Opinion
ID No. 0308015850.
Submitted: April 22, 2004.
Decided: May 10, 2004.
E. Stephen Callaway, Esquire, Office of the Public Defender, Georgetown, DE.
Adam Gelof, Esquire, Attorney General's Office, Georgetown, DE.
Dear Counsel:
Pending before the Court is a motion for new trial which defendant Frederick W. Cannon ("defendant") filed subsequent to his conviction on a charge of unlawful sexual intercourse in the first degree. This is my decision denying the motion.
From April 13-16, 2004, defendant was tried before a jury on charges of unlawful sexual intercourse in the first degree, unlawful sexual penetration in the third degree, two counts of rape in the first degree, and continuous sexual abuse of a child.
A portion of the jury charge provided in pertinent part as follows:
Each of you should decide the case for yourself, but only after impartially considering the evidence with your fellow jurors. You should not surrender your honest convictions solely because of the opinions of your fellow jurors, or for the mere purpose of returning a verdict, but you should not hesitate to re-examine your own view and change your opinion if you are persuaded by another view.
On Friday, April 16, 2004, the jury began deliberating at 11:48 a.m. The jurors ate lunch and deliberated through the afternoon. At around 4:00 that afternoon, the jury represented it was having difficulty reaching a verdict. Due to the relatively short amount of time it had deliberated, the Court determined that the jury should deliberate further. It sent the jurors home for the weekend and instructed them to return Monday morning.
They returned on Monday, April 19, 2004, at 9:00 a.m. to resume deliberations. By mid-afternoon, the jury sent out a note stating it was hung on counts 1, 4 and 5, and it had found defendant not guilty on counts 2 and 3. This note does not indicate whether the majority vote was for conviction or for acquittal. The note also stated:
Can we give this verdict, or do we have to agree on all 5 counts.
We cannot come to a 100% verdict on 1, 4, and 5. If 9, 10 or 11 agree and only 1 disagrees do we go with the majority? We need advice.
At around 3:00 p.m., the Court gave an Allen charge from the pattern jury instructions which repeatedly admonished the jurors not to surrender their conscientious convictions or violate their individual judgment and conscience. The jury then deliberated for approximately two (2) more hours. At around 5:00 p.m., it returned a verdict of guilty on count one, unlawful sexual intercourse in the first degree, and not guilty on all other counts.
On April 22, 2004, defendant filed a motion for a new trial on counts 1, 4, and 5. In his motion, defendant argues that the jury reached a compromise verdict of guilty to count 1 due to the lateness of the hour. More specifically, defendant alleges:
That due to the lateness of the hour, the Jurors in the majority exerted pressure on the Jurors in the minority to change their votes to avoid returning the following day for continued deliberations.
A "compromise verdict" is one "which results from the surrender by some jurors of their conscientious convictions in return for some like surrender by the others." Wilson v. State, 305 A.2d 312, 317 (Del. 1973).
Defendant is not arguing that this was a coerced verdict. Sometimes, arguments are made that an Allen charge caused a coerced verdict. The factors the Court examines in determining if an Allen charge resulted in a coerced verdict are (1) the timing of the instruction, (2) the words used in the instruction, (3) the length of the deliberations both before and after the instruction, and (4) the complexity of the case. Davis v. State, 725 A.2d 441 (Del. 1999). Nothing about this case provides a basis for such a contention. See id. (No coercion found where charge was given "early in the day in response to a note from the jury" announcing it could not reach a verdict, the charge "was taken from a pattern instruction and included the admonition that no juror should yield his or her conscientious conviction as to the weight or meaning of the evidence" and the jury "deliberated an additional two hours after the charge");Turner v. State, 655 A.2d 309 (Del. 1995) (the fact the Allen charge did not precipitate an immediate verdict indicates the charge was not coercive); Desmond v. State, 654 A.2d 821 (Del. 1994) (where the facts supported the conclusion the Allen charge was not coercive when it was given after the Court learned an 11-1 split in the jury existed); Thomas v. State, Del. Supr., No. 342, 1993, Walsh, J. (September 21, 1994) (the repeated admonitions to the jurors to not surrender their convictions and the directions of the instructions to the jury as a whole rather than to just the minority allowed for the Court to conclude the Allen charge was not coercive).
Nor do the circumstances allow for an argument of a coerced verdict. The Court never intimated that the jury would have to remain for a substantial period of time if a verdict was not reached or that it would be held until a verdict was reached.See Streitfeld v. State, 369 A.2d 674, 677 (Del. 1977). Cf. Brown v. State, 369 A.2d 682, 683 (Del. 1976).
Defendant has not argued an inconsistent verdict existed. There is no basis for such an argument, and in any case, sufficient evidence supports the verdict as rendered. See Skinner v. State, Del. Super., Cr.A. Nos. IN85-01-0496, et al., Martin, J. (October 6, 1987) at 3 ("[T]he Delaware Supreme Court in [Goldfield Tilden v. State, Del. Supr., 513 A.2d 1302 (1986)] determined that the rule of jury lenity has proper application in cases of verdict inconsistency in the State of Delaware. Moreover, `a criminal defendant is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence by the trial and appellate courts.' [Citation omitted.]"). Accord Davis v. State, 706 A.2d 523 (Del. 1998). Furthermore, "[s]peculation into the theory upon which the jury decided is unwarranted as long as the jury had a theory upon which they could have found the defendant guilty of the charge." State v. Haslam. Del. Super., Cr. A. Nos. IN84-08-1830, et al., Stiftel, P.J. (January 25, 1985) at 3.
Defendant's sole argument is that the fact the jury returned with a verdict late in the afternoon shows that it compromised its verdict in order to avoid returning the next day. The situation at hand is identical to that in Adamkiewicz v. Milford Diner, Inc., Del. Super., C.A. No. 90C-JA-23, Steele, J. (February 13, 1991), where a defendant argued the jurors reached a compromise verdict in order to be able to go home at 5:00. The Court's ruling there is applicable here:
This bald allegation by the defendant is made without any factual support. The jury followed the Court's instructions and reached a verdict. There are no facts in the record which lead this Court to believe the jury acted improperly.
I conclude there are no facts which lead this Court to believe the jury compromised its verdict. It deliberated for a couple of days. It continued to deliberate for approximately two more hours after the Allen charge was given. The jury members were admonished several times not to compromise their beliefs, and no reason exists to think they would not have followed the Court's instructions. Sufficient evidence supports the verdict. No facts are present which allow this Court to conclude the jury compromised its verdict in order to resolve the matter by the end of the day.
For the foregoing reasons, I deny the motion for a new trial.
IT IS SO ORDERED.