IN THE SUPREME COURT, STATE OF WYOMING

2016 WY 36

 OCTOBER TERM, A.D. 2015

March 11, 2016

CASEY J. CARTER,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-15-0137

Appeal from the District Court of Campbell County

The Honorable Thomas W. Rumpke, Judge

Representing Appellant:

Office of the State Public Defender: Diane M. Lozano, State Public Defender; 

Tina N. Olson, Chief Appellate Counsel; Diane E. Courselle, Director, and 

Samuel Forshner, Student Intern, Defender Aid Program, College of Law, 

University of Wyoming. Argument by Mr. Forshner.

Representing Appellee:

Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; 

Christyne M. Martens, Senior Assistant Attorney General; Caitlin F. Young, 

Assistant Attorney General. Argument by Ms. Young.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

BURKE, C.J., delivers the opinion of the Court; DAVIS, J., files a specially concurring 

opinion.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers 

are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 

82002, of any typographical or other formal errors so that correction may be made before final publication in 

the permanent volume.
1

BURKE, Chief Justice.

[¶1] The jury in Casey J. Carter’s trial for felony interference with a peace officer 

deliberated approximately four hours before it informed the district court it was 

deadlocked. The district court provided the jurors with a supplemental instruction urging 

them to continue deliberating. A short time later, the jury returned a guilty verdict. On 

appeal, Mr. Carter claims that the district court’s supplemental instruction improperly 

coerced the jury, and that he was denied effective assistance of counsel because his 

attorney did not object to the instruction. We affirm. 

ISSUES

[¶2] Mr. Carter presents two issues:

1. Was the supplemental jury instruction coercive?

2. Was Mr. Carter denied his right to effective assistance 

of counsel because his attorney failed to object to the 

supplemental instruction?

FACTS

[¶3] Mr. Carter’s trial began at 8:30 a.m. After the jury was selected and opening 

statements were given, the court recessed for lunch. At 1:00 p.m., the prosecution began

presenting its case. It called two witnesses, police officers Ryan Mahylis and Eric Small, 

who had arrested Mr. Carter in his home. Both testified that when Mr. Carter was 

informed he was being arrested, he swung a fist at Officer Mahylis. Officer Mahylis 

ducked the punch, but was taken into a headlock by Mr. Carter. The officer broke away, 

and the two officers “took [Mr. Carter] to the ground.”

[¶4] Defense witnesses provided a different version of the incident. Enrique Ibarra, 

Mr. Carter’s friend and roommate, observed the arrest. He testified that when Mr. Carter 

was told he was being arrested, he started to leave to get his medication. One of the 

officers grabbed his arm, and Mr. Carter “reacted” by jerking it away. The officers then 

took him “down to the floor.” Mr. Carter testified as follows in his defense:

As I stepped forward one officer startled me because he 

grabbed my left hand from behind and I pulled back because 

it shocked me a little bit, and as soon as I pulled, the other 

officer grabbed my right arm and the next thing I know I was 

on the ground.

[¶5] Ultimately, the case was submitted to the jury. The jury was instructed that it 
2

must determine whether Mr. Carter was guilty or not guilty of felony interference with a 

peace officer in violation of Wyo. Stat. Ann. § 6-5-204(b) (LexisNexis 2013).

1

 The jury 

was also instructed that, if it did not find Mr. Carter guilty of interference with a peace

officer, it could consider the lesser included misdemeanor offense of resisting arrest in 

violation of Wyo. Stat. Ann. § 6-5-204(a).2The jury began its deliberations at about 4:00 

p.m.

[¶6] Shortly after 7:30 p.m., the district court learned that the jury had indicated to the 

bailiffs that it was deadlocked. The district court informed the prosecutor, the defense 

attorney, and Mr. Carter that the jury had told the bailiffs they were “11 to 1 on the top 

verdict, 12, 0 on the bottom verdict.” When the bailiffs asked if the jury wanted to go 

home or continue deliberating, the jurors said “it wouldn’t make any difference, it would 

still be the same.” After discussion with counsel, at around 8:30 p.m., the district court 

instructed the jury as follows:

Ladies and gentlemen, . . . about 7:35 I received a 

phone call indicating that you all were at an impasse and you 

were having difficulty reaching an agreement and so I’m 

going to give you one supplemental instruction and ask you to 

return to continue your deliberations.

If you find that, if you reach agreement obviously let 

the bailiffs know but if you don’t and believe it would be 

beneficial to break for the evening, again please let the 

bailiffs know and they can get that message to us, and I’ll 

give you this following instruction and then ask you to retire 

to the jury room and continue your deliberations.

Ladies and gentlemen, you have already been 

instructed that in order to return a verdict each juror must 

agree thereto. The jurors have a duty to consult with one 

another and to deliberate with a view to reaching an 

 

1 The statute provides: “A person who intentionally and knowingly causes or attempts to cause bodily 

injury to a peace officer engaged in the lawful performance of his official duties is guilty of a felony 

punishable by imprisonment for not more than ten (10) years.”

2 The statute provides: “A person commits a misdemeanor punishable by imprisonment for not more than 

one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both, if he knowingly obstructs, 

impedes or interferes with or resists arrest by a peace officer while engaged in the lawful performance of 

his official duties.”
3

agreement if it can be done without violence to your 

individual judgments.

Each juror must decide the case for himself but only 

after – or herself, I’m sorry, but only after an impartial 

consideration of the evidence with his or her fellow jurors. In 

the course of your deliberations, a juror should not hesitate to 

reexamine his or her own views and change his or her own 

opinion if convinced that it is erroneous.

However, no juror should surrender his or her honest 

conviction as to the weight or effect of the evidence solely 

because of the opinion of his or her fellow jurors or for the 

mere purpose of returning a verdict. The court requests that 

you deliberate further in an atmosphere of mutual deference 

and respect giving due consideration to the views of your 

fellow jurors in the knowledge that your verdict must reflect 

the views of all.

Your attention is specifically called to all of the other 

instructions given to you in this case including but not limited 

to those relating to the presumption of innocence, the burden 

of proof, and the requirement that guilt must be established 

beyond a reasonable doubt. And the instruction that I have 

just given you is to be considered with all other instructions 

that I’ve previously given you in this case.

With that additional instruction, I’ll ask you to 

continue your deliberations, and if you have questions or need 

to communicate, that you need to agree to leave for the 

evening or you’ve reached a decision please contact the 

bailiffs, and with that, I’ll excuse the jury to the deliberation 

room.

Defense counsel did not object to the instruction. At approximately 9:15 p.m., the jury 

returned a guilty verdict on the charge of felony interference with a peace officer. This 

timely appeal ensued.

STANDARD OF REVIEW

[¶7] When a defendant fails to object to the giving of the jury instruction at issue, we 

review for plain error. Mendoza v. State, 2013 WY 55, ¶ 11, 300 P.3d 487, 490 (Wyo. 

2013). Plain error exists when the record is clear about the incident alleged as error, there 
4

was a transgression of a clear and unequivocal rule of law, and the party claiming the 

error was denied a substantial right which materially prejudiced him. Id. Because the 

jury instruction at issue appears in the record, we need to consider only the latter two 

parts of the plain error analysis.

DISCUSSION

[¶8] The supplemental instruction given in this case “is commonly referred to as an 

‘Allen-type’ instruction, a term used to describe an instruction which urges continued 

deliberation when the jury is temporarily unable to come to an agreement regarding guilt 

or innocence.” Seeley v. State, 959 P.2d 170, 177 (Wyo. 1998) (italics added). As we 

noted in Elmer v. State, 463 P.2d 14, 21 (Wyo. 1969), it is called an Allen-type 

instruction “since an instruction along that line was approved by the United States 

Supreme Court many years ago” in the case of Allen v. United States, 164 U.S. 492, 501-

02, 17 S.Ct. 154, 157, 41 L.Ed. 528 (1896). Instructions of this type have a long history 

of being used in Wyoming trials when the jury appeared to be deadlocked, and we have 

upheld them as proper. Harris v. State, 23 Wyo. 487, 513-14, 153 P. 881, 889-90 (1916); 

Nicholson v. State, 24 Wyo. 347, 356-57, 157 P. 1013, 1015-16 (1916).

[¶9] Interestingly, we have disapproved of the actual jury instruction at issue in Allen,

3

 

noting that this instruction “is generally in disrepute and at least controversial amongst 

the courts of the land because of its appeal to the minority to bow to the majority.” 

Hoskins v. State, 552 P.2d 342, 347 n.8 (Wyo. 1976). We have accepted “the legal 

proposition that an instruction given at a time when it appears a jury may be deadlocked, 

referred to as an Allen type, must not have a coercive impact upon the jury.” Id. at 347 

(footnote omitted). In furtherance of that proposition, we have recognized that 

“[c]ommunications from a judge to a jury are coercive when they possess the substantial 

propensity for prying minority jurors loose from beliefs they honestly have, constitute an 

undue intrusion into the jury’s province and dilute the requirement of unanimity.” Id. at 

347-48.

[¶10] But while disapproving of the actual instruction at issue in Allen, we have upheld 

the use of an Allen-type instruction. In Hoskins, the Allen-type instruction provided:

 

3 The instruction in Allen informed the jurors, among other things, that “if much the larger number were 

for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no 

impression upon the minds of so many men, equally honest, equally intelligent with himself,” and that if, 

“upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they 

might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.” 

Allen, 164 U.S. at 501, 17 S.Ct. at 157.
5

Ladies and gentlemen, it is our understanding that you are 

having difficulty reaching an agreement. As you know, this 

is an important case to the defendant and the State. This trial 

has been expensive even though short. If you fail or are 

unable to agree, of course, there will be the necessity of 

choosing another jury, twelve people, no more intelligent than 

you are, no more impartial, or no more competent. They have 

[sic] the same responsibility, under the same oath, who [sic] 

would hear the evidence with the same attention with an 

equal desire to arrive at the truth.

You have already been instructed that in order to return a 

verdict, each juror must agree thereto. The 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 

your individual judgments. Each juror must decide the case 

for himself, but only after an impartial consideration of the 

evidence with his fellow jurors. In the course of your 

deliberations a juror should not hesitate to re-examine his or 

her own views and change his or her opinion if convinced that 

it is erroneous. However, no juror should surrender his 

honest conviction as to the weight or effect of the evidence 

solely because of the opinion of his or her fellow jurors, or for 

the mere purpose of returning a verdict. The Court requests 

you to deliberate further in an atmosphere of mutual 

deference and respect, giving due consideration to the views 

of your fellow jurors in the knowledge that your verdict must 

reflect the views of all.

Your attention is specifically called to all of the other 

instructions given to you in this case, including those relating 

to the presumption of innocence, the burden of proof, and the 

requirement that guilt must be established beyond a 

reasonable doubt, and the instruction I have just given you is 

to be considered with all other instructions in this case.

Id., 552 P.2d at 344-45 (quotation marks omitted).

[¶11] We noted that this instruction was based on a standard appearing in the 1968 

Approved Draft of the American Bar Association of Standards Relating to Trial by Jury. 

Id. at 346. We approved of the standard appearing at page 145 of that document, which

states:
6

5.4 Length of deliberations; deadlocked jury.

(a) Before the jury retires for deliberation, the court may give 

an instruction which informs the jury:

(i) that in order to return a verdict, each juror must 

agree thereto;

(ii) that 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;

(iii) that each juror must decide the case for himself, 

but only after an impartial consideration of the 

evidence with his fellow jurors;

(iv) that in the course of deliberations, a juror should 

not hesitate to reexamine his own views and change 

his opinion if convinced it is erroneous; and

(v) that no juror should surrender his honest conviction

as to the weight or effect of the evidence solely 

because of the opinion of his fellow jurors, or for the 

mere purpose of returning a verdict.

(b) If it appears to the court that the jury has been unable to 

agree, the court may require the jury to continue their 

deliberations and may give or repeat an instruction as 

provided in subsection (a). The court shall not require or 

threaten to require the jury to deliberate for an unreasonable 

length of time or for unreasonable intervals.

(c) The jury may be discharged without having agreed upon a 

verdict if it appears that there is no reasonable probability of 

agreement.

Hoskins, 552 P.2d at 346 (quotation marks omitted). We determined that the instruction 

given in Hoskins was “consistent with that high standard” and “used the very language of

the standard.” Id. We expressly approved of its use in that case.

[¶12] We later emphasized that “we strongly approved” of the Hoskins instruction. 

Seeley, 959 P.2d at 179. Considering an instruction very similar to the one given in 
7

Hoskins, we noted that “the concern raised by such instruction is the possibility that a 

juror voting in the minority may feel coerced into abandoning beliefs honestly held and 

succumb to the will of the majority in order to reach a unanimous decision.” Seeley, 959 

P.2d at 177. However, examining the content of the instruction, we concluded it was 

not coercive in that the instruction repeatedly admonished the 

jury not to sacrifice their honestly held beliefs to the majority. 

Further, the instruction specifically called the jury’s attention 

to the previous instructions on the presumption of innocence 

and the State’s burden to prove guilt beyond a reasonable 

doubt. Thus, the instruction did not substantially tend to pry 

jurors from their honestly held beliefs or unduly intrude into 

the jury’s decisional province. Neither did [the instruction] 

express disapproval of the jurors’ position, push the jury to 

rush to verdict, nor otherwise dilute the requirement of 

unanimity.

Id. at 178-79. We were “convinced beyond a reasonable doubt” that Mr. Seeley “was not 

prejudiced” by the instruction. Id. at 179.

[¶13] In Mr. Carter’s case, the Allen-type instruction was based on the jury instruction 

given in Hoskins. Reviewing the language of the Hoskins instruction, the district court 

noted that the first paragraph of that instruction informed the jury that the trial had been 

“expensive although short,” and if the jury was unable to agree, “of course, there will be 

the necessity of choosing another jury, 12 people, no more intelligent than you, et cetera.” 

Both counsel asserted that it was unnecessary to use the first paragraph of the instruction 

from Hoskins, and the district court agreed that this paragraph was “by far the most 

coercive part of that jury instruction and at this time I find that would be premature.” 

Accordingly, the district court provided the jury with the latter portion of the Allen-type 

instruction from Hoskins, leaving out the more coercive first paragraph.

[¶14] The instruction given in Mr. Carter’s case is the same in substance as the 

instructions we approved of in Hoskins and Seeley. It is very nearly identical, word for 

word, to the latter part of the Hoskins instruction. It is consistent with the ABA Standard 

we approved of in Hoskins. Mr. Carter faces a difficult challenge in his effort to 

convince us that the instruction was unduly coercive in his case.

[¶15] Mr. Carter attempts to distinguish his case because the instruction was given to the 

jury at around 8:30 p.m. He argues that, “[g]iven how late in the evening the 

supplemental instruction was given, it also sent the implicit message that the jurors were 

not going home any time soon unless they reached a verdict.” The State counters that we 

have previously upheld instructions given at even later hours. In Bell v. State, 994 P.2d 

947, 952-53 (Wyo. 2000), for example, a similar instruction was given at 8:44 p.m. and 
8

again at 9:50 p.m., after nearly nine hours of jury deliberation. See also Elmer, 463 P.2d 

at 20-21 (approving of an Allen-type instruction given at 10:00 p.m. after the jury had 

deliberated nearly eleven hours). In Mr. Carter’s case, the jury had been deliberating less 

than four hours, and the hour was not notably late. We note further that the district court 

in Bell, 994 P.2d at 953, told the jury there would be no overnight accommodations for 

the jurors, possibly suggesting that the jury needed to reach a verdict before the jurors 

could go home. The district court in Mr. Carter’s case explicitly told the jurors that if 

they “believe[d] it would be beneficial to break for the evening, again please let the 

bailiffs know and they can get that message to us.” We conclude that the instruction 

given in Mr. Carter’s case was not unduly coercive because of the time when it was read 

to the jury.

[¶16] Mr. Carter also points out that in his case, unlike Hoskins or Seeley, the judge and 

the parties knew how the jurors had voted. He asserts that the district court should have 

known that the lone juror voting to acquit him on the charge of felony interference with a 

peace officer would be unduly coerced by the instruction, particularly the admonition that 

“a juror should not hesitate to reexamine his or her own views.” Furthermore, Mr. Carter 

maintains, the jurors were aware that the judge knew how they had voted. He claims that 

the jury as a whole, and the holdout voter in particular, would interpret the instruction as 

being directed specifically at the holdout juror, thus “coercing her to acquiesce and 

capitulate under the intense pressure of not just her fellow jurors, but of the court as 

well.”

[¶17] As a preliminary matter, we note that the bailiffs should not have told the judge 

how the jurors had voted. Wyo. Stat. Ann. § 1-11-207 provides that the officer in charge 

of the jury “shall not communicate to any person the state of their deliberations.” When 

the jurors revealed their vote to the bailiffs, the bailiffs should have kept that information 

to themselves. Some courts have held that it is improper for the judge to ask the jury how 

it had voted. See, e.g., United States v. Sae-Chua, 725 F.2d 530, 531-32 (9th Cir. 1984). 

In this case, however, the district court did not ask. The jurors volunteered that 

information to the bailiffs, and the bailiffs mistakenly passed it on to the judge. It is not 

necessarily trial error when the judge learns of the jury’s numerical division through 

spontaneous disclosure by the jury. See Hooks v. Workman, 606 F.3d 715, 747 (10th Cir. 

2010). In any event, Mr. Carter does not assert that the district court’s knowledge of the 

jurors’ votes was, by itself, reversible error. Rather, he claims that the district court’s 

knowledge rendered the supplemental instruction unduly coercive.

[¶18] Mr. Carter’s argument refers to two facts that are not supported by the record. 

First, although the record indicates that the district court knew the jurors’ numerical 

votes, it did not know if the votes favored conviction or acquittal. The district court and 

the parties seemed to assume that there were eleven votes to convict and one to acquit. 

That assumption may be reasonable, but there are no facts in the record to prove it 

correct. Second, the record does not support the claim that the jurors knew that the 
9

district court knew how they had voted. The jurors told the bailiffs their vote, but there is 

no indication that the jurors were aware that the bailiffs relayed those details to the judge.

[¶19] Neither of these assumed facts is critical to our decision. What is critical is that 

Mr. Carter’s argument focuses on a single statement from the supplemental instruction –

“a juror should not hesitate to reexamine his or her own views” – as unduly coercive 

when directed at the lone holdout juror. However, we must consider the instruction “as a 

whole and not according to isolated phrases and paragraphs.” Hoskins, 552 P.2d at 348. 

The district court in this case also instructed the jury they had “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 your individual judgments.” (Emphasis added.) It added: “However, no 

juror should surrender his or her honest conviction as to the weight or effect of the 

evidence solely because of the opinion of his or her fellow jurors or for the mere purpose 

of returning a verdict.” (Emphasis added.) The instruction, as a whole, emphasized the 

importance of individual judgment at least as much as the importance of reexamining 

individual views.

[¶20] As we observed earlier: “Communications from a judge to a jury are coercive 

when they possess the substantial propensity for prying minority jurors loose from beliefs

they honestly have, constitute an undue intrusion into the jury’s province and dilute the 

requirement of unanimity.” Hoskins, 552 P.2d at 347-48. On balance, the instruction 

given in Mr. Carter’s case cannot be viewed as an attempt to pry any juror from his or her 

honest beliefs. It did not intrude on the jury’s province. It explicitly reinforced the 

requirement of reaching a unanimous verdict. We conclude, as we did in Hoskins and 

Seeley, that this instruction was not unduly coercive, and that it was proper for the district 

court to give the instruction to the jury. There was no violation of a clear and 

unequivocal rule of law, and Mr. Carter has failed to establish plain error.

[¶21] Mr. Carter also contends that he was denied his right to effective assistance of 

counsel because his defense attorney did not object to the supplemental instruction. 

Claims of ineffective assistance of counsel involve mixed questions of law and fact and 

are reviewed de novo. Osborne v. State, 2012 WY 123, ¶ 17, 285 P.3d 248, 252 (Wyo. 

2102). “To prevail on a claim of ineffective assistance of counsel, a defendant must first 

establish that trial counsel’s performance was deficient.” Id., ¶ 19, 285 P.3d at 252. We 

have determined that the instruction was properly given in this case. Defense counsel’s 

failure to object to a proper jury instruction cannot be characterized as deficient 

performance. 

[¶22] Affirmed.
10

DAVIS, Justice, specially concurring.

[¶23] I am in complete agreement with the majority’s opinion in this case, but write 

separately to point out means by which two potential problems can be avoided. There is 

no good reason for anyone to know how a jury stands numerically before it returns its 

verdict, and a number of good reasons why its standing during deliberations should not 

be disclosed to anyone.

[¶24] It would be a simple matter to instruct and/or admonish the jury that it is never to 

communicate how it stands to anyone during deliberations, including the court. For some 

reason, Wyoming’s civil and criminal pattern jury instructions do not contain this 

admonition.4 The federal pattern instructions contain language that would do nicely in 

both civil and criminal cases with a little adaptation:

Bear in mind also that you are never to reveal to any person—

not even to the Court—how the jury stands, numerically or 

otherwise, on the question of whether or not the government 

has sustained its burden of proof until after you have reached 

a unanimous verdict.

1A Kevin F. O’Malley, Jay E. Grenig, and Hon. William C. Lee, Federal Jury Practice 

& Instructions, Crim. § 20:01 (6th ed., database updated Aug. 2015). See also 3 

O’Malley et. al., supra, Civ. § 106.08 (civil instruction).

[¶25] In addition, the record reflects that the court learned that the jury was deadlocked 

after the jury invited the bailiffs into the jury room and conveyed information concerning 

the state of its deliberations to them. This information was then relayed to the court, and 

from there to the attorneys in the case. I mean no disrespect or negative comment on the 

integrity of the bailiffs or anyone else, but this is a poor practice, and would be even if the 

bailiffs had not further communicated the state of the jury’s deliberations. The jury 

deliberation stage of a jury trial is perhaps its most fragile, because by design there is no 

record of what transpires. The jury has more off-the-record contact with the bailiffs than 

anyone else in a case. Jurors become somewhat dependent on and familiar with the 

bailiffs in a forbidding environment. 

[¶26] Allowing jurors to communicate with the court about the case orally through the 

bailiffs creates a risk that the bailiffs may not properly convey their concerns to the court, 

 

4 There are some general references to communications during deliberations in the patterns, but they do 

not specifically address the points raised in this concurrence. See 2015 Wyo. Civil Pattern Jury 

Instruction 1.02 and 2014 Wyo. Criminal Pattern Jury Instructions 1.09A and 1.14.
11

and more importantly, that they might inadvertently influence jurors by verbal 

communications or body language. For that reason, the jury should be admonished 

and/or instructed to communicate with the court about the case only in writing, as should 

the bailiffs. The federal pattern instructions once again provide appropriate language:

If it becomes necessary during your deliberations to 

communicate with the Court, you may send a note, signed by 

your foreperson or by one or more members of the jury, 

through the bailiff. No member of the jury should ever 

attempt to communicate with the Court by any means other 

than a signed writing and the Court will never communicate 

with any member of the jury concerning the evidence, your 

opinions, or the deliberations other than in writing or orally 

here in open court.

1A O’Malley et. al., supra, § 20:01 (criminal); see also 3 O’Malley et al., supra, §106.08 

(civil). 

[¶27] The notes a jury sends should obviously be made a part of the record. This 

process is not perfect, but it is likely to produce a better record than a chain of oral 

communications.