Tyson v. State , 217 Ga. App. 428 ( 1995 )

457 S.E.2d 690 (1995) 217 Ga. App. 428

TYSON
v.
The STATE.

No. A95A0835.

Court of Appeals of Georgia.

May 10, 1995.

Wolfe & Steel, Brian E. Steel, Atlanta, for appellant.

Tommy K. Floyd, Dist. Atty., Kelley S. Powell, Asst. Dist. Atty., McDonough, for appellee.

McMURRAY, Presiding Judge.

Defendant was tried before a jury and found guilty of the sole count of the indictment charging him with selling cocaine in violation of the Georgia Controlled Substances Act. His motion for new trial was denied and this appeal followed. Held:

1. In two related enumerations, defendant contends the trial court erred in giving and repeating an Allen (Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528) charge. He argues that the charge given was coercive because "it could, and did, cause a juror to abandon an honest conviction for reasons other than the evidence at trial or the argument of other jurors."

In Romine v. State, 256 Ga. 521(1), 524(1, b), 525, 350 S.E.2d 446, the Supreme Court of Georgia held as follows: "(1) Where a jury is unable to agree on a verdict, that disagreement is not itself a verdict; and (2) whether a jury is hopelessly deadlocked is an evaluation [committed] to the sound discretion of the trial court, subject to appellate review for an abuse of discretion." We have reviewed the charge as first given and conclude that the language employed clearly conveyed the "cautionary instruction that the trial court was ``certainly not asking, nor suggesting, that any person on (the) jury give up honestly held convictions.' See Willingham v. State, 134 Ga.App. 603, 607(5a), 215 S.E.2d 521 (1975)." Dortch v. State, 204 Ga.App. 822, 823(3), 420 S.E.2d 778. Compare Riggins v. State, 226 Ga. 381, 383(3), 384, 174 S.E.2d 908, where the trial court impermissibly referred to the two holdouts as being "unreasonable, stubborn...." In the case sub judice, there was no abuse of discretion in the giving of this instruction.

Despite further deliberations, the jury foreman announced that the vote "has not changed[; and that in his] opinion, we will not reach a verdict." The trial court then reminded the jurors "Well, again, the Court would like for you to reach a verdict, again without anyone giving up honest opinions. Sometimes reflective Jurors will decide that they were wrong in their initial feeling about a case one way or the other and come to some conclusions. And that's the Court's only interest. I have no interest in forcing a verdict out of you...." After this instruction, the trial court polled the jurors and found no one "absolutely opposed to any further deliberations[.]" Defendant argues this recharge also was coercive because it did not contain all the elements of a complete Allen charge.

"While the [trial] court has a duty to recharge any part of the charge at the request of the jury, Welch v. State, 251 Ga. 197, 304 S.E.2d 391 (1983), the extent and character of any supplementary instructions are within the discretion of the court. Taylor v. State, 169 Ga.App. 842, 315 S.E.2d 661 (1984)." Welch v. State, 257 Ga. 197, 198(1), 357 S.E.2d 70. "``([T] )he decision as to the giving of such a charge does not depend on a finding that the jury is deadlocked. (Cit.)' Sanders v. State, 257 Ga. 239, 243(7), 357 S.E.2d 66 (1987). The charge given was a portion of the one approved in Romine v. State, 256 Ga. 521(1), 350 S.E.2d 446 [supra]." Allen v. State, 260 Ga. 147, 148(3b), 390 S.E.2d 848. Accord Hawkins v. State, 260 Ga. 138, 141(10b), 390 S.E.2d 836. We find no abuse of discretion in the case sub judice. Stewart v. State, 210 Ga.App. 474, 476(5), 436 S.E.2d 679.

2. After defining reasonable doubt, the trial court also gave the following instruction: "If after giving consideration to all the facts and circumstances of the case, your minds are waivering [sic], unsettled or unsatisfied, then that is the doubt of the law and you should acquit the Defendant...." (Emphasis supplied.) In his third enumeration, defendant assigns error to the emphasized portion of this instruction. He contends this language is misleading and unconstitutional, arguing that the word "should" is "not commanding or authoritative. Instead, it is only directional and not instructional."

(a) Although defendant waived his exceptions to the charge by failing to preserve them after direct inquiry by the trial court, we will review this enumeration pursuant to OCGA § 5-5-24(c), since proof beyond a reasonable doubt is the "true question" involved in a criminal trial. OCGA § 24-4-5. See also OCGA § 16-1-5.

(b) The charge as a whole is the pattern charge from the Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II, Part 2(D), Suggested General Charges Required in All Criminal Cases (2nd ed.) (1991) (revised July 1992), and does not contain the "moral and reasonable certainty" language disapproved of by the Supreme Court of Georgia in Vance v. State, 262 Ga. 236, 237(2), 238, n. 5, 416 S.E.2d 516. In the instruction in the case sub judice, the term "should acquit" is language of command (see, e.g., Paradise v. State, 212 Ga.App. 166, 169(4), 170(4b), 441 S.E.2d 497), in the event that the jury is not satisfied with the evidence adduced at trial. Defendant's contention that this instruction is misleading and unconstitutional is without merit.

Judgment affirmed.

ANDREWS and BLACKBURN, JJ., concur.