FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2022-2143 

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MALCOLM T. COOPER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Leon County.

J. Lee Marsh, Judge.

May 15, 2024

TANENBAUM, J.

Malcolm Cooper appeals his convictions and concurrent 

sentences (which include a life sentence). His appeal centers on 

several interactions by the trial judge with the jury. Cooper first 

contends that the trial judge created a coercive atmosphere 

regarding both deliberations and the ultimate verdict form.1 He 

also argues that the judge erroneously recalled the “discharged” 

1 On this front, we address only Cooper’s argument about 

deliberations. We reject, without analysis, the alternative 

argument about the judge’s direction to the jury to return to the 

jury room, review his prior instructions, and clarify an aspect of 

the verdict form. That argument was not preserved, and we find 

no indication of coerciveness and no fundamental error.
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jury to re-poll the jurors about their verdict after the judge realized 

that he had misread the verdict form to them. We will affirm.

The first of Cooper’s contentions we address is that the trial 

court fundamentally erred by giving an unrequested standard 

Allen2 charge on the second day of jury deliberations, even though 

the jury had not announced it was deadlocked. The previous day, 

the jury had been allowed to adjourn after starting its 

deliberations and continuing for about three hours. On the second 

day, the jury sent a note indicating that it had reached a decision 

as to two counts—burglary and criminal mischief3—but 

apparently not two others—arson and kidnapping. The jury asked 

if it could leave and resume deliberations the following (third) day. 

The trial judge told counsel that he was inclined to keep the jury 

there and give them the charge. After all, it was not even 4:00 p.m.,

yet. The prosecutor stated that the State was “fine with that,” but 

defense counsel said, “Defense wouldn’t be asking for it.”4 The 

judge read the standard instruction for a deadlocked jury. No 

objection or request for a cure was lodged following this. The jury 

returned later that afternoon with a verdict that was consistent 

with its previous note: deadlocked on the arson and kidnapping 

counts, verdicts for the others, and an answer regarding the 

commission of a battery during the burglary.

2 Allen v. United States, 164 U.S. 492 (1896).

3 The verdict form contained an interrogatory regarding 

whether an assault or battery had occurred inside the dwelling 

during the charged burglary, and the jury indicated in its note that 

it had reached a decision as to that interrogatory as well.

4 We do not construe counsel’s statement as an objection 

sufficient to preserve the issue for ordinary appellate review. 

Counsel’s statement indicates, at best, acquiescence to the charge 

(but not invited error), so while the argument is not waived, we 

limit our consideration to whether the trial court’s action 

constituted fundamental error. See Allen v. State, 322 So. 3d 589, 

598 n.4 (Fla. 2021) (“To be clear, acquiescing to an incorrect 

instruction constitutes a failure of preservation that does not 

preclude fundamental-error review.”).
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This court previously has suggested that without an objection 

to an Allen charge being given to a jury that is not deadlocked, 

there can be no reversible error. See Armstrong v. State, 364 So. 2d 

1238, 1238 (Fla. 1st DCA 1977) (“While we consider that the giving 

of the instruction in the absence of a deadlocked jury was error, 

such was not fundamental error, and the failure to object waived 

any objection appellant might have had to the instruction.”); 

Gahley v. State, 567 So. 2d 456, 460 (Fla. 1st DCA 1990) (relying 

on Armstrong to conclude that there was no reversible error in 

giving the Allen charge absent an “assertion of deadlock” because

no objection had been made).

That said, it is conceivable that there could be fundamental 

error if there is evidence of coercion under the “totality of the 

circumstances” of the case. Thomas v. State, 748 So. 2d 970, 976 

(Fla. 1999) (“It has long been the law that a trial court should not 

couch an instruction to a jury or otherwise act in any way that 

would appear to coerce any juror to reach a hasty decision or to 

abandon a conscientious belief in order to achieve a unanimous 

position.” (citing Jones v. State, 92 So.2d 261 (Fla. 1956))). Factors 

to consider are the following: “(1) coercive deadlines, (2) threats of 

marathon deliberations, (3) pressure for the surrender of 

conscientiously held minority views, and (4) any implication of a 

false duty to decide.” Gahley, 567 So. 2d at 459; cf. Thomas, 748 

So. 2d at 976–77 (considering the following factors indicating 

coercion: “(1) the trial judge’s repeated failure and refusal to give 

the balanced Allen charge from the Standard Jury Instructions; (2) 

the judge’s repeated informal instructions urging the jury to 

render a decision; (3) the prevailing conditions surrounding the 

deliberations evidenced predominantly by the jury’s deliberations 

into the early morning hours of the following day; and (4) the jury’s

announcement in open court of their split vote indicating a lone 

holdout”).

We can find none of these factors present in the record here. 

Indeed, “the fact that no objection was raised to the supplemental 

instruction indicates that the potential for coercion did not appear 

so to one on the scene.” Gahley, 567 So. 2d at 460. Moreover, 

“[s]ince the jury had not completed its work at the usual 

adjournment time, it was not inappropriate to return the jurors to 

the courtroom to provide guidance.” Id. Finally, the final verdict, 
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which showed a deadlock on the same two counts that the jury had 

mentioned in its note suggests that the Allen charge in the end had 

no discernable effect. Cooper’s first argument for reversal fails.

Now for the appellant’s second contention: The trial judge

erred by—over defense counsel’s objection—bringing back the 

jurors, after they had been discharged, to re-poll them once the 

judge realized that he had made a mistake in his reading of the 

verdict form to the jurors in connection with the first poll. While a 

discharged jury cannot be recalled, a trial court does not err by 

doing so after it simply uses the term “discharged.” The supreme 

court has explained this as follows:

On the other hand, it may remain undischarged and 

retain its functions, though discharge may have been 

spoken by the court, if, after such announcement, it 

remains an undispersed unit, within control of the court, 

with no opportunity to mingle with or discuss the case 

with others, and particularly where, as here, the very 

case upon which it has been impaneled is still under 

discussion by the court, without the intervention of any 

other business.

Lee v. State, 294 So. 2d 305, 308 (Fla. 1974) (emphasis supplied); 

see also U.S. Fid. & Guar. Co. v. Gulf Fla. Dev. Corp., 365 So. 2d 

748, 749 (Fla. 1st DCA 1978) (“After a jury has returned its verdict, 

has been discharged and separated, it cannot be recalled to alter 

or amend the verdict.” (emphasis supplied)).

Along these lines, then, the circumstances here are close to 

those under consideration in Masters v. State, 344 So. 2d 616 (Fla. 

1st DCA 1977), which affirmed. The court stated, in pertinent part, 

the following: 

But in this case less than a minute transpired before it 

was discovered that the jury had in fact as to count one of 

the information returned two inconsistent verdicts. The 

jury was immediately recalled and there occurred the 

sequence of events related herein-above. There is nothing 

in the record to reflect that the jury had in fact separated 

and gone their separate ways. On the contrary the fact 

that they were so readily re-assembled indicates to the 
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contrary. As we stated above there is not any evidence 

that the jury had communicated with any outsider or that 

any outside influence was exerted upon them, or 

attempted.

The burden is upon the appellant to establish that any 

such communication with or influence upon the jury had 

occurred. In fact he has not even suggested any such and 

therefore, he has not met this burden.

Id. at 620.

The record indicates that the jurors were readily retrieved 

from within the courthouse shortly after they had been discharged. 

The appellant does not suggest that the jurors had “gone their 

separate ways” or that “any outside influence” had been exerted on

them in the short time after they had left the courtroom, and 

nothing was submitted before the trial court to this effect as part 

of defense counsel’s contemporaneous objection. Cf. Gulf Fla. Dev., 

365 So. 2d at 750 (distinguishing Masters because “[t]he jury in 

this case was separated and out of the presence of the court for a 

period in excess of five days” and “[d]uring that period the 

opportunity existed for the jury to be communicated with or 

tampered with by any person,” which in fact happened, as “several 

jurors admitted that they had read newspaper articles concerning 

the trial in the interim period after discharge”). Cooper’s second 

argument for reversal also falls short.

AFFIRMED.

BILBREY and NORDBY, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Luke Newman, Tallahassee, for Appellant.

Ashley Moody, Attorney General, David Welch, Assistant Attorney 

General, Tallahassee, for Appellee.