RENDERED:

PRESTON WRIGHT APPELLANT

ON APPEAL FROM BARREN CIRCUIT COURT HON. JOHN T. ALEXANDER, JUDGE V. NO. 16-CR-00192

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE LAMBERT AFFIRMING Preston Wright challenges his conviction in Barren Circuit Court of one count of first-degree sodomy, victim under twelve years old, and resulting forty- year sentence. The only issues presented by this appeal are: (1) did a juror’s failure to disclose that she went to school with Wright’s sister-in-law during voir dire entitle Wright to a new trial; (2) did the trial court commit reversible error by dismissing a juror as the alternate instead of declaring a mistrial; and (3) did the trial court coerce the jury into reaching a verdict by issuing two Allen charges. After careful review, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Wright was charged with one count of sodomizing his then-girlfriend’s five-year-old daughter Tammy.1 Because the issues raised on appeal are limited to the circumstances surrounding a juror’s (Juror C) dismissal and the jury’s deliberations, we will not discuss the details of the crime itself.

A. Juror C's Dismissal

The first person to testify at trial was Tammy’s biological father. When his testimony concluded, the court recessed for lunch. After lunch, the defense reported that several people made allegations against Juror C during the lunch break. They alleged that Juror C knew Wright; that she sat with Tammy’s father and a group of people, presumably his family, during the lunch recess; and that she hugged Tammy’s father on the courthouse steps before the court came back from recess. Therefore, out of the presence of the rest of the jury, the court discussed the allegations with Juror C, the Commonwealth, and defense counsel.

First, when asked whether she knew Wright, Juror C said she did not, but she did know his sister-in-law. His sister-in-law was a grade ahead of her in school, but Juror C said she did not “know know” her. She stated she saw her around town occasionally but could not recall the last time she spoke to her. The trial court then asked why she did not disclose this information

The court went on to ask Juror C if she sat with Tammy’s father and his family at lunch, and she admitted she did sit at the same table. She explained that she was sitting by herself in a Subway Restaurant2 near the courthouse at a table where three small tables were pushed together. Tammy’s father and about six other people asked if they could sit there, and she told them they could. However, Juror C maintained that she did not say anything else to them; she simply finished eating in silence and left.

Finally, Juror C denied hugging Tammy’s father on the courthouse steps.

She said she was standing on the steps and he walked past her, hugged a woman Juror C did not know, and got into his car and left.

Following this, the trial court sent Juror C back to the jury room and had a discussion with counsel about how they wished to proceed.3 The trial court stated that it did not believe Juror C’s knowledge of Wright’s sister-in-law as she described it would have qualified her to be struck for cause. Defense counsel said twice during the discussion that he “agree[d] with that 110%,” and that “none of that worried] [him] at all.”

However, defense counsel moved for a mistrial based on the lunchtime allegations. First, he was concerned that Juror C purportedly talked to a

B. Jury Deliberations

On the second day of trial the jury began its deliberations at about one o’clock. An hour later the jury requested, and was permitted, to see the video of Tammy’s testimony again. The jury went back in to deliberate at 2:38 PM.

At 3 PM the foreperson told the court that several jurors were “not comfortable making a decision yea or nay, guilty or not guilty, based on the evidence.” The judge admitted he had never encountered that situation before and wanted to talk to counsel about their preferred course of action. The judge suggested reading through the instructions again, telling the jury to think about those instructions, and to make it clear that each individual juror had a

So, at 3:08 PM the court explained to the jury that they each had an individual obligation to vote guilty or not guilty based on the instructions and the evidence. He told them that if they reached a point where everyone voted and it was not unanimous, then they could let the court know and they would deal with that issue. He then sent them back in to deliberate.

At 3:24 PM the foreperson reported that everyone had voted, but they were now deadlocked. The judge read them the Allen charge verbatim and sent them back in to deliberate at 3:26 PM.

At 3:46 PM the foreperson informed the court that they had another issue. Anticipating that they were still deadlocked, the court asked counsel what they wanted to do if that was indeed the case. The Commonwealth suggested asking the foreperson if he thought further deliberations would be helpful, while the defense suggested declaring a mistrial. The court proposed telling the foreperson the court’s only two options were to either read the Allen

charge again and continue deliberations or declare a mistrial and get the foreperson’s opinion. The defense agreed.5 The court therefore asked the foreperson if he thought there would be any utility in having them deliberate further. The foreperson said that if the court would have asked him that an hour ago, he would have said no. But a few jurors had changed their opinion, while a couple of j urors were holding firm. The trial court then brought the jury out and explained that he was not trying to “twist their arm,” but that he was required to read the Allen charge again because they were still deadlocked. He read it again verbatim and said “I’ll ask you to return to the jury room and continue your deliberations. I’m not asking for a specific amount of time. If and when you come to a decision one way or the other or convince yourselves you’re at an intractable spot, then just let us know and we’ll go from there, okay?” The jury was sent back in to deliberate at 3:57 PM.

At 4:58 PM, the foreperson came out and asked if the judge could provide a definition of “reasonable doubt.” The judge explained that he could not, that what constitutes reasonable doubt is a judgment call for each individual juror.

The foreperson went back to deliver the court’s answer at 5 PM.

At 5:11 PM, after a total of four hours of deliberation, the jury came back with a guilty verdict.

Additional facts are discussed below as necessary.

II. ANALYSIS A. The argument that Wright is entitled to a new trial based on Juror C’s failure to disclose on voir dire was not properly preserved for appellate review.

On appeal to this Court, Wright first argues that Juror C’s failure to disclose that she went to school with his sister-in-law during voir dire is structural error and he is therefore entitled to a new trial. However, this argument was not properly preserved for our review.

As discussed, supra, when the trial court stated it did not believe Juror C’s knowledge of Wright’s sister-in-law would qualify her to be struck for cause defense counsel said he “agreed with that 110%” not just once, but twice. He even went further and stated that the voir dire issue did not worry him at all.

Defense counsel did move for a mistrial during the same colloquy, but he did so only in relation to the allegation that Juror C was seen talking to and hugging Tammy’s father during the lunch recess. Defense counsel never argued she was an improperly seated juror and even agreed with the trial court’s conclusion that she was properly seated.

Thus, this alleged error was waived. The defense waived this issue by failing to move for a new trial based on its inability to strike Juror C for cause or to fully exercise its peremptory strikes because he was not made aware of

Juror C’s knowledge of the defendant’s sister-in-law during voir dire.6 We therefore decline to address this alleged error. Nevertheless, because Juror C was immediately struck and therefore did not participate in the verdict, and because there was no indication from the jury she tainted another member in any way, we would be hard-pressed to find reversible error even if the issue was preserved.

B. The trial court did not commit reversible error by dismissing Juror C instead of declaring a mistrial.

Wright’s next argument is that the trial court committed reversible error by dismissing Juror C in lieu of granting a mistrial based on the allegations that she sat with and hugged Tammy’s father during lunch recess on the first day of trial. This error was properly preserved by defense counsel’s motion for a mistrial based on those allegations.7 Trial courts have broad discretion in determining whether a mistrial should be granted.8 We review a trial court’s denial of a mistrial for abuse of discretion.9 A trial court abuses its discretion when it acts arbitrarily,

With the foregoing principles in mind, we hold that the trial court did not abuse its discretion by denying Wright’s motion for a mistrial.

Wright identified two potential sources of prejudice regarding the lunchtime allegations against Juror C. The first was that she sat and spoke with Tammy’s father, a witness in the case, and was also later seen hugging him. The trial judge did not make a finding that these allegations were true, but nonetheless “out of an abundance of caution” immediately dismissed Juror C before proceeding with the rest of the trial. Because she was struck, she did not hear any more evidence, deliberate, or provide a vote of guilty or not guilty.

Therefore, any potential prejudicial effect that may have stemmed from that alleged improper contact was remedied by her dismissal.

The second source of potential prejudice identified by Wright was that Juror C could have tainted the other members of the jury with any information gained through her alleged conversation with Tammy’s father. The trial court

C. The trial court did not coerce the jury into reaching a verdict.

Wright’s final arguments revolve around the trial court giving the jury two Allen charges. An Allen charge is a supplemental jury instruction that a trial court is permitted to read to a deadlocked jury. The Allen charge derives its name from Allen v. United States, in which the United States Supreme Court approved of a trial court encouraging a jury to continue deliberations after it reported itself deadlocked.13 Kentucky’s version of the Allen charge is codified by RCr 9.57: (1) If a jury reports to a court that it is unable to reach a verdict and the court determines further deliberations may be useful, the court shall not give any instruction regarding the desirability of reaching a verdict other than one which contains only the following elements:

(a) in order to return a verdict, each juror must agree to that verdict; (b) jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment; (c) each juror must decide the case, but only after an impartial consideration of the evidence with the other jurors; (d) in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change his or her opinion if convinced it is erroneous; and (e) no juror should surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of other jurors, or for the mere purpose of returning a verdict.

With this in mind, Wright’s argument to this Court is threefold: (1) the trial court’s first charge to the jury was, in effect, an Allen charge; (2) that the trial court coerced the jury into reaching a verdict by giving it multiple Allen charges; and (3) that this Court should adopt a rule that a trial court’s giving of more than one Allen charge is per se coercive. We will address each argument in turn.

i. Judge’s Directive that Each Juror Must Vote Guilty or Not Guilty

Wright first argues that the first time the trial court addressed the jury, after the foreperson reported a few jurors were refusing to vote, what the court gave was in effect an Allen charge. Therefore, he reasons, the trial court gave a total of three Allen charges. We disagree. The issue that the foreperson reported to the court at that time was not that the jury was deadlocked, i.e. that each juror voted, and the verdict was not unanimous. Rather, he reported there were a few jurors who refused to rule either way. The trial court then addressed the jury regarding that issue: [This is], I think, a misapprehension or misunderstanding of your collective and individual obligations as a juror, okay? It is the obligation of each one of you to read the instructions, filter the evidence you’ve heard through those instructions, and then individually decide whether you would vote guilty or not guilty. At that point, if all of you agree on one or the other then we have a verdict. If all of you don’t agree on one or the other, then you all will let me know and we’ll go from there. But I can’t have a situation where we have 12 jurors, but we only have some number fewer than 12 that are willing to vote. So, everyone has to review the instructions, because I think that with the issue that we’re talking about here, what we find a lot of times is if everyone carefully reviews the instruction it usually answers the questions that people have. But we have to have a situation where each of you individually renders a verdict and what your verdict would be. If they aren’t all the same then you all can knock on the door and let me know and we’ll go from there. If they are all the same then we have a unanimous verdict in one direction or the other.

While it is true that an individual juror’s duty to render a verdict is an element of an Allen charge,14 this statement could hardly quality as giving the jury an Allen charge. The court simply wanted to make clear that each juror has a duty to vote one way or another.

In addition, even assuming arguendo that this was in fact an Allen charge, the defense was the party who requested an Allen charge as an alternative at that stage. When the trial court asked the defense how it wanted to proceed, counsel replied that the only procedural options the court had were

ii. The Allen Charges

Notwithstanding our conclusion that the first time the trial court addressed the jury was not an Allen charge, there can be no question that the second and third time the court addressed the jury were in fact Allen charges; the content of RCr 9.57 was read to them verbatim and in its entirety. Thus,

Wright’s next argument is that giving multiple Allen charges coerced the jury into rendering a verdict.

To analyze whether giving an Allen charge was unduly coercive our test requires looking at the language of the statement or instruction “to determine whether it actually forced an agreement or whether it merely forced deliberations resulting in an agreement...we have long held that statements which merely impress upon the jury the propriety and importance of coming to an agreement do not rise to the level of reversible error.”18 Here, the first time the jury reported itself to be deadlocked, the entirety of the trial court’s instruction was: This is the protocol we go through at this time: there is an additional instruction that I am to read to the jury that has not been read yet and I’m going to read that instruction verbatim out of the rule without comment.

In the event that a jury reports to the court that it is deadlocked this is the instruction I am to read: “(1) In order to return a verdict, each juror shall agree to that verdict. (2) Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment. (3) Each juror must decide the case, but only after an impartial consideration of the evidence with the other jurors. (4) In the course of deliberations a juror should not hesitate to reexamine his or her own views and change his or her opinion if convinced it is erroneous. (5) No juror should surrender his or her honest convictions as to the weight or effect of the evidence solely because of the opinion of other jurors or for the mere purpose of returning a verdict.”

Now, that is the instruction when a jury reports it’s

deadlocked. At this time I’m going to ask you to return to the jury room and continue your deliberations.

The second time the jury reported it was deadlocked, the trial court first asked the foreperson if he believed further deliberations would be beneficial in accordance with RCr 9.54(1).19 The foreperson believed it would. The court therefore stated the following to the jury: Your foreperson has informed us that you are still unable to reach a verdict. Now, that means I have to read this instruction to you again. I’m not doing this because I think you all have forgotten it, I’m doing this because I believe this is what the rules require that I do.

So, if you’ll bear with me, I’m going to read this instruction again and ask you to give it one more try.

None of us is asking for an arm twisting, but there has been a lot to digest over the last couple of days and we want to make sure we give it all the time a case like this deserves, [re-reads the same instruction as listed supra]. Folks, with that in our heads, I’ll ask you to return to the jury room and continue your deliberations.

I’m not asking for a specific amount of time. If and when you come to a decision one way or the other or convince yourselves you’re at an intractable spot, then just let us know and we’ll go from there, okay?

(emphasis added).

There is nothing in either of these statements, or the circumstances surrounding their delivery, that convinces this Court that the jury was forced to reach a verdict. The trial judge specifically stated no one was trying to twist the jury’s arm, or even that they should deliberate for a specific period of time.

Further, the jury deliberated for a total of four hours, which cannot be considered a coercive factor. This is an instance where the Allen instructions were given merely to encourage continued deliberations. We therefore find no error.

Finally, because two Allen charges were given in this case, Wright advocates for the adoption of a bright-line rule that giving more than one Allen charge is per se coercive. This is a matter of first impression for this Court.

Wright cites United States v. Seawell,20 to support his argument. In Seawell, the Ninth Circuit held that “it is reversible error to repeat an Allen charge in a federal prosecution in this circuit after a jury has reported itself deadlocked and has not itself requested a repetition of the instruction.”21 But Wright neglects the fact that the Ninth Circuit finds itself alone amongst the Federal Circuit Courts in having such a rule. See United States v. Barone, 114 F.3d 1284, 1305 (1st Cir. 1997) (“Although we sustain the district court in this case without much difficulty and decline to adopt a per se rule, we do think that caution needs to be used before the modified Allen charge is given fora second time.”); Campos v. Portuondo, 193 F. Supp. 2d 735, 747 (S.D.N.Y. 2002), affd, 320 F.3d 185 (2d Cir. 2003) (“the Second Circuit has held that it ‘do[es] not regard a repeated Allen charge as inevitably coercive.”’); United States v. Santamaria, 418 Fed. Appx. 197, 198 (4th Cir. 2011) (“Giving the jury a second Allen charge is not perse error.”); United States v. Fossler, 597 F.2d 20 550 F.2d 1159 (9th Cir. 1977).

478, 485 (5th Cir. 1979) (“We do not elect to adopt such a perse rule. We opt instead to continue the practice of assessing the impact of the judge's statements in light of his language and the facts and circumstances which formed their context, just as we have previously done in evaluating the effect of a single Allen charge.”); United States v. Robinson, 872 F.3d 760, 773 (6th Cir. 2017) (“Multiple Allen charges are not per se coercive.”); United States v. Reed, 686 F.2d 651, 652 (8th Cir. 1982) (“we have nonetheless repeatedly rejected attacks on the Allen charges as per se coercive.”); United States v. Ailsworth, 138 F.3d 843, 852 (10th Cir. 1998) (“We conclude that the district court did not err in giving the jury two Allen instructions).]”); United States v. Davis, 779 F.3d 1305, 1313 (11th Cir. 2015) (“We have never adopted a per se rule against successive Allen charges.”).22 Therefore, we hold no purpose would be served by the adoption of a per se rule. Instead, our appellate courts should address the issue of whether giving multiple Allen charges in any given case was coercive, and therefore reversible error, based on the totality of the circumstances surrounding the instructions given.

The Supreme Court of the United States has likewise not addressed the issue.

D. Though the error was waived, the trial court’s discussions with the foreperson were improper.

Finally, this Court believes the record demonstrates a need for clarity on an issue not raised by Wright in this appeal. As previously discussed, on at least three separate occasions the trial court conversed with the foreperson out of the presence of the rest of the jury. These actions, though done in good faith, were a clear violation of RCr 9.74, which directs:

No information requested by the jury or any juror after the jury has retired for deliberation shall be given except in open court in the presence of the defendant (unless the defendant is being tried in absentia) and the entire jury, and in the presence of or after reasonable notice to counsel for the parties.23

Thus, though this error was waived by defense counsel’s lack of objection to said discussions,24 we reiterate that our trial courts are bound to follow RCr 9.74 and its corresponding case law.

III. CONCLUSION

For the foregoing reasons, we affirm the trial court below.

Minton, C.J.; Hughes, Keller, Lambert, VanMeter and Wright, J.J.; sitting. All concur. Nickell, J.; not sitting.

COUNSEL FOR APPELLANT: Julia Karol Pearson Department of Public Advocacy Frankfort, Kentucky

COUNSEL FOR APPELLEE: Andy Beshear, Attorney General of Kentucky Micah Brandon Roberts Assistant Attorney General of Kentucky Frankfort, Kentucky