Jerome Henderson, Petitioner-Appellee/cross-Appellant v. Terry L. Collins, Warden, Respondent-Appellant/cross-Appellee

262 F.3d 615, 2001 U.S. App. LEXIS 19192
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 28, 2001
Docket99-4046, 99-4088
StatusPublished
Cited by34 cases

This text of 262 F.3d 615 (Jerome Henderson, Petitioner-Appellee/cross-Appellant v. Terry L. Collins, Warden, Respondent-Appellant/cross-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jerome Henderson, Petitioner-Appellee/cross-Appellant v. Terry L. Collins, Warden, Respondent-Appellant/cross-Appellee, 262 F.3d 615, 2001 U.S. App. LEXIS 19192 (6th Cir. 2001).

Opinions

ALAN E. NORRIS, J., delivered the opinion of the court, in which BATCHELDER, J., joined. CLAY, J. (PP. 623-37), delivered a separate dissenting opinion.

OPINION

ALAN E. NORRIS, Circuit Judge.

In this capital case, the State of Ohio, representing Warden Terry Collins, appeals from an order of the district court conditionally granting Jerome Henderson’s petition for a writ of habeas corpus as to his death sentence. See 28 U.S.C. § 2264. For his part, petitioner cross-appeals from the denial of the writ with respect to his guilt.

After careful review of the many issues raised by petitioner in his cross-appeal, we conclude that the district court properly denied relief. Accordingly, we affirm the order of the district court as to the issues raised on cross-appeal. Henderson v. Collins, 101 F.Supp.2d 866 (S.D.Ohio 1999). Because the order of the district court was particularly thorough and well-reasoned, any opinion that we might issue concerning the issues raised by petitioner in his cross-appeal would be duplicative and serve no useful purpose.

At the same time, we must reverse the district court’s conditional grant of the writ with respect to petitioner’s sentence.

I.

The facts that gave rise to petitioner’s prosecution have been summarized by the Ohio Supreme Court and need not be repeated here. See State v. Henderson, 39 Ohio St.3d 24, 24-25, 528 N.E.2d 1237, 1238-40 (1988).

The only issue on which the district court granted relief concerns an Allen charge1 given to the jury by the trial court after it reported a deadlock. The jury began its deliberation in the penalty phase of the trial at 12:30 p.m. on Wednesday, July 24, 1985. At 1:22 p.m. the next day, the jury sent the following message to the court: “We are deadlocked, period.” In response, the court instructed the jury in these terms:

You all know that for the purpose of returning a verdict at this time all twelve of you must agree. And you have a duty to agree, if it is at all possible.
Now when you talk to each other in that jury room, obviously each one of you should pay the proper respect to the other person’s opinion. And if you do have differences, you should examine those differences in the spirit of honesty and fairness.
I’m not suggesting by any stretch of the imagination that any one of you should give up a well-grounded opinion or to violate your oath. But it does mean that jurors should not refuse to agree because of mere stubbornness.
Each one of you should examine the facts from your own viewpoint and from the viewpoint of the other jurors.
Now the verdict of the jury obviously should represent the opinion of each of [618]*618you. But this doesn’t mean that you can’t change your opinions, changing them by talking to each other, because the very object of this whole system is to reach an agreement by each one of you comparing your different views.
So I don’t think you’re deadlocked. You go back there and talk it over....

Defense counsel lodged no objection to this instruction. The jury resumed deliberations and returned a sentence of death some four hours later.

In his direct appeal, petitioner designated this instruction as an assignment of error. The Ohio Supreme Court rejected his argument in the following terms:

In his ninth proposition of law, appellant argues that the trial court erred in giving a supplemental instruction ordering the jury to continue its deliberations concerning the sentence after the jury reported to the court that it was deadlocked. Appellant states that when confronted by a deadlocked jury the court should instruct the jury to determine which life sentence to recommend, rather than giving the jury a supplemental charge to continue deliberating in the hope that unanimity will be achieved.
We agree with the court of appeals that the trial court’s charge conforms with the type approved in State v. Maupin (1975), 42 Ohio St.2d 473, 71 O.O.2d 485, 330 N.E.2d 708, paragraphs three and four of the syllabus, and Jenkins, [15 Ohio St.3d 164, 473 N.E.2d 264 (1984)], and was not in error. Moreover, the United States Supreme Court ruled that a similar supplemental charge did not impermissibly coerce the jury to return a death sentence in Lowenfield, supra, at [235-41], 108 S.Ct. at 550-552, 98 L.Ed.2d at 577-579.

State v. Henderson, 39 Ohio St.3d at 31-32, 528 N.E.2d at 1244-45 (footnote omitted).

As the Ohio Supreme Court recognized, Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), considered the constitutionality of an Allen charge given during jury deliberations in the penalty phase of a capital case. The State takes the position that Lowenfield cannot be distinguished from the case sub judice and therefore dictates our outcome.

In Lowenfield, during the second day of deliberations the jury indicated to the trial judge that it “was unable to reach a decision at that time, and request[ed] that the court again advise the jury as to its responsibilities.” Id. at 234, 108 S.Ct. 546. The trial judge responded by asking the individual jurors to respond in writing to the question whether “further deliberations would be helpful in obtaining a verdict.” Id. Eight of the twelve responded affirmatively. After a defense motion for a mistrial was overruled, the jury reconvened in the courtroom for further instructions, at which time a note was given to the judge stating that some of the jurors had misunderstood his original question. This time the judge asked each juror, “Do you feel that any further deliberations will enable you to arrive at a verdict?” Id. This time eleven jurors responded affirmatively. At this point the trial judge gave the jury an Allen charge. Defense counsel failed to object to either the polls of the jury or to the supplemental instruction. Thirty minutes after resuming deliberations, the jury returned a sentence of death. See id. at 236, 108 S.Ct. 546.

In Lowenfield, the Court began its substantive discussion by observing that an Allen charge must be reviewed “ ‘in its context and under all the circumstances.’ ” Id. at 237, 108 S.Ct. 546 (quoting Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965)); accord United States v. Reed, 167 F.3d [619]*619984, 990 (6th Cir.1999). As Lowenfield and cases from this circuit suggest, see, e.g., Williams v. Parke, 741 F.2d 847 (6th Cir.1984), the due process inquiry associated with an Allen charge focuses on the circumstances that triggered the charge, as well as the language of the charge itself. For example, in Lowenfield the Court considered the contents of the note from the jury, the manner in which the trial judge polled its members, and the length of deliberations that followed the

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262 F.3d 615, 2001 U.S. App. LEXIS 19192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jerome-henderson-petitioner-appelleecross-appellant-v-terry-l-collins-ca6-2001.