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GWARJANSKI v. STATE12/20/1996
ed the applicable law.]
"I don't know of any other 12 folks from Montgomery County who could be in a better position than you all to render a decision in this case. After all, you all sat here and listened to the case. You all are reasonable folks.
"If they have proven the case with everything I told you about, then your verdict
should be: 'We, the jury, find the defendant guilty.' If they have not proven their case, irrespective of what your thoughts may be, your verdict would be: 'We, the jury, find the defendant not guilty,' and you would just return the verdict.
"And if you can reconcile any differences between you in harmony, just weigh — you don't have to compromise your conscience to agree with someone else. I would like for you to return to the jury room and see if you can do that.
"Nobody is going to be punished if you can't. I will tell you that now. Nobody is going to be asked to compromise their conscious. Your position is your stand. I just needed to just sort of explain a few things to you to see if you can spend some more time, to see if you can resolve it."
(R. 262-63.)
" 'The general rule in Alabama has been that it is not improper for the trial court to urge upon the jury the duty of attempting to reach an agreement or verdict as along as the judge does not suggest which way the verdict should be returned.' " King v. State, 574 So.2d 921, 927-28 (Ala.Cr.App. 1990), quoting McMorris v. State, 394 So.2d 392 (Ala.Cr.App. 1980), cert. denied, 394 So.2d 404 (Ala. 1981), cert. denied, 452 U.S. 972, 101 S.Ct. 3127, 69 L.Ed.2d 983 (1981). An Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), charge, also known as a "dynamite charge," is permissible if the language of the charge is not coercive or threatening. Grayson v. State, 611 So.2d 422, 425 (Ala.Cr.App. 1992); King v. State, 574 So.2d at 928.
We find that in giving the supplemental charge, the trial court here did not suggest which way the verdict should be returned and did not change the standard for deliberation. Additionally, the charge was not in any way coercive or threatening. Thus, no error occurred in the supplemental charge in the jury.
IV.
The appellant contends that the trial court erred by denying his motion for a new trial based on the alleged improper admission of the test results from the I-5000 and the court's supplemental charge to the jury. Since we have held that the trial court properly admitted the appellant's I-5000 test results and that the trial court's supplemental charge to the jury was appropriate, we find no error in the trial court's denial of the motion for a new trial.
For the reasons stated above, the judgment of the trial court is affirmed.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING GRANTED; RULE 39(k) MOTION GRANTED; AFFIRMED.
All the Judges concur.
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