610 N.W.2d 361
Minn. Ct. App.
2000

OPINION

SHUMAKER, Judge.

Appellant Douglas Wayne Young was tried on three counts of criminal sexual conduct. The jury informed the court that it could reach unanimous verdicts on two counts but not on the third and asked if that could be “a final outcome?”- When the court instructed the jury that it could not, the jury returned verdicts of guilty on all counts.

At the sentencing, the court did not offer to Young an opportunity for аllocution.

Young assigns as errors on appeal the trial court’s refusal to permit a deadlock as to one сount and the failure to offer an opportunity for allocution.' We reversé.

FACTS

After deliberating about six hours in Douglas Young’s trial on three counts of criminal sexual conduct, the jury asked the court if it could return a split verdict: If we (the jury) can agree unanimously on 2 counts, but cannot agree on one count [i.e., hung jury on one count, all 12 jurors agree on the other two counts] ■ can this be a final outcome?

The court conferred with the prosecutor and defense counsel. Without objection frbm either attorney, the court sent a written reply to the jury, saying “No, please continue deliberating.” Later, the jury returnеd verdicts of guilty on all counts.

At. the sentencing,-defense counsel told the court that he and his client were preparеd to proceed:

Your Honor, I have had an opportunity to review the presentence investigation, ‍​​​‌‌​​​​‌‌​​​​‌‌​‌‌‌‌‌​‌​‌‌​‌​‌​​​‌​‌‌‌‌‌​​‌‌​‌‍as well as the confidential portion, and , we are prepared for sentencing.

The court did not ask Young if he wanted to say anything. Neither Young nor his attorney requested an opportunity for allo-cution.

ISSUES

1. Did the trial court commit reversible error when it instructed the jury that it could not conclude with a deadlock?

2. Did the trial court err by failing to give appellant an opportunity to exercise his right of allocution before sentencing?

ANALYSIS ’

Jury Instruction

In a criminal case, it is permissible for the trial court to instruct thе jury to “consult and deliberate with a view to reaching an agreement consistent with their individual judgments.” State v. Martin, 297 Minn. 359, 373, 211 N.W.2d 765, 773 (1973). But it is not permissible for the cоurt to tell the jury that it may not deadlock:

[I]t is reversible error in Minnesota to coerce a jury towards a unanimous verdict. A court, therefore, can neither inform a jury that a case must be decided, nor allow the jury to believe that a “deadlоck” is not an available option.

State v. Jones, 556 N.W.2d 903, 912 (Minn.1996) (citation omitted). See also State v. Peterson, 530 N.W.2d 843, 846 (Minn.App.1995) (instruction that jury would be sequestered ‍​​​‌‌​​​​‌‌​​​​‌‌​‌‌‌‌‌​‌​‌‌​‌​‌​​​‌​‌‌‌‌‌​​‌‌​‌‍until it reached a verdict is coercivе and reversible error); State v. Petrich, 494 N.W.2d 298, 300 (Minn.App.1992) (instruction that jury must reach a unanimous verdict is reversible error), review denied (Minn. Feb. 23,1993).

Contending that the trial court’s instructiоn here was not erroneous, the state relies on Jones, 556 N.W.2d 903, and State v. Buggs, 581 N.W.2d 329, 338 (Minn.1998). In Jones, when the jury indicated that it had reached an impasse after delibеrating for one day, the trial court instructed it to continue deliberating. Jones, 556 N.W.2d at 907. The next day, when the jury said that it was still at an impasse, the сourt read CRIMJIG 3.04. 1 Id. at 908. This instruction adequately described the jury’s role and duty and, as such, was not coercive. Id. at 912.

In Buggs, 581 N.W.2d 329, the trial court read CRIMJIG 3.04 in its final charge. During deliberations, the jury twice requested information about testimony and police reports. Id. at 337. The cоurt denied the requests and told the jury to try ‍​​​‌‌​​​​‌‌​​​​‌‌​‌‌‌‌‌​‌​‌‌​‌​‌​​​‌​‌‌‌‌‌​​‌‌​‌‍to resolve its concerns without the requested information. Id. When the jury later said that it could not reach a unanimous verdict without certain information, the court instructed, “[cjontinue to try to work through your impasse.” Id. Thе instruction was not coercive because it “would not lead the jury to conclude they were required to deliberatе until a unanimous verdict was reached * * Id. at 338.

If a trial court believes a jury is unable to agree, it “may require the jury to continue their deliberations and may give or repeat an instruction * ⅜

Id. at 337-38 (quoting State v. Kelley, 517 N.W.2d 905, 909 (Minn.1994) (quoting A.B.A. Standards for Criminal Justice § 15-4.4(b)(1986)).

The trial courts in Jones and Buggs gave proper, noncoerсive instructions when the juries indicated that they were deadlocked. In contrast, the trial court here clearly informed the jury that a deadlock was not a permissible outcome. This was reversible error.

Right of Allocution

Before the court pronouncеs sentence, it must allow the prosecutor and defense attorney an opportunity to make statements relevant to the sentence. Minn. R.Crim. P. 27.03, subd. 3. The court must separately offer the defendant an opportunity for allocution:

The court shall also address the defendant personally and ask if the defendant wishes to make a ‍​​​‌‌​​​​‌‌​​​​‌‌​‌‌‌‌‌​‌​‌‌​‌​‌​​​‌​‌‌‌‌‌​​‌‌​‌‍statement in the defendant’s own behalf and to present any information before sentence ⅜ * *.

Id. Here, the trial court did not separately address Young аnd did not offer to him an opportunity to comment on sentencing issues. The state argues that the court had the benefit of a presentence investigation report that contained Young’s view of the case. Nevertheless, the rule is cleаr. A defendant has a right to allocution before the court imposes sentence. The court erred in not extending that right tо Young. See State ex rel Thunstrom v. Tahash, 283 Minn. 239, 244,167 N.W.2d 139, 144 (1969), citing State ex rel. Searles v. Tahash, 271 Minn. 304, 136 N.W.2d 70 (1965) (a defendant who interposes a plea of guilty must be provided with an opportunity to present mitigating facts, cirсumstances, and arguments to the sentencing court).

Young also challenges the sufficiency of the evidence to supрort the verdicts. Because we have held that the coercive jury instruction was-reversible -error, we need not addrеss this issue:

DECISION

The trial court committed reversible error when it instructed the. jury that a deadlock was not a permissible outcome in the case.

The trial court erred by failing to allow appellant an opportunity to -exercise his right of allocution.

Reversed and remanded.

Notes

1

. In order for you to return a verdict, whether guilty or not guilty, each juror must agree with the verdict. Your verdict must be unanimous.

You should disсuss the case with one another, and deliberate with a view to reaching agreement, if you can do so without violenсe to your individual judgment. You should decide the case for yourself, but only after you have discussed the case with your fellow jurors and have ‍​​​‌‌​​​​‌‌​​​​‌‌​‌‌‌‌‌​‌​‌‌​‌​‌​​​‌​‌‌‌‌‌​​‌‌​‌‍carefully considered their views. You should not hesitate to reexamine your views and change your opiniоn if you become convinced they are erroneous, but you should not surrender your honest opinion simply because other jurors disagree or merely in order to reach a verdict.
10 Minnesota Practice, CRIMJIG 3.04 (1990).