Turner v. State , 275 Ga. App. 723 ( 2005 )

621 S.E.2d 830 (2005) 275 Ga. App. 723

TURNER
v.
The STATE.

No. A05A2016.

Court of Appeals of Georgia.

October 4, 2005.

Carl P. Greenberg, Atlanta, for Appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for Appellee.

BLACKBURN, Presiding Judge.

Following a jury trial, Bernard Turner appeals his 2003 conviction for armed robbery, arguing only that the court erred in instructing the jury during an Allen charge that the case "must be decided by a jury." We hold that this was not reversible error.

In 2004, Burchette v. State^[1] held that, "when giving an Allen charge to a deadlocked jury, trial courts in this [S]tate should no longer include language stating that the case ``must be decided by some jury.'"^[2] At least one subsequent case has emphasized the "plainly prospective language" used in Burchette, implying that the holding should not be applied to cases tried before Burchette. Burge v. State.^[3] See Smith v. State^[4] ("nothing in Burchette required its retroactive application"). Cf. Drogan v. State^[5] ("[f]irst, we note that [defendant's] trial was held on April 5 and 7, 2004, prior to the decision in Burchette on May 3, 2004"). Here, Turner's trial took place in 2003, well before the Burchette decision.

Nevertheless, even if we were to apply the Burchette holding here, reversal would not be required. Burchette itself did not reverse the defendant's conviction, reasoning that the erroneous instruction was not so coercive as to cause a juror to abandon an honest conviction where (i) it was only a small portion of an otherwise balanced and fair Allen charge, (ii) the jurors deliberated another two hours before reaching a verdict (comparable to the hours spent deliberating before the Allen charge was given), and (iii) the trial court polled the jurors with each juror affirming that the announced verdict was the one he or she had reached. Burchette, supra at 3, 596 S.E.2d 162.

Similarly, the defective language here was only a small portion of the pattern Allen charge that was otherwise fair and balanced. See Nowill v. State^[6] (no coercion shown where "the ``must-be-decided' language contained in the Allen charge ... constituted only a small portion of an otherwise fair and balanced charge"). The jurors deliberated for just over two hours before sending a note indicating a deadlock and receiving the Allen charge, and then deliberated for at least one and one-half hours after the Allen charge before reaching a verdict. See Smith, supra at 65(6), 619 S.E.2d 694 (no coercion found where jurors deliberated for one hour and one-half after receiving defective Allen charge); Clark v. State^[7] (no coercion found where jurors deliberated for one and one-half hours after receiving defective Allen charge). Following the verdict, the court also individually polled the jurors, each of whom affirmed the verdict. See Graham v. State^[8] (polling of jury helps show no coercion from defective Allen charge). Combined with the jury's decision to acquit Turner on two of the three charges, these circumstances show that the "must-be-decided" language did not unduly coerce the jury to reach a verdict against Turner. See Clark, supra at 538(4), 610 S.E.2d 165.

We discern no reversible error.

Judgment affirmed.

MILLER and BERNES, JJ., concur.

NOTES

[1] Burchette v. State, 278 Ga. 1, 3, 596 S.E.2d 162 (2004).

[2] See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed.), Part 5(J), pp. 156-157 (2001).

[3] Burge v. State, 273 Ga.App. 38, 614 S.E.2d 158 (2005).

[4] Smith v. State, 275 Ga.App. 60, 65(6), 619 S.E.2d 694 (2005).

[5] Drogan v. State, 272 Ga.App. 645, 648(2), 613 S.E.2d 195 (2005).

[6] Nowill v. State, 271 Ga.App. 254, 258(3), 609 S.E.2d 188 (2005).

[7] Clark v. State, 271 Ga.App. 534, 538(4), 610 S.E.2d 165 (2005).

[8] Graham v. State, 273 Ga.App. 187, 191(2), 614 S.E.2d 815 (2005).