01/30/2018
DA 15-0652
Case Number: DA 15-0652
IN THE SUPREME COURT OF THE STATE OF MONTANA
2018 MT 13
STATE OF MONTANA,
Plaintiff and Appellee,
v.
KOGAN J. SANTIAGO,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DC 13-839
Honorable Russell C. Fagg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Lisa K. Korchinski, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
Assistant Attorney General, Helena, Montana
Scott D. Twito, Yellowstone County Attorney, Mary Leffers Barry,
Christopher Morris, Deputy County Attorneys, Billings, Montana
Submitted on Briefs: November 15, 2017
Decided: January 30, 2018
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 A jury found Kogan J. Santiago (Santiago) guilty of sexual intercourse without
consent. The Thirteenth Judicial District Court, Yellowstone County, sentenced Santiago
to thirty years incarceration, with fifteen years suspended. Santiago appeals his conviction.
We affirm and address the following issue:
Did the District Court abuse its discretion in giving the deadlocked jury an
Allen-instruction?
FACTUAL AND PROCEDURAL BACKGROUND
¶2 The State charged Santiago with sexual intercourse without consent following an
incident that occurred in April 2013. Santiago pleaded not guilty and the case proceeded
to a jury trial. On the last day of trial, the jury began deliberations at 11:30 a.m. and shortly
thereafter had lunch. At 4:00 p.m., the jury sent the Judge a note indicating it was
deadlocked and could not form a unanimous decision. Specifically, the jury indicated its
vote was eleven-to-one and that the one juror was unwilling to change his or her position.
¶3 In response, the State suggested the court provide an Allen-instruction, also
frequently referred to as a dynamite-instruction. An Allen-instruction may be given to a
deadlocked jury and is meant to encourage further jury deliberation. This Court specifically
approved the State’s requested Allen-instruction in State v. Norquay:
The judicial process assigns tasks to the people involved in the case. It is the
task of the witnesses to testify truthfully to the facts as they recall them. It is
the task of the lawyers to prepare the case for final submission to the trier of
the facts, the jury. It is the task of the Judge to preside, to instruct you as to
the law, and to rule on whether certain evidence will be allowed at trial. It is
the task of the jury to decide the case. You are not partisan nor are you
advocates in this matter; you are neutral judges of the facts. It is you and you
alone that can decide this cause. There is no reason to believe that any other
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12 people would possess any more ability, intelligence, and courage to do
the task assigned to a jury under the American system of justice.
The purpose of this instruction is to encourage you to collaborate with your
fellow jurors in order to reach a just and fair verdict in this case. This
instruction is not meant to coerce or to force a verdict. You should take as
much time as needed in your deliberations.
You should not surrender your honest convictions in this matter for the mere
purpose of returning a verdict or solely because of the opinion of other jurors.
This does not mean, however, that you should avoid your task of rendering a
verdict in this case.
This instruction is not more important than any other instruction I have
previously given you. You should consider this instruction together with,
and as part of, all the other instructions. Please return to your jury room and,
again, diligently and earnestly resume your deliberations.
2011 MT 34, ¶ 43,
359 Mont. 257,
248 P.3d 817 (strikethroughs and emphases omitted).
¶4 Santiago objected to the Allen-instruction based on the fact that the jury’s vote was
eleven-to-one. He argued the instruction would put “an extreme undue burden” on the one
juror in disagreement—that an Allen-instruction was only appropriate when multiple jurors
disagreed, not a single juror. He contended it was coercive to “put[] eleven people in there
to try to convince the one person,” and that giving the instruction would put the one juror
in an “awful position.” Santiago also pointed to precedent from Arizona and Idaho finding
Allen-instructions inherently coercive, and claimed that was particularly true in this case,
where only one juror disagreed with eleven others.
¶5 The Judge acknowledged Santiago’s objection as having merit under the
circumstances of the case, but noted that this Court specifically approved the State’s
requested Allen-instruction in Norquay. Accordingly, the Judge gave the jury an
instruction nearly identical to Norquay’s revised Allen-instruction. The Judge added,
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“There’s no magic time associated with this, but we do request that you give it another
effort.” After further deliberation, the jury still could not come to a unanimous decision
and the court declared a mistrial.
¶6 Santiago’s second jury trial occurred a few months later. Six hours into deliberation,
the jury sent a note to the Judge asking when it could determine it was deadlocked because
the jurors were unable to agree on a verdict. The jury did not indicate its current vote. The
State again requested Norquay’s revised Allen-instruction. Santiago again objected, asking
the Judge to accept the jury as deadlocked because the six-hour deliberation indicated that
the jury had already diligently considered the case. The court noted Santiago’s objection
but proceeded to give the jury an instruction nearly identical to Norquay’s revised
Allen-instruction. The jury deliberated further and ultimately found Santiago guilty.
Santiago appeals from the guilty verdict of his second jury trial.
STANDARD OF REVIEW
¶7 We review jury instructions in a criminal case to determine whether the instructions,
as a whole, fully and fairly instruct the jury on the applicable law. State v. Smith, 2005 MT
325, ¶ 20,
329 Mont. 526,
127 P.3d 353. A district court has broad discretion when
instructing a jury and we only reverse if the instructions prejudicially affect the defendant’s
substantial rights. State v. Myran,
2012 MT 252, ¶ 16,
366 Mont. 532,
289 P.3d 118.
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DISCUSSION
¶8 Did the District Court abuse its discretion in giving the deadlocked jury an
Allen-instruction?
¶9 Defendants are constitutionally entitled to an uncoerced jury verdict. Norquay, ¶ 32.
A jury instruction is coercive if it directs the minority of jurors to reconsider their views in
light of the majority, instructs the jurors that they have to reach a decision, or pressures the
jurors into returning a unanimous verdict. Norquay, ¶ 32 (citing State v. Steele, 2004 MT
275, ¶¶ 28-29,
323 Mont. 204,
99 P.3d 210; State v. Randall,
137 Mont. 534, 542,
353 P.2d
1054, 1058 (1960); and Jenkins v. United States,
380 U.S. 445, 445-46,
85 S. Ct. 1059,
1060 (1965)). The jury is ultimately responsible for carefully considering all of the facts
presented at trial; it is not responsible for rendering a unanimous verdict regardless of the
circumstances. Norquay, ¶ 42.
¶10 “Simply put, the court cannot place undue pressure upon the jury to reach a verdict.”
Norquay, ¶ 32. A court can, however, provide an Allen-instruction to a deadlocked jury.
See, e.g., Allen v. United States,
164 U.S. 492, 501-02,
17 S. Ct. 154, 157 (1896) (holding,
for the first time, that a trial court may give a deadlocked jury a supplemental instruction
encouraging further deliberation). The instruction is meant to remind the jury of its
responsibilities to consider the facts of the case, deliberate with one another, and attempt
to reach a unanimous verdict. An appropriately-tailored Allen-instruction protects a
defendant’s right to an uncoerced jury verdict while ensuring a jury is properly encouraged
to deliberate in an attempt to render a final verdict.
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¶11 This Court first considered an Allen-instruction in Randall, 137 Mont. at 542,
353
P.2d at 1058, holding that an Allen-instruction cannot ask jurors in the minority to surrender
their convictions and follow the majority. However, an Allen-instruction is generally not
coercive and therefore permitted if it does not instruct the minority to reconsider its views
in light of the majority or pressure the jury into rendering a unanimous verdict. See, e.g.,
State v. Bieber,
2007 MT 262, ¶¶ 69-70,
339 Mont. 309,
170 P.3d 444 (holding an
Allen-instruction that did not unduly single out or pressure a dissenting juror was
acceptable); Steele, ¶ 29 (holding that a bailiff’s comments to a deadlocked jury to “find a
common ground” and to “keep working on it” were not grounds for a mistrial because the
comments did not attempt to pressure the jurors or tell the minority jurors their positions
should change); State v. Cline,
170 Mont. 520, 538-40,
555 P.2d 724, 735-36 (1976)
(holding an Allen-instruction was not objectionably coercive because it did not single out
a minority juror or ask the juror to reexamine his views for the purpose of rendering a
verdict, did not instruct the jury to deliberate until it reached a unanimous verdict, and did
not instruct the jury that it had to reach a decision in the case).
¶12 In Norquay, we revised Montana’s Allen-instruction, Montana Criminal Jury
Instruction Number 1-121, included supra at ¶ 3, and instructed trial courts to use the new
language in the future. Norquay, ¶ 43. We decided to remove any language from
Montana’s Allen-instruction about “efficient judicial administration” and the jury’s verdict
being its “final test” of the quality of its service. Norquay, ¶¶ 39, 43. We revised the
instruction because we were concerned that such language was potentially coercive and
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could be construed as requiring the jury “to make a determination of guilt or innocence,
rather than to stay true to any individual convictions or opinions.” Norquay, ¶¶ 40-43.
¶13 Santiago now argues that Norquay’s revised Allen-instruction is coercive and
therefore unconstitutional. He specifically objects to language instructing the jury that it
should “reach a just and fair verdict in this case” and that it “should [not] avoid [its] task
of rendering a verdict in this case.” He argues that a deadlocked jury could only construe
such language to mean that it must return a unanimous verdict. Santiago notes that in his
first trial, the one juror who did not change his mind after the Allen-instruction was a unique
individual who did not give in to peer pressure. Santiago challenges the specific language
of the instruction on the grounds that it forces the jury to reach a verdict when the jury has
already diligently deliberated but could not come to a unanimous decision.
¶14 The State responds that the Allen-instruction was appropriately given because it is
not coercive. The State emphasizes the fact that the instruction encourages the jurors to
collaborate with one another, instructs the jurors to not surrender their honest convictions
for the mere purpose of returning a verdict or solely because of the opinion of other jurors,
and specifically tells the jury that the purpose of the instruction is not to force or coerce
them to reach a verdict. The State notes that, in Santiago’s first jury trial, the same
Allen-instruction was given and yet the jury remained deadlocked and a mistrial necessarily
declared. The State reasons that, read as a whole, Norquay’s revised Allen-instruction does
not place undue pressure on jurors to forego their individual convictions for the purpose of
reaching a verdict. We agree and take this opportunity to reaffirm Norquay’s revised
Allen-instruction.
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¶15 We first observe that Santiago specifically objects to two discrete parts of two
sentences in Norquay’s revised Allen-instruction. Read in context, Santiago objects to
portions of the instruction that state: (1) “The purpose of this instruction is to encourage
you to collaborate with your fellow jurors in order to reach a just and fair verdict in this
case”; and (2) “You should not surrender your honest convictions in this matter for the
mere purpose of returning a verdict or solely because of the opinion of other jurors. This
does not mean, however, that you should avoid your task of rendering a verdict in this
case.” Norquay, ¶ 43. The instruction further states that it is “not meant to coerce or to
force a verdict” and encourages the jury to take as much time as it needs in its deliberations.
Norquay, ¶ 43. Considered in context, the language did not force the jury to reach a verdict,
as Santiago argues. The instruction is carefully worded to encourage the jury to collaborate
and deliberate while not requiring a unanimous verdict.
¶16 An Allen-instruction furthers the belief that a juror’s opinion may honestly change
based on diligent deliberation with other members of the jury. Allen, 164 U.S. at 501,
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S. Ct. at 157. Each juror should listen to the attorneys and witnesses, trusting his own
judgment, and then earnestly discuss the case with the other jurors, as each person is
equally honest and intelligent. Allen,
164 U.S. at 501-02,
17 S. Ct. at 157. The minority
of jurors are not singled out by Norquay’s revised Allen-instruction and are not told to
reconsider their views in light of the majority. All jurors are instructed to deliberate further
and encouraged to collaborate without surrendering their firm convictions. The District
Court appropriately read Norquay’s revised Allen-instruction to the jury in this case, where
the jury was reportedly deadlocked after six hours of deliberation. Following the jury’s
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guilty verdict, each member of the jury was polled and each person affirmed that the guilty
verdict represented his or her own opinion. Further, we cannot construe Norquay’s revised
Allen-instruction as forcing a unanimous verdict, as Santiago’s first trial provides a clear
example of a jury remaining deadlocked despite the instruction. We hold that the
Allen-instruction did not objectionably coerce the jury or force it into a unanimous verdict
and we accordingly affirm Santiago’s conviction.
CONCLUSION
¶17 Norquay’s revised Allen-instruction does not coerce a jury into rendering a verdict
or require a jury to prioritize a unanimous decision over individual jurors’ opinions. It also
does not instruct jurors in the minority to reconsider their views in light of the majority.
Instead, Norquay’s revised Allen-instruction appropriately encourages a deadlocked jury
to continue deliberations while still protecting a defendant’s right to an uncoerced jury
verdict by encouraging jurors to stay true to their strongly held convictions. The District
Court did not abuse its discretion in giving the deadlocked jury Norquay’s revised
Allen-instruction. We affirm Santiago’s conviction.
/S/ LAURIE McKINNON
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
/S/ JIM RICE
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