Harris v. State1/7/2004
classified with less than "medium" security. Defense counsel asked the court to advise the jury of this additional information. The trial court declined, stating, "We've told them the truth, so I'm going to leave it alone." Defense counsel then asked the court to take the case from the jury and impose a sentence less than death, pursuant to 21 O.S.2001, § 701.11.
Later on the second day of deliberations, the jurors sent a note indicating that some of them were "locked" in their decision, and asking for guidance. The trial court called them back into the courtroom, and was informed that the jury was divided either "ten to two or eleven to one." The jurors were instructed to continue their deliberations, which they did until being sequestered for the night. On the third day of deliberations, defense counsel renewed her motion that the court take the case from the jury, or alternatively, that the court instruct the jury that it had that option if they failed to agree on punishment. See OUJI-CR (2nd) 4-83. These requests were denied.
Around noon on the third day of deliberations, the court received another note about the jury's progress, claiming "this jury stands at seven to five firm. What can we do, and what options do we have?" Again, the trial court denied defense counsel's request to take the case from the jury or instruct them pursuant to OUJI-CR (2nd) 4-83. Instead, the court summoned the jurors for a lunch break and admonished them to continue deliberating after lunch, saying, "If you can reach a verdict, we need a verdict." At approximately 2:00 p.m., the jurors sent a note asking if Appellant had any other bad conduct that they were not informed of. The trial court instructed them that they had all the law and evidence necessary to reach a verdict. At approximately 3:30 p.m., the trial court once again denied defense counsel's request that it take the case from the jury. At approximately 4:00 p.m., the jury returned with a verdict imposing a sentence of death on Count 1.
The trial court was authorized to take the case from the jury and impose a sentence less than death if the jury was unable to reach a unanimous verdict on punishment "within a reasonable time." 21 O.S.2001, § 701.11. Indeed, we have held that where a capital jury is deadlocked on the issue of punishment, the trial court should give the deadlock instruction specific to capital sentencing proceedings, OUJI-CR (2nd) 4-83, which is patterned after § 701.11. Hooks v. State, 2001 OK CR 1, 31, 19 P.3d 294, 312, cert. denied, 534 U.S. 963, 122 S.Ct. 371, 151 L.Ed.2d 282 (2001). Whether a deadlock truly exists, and what constitutes a "reasonable time" under § 701.11, must be determined on a case-by-case basis, and the trial court's decision on the matter is accorded substantial deference. Gilbert v. State, 1997 OK CR 71, 62, 951 P.2d 98, 115, cert. denied, 525 U.S. 890, 119 S.Ct. 207, 142 L.Ed.2d 170 (1998). So long as the jurors appear to be making progress in their deliberations, the actual number of hours they spend is not determinative.
We reject Appellant's claim that by refusing to give additional instructions or take the case from the jury and sentencing Appellant itself, the trial court effectively coerced the jurors into reaching a unanimous verdict. Appellant's first request for such action was made on the second day of punishment deliberations, shortly after the jurors had requested and received additional information, and before they reported any difficulty in arriving at a verdict. There was simply no reason at that time to believe the jurors would not be able to reach a verdict. Appellant's second request to take the case from the jury came after they reported some of their number
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