484 U.S. 1048 (1988)

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U.S. Supreme Court

ROMINE v. GEORGIA , 484 U.S. 1048 (1988)

484 U.S. 1048

No. 86-6384

Supreme Court of the United States

January 25, 1988

On petition for rehearing.

The petition for rehearing is denied.

Justice MARSHALL, dissenting.


Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 231-241, 2973- 2977 (1976) (MARSHALL, J., dissenting), I would vacate the decision below insofar as it left undisturbed the death sentence imposed in this case.

II [ Romine v. Georgia 484 U.S. 1048 (1988) ][1048-Continued.]

Even if I did not hold this view, I would vacate petitioner's sentence of death for reconsideration in light of this Court's recent decision in Lowenfield v. Phelps, 484 U.S. 231. The Court in Lowenfield rejected a claim, similar to the one advanced by petitioner in this case, that the administration of an Allen charge to a capital sentencing jury was coercive. The Court recognized, however, that such a charge must be considered " 'in its context and under all the circumstances.' " Id., at 237 (quoting Jenkins v. United States, 380 U.S. 445, 446, 1060 ( 1965) (per curiam) ). Moreover, the Court explicitly limited its holding to the facts of the case before it, stating that "we do not mean to be understood as saying other combinations of supplemental charges and polling might not require a different conclusion." Id., at 241. The circumstances surrounding the administration of the Allen charge in the instant case differed substantially from those in Lowenfield. Moreover, they did so in ways that the Court in Lowenfield recognized as relevant to the issue of coercion. The Georgia Supreme Court therefore should be given an opportunity to re-evaluate petitioner's sentence in light of this Court's decision in Lowenfield.

Petitioner Larry Romine was convicted of capital murder and sentenced to death. His death sentence was reversed on appeal by the Georgia Supreme Court, and the case was remanded for a new sentencing trial. 251 Ga. 208, 305 S.E.2d 93 (1983). On retrial, after almost seven hours of deliberations and an overnight recess, the foreman of the jury sent the court a note that read: "We are unable to reach a unanimous decision and are certain we will not

Page 484 U.S. 1048 , 1049

ever be able to reach one." App. A to Pet. for Cert. 3. The court called the jury in and inquired: "[C]an you just give me the numerical breakdown of how you stand?" Ibid. The foreman replied that the jury was divided 11 to 1. The court sent the jury back for further deliberations, over the objection of defense counsel. When the jury still had not reached a verdict 51/2 hours later, the court called the jury in again to give it " some other instructions." Id., at 4. The court then administered an Allen charge, urging the jurors to reexamine the grounds of their opinions and attempt to reach a verdict. Two hours later, the jury returned a unanimous verdict of death.

In Georgia, as in Lowenfield's State of Louisiana, a hung jury in a capital sentencing trial results in the automatic imposition of a life sentence. See Ga.Code Ann. 17-10-31 (1982); Hill v. State, 250 Ga. 821, 301 S.E.2d 269 (1983); Miller v. State, 237 Ga. 557, 229 S.E.2d 376 (1976 ). Thus, the State's usual interest in an Allen charge-avoiding the societal costs of a retrial-is not present. The Court in Lowenfield recognized that this difference "weighs in the constitutional calculus." 484 U.S., at 238. The Court nonetheless concluded that the circumstances surrounding the administration of the charge in Lowenfield's case did not warrant a reversal on the ground of jury coercion. The discussion in Lowenfield, however, indicates that the circumstances relevant to petitioner's claim may produce a different result in the "constitutional calculus."

First, the jury polling that preceded the Allen charge in this case was far more coercive than the polling tolerated in Lowenfield. The Court in Lowenfield took great pains to establish that "the inquiry as to the numerical division of the jury was not as to how they stood on the merits of the verdict, but how they stood on the question whether further deliberations might assist them in returning a verdict." 484 U.S., at 240. Here, the court's question undoubtedly was directed at the jury's division on the merits, placing it squarely within this Court's holding in Brasfield v. United States, 272 U.S. 448 (1926), which the Lowenfield Court held to be "instructive as to the potential dangers of jury polling." 484 U.S., at 240.

Second, the jury's expression of its deadlock was much more unequivocal in this case than in Lowenfield. In Lowenfield, the jury's note to the court stated that it was unable to reach a verdict at that time. Id., at 234, 108 S.Ct., at ___. In the instant case, the jury not only stated that it was unable to reach a unanimous decision, but speci- [484 U.S. 1048 , 1050]

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