Mills v. Tinsley (314 F.2d 311, 1963)

HILL, Circuit Judge.

The appeal is from an order of the United States District Court for the District of Colorado denying appellant’s, petition for a Writ of Habeas Corpus. Ernest Joseph Mills, appellant and petitioner below, is an inmate of the Colorado State Penitentiary, and appellee, Harry C. Tinsley, who was respondent below, is the warden of that institution.

Mills was tried and convicted by a jury in the District Court of the City and County of Denver, in 1959, for murder. The trial commenced on September 23 and the case was submitted to the jury at 12:35 P.M. on October 2. The jury was taken to lunch and actually commenced its deliberations at 2:00 P.M. The deliberations continued throughout that day and into the following day, October 3. At about 3:00 P.M., on that day, the jury, through the bailiff, informed the court that it was hopelessly deadlocked. The judge instructed the bailiff to tell the jury he had no response to the report. At approximately 5:00 P.M. of that day, over objection of counsel for the defendant, the court gave an additional instruction to the jury. The jury lijen resumed its deliberations but at •about 5:40 P.M. again informed the court, through the bailiff, that it was still hopelessly deadlocked. Upon instructions from the court, the jury was taken to dinner at 6:00 P.M. but the record does not disclose at what time they resumed Iheir deliberations. At 8:50 P.M., the jury reported that it had reached a verdict, and, the verdict, finding the defendant guilty of second degree murder, was thereupon returned and received. The sentence now being served by Mills was •duly pronounced upon him.

An appeal from that conviction was taken by Mills and the Colorado Supreme Court affirmed the same. Certiorari was denied by the United States Supreme Court. Therefore, 28 U.S.C. § 2254 has been complied with.

Appellant is critical of the giving of the additional instruction to the jury, but 'he admits that the substance of it has been approved in numerous cases. His complaint here embraces the giving of the instruction together with the particular circumstances of the case, which he contends amounted to coercion upon the jury and a denial of due process under the Federal Constitution.

The law is well established that the length of time a jury may be 'kept together for deliberation is discretionary with the trial judge. The law is also settled that the trial judge may not coerce the jury into the returning of a verdict. To compel a jury to agree upon a verdict is a denial of a fair and impartial jury trial, and, hence is a denial