Warren v. State

498 So. 2d 472, 11 Fla. L. Weekly 1930
CourtDistrict Court of Appeal of Florida
DecidedSeptember 9, 1986
Docket84-1655
StatusPublished
Cited by21 cases

This text of 498 So. 2d 472 (Warren v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Warren v. State, 498 So. 2d 472, 11 Fla. L. Weekly 1930 (Fla. Ct. App. 1986).

Opinion

498 So.2d 472 (1986)

Edward WARREN, Appellant,
v.
The STATE of Florida, Appellee.

No. 84-1655.

District Court of Appeal of Florida, Third District.

September 9, 1986.

*473 Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.

Before HENDRY, HUBBART and NESBITT, JJ.

HUBBART, Judge.

This is an appeal by the defendant from judgments of conviction and sentences entered below after an adverse jury verdict in a criminal case. The dispositive question presented for review is whether the trial court committed fundamental error in giving an "Allen" charge to the jury which deviated from the standard criminal jury instruction on a deadlocked jury [Fla.Std. Jury Instr. (Crim.) 3.06]. Based on the circumstances of this case, we conclude that fundamental error is presented and reverse for a new trial.

I

The facts relevant to the above issue are entirely undisputed. On March 20, 1984, the defendant Edward Warren and a co-defendant Richard Sherry — not a party to this appeal — were jointly charged by information with one count of armed burglary and two counts of armed robbery. Both defendants entered a plea of not guilty and on June 20-21, 1985, were tried by a jury in the Circuit Court for the Eleventh Judicial Circuit of Florida.

On the morning of June 21, 1985, counsel for both parties presented a closing argument to the jury, the trial court instructed the jury on the law, and at 11:38 A.M. the jury retired to consider its verdict. At 3:23 P.M., the jury sent out a note[1] that they had reached a verdict as to one of the defendants but were "hopelessly deadlocked" as to the second defendant. The jury then returned to the courtroom; the trial court told the jury that it would take a verdict on the one defendant agreed upon, but that the jury would have to continue deliberations on the second defendant. The jury, however, had not filled out the appropriate verdict form, and, accordingly, no verdict was taken. At 3:25 P.M., the jury again retired and resumed its deliberations.

At 4:45 P.M., the jury sent out another note which read: "As stated before, we have a verdict on one defendant. However, we are totally unable to reach a verdict on the other. It's hopeless." The jury returned to the courtroom and the clerk published a guilty verdict on all counts charged as to the co-defendant Richard Sherry. Immediately after publishing the verdict, the trial court gave the modified "Allen" charge on jury deadlock as contained in Florida Standard Jury Instruction (Criminal) 3.06, adding at the end the following admonition not contained in the standard charge:

"Really don't want to try this case again. It costs a great deal of money to bring cases to trial and we have to try this and you heard all the testimony and evidence and the court sincerely hopes that you will go back and deliberate and reach a *474 verdict if you can. If you can't, so be it."

At 4:51 P.M., the jury again retired and resumed its deliberations.

At 5:50 P.M., the jury sent out another note which read: "We are miles apart, and there's no possibility of our reaching a verdict. Please excuse us." Crossed out of the note and in a different handwriting was the statement: "We are all not in agreement with this." The trial court, at that point, stated that it was inclined to send the jury home and have them return the following morning for further deliberations. Defense counsel stated that he would like to give the jury a little more time and the trial court agreed. The jury then returned to the courtroom, and the trial court, without making any reference to the jury's note, stated, "let's have a little chat." Inquiry was then made about possible points of confusion on the law, and later, after some colloquy, the forewoman wrote out a question concerning lesser included offenses which the trial court answered. After the forewoman stated she had other questions, the trial court, with consent of the forewoman, charged the jury with the complete set of jury instructions. At 6:27 P.M., the jury retired to resume its deliberations.

At 7:13 P.M., the trial court resolved to send the jury home for the night. The jury was returned to the courtroom and the trial court inquired of the forewoman, "How goes it?" The forewoman replied, "Terrible." The trial court then stated that it was going to declare an overnight recess and start again in the morning. The forewoman stated, "I really don't think we are able to come close." The trial court replied, "Try." The forewoman then asked for ten more minutes of deliberations, which the trial court acceded to. At 7:15 P.M., the jury retired to resume its deliberations.

At 7:25 P.M., the jury sent back a note signed by the forewoman and two other jurors which stated:

"We tried yet another time. I believe another jury will stand a better chance at arriving at a verdict. Please understand: we really tried. More time will not ensure a satisfactory outcome for us."

The trial court again reconvened in the presence of the jury, read the above note, and stated that there were three signatures to the note "which leaves me to believe that it's a three to three something." The trial court then stated:

"I want you to sleep on it and I want you to report back tomorrow morning at 8:30 in the morning.
During the course of the overnight recess — file the note please — do not discuss this matter with anyone. Your family is certainly going to want to know what's going on. Tell them just be patient, you will fill them in when it's all over with, which will be eventually.

The jury was then excused and separated for an overnight recess.

The next morning on June 22, 1985, at 8:30 A.M., the jury reported to the courtroom. The trial court then addressed the jury as follows:

"Folks, I really just want to acknowledge that you are all here and hope that it will be a productive day. Try to resolve your differences, if you possibly can.
Okay. Go get `em."

The jury then retired and resumed its deliberations.

At 9:35 A.M. — one hour later — the jury returned a verdict in this case in which it found the defendant Edward Warren guilty of trespass without a firearm as a lesser included offense of burglary, and guilty of two counts of robbery without a firearm. No objection was ever voiced to any of the court's instructions, comments or rulings made during the aforesaid proceedings. The defendant Warren was subsequently sentenced to time served on the trespass conviction and two concurrent twelve-year sentences on the robbery convictions. This appeal follows.

II

It is well-settled in this state that the trial court in a criminal case may, in appropriate *475 circumstances, give a so-called "Allen" charge to the jury in the event the jury becomes deadlocked. This charge is derived from the case of Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), and is designed to bring a deadlocked jury together, if possible, so that a unanimous verdict may be rendered without any juror giving up his or her conscientious convictions. The charge has no particular canonical form and has appeared in many variations in American jurisdictions since its initial appearance in 1896. See generally Annot., 97 A.L.R.3d 96 (1980).

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Bluebook (online)
498 So. 2d 472, 11 Fla. L. Weekly 1930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warren-v-state-fladistctapp-1986.