State v. Clements

967 P.2d 957, 354 Utah Adv. Rep. 39, 1998 Utah App. LEXIS 98, 1998 WL 751194
CourtCourt of Appeals of Utah
DecidedOctober 22, 1998
DocketNo. 971411-CA
StatusPublished
Cited by2 cases

This text of 967 P.2d 957 (State v. Clements) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Clements, 967 P.2d 957, 354 Utah Adv. Rep. 39, 1998 Utah App. LEXIS 98, 1998 WL 751194 (Utah Ct. App. 1998).

Opinion

OPINION

ORME, Judge:

Steven D. Clements appeals from a conviction of driving under the influence of alcohol, a class A misdemeanor, in violation of Utah Code Ann. § 41-6-44(2)(a) (Supp.1998), and having an open container of alcohol in a vehicle, a class C misdemeanor, in violation of Utah Code Ann. § 41-6-44.20(2) (1993).1 Clements contends the trial court’s alleged verdict-urging supplemental jury instruction was impermissibly coercive. We disagree and affirm.

[958]*958FACTS

“[W]e review the record facts in a light most favorable to the jury’s verdict and recite the facts accordingly.” State v. Brown, 948 P.2d 337, 339 (Utah 1997). The State charged Clements with driving under the influence of alcohol and an open-container violation after Utah County deputy sheriffs arrested him at a campground in Payson Canyon on May 31, 1996. At trial, the arresting officer testified that, in responding to a report of intoxicated individuals in the campground, he was directed to a Ford Explorer occupied by Clements and a female companion. Clements, who was slumped over the steering wheel, had the good sense to boisterously threaten the officer when the officer first attempted to rouse him. Clements smelled strongly of alcohol, was disoriented, and had difficulty pulling his driver’s license from his wallet. Clements stipulated at trial that his breath alcohol content was .157 percent, well over the .08 legal limit. The officer noticed that the keys to the Explorer were in the ignition, and the car radio was playing. When searching the Explorer, the officer found an open bottle of gin on the passenger’s side floor.

Clements told the officer that he had drunk two beers and that he and the female passenger “were just going to sleep it off for a few minutes” before driving home. Another officer walked around the vehicle to deal with the passenger. As of when he began his discussion with her, the keys were no longer in the ignition. The passenger initially told the officer that the keys were not in the car. However, the officer later found the keys in the passenger’s waistband and she admitted hiding the keys so that Clements would not be arrested. Clements, of course, was arrested, and his case proceeded to trial.

At the close of trial, counsel for both Clements and the State stipulated that the only issue remaining on the driving under the influence charge was whether Clements had physical control of the Explorer when the deputies confronted him. The trial court instructed the jurors and sent them to deliberate. After about two hours of deliberation, the trial court, acting solely on its own initiative, invited the jury back into the courtroom where the following discussion took place:

THE COURT: We’ll go on the record now in the matter of State versus Steven Clements. Both counsel are present, as is Mr. Clements. We have invited the six members of the jury to come into the court. Members of the jury, have you been able to arrive at a verdict? And who is your foreperson?
[JURY FOREPERSON]: Well, they said I would be.
THE COURT: Okay, then. Mr. [foreperson], you are the foreperson, and has the jury been able to arrive at a verdict on each count, sir?
THE COURT [apparently having received a nonverbal negative indication]: Well, it’s now 7:30 and the jury has been deliberating approximately two hours. It would be my proposal that we recess at this time. We have this calendar every Wednesday at 1 o’clock.2 If you can’t reach a verdict this evening, that we reconvene at 1 o’clock next Wednesday, and that I handle other cases and other calendar while you’re in the jury room. Then you can take as long as you need to arrive at a verdict.
Do you think that will be worthwhile? Or if you think that you’re unable to arrive at a verdict at this time, you can tell me that also. If you just don’t think you can unanimously agree on a verdict on each count.
[JURY FOREPERSON]: Some of us think we should go back in for two minutes.
THE COURT: All right. Let’s do that, then. We will have you brought back out in five minutes, then. If you can’t, then we will have to figure out something else to do. I would sincerely hope that you can [959]*959reach a verdict this evening. This is not a complicated case. There’s only one real issue here on the one count, and it’s either “yes” or “no.” You have to make up your minds, folks. So we’ll have you brought out again in five minutes, then.

A few minutes later, the jury returned with a verdict of guilty on both counts.

ISSUE AND STANDARD OF REVIEW

This appeal presents the sole issue of whether the trial court’s uninvited discourse with the jury constituted a supplemental jury instruction which impermissibly coerced the jury to reach a verdict. “Determining the propriety of jury instructions presents a question of law, which we review under a correction of error standard.” Laws v. Blanding City, 893 P.2d 1083, 1084 (Utah Ct.App.), cert. denied, 910 P.2d 425 (Utah 1995). This standard applies equally to supplemental jury instructions. See, e.g., State v. Lucero, 866 P.2d 1, 2-3 (Utah Ct.App.1993).

ANALYSIS

Clements contends that the trial court’s supplemental jury instruction imper-missibly coerced the jury to reach a verdict. As first recognized by the United States Supreme Court in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), when a jury informs the trial court that they are having difficulty agreeing, the court may underscore the case’s importance, urge the jury to reach an agreement, and send them back for further deliberation. See Lowenfield v. Phelps, 484 U.S. 231, 236, 108 S.Ct. 546, 550, 98 L.Ed.2d 568 (1988). However, such verdict-urging “Allen instructions” will be upheld only if, “‘in [their] context and under all the circumstances,’” they are not coercive. Id. at 239, 108 S.Ct. at 551 (quoting Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957 (1965) (per curiam)). We have followed this reasoning, using a specific analytical scheme to determine whether an instruction was coercive. See State v. Lactod, 761 P.2d 23, 28-32 (Utah Ct.App.1988).

In Lactod, we approved the practice of “giving a supplemental verdict-urging instruction to a deadlocked jury” provided such instructions are neither “coercive per se,” nor “coercive under the specific circumstances of the case.” Id. at 30-31. However, we believe Allen and the two-tiered Lactod

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Bluebook (online)
967 P.2d 957, 354 Utah Adv. Rep. 39, 1998 Utah App. LEXIS 98, 1998 WL 751194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clements-utahctapp-1998.