DUI Appeal - Kansas DUI Jury Wrongly Instructed - Hung Jury

In State of Kansas v. Torres, Slip Copy, 2011 WL 867602 (Table) (Kan.App.) the defendant proceeded to jury trial on his DUI and related charges. The challenged instruction to the jury was made after voir dire and before opening statements, where the judge gave the following Allen-type charge:

“Because this is an important case, if you should fail to reach a decision, the case is left open and undecided. Like ail cases, it must be decided. Another trial would be a heavy burden on both sides.

“There's no reason to believe that this case could be tried any better or more exhaustingly than it can at this time. There's no reason to believe any more evidence would be produced by either side, or also no reason to believe that, if the case were retried, it would be submitted to twelve people who are more intelligent, reasonable, or capable than you twelve, because any future jury is going to be selected in the same manner.”

Torres did not object to this statement. He was then convicted. On appeal, Torres contended that that it was improper and prejudicial to tell the jury: “Like all cases, it must be decided. Another trial would be a heavy burden on both sides.” The appeals court agreed that such a statement was improper:

Our courts have held that the statement “[l]ike all cases, it must be decided” is inaccurate because the case might not be retried and could be dismissed without prejudice and never decided. State v. Scott-Herring, 284 Kan. 172, 180-81, 159 P.3d 1028 (2007); State v. Turner, 34 Kan.App.2d 131, 134-35, 115 P.3d 776 (2005). Further, our Supreme Court has found the statement “ ‘[a]nother trial would be a burden on both sides' “ to be both misleading and inaccurate. State v. Salts, 288 Kan. 263, 265-66, 200 P.3d 464 (2009).

However, since Torres failed to timely object, the court then had to determine whether the instruction was clearly erroneous, i.e., "whether we are firmly convinced there is a real possibility the jury would have rendered a different verdict if the error had not occurred." the court found against the defendant, holding that "there is no real possibility that the jury would have returned a different verdict had the court's post-voir dire statement not been made to the jury."


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