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State v. Ralph Braddick
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 63
Docket:		Ken-01-378
Argued:		February 5, 2002
Decided:		April 17, 2002

Panel:		SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and 
		CALKINS, JJ.





STATE OF MAINE v. RALPH BRADDICK




CALKINS, J.

	[¶1]  Ralph Braddick appeals from a judgment of conviction of unlawful
sexual contact (Class C), 17-A M.R.S.A. § 255(1)(C) (Supp. 2001), and two
counts of visual sexual aggression against a child (Class D), id. § 256, entered
after a jury trial in Superior Court (Kennebec County, Studstrup, J.).  Braddick
argues that the court erred in the supplemental instruction given in response
to a jury note indicating a deadlock.  We disagree and affirm the judgment.
I.
	[¶2]  The jury began its deliberations at 10:23 a.m. on the fourth day of
Braddick's trial.  Late that afternoon the foreman sent the court a note
stating: "We are a hung jury.  We are looking for more information and do not
feel it's available.  We know this is not possible."  The court sent the jurors
home for the evening at 5:10 p.m., stating that it would have additional
instructions for them in the morning.  The next morning, the court told
counsel that it intended to give Instruction 301 from Donald G. Alexander,
Maine Jury Instruction Manual § 8-6 (3d ed. 2000).  Braddick objected to the
giving of any supplemental instruction and moved for a mistrial.  The court
denied the motion and gave a charge that substantially reflected Instruction
301, but additionally informed the jurors that if they needed a readback of
portions of testimony or a reinstruction it was available.  The jury returned to
deliberations at 9:18 a.m. and subsequently asked for a readback of the
testimony of two witnesses who had corroborated the testimony of the alleged
victim.  Following the readback, the jury returned to deliberations again at
11:20 a.m., and fifty-five minutes later, the jury re-entered the courtroom with
a verdict.
II.
	[¶3]  To avoid the possibility that a supplemental charge may coerce a
jury into reaching a verdict, an instruction based on ABA Standards for
Criminal Justice § 15-4.4 (1980) is the proper response to a jury communication
indicating a deadlock.  State v. Weidul, 628 A.2d 135, 136-37 (Me. 1993).  The
substance of the ABA standard is fully set forth in Maine Jury Instruction
Manual § 8-6, and the trial court's instruction varied from that instruction
only by adding a reference to the possibility of a readback.  
	[¶4]  Braddick concedes that the instruction given by the trial court
would have been proper in an ordinary deadlock situation, but he argues that
the content of the jury note created an unusual circumstance in which any
supplemental instruction would have been coercive and this instruction was
particularly so.  He contends that the court should have granted his motion for
a mistrial instead of giving the supplemental instruction.
	[¶5]  We disagree that the jury's reference to "looking for more
information," which it recognized was unavailable and not possible,
transformed its deadlock note into a situation requiring an immediate mistrial. 
The wording of the note likely meant that some jurors may have thought that
without additional evidence the jury could not reach a verdict.  This is similar
to an ordinary deadlock situation.  See State v. Cote, 540 A.2d 470, 470 (Me.
1988) (finding no obvious error in trial court's reinstructing jury and failing to
grant mistrial after jury note stating, "Insufficient evidence from some jurors. 
We feel more witnesses to verify girl's story.").  The jury note in this case was
the first suggestion of a deadlock and came after less than seven hours of
deliberation.  There was no indication of a hopeless deadlock that could require
a mistrial.  The jury may have then thought that a unanimous verdict would be
impossible without more information, but that belief was not any different
from the circumstance of a jury that thinks a unanimous verdict is impossible
because, at that point, no jurors seem likely to change their minds.  The fact
that the jurors have indicated that they do not have enough information does
not require a declaration of a mistrial.  Instead, giving the approved
supplemental instruction is proper.
	[¶6]  Braddick complains about the court's addition to the approved
instruction of an offer to read back testimony or repeat instructions.   Given
the jury's desire for more information, however, that offer was appropriate and
not coercive.  See State v. Engstrom, 453 A.2d 1170, 1173 (Me. 1982) (finding no
obvious error in trial court sua sponte asking jury if readback of particular
testimony would be helpful).
	[¶7]  Braddick argues that the supplemental instruction was coercive
because "the court told the jury that they should reach a verdict on the
evidence presented."  What the court actually said, however, shows that this
argument is without merit:
It is your duty as jurors to deliberate with a view to reaching an
agreement if you can do so without sacrificing individual
judgment. . . . [D]o not surrender your honest belief as to the
weight or effect of the evidence solely because of the opinion of
your fellow jurors or for the mere purpose of returning a verdict. . .
. If after further deliberations you still believe that you cannot
reach a verdict, you should advise me of that in writing.
There is no basis for concluding that this instruction coerced the jury into
reaching a verdict.
	The entry is:
			Judgment affirmed.
             
Attorneys for State: David W. Crook, District Attorney Alan P. Kelley, Deputy Dist. Atty. (orally) 95 State Street Augusta, ME 04330 Attorneys for defendant: David Kreisler, Esq. (orally) Daniel G. Lilley Law Offices, P.A. P O Box 4803 Portland, ME 04112-4803