United States v. Leon Hayes

446 F.2d 309, 1971 U.S. App. LEXIS 8974
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 13, 1971
Docket71-1519
StatusPublished
Cited by1 cases

This text of 446 F.2d 309 (United States v. Leon Hayes) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Leon Hayes, 446 F.2d 309, 1971 U.S. App. LEXIS 8974 (5th Cir. 1971).

Opinion

COLEMAN, Circuit Judge:

On November 22, 1926, the Supreme Court decided Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345, in which Mr. Justice Stone, delivering the opinion of the Court, wrote:

“The only errors assigned which are pressed upon us concern proceedings had upon the recall of the jury after its retirement. The jury having failed to agree after some hours of deliberation, the trial judge inquired how it was divided numerically, and was informed by the foreman that it stood nine to three, without his indicating which number favored a conviction.”
* * * * * *
“We deem it essential to the fair and impartial conduct of the trial that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the na *310 ture or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.
“The failure of petitioners’ counsel to particularize an exception to the court’s inquiry does not preclude this Court from correcting the error. Cf. Wiborg v. United States, 163 U.S. 632, 658, et seq. [16 S.Ct. 1127, 1197, 41 L.Ed. 289]; Clyatt v. United States, 197 U.S. 207, 220, et seq. [25 S.Ct. 429, 49 L.Ed. 726]; Crawford v. United States, 212 U.S. 183, 194 [29 S.Ct. 260, 53 L.Ed. 465]; Weems v. United States, 217 U.S. 349, 362 [30 S.Ct. 544, 54 L.Ed. 793], This is especially the case where the error, as here, affects the proper relations of the court to the jury, and cannot be effectively remedied by modification of the judge’s charge after the harm has been done.”

In reaching this conclusion, the Supreme Court noted that the Fifth Circuit had held to the contrary in Bernal v. United States, 5 Cir., 241 F. 339 (1917).

Since the decision in Brasfield, supra, this Court has considered this problem on at least three occasions.

In Cook v. United States, 5 Cir., 254 F.2d 871 (1958), a jury had been in disagreement as to its verdict on a rape case (18 U.S.C. § 2031). In that case, after approximately five hours of deliberation, the jury reported that it believed itself to be hopelessly deadlocked. At 10 o’clock the next morning the jury reported that it had deliberated until eleven o’clock the previous night and for another hour the following morning “and we believe we are closer than we have been at any time”. The Court then asked to be told the numerical division of the jury (not as to result) and the jury reported that it stood seven to five at the last count, the night before. The Judge then addressed the jury, stating, among other things, “[I] want you to send home and get your clothes. I know you need shirts and I know you need razors and I want you to send home and get them. * * * I am going home Friday afternoon. If you do not reach a verdict by that time you can call me on Saturday * * *, if you reach a verdict on Saturday. I will be back here Sunday afternoon. I am not trying to threaten you. I am giving you exactly what the Court is going to do. I want you to get your clothes now. I want you to get your shirts, get your razors and whatever you need from home. The Marshal will get them for you. Now, today’s over. You can go to your room, and resume your deliberations”.

Upon exception by counsel for the defendant, the Court further instructed the jury that he had not intended to intimidate the jury in any way and that when he mentioned the shirts it was for their comfort.

This Court (Judges Rives, Brown and Wisdom) held:

“The mere asking of the question requiring an answer as to the standing of the jury, even though no inquiry is made nor answer given as to whether the majority is for acquittal or conviction, is error per se. In this case that error was aggravated by the suggestion that the jury might be held together through Thursday, Friday, Saturday, and Sunday.”

That same day this Court decided Butler v. United States, 5 Cir., 254 F.2d 875, arising from the same District Court, in which the same questions had been propounded as to the numerical di *311 vision of a jury. The conviction was affirmed under Rule 52(a) of the Federal Rules of Criminal Procedure because the error had not affected substantial rights, the point being that the jury had only been out for about forty-five minutes, was preparing to go to lunch, and there was no statement that the jury was hopelessly deadlocked, although there was a remark that it was “about as far apart as we were when we started”.

The same question arose in Beale v. United States, 5 Cir., 1959, 263 F.2d 215. In that case, the jury had been deliberating for only thirty-two minutes. Lunch time arrived. The Judge made the inquiry, noting “it’s about time for you to eat; I want to check before our noon recess”. The jury returned from lunch at 2 o’clock and returned a verdict of guilty fifteen minutes later. We held that there was no infraction of Brasfield because “the trial judge was actuated by solicitude for the jury, to arrange a suitable luncheon hour, and not by a desire to pry into or influence their deliberation. This and the short time the jury deliberated over its verdict distinguish the case from Brasfield and from most of the decisions holding that the inquiry was reversible error”.

In the appeal now before us, Leon Hayes was convicted of bank robbery and sentenced to imprisonment for ten years. The gravamen of the offense charged was that while Hayes did not participate in the actual robbery, he, by arrangement with the actual robbers, went to the Bank to see if the vault was open and thereafter notified the others that it was, whereupon the robbery was accomplished by the other parties.

Hayes was tried jointly with a co-defendant named Jack Prentiss. The trial lasted three days. The jury began its deliberations at 9:47 a. m., September 17, 1970.

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446 F.2d 309, 1971 U.S. App. LEXIS 8974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-leon-hayes-ca5-1971.