*1
1073
recognize that adverse evidence is al-
impact out- we
prejudicial
and that
jury,
ways
prejudicial,
somewhat
we cannot
probative value.
weighed its
of
that the admission Gilmore’s confession
law,
federal constitutional
As a matter of
Accordingly,
impermissibly
so.
we
error in allow-
committed no
the trial court
Supreme
with the Missouri
Court’s
of the confession.
ing the introduction
conclusion that the trial court did not abuse
scope
has held that wide
Supreme Court
confession,
admitting
its discretion
is admissible
and
of evidence
Gilmore,
524,
661
at
see State v.
S.W.2d
capital
mur-
during
penalty phase of
the district court’s determination
and with
trial,
is not
provided that such evidence
der
the admission of the confession did not
ir-
impermissible
totally
“constitutionally
rights.
offend Gilmore’s constitutional
See
sentencing process.” Zant
relevant
Armontrout,
F.Supp. at
v.
681
862, 885,
Gilmore
103 S.Ct.
462 U.S.
Stephens,
v.
Consequently,
conclude
(1983).
640-41.
2733, 2747,
This
pricious
III.
upon “each
jury to focus
channelling the
summary,
considered
we have
In.
and individual defend-
individual homicide
petition
claims advanced Gilmore’s
242, 258,
Florida,
ant,”
428 U.S.
v.
Proffitt
that each is insufficient to war-
conclude
(1976),
2960, 2969,
The admission impermissible; it constitutionally
was not to draw adverse
did not authorize constitutionally protected
inferences from 885, Zant, 462 at
activity. U.S. See Furthermore, the confession
S.Ct. at statutory the existence of a was relevant to STATES, Appellant, UNITED circumstance. Mo.Rev. aggravating See (in capital sentencing pro v. Stat. 565.006 § jury “shall hear addi ceeding, ARPAN, Appellee. Kenneth extenuation, mitigation, tional evidence No. 87-5466. including punishment, aggravation of any prior convictions of criminal the record Appeals, of States Court United pleas of nolo conten- pleas of Eighth Circuit. defendant, of or the absence dere of the June Submitted criminal convictions prior such Shaw, 1983); pleas”) (repealed State 21, 1988. Decided Nov. banc) (admission (Mo.)(en S.W.2d permissi prior of conviction of evidence phase capital penalty
ble Missouri trial),
murder (1982); see 74 L.Ed.2d 197, 203-04, 96 428 U.S. at Gregg,
also crimes, (evidence prior at 2939-40
S.Ct. statute, Georgia does not under
permitted inquiry focuses
violate the Constitution de of the individual
upon characteristics circumstances, although
fendant). In these *2 * LAY, Judge,
Before Chief BROWN BEAM, Judge, and Senior Circuit Judge. Circuit BROWN, Judge. R. JOHN Circuit question in this case is whether The real by instructing a Federal Court verdict must unanimous can deprive possibility a defendant of the hung jury. in this mistrial from a It arises convicting Ken- appeal from a Arpan neth of four counts of embezzlement organiza- and theft from an Indian tribal Ar- in violation of 18 tion U.S.C. § appeal pan’s sole stems from in the trial court’s alleged error of notes from the As to to a series allegedly of the three erroneous in- two structions, Arpan preserve failed to these perceive errors in the trial court and we no Arpan plain error as to these instructions. preserved objection adequately his we must determine other instruction so error. whether this constitutes reversible consequently it does and We believe reverse. charged
Arpan was with nine counts and theft from an Indian embezzlement organization in of 18 tribal violation U.S.C. 1163 and convicted on four of those § charged Ar- counts. The indictment pan by various committed embezzlement acts and deeds his role as contractor Cheyenne River Tele- for the Sioux Tribe phone Authority. embezzlement Arpan overcharged charge was that had materials and or had received for labor no was done. funds for which work challenge determina- does not the factual leading tions to the conviction on embezzle- Rather, ground appeal ment. his sole for judge improperly responded is that the trial jury during three notes sent their deliberations. evidence, jury
At the conclusion of the
instructions were read
the court and
Arendt, Pierre, S.D.,
appellant.
for
Al
During
to deliberate.
the next
retired
deliberations,
Mandel,
S.D.,
Rapid City,
days
for
three
sub-
Robert A.
appellee.
mitted a number of notes to the court for
Brown,
by designation.
*The Honorable John R.
Senior United
Circuit,
Judge
sitting
for the Fifth
States
Al-
basically, a modified
note was
Arpan only
explanation.
consideration
encouraging
len-charge,4
to notes
responses made
objects to
a decision.5
reach
and 5.1
again
for
5 once
asked
Note number
sought
instruction
Note number
*3
jury's
the
to
relating to
failure
they were not
directions
do if
jury was to
the
what
This Note Num-
agree on
counts.
The
certain
count.2
particular
to a
as
unanimous
jury
the
could not
5 stated that
to
count
ber
was “as
response
court’s
specifically asked
They
two counts.
a ver-
on
indictment,
may not return
you
the
a
on those two
the lack of
verdict
to that count
whether
as
your verdict
dict unless
on the
affect
their decision
would
objected to
counts
counsel
Defense
unanimous.”
of the counts.6
rest
during a discussion
response, both
this
submission
the
at
time
chambers and
jury
that
the
response was
The court’s
the
to
on
to the
a verdict as
counts
return
could
to the
unanimous. As
they were
that which
received later
4 was
Note number
counts,
court
that
remaining
the
instructed
informed the
This note
same afternoon.
on the
verdicts were read
soon as the
one
as
only decided
jury had
that
the
counts,
to
jury would retire
the
specifically
unanimous
unanimously.
jury
The
count
which a
deliberating the counts on
their
continue
notify them of
to
requested the court
yet
had not
been
verdict
to know unanimous
further
jury
The
wanted
options.
emphatic that
response
The
made
space for the
reached.
if the
happen
what would
must be unanimous.7
jury’s verdict
response to
the
The
was left blank.3
verdict
difficult,
really
the law
aren’t
The issues
requested
clarification
1. Note Number
difficult,
making
this business of
isn't
but
defendant
respect
dollar amount the
to the
toughest part of
the
That’s
decisions
hard.
embezzling.
guilty
Note Number
found
serving
juror,
as a
only serving as a
but
not
relating
problem
generally
awith
dealt
you
say
have
Yes or
You have to
too.
testimony.
answers
The court’s
recollection of
for in
say
isn’t much room
No. There
to
objected
the
to
were not
two notes
to these
in life. It’s hard
that’s true
between.
I think
defense.
inclined to let
We’re all
to make decisions.
put
contem-
it or
it off or
else make
someone
question read:
jury’s
The
Number
2.
porize about it.
decision on a
have a unanimous
If we do not
should,
your
you
your
to
In
deliberations
)
(a
we record
split
how do
decision—
count —
ability,
and the
all the evidence
consider
best
count(s)?
on
the
court.
instructions
the
original).
(emphasis in
urge you
you
to
attentive
and
I admonish
you
your
to see if
do
best
other and to
to each
through
“We have deliberated
Note 4 read:
3.
verdict as to....
reach
unanimous
can’t
only
unani-
have
decided
count and
each
leisurely
delibera-
may
be as
You
options? If we
mously.
our next
What are
you
require;
may
and
the occasion
tion as
space blank
defendant
...’
the
leave
'find
you
is neces-
which
feel
all the time
shall take
happens?"
what
sary.
agreement
2on
are not in
read: “We
Note 5
6.
States, 164 U.S.
Allen
So called
4.
after
2 counts
lack of a
on
Will the
counts.
BEAM, Judge, dissenting. respectfully dissent. The
questions jury by afforded the the trial nonprejudicial court were accurate and PILLA, Appellant, Michael when all the instructions and answers v. the court are considered. America, Appellee. UNITED STATES given by Instruction 20 the trial No. 88-1497. read as follows: represent verdict must the con- Appeals, United States Court of judgment juror. sidered of each In order Eighth Circuit. verdict, return a necessary it is Sept. Submitted juror agree each thereto. Your verdict Decided Nov. must be unanimous. your duty It is to consult with another, and to deliberate with a reaching agreement,
view toward
19. See United States v.
Gambina,
Cir.1982),
Notes
[*]
[*]
[*] added).
Skillman,
542,
(8th
(emphasis
United States v.
442 F.2d
558
Cir.),
denied,
833,
82,
cert.
S.Ct.
92
30
(8th
Roenigk,
8. United States v.
F.2d
810
809
States,
(1971); Hodges
L.Ed.2d 63
408
Cir.1987).
543,
(8th Cir.1969).
F.2d
(8th Cir.1981).
F.2d
9. 663
(8th Cir.1969)
11.