               IN THE SUPREME COURT, STATE OF WYOMING

                                     2016 WY 36

                                                     OCTOBER TERM, A.D. 2015

                                                             March 11, 2016

CASEY J. CARTER,

Appellant
(Defendant),

v.                                                       S-15-0137

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                   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.
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


                                            1
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).2 The 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.”




                                                    2
              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


                                             3
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.




                                                   4
             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:



                                            5
             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


                                            6
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


                                              7
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


                                              8
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.




                                              9
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.




                                                  10
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.




                                           11
