Betty Ann LEWIS, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Second District.
Jаck O. Johnson, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
RYDER, Judge.
Betty Ann Lewis was convicted and sentenced for the crime of aggravated battery. The record reveals that during an аpparent social function at Ms. Lewis' home, the victim, one James Gerard, was hit over the hеad with a bottle by Ms. Lewis. Mr. Gerard claims that Ms. Lewis threw the object at him while he was drinking and hugging *668 and kissing Johnnie Maе Austin. The record also reflects that soon thereafter, Ms. Lewis struck him with a piece of firewood and poured gasoline or diesel fuel over him and that Ms. Lewis exclaimed, "I'm going to burn this son of а bitch up."
Over defense objection, Nathan Giles testified that he was also at Ms. Lewis' house on the day in question and observed Ms. Lewis strike one Abraham Jones, still another social guest, with a Vodka bоttle a short time before the assault on Mr. Gerard.
After retiring to deliberate, the jury announced it had reached a verdict of guilty. However, when the jurors were individually polled as to the verdict, one juror who was the foreman of the jury, stated that he did not concur in the verdict he had just deliverеd to the court. Appellant's counsel moved for a mistrial. The court denied the motion. Insteаd, the court further charged the jury and, after further deliberation, they again returned a verdict of guilty аs charged. Ms. Lewis was adjudicated guilty and sentenced to prison.
Ms. Lewis contests the procеedings urging error in two areas. First, she would have us reverse her conviction alleging that the trial cоurt erred by permitting the jury to hear testimony about the earlier assault and battery allegedly madе by appellant upon Mr. Jones. We disagree. Her conduct and assault on Mr. Jones occurred just minutes before the assault on Mr. Gerard. It is obvious the testimony of Mr. Giles regarding Ms. Lewis' action was admissible to show an established pattern of violent misconduct. Bryant v. State,
However, appellant's contention that the trial court erred in giving a modified "Allen charge", we believe, has merit.
The use of the "Allen charge" (sometimes referred to as a "dynamite charge") has been apрroved by the United States Supreme Court, Allen v. United States,
Such a charge may be properly given depending on the circumstаnces of the particular case but only in limited circumstances, Flynn v. State,
In the case sub judice, however, the trial court did nоt follow the standard jury instruction but, instead, formulated a charge of its own.[2]
Comparing the approved "Allen charge" with the improvised "Allen charge" one quickly perceives the infirmities of the tailored charge. An "Allen charge" must *669 not be calculated to coercе a jury into reaching a verdict or to lead them to believe they must reach a verdict. Kozakoff v. State, supra; Lee v. State,
REVERSED and REMANDED for a new trial.
HOBSON, Acting C.J., and OTT, J., concur.
NOTES
Notes
[1] 2.21 Jury deadlocked. It is your duty to agree on a verdict if you can do so without violating conscientiously held cоnvictions that are based on the evidence or lack of evidence. No juror, from merе pride of opinion hastily formed or expressed, should refuse to agree. Yet, no juror, simply fоr the purpose of terminating the case, should acquiesce in a conclusion that is cоntrary to his own conscientiously held view of the evidence. You should listen to each other's viеws, talk over your differences of opinion in a spirit of fairness and candor and, if possible, rеsolve your differences and come to a common conclusion, so that a verdict may be reached and this case may be disposed of.
You may retire to the jury room for further deliberations.
[2] The following is the instruction given by the trial cоurt:
"... Members of the jury, one of your members made an answer which indicates that you may not have reached a unanimous verdict. For this reason, I am asking you to return to the jury room for further considеration of your verdict. When you have reached a unanimous verdict, you may return it to the court. If you are not unanimous, then you should continue your deliberations. After you return to the jury room, any member is free to change his vote on any issue submitted to you. Each juror is free to change his vote until the jury is discharged. We're going to retype that one verdict form and then we'll get all the available verdict forms to you in just a moment."