IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

)

) Def. I.D. # 2308000437

v. )

)

)

CEDRIC SMITH

, )

)

Defendant. )

Submitted: April 16, 2024

Decided: April 19 , 2024

Motion for New Trial

DENIED

MEMORANDUM OPINION AND ORDER

Mary E. Batten, Esquire, Deputy Attorney General, Department of Justice, 13 The

Circle, Georgetown, DE 19947 ; Attorney for State of Delaware.

Angela D. Huffman, Esquire, Assistant Public Defender, Office of the Public

Defender, 14 The Circle, 2 nd Floor, Georgetown, DE ; Attorney for Defendant Cedric

Smith

.

KARSNITZ, R. J.2

Facts

On August 2, 2023, Cedric Smith (“Mr. Smith” or “Defendant”) was charged

with one count of Second Degree Rape. He appeared before me for a jury trial on

March 11, 2024, and the jury began deliberations at approximately 11:47 a.m. on

March 12, 2024. At approximately 2:34 p.m. that day, the jury sent me a note stating

that it was hung 10

- 2 in favo r of a guilty verdict

. At approximately 2:38 p.m., I gave

the jury an Allen charge. 1 The charge was as follows:

The Court: Ladies and gentlemen, let me first say that I

want to thank you for all the time and attention you have been

spending on this case today and yesterday. I've watched you

as carefully as I can while I'm doing everything I'm required

to do up here. It's been obvious to me that you've paid a lot of

attention to what's happening, paid attention to the evidence.

We've got your note. I've shared it with the parties, but

I have to

- - I'm going to make some further requests of you.

We have your note indicating that you have not been

able to reach a unanimous verdict. You have been deliberating

a little more than two hours now. Although that may seem like

a long time, it is a relatively short period for jury deliberations

in view of the serious nature of the case.

This trial has consumed time, energy, emotions, and

resources of the State, the victim's family, and the defendant.

If you should fail to agree upon a verdict, this case will remain

open and undecided, and it must be disposed of at some later

time. There appears to be no reason to believe that another trial

would not be equally taxing on the resources of all those

involved, nor does there appear to be any reason to believe that

1 Allen v. United States , 164 U.S. 492 ( 1896).3

another jury, viewing the same evidence, would face a less

difficult decision than the one you face.

Since it is your duty to reach a unanimous verdict if you

aren't able to do so without violating

- - if you are unable to do

so without violating your individual judgement and conscience,

I will ask you to resume your deliberations and, in addition to the

instructions previously given to you, to consider the following

principles during your renewed deliberations.

Every juror, as part of the deliberation process, should

consider and weigh the recollections and opinions of every other

juror in reaching his or her conclusions. The collective memory,

experience, judgement, and common sense of the entire jury

panel should provide the basis for each juror's individual

decision. In the course of deliberations, a juror should not hesitate

to reexamine his or her own views and change an opinion if the

juror is convinced by a review of the evidence, the law, and the

logic of other jurors that such opinion is erroneous, but no juror

should surrender his or her honest conviction as to the weight or

effect of the evidence solely because of the opinions of other

jurors or for the mere purpose of returning a verdict.

I wish to emphasize that making these remarks, the Court

is not intending, in any way, to suggest what your verdict should

be. You may conduct your deliberations as you choose, but I

suggest that you should now retire to carefully reconsider all the

evidence bearing upon the questions be f ore you and the opinions

of other jurors relating to the evidence in determining whether or

not you are able to fulfill your duty to reach a unanimous verdict

without violating your individual judgement and conscience. 2

2 Excerpt Transcript of Trial Vol. B., 4

- 7 (March 12, 2024)

.4

At approximately 3:19 p.m., the jury sent me a second note stating that one

juror was not deliberating and wanted to speak to me. I instructed the jury to keep

deliberating, and did not speak to any individual juror :

All right. Good afternoon again. I have a note that

indicates one or more of the jurors doesn't want to continue the

discussion and has requested a meeting with

- - and it says

- - you.

I am assuming that means me.

Let me first say

- - address the second part first because

it's the easier part,

It is not appropriate for me to have a discussion with

any juror at this point in time. You are in the midst of

deliberations. The only discussions I can have with you is as

we are doing right now. I am going to ask you as politely as I

can to go back to the jury room and continue with your

deliberations. 3

At approximately 4 : 34 p. m ., the jury returned a verdict of guilty. At

Defendant’s request, the jury was polled

, and each juror stated that his or her verdict

was guilty.

On March 21, 2024, Defendant filed a Motion for New Trial under Delaware

Rule of Criminal Procedure 33, 4 arguing that my second instruction to the jury was

coercive . On April 16, the State filed its Response to the Motion. This is my decision

on the Motion.

3 Id. at 9

- 10

. 4 The Motion was timely filed within sev e n (7) days after the guilty verdict under Super. Ct. Crim.

R. 33.5

Analysis

Our Supreme Court has held that there are four (4 ) factors to be examined

to determine whether an Allen instruction is coercive: (1) the timing of the

instruction; (2) the words used in the instruction; (3) the length of deliberations

both before and after the instruction; and (4) the complexity of the case. 5

Whether the instruction is coercive is to be decided given the totality of the

circumstances, not any individual factor. 6

Timing of Second Instruction

I gave the first instruction, the Allen instruction

, after I received a note

from the jury about three hours after jury deliberations began . The note indicated

that

, at that time, the jury was hung; the vote was ten for a guilty verdict and two

for a not guilty verdict

. I read the Allen instruction to the jury

, and it returned to

its deliberations.

I received a second note from the jury a bout forty minutes later indicating

that there had been a breakdown in deliberations

– one juror was not deliberating

.

5 Desmond v. State , 654 A.2d 821 (1994).

6 Boatson v. State , 457 A.3d 738, 743

- 744 (Del. 1983); Streitfeld v. State , 369 A.2d 674, 677

(1977).6

At th at time, the jury had been deliberating for the better part of three

hours and twenty minutes. I instructed the jury that I could not speak to any

individual juror and politely asked the jury to continue deliberating . I gave no

additional Allen instruction at that time, simply a request to continue

deliberating.

In my view, the timing of my second instruction was not coercive. It came

over three hours after the jury began deliberating , and was in response to their

note about the uncooperative juror, not sua sponte

.

Wording of Second Instruction

"[S]upplementary instructions which encourage the jury to reach a verdict,

sometimes referred to as an ‘ Allen charge ’ or ‘ dynamite charge ’ are generally

proper." 7 The potential coercive effect of an Allen charge "can be eliminated

by having the charge include an ad monition that each individual juror not

surrender his or her honest convictions and not return any verdict contrary to the

dictates of personal conscience." 8

7 Collins v. State, 56 A.3d 1012, 1019

- 20 (Del. 2012).

8 Id. at 1020.7

An Allen charge that instructs the majority and the minority to re

- examine

their views has been approved by the First, Fourth, Sixth, and Eighth Circuits. 9

The Allen charges approved by these circuits differed in their wording, but each

drew distinctions between majority and minority jurors and in some fashion

asked both groups to reconsider their views. 10 Each of the circuits found repeated

warnings that jurors not give up their individual convictions diminished the risk

that the majority/minority distinction might be coercive. 11

"It is a well settled proposition that, when the court is informed by a jury

that they are having difficulty in agreeing, it is not error for the court to impress

upon them the importance of the case, urge them to come to an agreement, and

send them back for further deliberations." 12

The bulk of my second instruction dealt with the uncooperative juror, and

the fact that I w ould not speak to any individual juror. Only the last sentence

politely asked the jury to continue deliberations. In my view, this does not

constitute a second , formal Allen instruction. It simply reinforces the Allen

instruction given earlier. Our Supreme Court has stated that giving multiple

9 Id. at 1021.

10 Id.

11 Id.

12 Lowenfield v. Phelps, 484 U.S. 236 (1988)

.8

Allen instructions is to be avoided and may constitute reversible error. 13

However, I do not view my second instruction as an Allen instruction.

I agree with Defendant that, although the jury voluntarily informed me of

a 10

- 2 split of the jury, and then of a hold

- out juror, without any request from

me for that information, my “obligation to avoid coercion is heightened under

such circumstances.” 14 It does not follow a fortiori , however, that my second

instruction was in fact coercive. For example, in a case from our Supreme

Court, 15 the jury informed the Court that they were split 11 for a guilty verdict

and 1 undecided. The Court gave only one Allen charge to the jury. Although

the Court observed that coercion may be more likely to occur when one or two

jurors have decided against a verdict o f the majority by the time the charge is

given, it held that that the charge was proper.

Defendant argues that I should infer from th e second jury note that the jury

was still hung, with a vote of eleven for a guilty verdict and one for a not guilty

verdict

. I disagree. It is not only impossible, but also inappropriate, for me to read

the minds of the jury. I had no way of knowing whether the juror who wanted to

speak with me was in the majority or the minority. I did not ask about this or conduct

13 Britt v. State , 402 A.2d 808, 810 (Del. 1979 ).

14 Desmond at 827.

15 Cannon v. State , 539 A.2d 193(1988).9

a poll of the jury

. There is nothing in the record that supports D efendant's argument

that, after the first Allen charge

, the jury count had changed to 11

- 1 or there was one

hold

- out juror. I asked all the jurors to continue deliberations, and did not single

out or put pressure on any individual juror. D efendant is asking me to make an

assumption about the state of mind of the hold

- out juror and to further assume that

the juror was in the minority . I decline to do so.

Length of Deliberations

The cases vary as to the length of deliberations both before and after

the Allen charge to determine whether the charge is coercive. For example, one case

found coercion where the jury deliberated four hours before the charge and only

fifteen minutes after the charge. 16 In another case, twenty

- five minutes was found

to be sufficient to afford ample time for decision after being administered an

Allen charge without indication of coercion by the trial judge. 17

In this case, jury deliberations began at approximately 11:47 a.m. and a

verdict was reached around 4:30 p.m. In total, the jury deliberated just shy of

five hours. At the time of my initial Allen charge, the jury had been deliberating

for almost three hours. When I sent the jury back the first time to continue

16 United States v. Rogers , 289 F.2d 434 (4 th Cir. 1961).

17 Andrews v. United States , 309 F.2d 127 (5 th Cir. 1962), cert. den. 372 U.S. 946 (1963).10

deliberations, approximately forty minutes passed before I addressed the jury the

second time and asked them again to continue with deliberations. After I

addressed the jury the second time, about one hour passed before a verdict was

returned.

In my view, ample time elapsed between the jury getting the case and my

Allen charge, between the Allen charge and my request for the jury to continue

with deliberations, and that request and the verdict, to permit an examination and

reexamination of the views which a minority of the jurors had held. The amount

of time elapsed time indicates to me that I exerted no coercion.

Complexity of Case

A serious case is not necessarily a complex case. Defendant was charged

with one count of Rape in the Second Degree, a very serious charge. Yet the

State's evidence consisted of testimony from three witnesses, along with

photographs. In my view, the relative lack of complexity of this case did not

warrant further, lengthy jury deliberations. This factor mitigates in favor of a

verdict free from coercion

.11

Conclusion

For the reasons discussed above, Defendant’s Motion for a New Trial is

DENIED.

IT IS SO ORDERED

.

/s/ Craig A. Karsnitz

Craig A. Karsnitz

cc: Prothonotary