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| A different Rolls |
By Elizabeth Kruska
One of my favorite fictional characters is Lucille Bluth from Arrested Development, and one of the best lines she delivers is, “I don’t understand the question, and I won’t respond to it.” The appellate court analogue is, “this issue was not preserved, so we do not consider it.” Don’t get Lucille Bluth’d. Make sure to object.
This is a case about jury instructions. Spoiler alert: SCOV affirms and says the instructions were a-okay. Also, SCOV reminds us all to object when things happen because otherwise the court may not consider it. Or, at least, not using the standard you’d like.
Mr. Rolls was charged with aggravated sexual assault on a child. He had a trial case, and at the end, the state sought an instruction on the lesser-included offense of sexual assault. A lesser-included offense is one, which, by its essential elements, is wholly included in the greater offense. If aggravated sexual assault on a child has elements A, B, C, D, E and if sexual assault has elements A, B, C, the latter is a lesser-included of the former. That’s because given the facts, if A, B, and C are proven, a defendant can be convicted of that charge even if the elements of the greater charge are not proven. If a party seeks an instruction of a crime that has elements A, B, F it is not a lesser-included offense, because it has an element that isn’t covered in the greater charge.
In Mr. Rolls’s case, the state sought a lesser-included instruction and the court agreed. The issue then becomes one of how to tell the jury about this. Good question, and the answer is we have an answer. A court can do a “hard” transition or a “soft” transition.
The hard transition requires the court to tell the jury that they consider the greater offense first, and if they acquit on that, then they shift and consider the lesser. The soft transition says the jury may consider the lesser offense if they’re not able to agree on the greater offense. This doesn’t require a unanimous acquittal on the greater offense first.
The problem here, from Mr. Rolls’s perspective, was that the way the trial court read the instructions, it was a bit of a hybrid between a hard and soft transition. The court said:
If you decide that the State has not proven each of the essential elements of aggravated sexual assault, then you must consider whether [defendant] is guilty of the offense of sexual assault. Or if you are unable to agree upon a verdict considering the charge of aggravated sexual assault after all reasonable efforts to reach a unanimous verdict, then you may move on to consider the offense of sexual assault.Hmm. That does look like both at the same time. It starts with the hard transition and looks like an “if-then.” If you can’t agree on the greater, then you must consider the lesser. In the second sentence, though, it pivots to “well, if you can’t be unanimous based on reasonable efforts, then you may move on to the other charge.”
Mr. Rolls didn’t object to this. He also didn’t clearly say which transition he wanted the court to use. He did try to raise the issues on appeal. Guess what those cats at the Supreme Court did? They said it wasn’t properly preserved. Both the hard and soft transitions are legal and permissible for the court to give. Because of that, and because it wasn’t preserved, SCOV applies the plain-error standard. Plain error is like pole vaulting: the bar is really high.
The other problem has to do with a supplemental jury instruction. In a jury trial, the jury is given instructions on the law before they’re sent to deliberate. Sometimes that’s all they need to know. Sometimes, though, questions or issues come up in the jury room and they need some guidance from the court. If that happens, sometimes the court has to answer a question or issue an additional instruction. The parties are able to object to the answers or supplemental instructions as they come up.
In this case the court received a note from the jury that said, “At this time we cannot give you a verdict.” Because lawyers are very into words, the court sent back a note that asked the jury to explain what that meant. I’ll boil it down: Did it mean they couldn’t come to a unanimous verdict? Did it mean they thought they’d need to end deliberation for the evening and come back tomorrow? Did they think additional deliberations would be futile? Neither party objected to the actual language used by the court.
The jury wrote back a little while later and said they didn’t think they could come to a unanimous verdict, even with more time to deliberate. The defense argued they should bring the jurors in, have them say they couldn’t reach a verdict, and declare a mistrial. Seems sound.
Instead, there was some additional discussion between the court and the parties, and the court issued a supplemental instruction that essentially said their verdict had to be unanimous. If they could not, in good conscience, come to a unanimous verdict either way, they’d become a hung jury. The court also said that each individual juror has to make up his or her own mind, but also ought to confer with the other jurors. The court said it would give the jury as much time as it needed, would order them something to eat (it was getting late by this point, and they were probably hungry). The court also said if they wanted to they could suspend deliberations for the day and come back in the morning. Neither party objected to these instructions.
A few minutes later the jury sent back a note saying they’d like to come back in the morning. The next day, they came back, deliberated an hour or so, and found Mr. Rolls guilty of the lesser-included offense of sexual assault.
Mr. Rolls also raised the issue of this supplemental instruction on appeal. Because I started with the spoiler, you know SCOV rejected this argument.
This instruction is sometimes referred to as an Allen charge, after Allen v. United States. The US Supreme Court upheld an instruction telling a jury to continue deliberating. Allen is sort of a bully. The really objectionable language in Allen basically says that although jurors are each supposed to apply their own reasoned judgment, if there are minority dissenters they should examine why they don’t agree. It’s the Supreme Court telling jurors they ought to succumb to peer pressure—if there’s a split, those in the minority ought to consider why those in the majority, who are just as smart—think differently. Be a lemming!
A lot of states don’t follow Allen and Vermont is one of them. Instead Vermont uses an instruction modeled on an American Bar Association instruction created to take the coercion out of Allen. That instruction tells jurors to consider the others’ viewpoints, but not to abandon their own beliefs. SCOV has found that using this standard instruction is not inherently coercive because it’s very clear in explaining that jurors are each supposed to decide for themselves.
But, there’s also context. If there’s an instruction given, to determine if it was coercive or not, SCOV also has to review what was going on at the time. Let’s suppose a jury began deliberating at noon on the Friday before Memorial Day. By 5:00 they weren’t unanimous. If a court said, “You’ve got to be unanimous and if you’re not we’re coming in tomorrow,” twelve people would become very unanimous very quickly.
Generally, courts are free to issue a supplemental instruction to encourage jurors to continue deliberating if they can’t agree on a verdict. It just can’t be coercive to force a verdict.
Mr. Rolls argued that the trial court erred in issuing the instruction to deliberate some more, and that it was impermissibly coercive. He pointed to the fact the jury quickly returned a verdict after receiving the charge, and also the hard/soft combo transition.
SCOV disagrees. Initially, the jury had only been deliberating for 2 hours when they said they couldn’t agree. They came back the next day and deliberated for an hour or so before returning a verdict. And since SCOV said the transition was not in error it couldn’t turn the other instruction into a coercive one.
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