. knew the While I majority these are

significant factors be considered de-

termining supplemental charge verdict, I

coerced a do not believe

sufficient to warrant a reversal the in-

stant matter. That the

inquire jury’s should, as to the division

my view, carry significant In ad- weight.

dition, I that an appellate believe

should be wary speculating

psychological of a Spencer charge effect minority

was to coerce to surrender view, majority especially

to the where

explicit charge comply fully terms of guidelines. Spencer that, view,

judge gave my an instruction notes defense Commonwealth Greer counsel. We find assault, robbery, aggravated with Greer’s assertions to and have merit. Accord- ingly, conspiracy. criminal A we vacate Greer’s trial com- convictions and 8, 2005, on February remand the matter for a menced and following new trial. days of testimony, two the Commonwealth ¶2 underlying facts in and Greer rested their cases. The have been summarized the trial court: began deliberating Thursday, on February 5, 2004, February 10, 2005, On Zhang Bin was at approximately 3:20 At working Dragon permitted Golden Restau- p.m., go 4:10 Philadelphia] rant [in when he received with home instructions to return to contin- telephone requesting call food following day. deliv- ue deliberations the ery. Zhang recognized Mr. the custom- resumed its deliberations the next telephone Initially, er’s number as num- day. the same sent out a note in previous robbery. ber that was used requesting testimony be read back to Mr. notified and Zhang police Offi- them. The for a clarifica- also asked Moody cer responded Gerald to the call. regarding conspir- tion the law on criminal Upon arriving at Dragon, acy. the Golden The court the testimony read back Mr. Zhang explained Moody to Officer and instruction on delivery that he had received a re- criminal conspiracy. approximately At quest telephone p.m., from a that was a note to number sent prior Gary used a customer on a occasion Honorable which stated S. Glazer robbery. guilty resulted Officer had reached Moody Burgla- robbery, located officers from the on the ry posted Detail Unit had them to reach a verdict the criminal unable delivery address. conspiracy aggravated assault testimony. The victim’s testimony as to charges. The also stated that juror number explained note further conspiracy charge, the criminal the evidence guilty ten was not convinced that ten two favor of was divided defendant was voting actually established nine ten

Case Details

Case Name: Commonwealth v. Greer

Court Name: Superior Court of Pennsylvania

Date Published: Feb 14, 2006

Citation: 895 A.2d 553

Court Abbreviation: Pa. Super. Ct.