*1 Joseph Bassett, Eugene FIELDS and P. P. Appellants, Alaska, Appellee.
STATE of
Nos.
Supreme Court of Alaska.
Aug.
Alaska, Highway. At about on Seward p. nylon stock- wearing two men 10:30 m. living ings over their heads burst into the Bryson room and held and Michael David gunpoint, ordering them into Warburton at striking and one of them who was the den shot react. of the assailants slow to One family Betty Bryson, dog. Michael at appeared, Bryson, and Patrice Warburton on they all to lie down and were told floor. Bryson Leroy ar-
At about this time Mr. held The assailants rived at the residence. him, and bound gunpoint, him at searched opened robbers also his hands. The two dumped its contents Bryson’s purse, Mrs. floor, through her wallet. and went on threats had made the robbers After agreed to Leroy Bryson finally victims, shop nearby jewelry in the open the safe Bryson Mrs. belonging to the Warburtons. were left basement and the children Thorsness, Erwin, Hughes, Robert C. jammed so door the basement Lowe, Clark, Anchorage, ap- for Gantz & entering the Upon get Out. they could not pellant, Fields. took substantial jewelry shop, robbers appellant, for Johnson, Anchorage, B. G. casting gold, some nuggets, gold quantity of Bassett. coins. currency, and commemorative Edwards, Gen., Atty. Juneau, the base- G. Kent back to Bryson took Mr. robbers Tobey, Atty., Harold W. Dist. Robert L. where house ment of Warburton According Eastaugh, Atty., E. Asst. Dist. Keith present. were victims Brown, Atty., Anchorage, talk Asst. been some Leroy Bryson Dist. there had robbers, appellee. by one of killing him about a course against such but the other was BONEY, DIMOND, J., Before C. returned Bryson was Leroy action. When CONNOR, JJ., RABINOWITZ residence, all of the vic- to the Warburton LEWIS, Superior Judge. and the tele- again up tied once tims were The rob- the wall. pulled off phone was OPINION left, approximately it took then bers BONEY, Brysons Chief 20 minutes before Justice. Le- themselves. free able to others were appeal from convic- and Bassett Fields place nearby ato Bryson then hastened roy verdicts, tions, of the offenses after police. to call dangerous weapon, at- of assault with grand lar- robbery, robbery, and tempted a. m. October approximately 1:20 At nearly grounds appeal are ceny. Their stopped were 13th, and Fields Bassett identical, considered cases roadblock in a Troopers the Alaska State together. Highway, on the Seward Milepost at rob- scene of from the miles 12, 1967, about 80 Michael Warbur- On October however, made, arrest was Warburton, bery. No ton, Betty Bryson, and Patrice a 1963 driving Bassett was time. Bryson were her sons and Michael David bor- Pass, automobile Ford white at Moose at the Warburton residence Leroy Bry- Michael, At trial Q. rowed from friend. you I ask whether or not —you son testified that he was to see the able can look in the courtroom and robbers, vehicle used and he describ- you person whether see persons ed it being white or cream-colored. referred to having been in the Warburton home on October 1967? subsequenly
Fields ar- and Bassett were *3 charges stemming rested on from the A. I positively cannot say recog- that I jewelry shop robbery, brought and were to nize them.
trial and convicted. Now, Q. you’re saying then that there appeal Fields Bassett raise the is-
On question your some—some mind as tending testimony (1) sues whether certain to exactness? the witness
mitting
ty.
identification
tain
tention that
in giving
whether
struction to the
ness
liberating
erly
ADMISSION
We
identify
state’s
(b)
testimony
admitted,
Perry as
deal first with
certain
request
the defendant Fields was
reputation
supplemental
Michael Warburton.
court erred
the trial court
TESTIMONY
testimony
whether the court
(2) offered to
nearly
identification
OF IDENTIFICATION
(a)
after it had been de-
his use of narcotics
for truth and veraci-
the defendants
two
was
verdict-urging
impeach the
appellants’
days,
excluding
erred
testimony of
prefaced
Michael’s
in ad-
prop-
place
erred
con-
wit-
cer-
(3)
in-
A.
body here.
please ?
night ?
Q.
ing).
A.
son
being in the Warburton home on Octo-
ber
courtroom that
Q.
A. Yes.
do
Q.
of the men that
[*]
[*]
you
12, 1967,
Yes,
It is that man on the
All
Can
Based,
whom
right.
see
[*]
[*]
you
I think I can
Michael,
you
any persons
at the time of the
describe him?
Would
[*]
[*]
you
feel
you
have referred to as
you
[*]
[*]
you
observed on this
your
recognize
present in the
point
recognize
left
[*]
[*]
observation
(indicat-
robbery,
some-
[*]
5fC
per-
out
Follow-
hair,
faces.
nylon stockings
short,
over their
A. He is
dark
dark features.
was excused
request
this
Q.
sitting
I see. He’s is
one sit-
—the
during
occurred
voir dire
a substantial
right
(indi-
Brundin
ting to the
of Mr.
atempted
justify
the state
which
cating) ?
dire, Michael indi-
During
quest.
the voir
Yes.
A.
by the
cated,
question
response
identify
court,
either
could not
he
examination,
indicated
Michael
On cross
doubt:
beyond reasonable
the defendants
identify the
positively
not
that he could
is,
you
However,
he
Well,
question
did state that
can
Q.
but
defendants.
that Fields
here now without
of his belief
identify anyone
was rather certain
when
in the house
their head relative
the man who was
stocking over
was
house and—and—went
was committed.
—who was
the crime
to?
testified
through
activities
that this identification
Appellants claim
it without
reasonable
A.
I cannot do
sufficiently
positive
testimony
was
doubt.
admissible,
that its admission
become
particular
dire,
because of
prejudicial
the court
lengthy
After the
voir
case, in
the as-
which
defend-
ruled
it would
direct the
circumstances
their faces.
stockings
over
nylon stockings. The
sailants wore
ants
wear
unable to
testimony
robbery
were
following
Four
victims
and the
was returned
But there was
assailant.
identify either
was heard:
evidence,
jury,
merely
but
besides
Warburton,
pointed to Michael
should
which
Warburton
not have been
Michael
State,
perpetrators
supra,
as
admitted.
In Ross v.
there
Fields and Bassett
Leroy Bryson
very
opportunity
little
for the wit-
the offense.
witness
positive
distinguishing
identification
nesses
even observe the
a much more
made
identify
There was
Michael
characteristics which would tend to
than did
Warburton.
larceny.
perpetrator
tended
The victim
also circumstantial evidence which
any positive
was unable to make
identifica-
identify appellants.
him,
photographs
exhibited to
adopt
rule
Appellants
that we
ask
persons
pictures
several
but selected the
testimony in
identification
would render
possible
being
suspects.
positive.
witness
unless the
admissible
lineup
a later
selected a
victim
*4
appellants
a
cite
support
In
of such
rule
particular
being
person as
the thief. The
191,
N.E.2d
People
Bryan,
Ill.2d
188
v.
27
salutary
employed
in
court
the
rule
Gardner, 35 Ill.2d
People v.
(1963);
692
order
the
to be sufficient
there
State,
564,
Ross v.
(1966);
232
221 N.E.2d
be
opportunity
an
observe the fea-
People
(Fla.Ct.App.1966);
So.2d 187
190
voice, mannerisms,
tures,
of
or demeanor
581,
Barbosa,
62 Cal.
Cal.App.2d
254
v.
as to be
the assailant so
able
isolate
Beigel,
v.
Rptr.
(1967);
212
States
United
person
memory
and
of the wit-
mind
affirmed
(S.D.N.Y.1966),
F.Supp. 923
254
clarity to make a sub-
ness with sufficient
1967); Peterson v.
(2d
F.2d 751
370
sequent identification.
Columbia,
(D.C.
95
171 A.2d
of
District
Barbosa, supra,
United
the
Mun.App.1961);
People
and Hendrix v.
In
victim
v.
States,
very
(5th Cir.
of
uncertain about
F.2d 971
the offense was
327
assailant,
only
argument
identity
authori
hear-
with
the
the
and
state counters
of
testi
say
introduction of
permit the
evidence was left with which
connect
ties which
Cahan,
People
of
the
v.
mony
positive.
than
the accused to the commission
less
Columbia,
(1956),
be
and free
inconsistencies.
THE ALLEN CHARGE
(Citation
‘If
omitted.)
Appellants
identifying
is worthy
witnesses
assert
the trial court
erred in
jury,
giving
supplemental
credence and
verdict-urg
the lat-
convinces
finding
ter’s
objections
is final unless the
instruction to the
over
jury
trial
judge
his
both the prosecuting attorney
should with
intimate
and the
knowl-
edge
upset
of the
counsel for
witness’ behavior
both defendants. The instruc
was,
potent exception,
verdict.
It is not essential that
the wit-
one
sub
stantially
commonly
ness be free
as to
from doubt
one’s iden-
similar
what
belief,
tity.
may testify
Charge.1
in his
as
He
known
the Allen
This instruc
judgment
or
accused is the
tion was
trial
delivered on the
court’s own
person
perpetrated
who
the crime. The motion
failed
jury
after
to return
positiveness goes only
want
to the
the third morning
unanimous verdict
weight
testimony.’
charge
P.2d at
deliberations. The
was a rela
tively long
fully
one and is set out
below.2
charge”
1. The name “Allen
is derived from
diet—the result of his own convictions
Supreme
approval
acquiescence
Court’s
of a some-
and not a mere
in the con-
charge
fellows, yet,
what similar
in Allen v. United
clusion of
order to
bring
17 S.Ct.
twelve
to a
minds
unanimous
sult, you
questions
L.Ed. 528
must examine the
you
candor,
submitted to
and with
charge
regard
proper
2. The
read:
and deference to the
Although
juror
opinions
to which
the verdict
You should
of each other.
agrees
course,
must, of
be his own
consider that
the case must at some
ver-
Allen
concluding
the traditional
its
in-
hold that
We
emphasizing the
:
structed
type charge,
virtue
duty
jurors to reconsider
minority
you
With that admonition
are directed
like admonition
without a
their views
your
continue
deliberations until
ar-
you
inherently fraught with
majority,
is so
rive at a unanimous verdict. You will
be
cannot
again
your
use
room
jury
coercive tendencies
retire to
and con-
your
tinue
(Emphasis
deliberations.
contrary holdings in Chase
justified.3 The
supplied.)
are over
State5
State4
Gafford
naturally
is our
that a
view
would
ruled.
conclude that
the judge’s charge meant
Moreover,
chal-
scrutiny
reveals
exactly
said,
what
would
lenged
additional non-
instruction included
required,
directed,
be
delib-
continue
un-
language
Allen
rendered it
type
which
they
erations until
at a
arrived
unanimous
deniably
necessarily
Its vice
coercive.
requirement
clearly
verdict.
Such
soundly
one
condemned
contrary
serious
our
law.6
pass
prior authority.
should not
Its use
instruction
in effect
demanded
this court unnoticed.
agreement,
possible
and it is not
for us to
decided;
you
you
minority
time be
are
acquittal,
selected
are for
manner,
equally
the same
from the same
should
ask themselves whether
any
source,
they may
reasonably
ought
which
future
come;
judgment
and there is no reason
doubt
the correctness of
suppose
the case will ever
is not concurred
number
persons,
men
they
submitted
twelve
twelve
with whom
are
those
associated
intelligent,
im-
sufficiency
more
weight
women more
and distrust
partial,
competent
carry
or more
decide
of that evidence which fails to
it, nor that
clearer evidence
more or
conviction
the minds of
fellows.
produced
on one side or
With
that admonition
directed
*6
view,
your
your
you
other. With this in
it
is
to continue
deliberations until
you
duty
if
can con-
to decide the case
You
arrive at a unanimous verdict.
scientiously
make
jury
do
In order
your
so.
to
again
retire
room and
practicable,
law
your
a
more
the
decision
deliberations.
continue
imposes
proof
the
one
burden of
on
Rope
Mangan
and Bascom
v. Broderick
party
other,
in all
or the
cases.
(7th
1965),
24,
Co.,
Cir.
351 F.2d
present case,
the
the burden of
denied,
86 S.Ct.
383 U.S.
cert.
upon
estab-
—the burden is
the State to
(1966) ; Green v. United
fendants, or such de- either 40; Comment, and Juries Deadlocked defendants is entitled to fendant or Dynamite: “Al at the A Look Critical be ac- and must benefit of doubt (1964). Charge”, 31 U.Chi.L.Rev. len together quitted. But, conferring you pay respect 1962). ought proper (Alaska each 1004-1005 369 P.2d reasons, opinions with other’s 1968). (Alaska 405, 415-416 5. 440 P.2.d disposition each to be convinced Project And, on arguments. Bar Ass’n on the one The American other’s Justice, you larger hand, for Criminal number of Standards much Minimum if ju- (Approved by Jury dissenting Draft conviction, the Trial are for a 1968) doubt whether the consider states: rors should may judge trial one a reasonable t is clear [I] minds is their own jury disagreeing impression upon that he will not tell a makes no which indefinitely together many keep or un- women men and them of so minds Boyett intelligent, upon honest, equally they agree equally verdict. a til evidence, (5th F.2d 482 the same United have heard and who Rodman, equal attention, 1931) ; with an State same Cir. truth, 204, (1945) ; Char- under 23 So.2d desire to arrive at La. And, State, So.2d Miss. same oath. the sanction acter v. majority hand, if the may justified. requirement the law for there is no such see how jury* agree.10 hung jury that a A these speaking, judge This is the trial, legitimate final end of a criminal and is words; they constitute final occasionally requir- de- inevitable result of jury before impression made recog- beyond a unanimous verdict reason- resumed. When liberations able subject- doubt. judge nized, obvious it is degree and of a pressure jury ed the subjected Here a the direc the Allen approved never type aof deliberations, tion to continue “until Charge. arrive A unanimous verdict”. Allen here is not instruction member three so instructed faces but para- reasonably accurate Charge but beyond (1) choices: to convince all a rea ad- by a substantial phrase of followed doubt, surrender, (2) sonable without care- the more within not embraced dition conviction, conscientiously held; a view the Allen language of fully measured (3) indefinitely in the together to remain alone, unac- Charge Charge. The Allen agreement. For a absence unanimous unembellished, severe cented and minority juror the oth persuade unable to upsets that deli- The elaboration enough.7 unwilling ers surrender conscien Allen prior has allowed cate balance belief, by his be tious confinement of all it has been Repeatedly, Charge approval.8 anyone say lief is the choice. Can represents Charge the Allen declared that pres generate that such a result does not urging judge go
the limit which assuredly been ex- Most having That limit sures that are coercive? a verdict.9 here, apparent. error is ceeded rule follow majority surrender Moreover, subjec average juror.11 for an that a the instruction is import its total pressure this nature with tion to either a ver- criminal trial must end with Yet, this is guilty. innocence, guilty dict or not or the evi- guilt, irrelevance to Smith, J., dissenting), (5th Cir.) 303 F.2d (Brown, 7. United States cert. denied, 82 S.Ct. L.Ed.2d 820 significant 8. It those cases ago long States As approved which this court Charge the Allen Supreme Fifth and said that there was an absence of Fourteenth courts Amendments invest balance-destroying language additional authority discharge *7 with the a State, 440 found here. v. Gafford is, there after without a verdict whenever 405, 1968), (Alaska 416 n. 53 the P.2d deliberation, proba- “a due bility reasonable supple- specifically noted that the court agree”. jury not the could charge mental was a “balanced one”. 135, Montana, Keerl 213 U.S. v. State Harris, 348, 734, 469, 470, 138, v. United States 391 F.2d 29 737 53 L.Ed. S.Ct. (6th 1968); 354 Green v. Cir. United States, 852, (5th F.2d 309 855 Cir. one is obvious when 11. This conclusion 1962); Smith, 303 F.2d United States v. pressures gen the inevitable considers 341, 1962); (4th 343 Powell v. Unit Cir. juror’s dissenting realization erated 318, (5th States, 321 ed 297 F.2d Cir. indefinitely that all remain confined 1961); Rogers, 289 F.2d United States v. That his beliefs. because of individual 433, (4th 435 Cir. particularly pressures these are acute 348, jurors Harris, where, here, in their 391 F.2d the United States as 1968); (6th Thaggard apparent. day 355 Cir. Unit third deliberations recognition States, 735, (5th ed 1965) (Coleman, J., concurring), 354 F.2d demands Common sense jurors the cert. de the to return to desire of 1222, uprooted. nied, 958, they have been 383 U.S. life from which S.Ct. juror presume (1966); average an L.Ed.2d 301 v. United To Williams pres States, recognize U.S.App.D.C. to these 338 F.2d and succumb States, (1964); indefinite confine sures the face of Green v. United presume 962); the absurd. 309 F.2d Huff ment is to Cir.1 States, man United the us.13 There defendant was convicted justification at trial finds little deuce by jury robbery. to reach verdict of Prior our law.1 the their verdict the had informed charged more jury here was they were to reach decision. unable consider; it was duty carefully than a responded stating: The judge de- reach a unanimous forced to in effect being Now, accept am not this. You going I charge of the language cision. got in this decision misconception of our reach a basic coercive case.14 in all likelihood was law transforms what into expediency attempt at innocent trial, object did but rais- Defendant plain in the face positive error. For appeal,15 for the first time on ed issue simply absurd charge it is meaning of this Court, one where the United States Circuit and un- left free say juror that a was judge dissenting, stating: affirmed Nor by his conviction. fettered to stand for character- basis whatever We see no vital with the assume, dealing can when we coercive, es- izing these statements as accused, criminal rights lay juror did not reconvene pecially as the not intend to execute judge did fol- until the and resume deliberation ques- jury would his instruction or that the day.16 lowing sincerity. granted Supreme Court The United States de- verdict-urging When certiorari, 85 S.Ct. 379 U.S. juror opposed livered at least one if “the statement to determine L.Ed.2d pronouncement, Following its conviction. court in coercive”. The per curiam sur- any dissenter faced the alternative General opinion noted that Solicitor compel- rendering his sincere conviction stated in his brief: together indefi- ling his to remain fellows coer- nitely. In our such a choice is view course, should con- this Court Of if juror cive. under That coercion error judge’s statement clude that require our is so elabora- law clear to not it, judg- attributed to coercive effect tion. and the cause reversed ment should be principle Supreme trial; The United new States remanded States, sur- v. United 380 U.S. not be coerced jurors into Jenkins conscientiously indicated held (1965), rendering S.Ct. L.Ed.2d 957 views proper disposition before require case no elaboration.17 so as to clear practice inquiring condemning pressure 12.In the threat created jury may un- into the numerical division of well indefinite confinement Supreme agree, able to States fac- irrelevant have been influenced “every danger tors, consideration Court has indicated the verdict there only by than that of evidence “induced was not charge, expounded proper argument open law as court”. should be Brasfield Unit- excluded.” language condemned The thrust ed 47 S.Ct. *8 'pres- by is the Court identical 135, 136, 345, (1926). 71 346 E.Ed. case, does not ent and while the expressed a The court similar view Charge, disapprove the reason the Allen pretrial publicity in reference to while language apparent for the violative is quoting Justice Holmes: Charge. is, here, part of the Allen theory system of our is that U.S.App. States, 14. v. United 117 Jenkins in a will conclusions to reached case be (1964), 220, 346, 221 330 F.2d D.C. argu- and be induced 1059, 445, rev’d, 13 85 S.Ct. 380 U.S. court, any open ment (1965). * * 957 * L.Ed.2d outside influence. 351, Maxwell, 333, Sheppard v. 384 U.S. Id. 600, 1507, 1516, 16 614 86 L.Ed.2d S.Ct. 16. Id. at (1966). Quoting from Patterson Colo- v. 1059, 1060, 556, 445, 446, 454, rado, 462, 85 S.Ct. 17. 380 205 S.Ct. U.S. U.S. 27 957, (1957). 558, 879, (1907), 13 958 51 881 In L.Ed.2d L.Ed. view
839 in- prospect had the of indefinite service is so concluded that the statement The court invariably herently effect and the convic- coercive as to a reversed coercive quire holding Our threat reversal. tion. co- indefinite is continued confinement disap judicial decisions indicate Other supported.19 amply ercive is In challenged instruction. proval of States, 320 v. United 297 F.2d Powell apparent Even if coercion were not so (5th 1961), the court instructed: Cir. here, is, if the this coercive nature of of law you principles ‘If follow question, instruction a close believe we you by you re- and if given that pragmatic policy considerations ought you call the evidence this case require the doubt be favor balanced in agree upon able to a verdict. to be of the defendant and the case reversed. ’ * * * We co reach this conclusion because the instruction found coercive. That ercive impact questionable of a is States, United F.2d Green v. always precisely difficult almost to evaluate 1962), following instruction (5th Cir. appeal.20 permissible held to far exceed the lim- impact a the coercive When Allen Charge: of the questionable practice cannot assessed be *** minority duty is the of the [I]t accurately, pragmatic concern for defend majority argument to listen integ rights, impartial ants’ trial and the judgment with some distrust of their own rity jury process dictates that majority because rule is that the proscribed. questionable charge use of a judgment have better mere mi- than the danger preju There where * * * nority difficult, right a dice a defendant’s “preju- The instruction was said to have vio impartial jury fair trial will be hung right of an to a diced accused consequent lated due denial of jury stifle the by tending and mistrial process. practical considerations Where dissenting minority jurors”.18 voices of regard pose special proof in difficulties of compelled hold rights, supports We that reversal forma policy vital For jury rights.21 case. faced with practices protect tion of those States, they agree. Boyett 18. Id. at 856. v. United (5th 1931) (Co Cir. 19. It lias been held that is error judge jury in ercive for tell a judge they to tell a have “keeping sequestered them tended indefi duty agree. Thompson to or they verdict”). nitely until reached a Allen, 240 F.2d 1956) (Dicta that co an instruction is Brasfield gave impres if “it ercive 448, 450, 47 L.Ed. S.Ct. they verdict”); sion must reach a State Bar See also American Rodman, 208 La. 23 So.2d Project Ass’n on Minimum Standards (1951) (“The accept Court will not Justice, by Jury (Ap- Trial Criminal a mistrial and fur must deliberate proved Process, 1968); Note, Due Draft ; ther”) People Barmore, 368 Mich. Economy, Hung Jury: A Judicial (1962) (“duty 117 N.W.2d Charge, Reexamination of Allen agree”); Note, Instructing see also On Comment, 123,135-36 (1967); Va.L.Rev. Juries, Deadlocked 78 Yale L.J. Dynamite: A Deadlocked Juries (1968), where it is stated: Charge”, 31 Critical “Allen Look jurors judge error for the to tell U.Chi.L.Rev. they ‘got agree. to’ or ‘must’ perfect liberty propounded Since is at 21. Certain rules the United hang, Supreme prag the instruction *9 it has States illustrate duty impermis- preservation to decide the case is matic concern for of (Footnote omitted.) rights sible. of vital prejudice where establishment improper has also been held for a In difficult. Gideon v. Wain express right, 335, 792, to threaten or court an intention 9 372 U.S. 83 S.Ct. jury indefinitely (1963), example, to confine a or until L.Ed.2d 799 840
Therefore, even if we were not convinced
federal
repeatedly
courts have
faced
been
obvious,
determining
that the error here
we would with
whether
Allen
question
prejudice
charge
something
balancing
resembling
favor
of
it —con
—or
stitutes
favor of
an unwarranted
defendant.
intrusion
province
jury.
Fed
Having
charge
the specific
considered
be-
eral
appeal
circuit courts of
fre
us,
general
fore
we turn to a
review of
quently upheld
properly
charge.22
limited
Allen-type
provide
charges
an effort
Recently, however,
Allen-type
use of the
sufficient guidance to alleviate future er-
charge
severely questioned by
has been
ror.
courts,23
commentators,24
and the
approval
Since its initial
Allen
American
Project
Bar Association
on
decision,
charge
the Allen
become a
has
Minimum Standards
for Criminal
Just
federal
standard tool of both state and
ice.25
However,
judges.
descendants
Much
generally accepted
of what was
have exhibited numerous variations
Allen
1896,
when
of the basic
was decided is
Allen,
theme that
the necessities
supra,
good
today.
law
judicial economy
Contemporary
criti
require that when
divided,
jurors
they
cisms
the Allen
indicate
themselves
find
object
attempt
is less an
re-examine their
in an
commendation than
convictions
result,
to reach a verdict. As a
state and
toleration.26
opinions
Recent court
right
proceedings
States,
735,
(5th
to counsel in criminal
ed
354 F.2d
739
Cir.
apply automatically
1965) (Coleman, J.,
was held
concurring),
absent
cert. de
showing
special
nied,
958,
1222,
as
circumstances
383 U.S.
86
16
S.Ct.
L.
required
455,
Brady,
(1966) ;
in Betts
316
v.
U.S.
Ed.2d 301
Green v. United
1252,
(1942).
States,
852,
(5th
62 S.Ct.
841
growing
senting
commentary
their
conscientious
scholarly
reveal
convictions.
generally
ef This coercive influence is
coercive
viewed
potentially
concern
upon the mi
as a function of the
which the
charge
context
the Allen
fects
charge
given
inherently
is
appellate courts
and of
un-
Two state
nority jurors.
power
charge
balanced nature of the Allen
itself.
supervisory
their
used
have
poten
instructing
This latter
factor
results because the
practice
abolish
.
charge emphasizes
by the
responsibility
reexamination
tially
juries on
hung
minority
jurors
light
Fifth Circuit
of the fact
to reach
verdict.27
majority
equally
who
honest
has
indicated dissatisfaction
occasions,28
disagree.34
and dedicated
of recent
charge on a number
argued
judges
two
very least,
charge
At the
the Allen
en-
The Seventh
is
that it
unconstitutional.29
courages majority
failing
inaction
the District of Columbia
Circuit30 and
emphasize any
need
reevaluation
future
proscribed its
Circuit31 have both
result,
viewpoint.
majority’s
As a
use,
has severe
while the Third Circuit32
possibility
substituting
there is a
nu-
completely prohibited
ly
if not
limited
preponderance
requirement
merical
for the
Agreeing with
charge.
giving of the Allen
that a verdict not
unanimous but
criticisms,
the commenta
judicial
these
representative of the honest convictions
modi
tors have recommended
juror.
of each individual
fied,
invoked,
abolished.33
infrequently
tendency
The coercive
the Allen
It
from our review of
obvious
charge requires that
its use be discon-
approach
that a
recent authorities
new
suggested
this state.
been
tinued
evolving.
charge
the use of the Allen
that mistrial from a
deadlocked
analysis seriously questions the
Current
safeguard
liberty.35
It has also been
propriety
in its
giving the instruction
generally attempts
observed
the law
charge
the Allen
traditional- form. When
protect juries
potentially
coercive
today,
critical
discussed
common
consistently
influences.36 Instructions which tend to
appear.
themes
im-
most
portant
must,
of these is the fear that the minor-
course,
be coercive
be avoided
ity jurors
charge
will be coerced
prevent unnecessary infringement upon the
truly repre-
and fail to render a verdict
jury function.
must now consider
We
(5th
1962).
concurring
852,
854
Cir.
Brown,
30. United States v.
with one agreement, along if reaching ceeds from the sale remain- view *12 gold Perry individual further claimed violence Fields. can do so without must decide the that he you gold of learned from Fields judgment. Each do after which he sold had been from the yourself, case but so stolen for shop jewelry the evi- Moose Pass. impartial an at consideration jurors. In the your fellow dence with Defense concerted efforts counsel made deliberations, hesi- do not your course of impeach Perry’s testimony. On cross- your own views tate to reexamine examination, inquiry was made into it is opinion if change your convinced Perry’s testifying. Perry for motives your not surrender But do erroneous. testimony, that, in for his vealed return weight or as to honest conviction attorney promised district him had im- solely because of effect of evidence munity stemming prosecution from from jurors, or for your fellow alleged acknowledged He incident. returning a verdict. purpose the mere fact that he given immunity. criminal in return for partisans. cases are not You You Additionally, Perry freely admitted that of the facts. Your sole judges judges— he had been felonies on convicted of nu- is to ascertain truth interest previous merous in the case.41 occasions. defense the evidence Perry’s sought further to discredit testi- holding that error was committed Our mony by show, attempting to both cross- Allen-type to the submitting examination through require in itself sufficient witnesses, Perry had used and was appellants’ To reversal of the convictions. addicted to narcotics. On cross-examina- being possibility avoid the of further error following Bassett’s counsel the ex- matter, retrial of this how- committed change occurred: appropriate ever find it we consider Q. you Are dope points of error addict? remaining raised on appeal. No, A. I’m not. you Q. any Are the influence under
ATTEMPTED IMPEACHMENT OF right narcotic now? PERRY MICHAEL A. No I’m not. below, In the course of the trial Q. your Could I a look at arm? prosecution primarily relied on the testi- Yeah, A. look. can mony Perry of Michael A. to establish its Object being ir- [PROSECUTOR]: against appellants. Perry case admit- immaterial, relevant Your Honor. surveyed ted that he had the Warburton has testified. If witness counsel Jewelry Shop eye at Moose Pass with an bring wishes to some evidence forward it, to burglarizing and that he had discus- his inference that substantiate project sed the with Bassett and Fields. any type witness this time under Perry stated that he concluded that it, drug objection has no the state burglary risky, would be too and thus question asked, but the has been it has project. abandoned the According to any object type been and I answered Perry, days robbery after several he being inferences raised wit- Fields, Bassett and contacted who negative ness’ answer. asked him to them in assist selling some gold. Perry actually agreed, THE succeeded COURT: Sustained. Project Jury
41. American Bar Ass’n
on Mini-
Instructions
and Forms
Fed-
Justice,
Cases,
mum
Standards
Criminal
eral Criminal
F.R.D.
97-
by Jury
(Approved
Trial
146-47
Draft
1968). This instruction is instruction 8.11
fact,
justification for
may, in
tem-
There
impeachment was
attempted
This
ad
heroin use and
introducing evidence of
abandoned,
and no offer
porarily
the evi
impeach a
where
later
diction to
witness
At
defense
was made
counsel.
the time
pertains
dence
either to
further
probed
point
for Fields
counsel
has observed
he
which the witness
Perry
occurrences
subject.
denied
into this
instances,
addict,
past
or to the time of trial.
In such
either in
was a narcotics
potentially affect
use of
could
prosecutor ob-
heroin
currently. Although the
accurately
capacity
ob
of the witness to
questions, and most
to these
jected
sustained,
relate details of the events which
serve or
answers
objections were
accept
seen. But we
a rule
cannot
motion to strike
negative
given.
were
No
*13
persons
use or are ad
under which
who
by the state.
responses
these
was made
necessarily
to heroin
considered
are
dicted
proceedings,
one Donald
Later
inherently
unreliable
as witnesses.
by
defense.
was called
Chambers
a “com
The rule thus stated
based
that Chambers
prove
offered to
Counsel
scientifically
knowledge” which is
un
mon
Perry
her-
injecting himself with
observed
by
rejected
sound and which has been
August
court
July
oin
of 1968. The
penetrating judicial opinions
more
on the
testimony.
this
The de-
refused to admit
See,
Kelly Maryland
subject.43
g.,
e.
v.
sought
fense also
to introduce
Co.,
Cas.
(W.D.Va.1929);
Under the well rules settled evidence would otherwise be admissible. appellants should have been entitled to Because we believe prove ruling of bias. The the trial court Chambers and McGalliard would been excluding have of Chambers and bias, admissible on the issue of would preventing McGalliard Perry Moreover, not have been collateral.50 showing unjustifi- the condition his arms appellants’ request Perry ably bare attempts thwarted the appellants’ arms end, obviously directed at contradic thereby preventing a full and fair testimony. tion of his request This Perry’s possible disclosure of motives for part and parcel of appellants’ cross- testifying. Again, it is relevant to con- examination; it was no sense extrinsic Perry’s testimony sider was vital to the *15 evidence, and should prosecution, therefore been have and that the issue of his credi- admissible for purpose the bility was of contradiction therefore a crucial one. Be- regardless of whether it might cause of plain bearing the otherwise of the evidence have been by offered collateral.51 appellants the on the issue of bias, we think that its exclusion was un- The next claim of error centers warranted. attempt around impeach the to Michael Perry by that showing community repu
An his alternative for basis the admission of tation for truth veracity and the was bad. Perry’s heroin use exists trial, and is worthy At testified, Perry mention. the defense called the witnesses response in questions Chambers posed by and testify defense McGalliard to con- Kelly Mary drug, 47. As the court in stated the and could not be sufficient Co., prove (W.D. land Cas. 45 F.2d We think addiction. Va.1929) present : context of case distinc- these Practically every intelligent layman overly has tions are technical. The testi- of, many mony heard McGalliard, and have also read Chambers con- of, frightful sufferings provides strong together, endured sidered indica- drug deprived supply possible Moreover, addicts when of a addiction. * * * Certainly drug. testimony rejected by of the needed offer of medical being deprived might strengthened such fears [fears of well have drug] supply powerful hearing motive for evidence on of this the issue deception which not does exist in re- actual addiction. spect general. to matters in generally McCormick, 49. See C. The Law appeal, 48. On the state has insisted on of Evidence §§ point Perry, on cross-examina- p. Wig Id. at IIIA J. § tion, only was asked whether he ad- 1005(b), (Chad more, (c) Evidence § heroin, dicted to and not whether bourn rev. Similarly, had ever used heroin. McCormick, state underscores the fact § the testi- The Law of Evidence C. mony of witnesses Chambers McGal- liard related instances of use of
§47 reversed, appellants’ The Perry truth convictions are reputation cerning the proffer- and these this cases remanded to the su- objection, After veracity. perior court for a new the court trial to be testimony was excluded conducted ed conformity expressed Appellant with the foundation. adequate lack of an views opinion. had been proper foundation contends a the trial court committed laid and that failing admit error prejudicial ERWIN, J., participating. not proper
testimony.
argues
state
that a
The
testi-
not laid and
foundation was
CONNOR,
(concurring
part
Justice
correctly
require-
The
mony was
excluded.
part).
and dissenting in
of a
foundation before wit-
proper
ment
agree
majority
except
I
with the
testify concerning
anoth-
ness
allowed to
portion
holds
it error
exclude
community
reputation
er
witness’
testimony
of the witnesses Chambers
one,
wholly
important
is an
and must
McGalliard,
purpose
elicited
for the
Yet this is an area which
disregarded.
impeaching
Perry.
the witness
confusing, and
proven unnecessarily
often
testimony
Perry using
The
about
ad-
frequently
in which technicalities
mitting
so remote
use
narcotics
permitted
prevail over substance.
been
case
critical events in this
goal
of the foundation
ultimate
not, in my opinion,
drug-
could
establish
quirement
in Whit-
has been well described
caused,
impairment
faculative
at the times
(1st
v. United
Perry’s
testimony.
critical
1961) (citations omitted):
of these
exclusion
qualify a wit-
It is
that to
fundamental
Perry’s reputation
witnesses about
for truth
give
con-
competent
ness
view,
veracity is, my
harmless error.
repu-
cerning defendant’s character and
Perry’s reputation
thoroughly impeach-
usually re-
community it is
tation in the
testimony.
ed
his own
asked on
When
quired
showing that the
that there be a
al-
the witness stand whether he
rep-
witness are
statements uttered
citizen,
ways
law-abiding
Perry
been a
an-
* * *
short,
there
resentative.
swered, “No, I
I’ve ever been
don’t believe
evincing the
basis
be some demonstrable
quite
And
he would not
admit
one.”
while
give
competence of
witness
*16
criminal,
being a
did
professional
he
opinion.
“quite
allow that
had committed
a few
he
record,
the
we are con
Upon
of
review
crimes,”
of at
and had been convicted
repu
adequate
for the
vinced
basis
Moreover,
burglaries.
three
least
or four
Re
presented
tation evidence
below.
complicity in the case at
he admitted to
the
court
jection
trial
of this evidence
gone to
He testified that he had
bar.
view,
resulted,
restric
overly
in an
in our
burglariz-
Pass
the intention of
Moose
with
requirem
foundation
application of the
tive
store,
but
failed
Warburton’s
ent.52
get
he
do it because he did
think
could
point he
away
error committed
with
At a later
discussed
Were this the
it.
shop
court,
burglarizing
the
feasibility
trial
we
be inclined
the
the
would
However,
Perry
in
Fields
testified
hold that
it was
with
and Bassett.
harmless.
below,
the
charge
selling
do not
willingly
view of
other
we
took
the
errors
shop
reputation
gold
jewelry
after
the
think that the exclusion of
stolen
insig-
Lastly, Perry admitted
properly
regarded
burglarized.
as
may
be
being promised immunity in this
nificant.
(Alaska, 1971),
apply
make
note that
ad-
It
further
relevant
per-
testimony
upon the
recent deci-
missible
based
retrial
of this matter
our
State,
of the witnesses.
in