State v. Thurmond
In State v. Thurmond, 2004 WI App 49,14, 270 Wis. 2d 477, 677 N.W.2d 655 (Wis. Ct. App. 2004), the jury initially was instructed that the defendant was charged with first-degree sexual assault and attempted armed robbery. Id.7. During deliberations, the jury requested instructions on lesser-included offenses, which the trial court initially rebuffed. Id.8.
The jury later informed the court it was deadlocked and "needed a new way to deliberate." Id.6, 21. The state moved to instruct the jury on lesser-included offenses and, after fourteen hours of deliberations, the court agreed and instructed the jury on the new lesser-included offenses. Id.7-8. Less than two hours after receiving this new instruction, the jury convicted the defendant of one of those lesser-included offenses. Id.9.
In reversing the conviction, the Wisconsin Court of Appeals first noted that the jury reasonably could have seen the trial court's "change of heart" on providing the lesser-included instructions "'as the court's recommendation to resolve the impasse by agreeing to the lesser offense.'" Id.19, quoting Welbeck, 145 F.3d at 497.
Additionally, the relative speed with which the jury returned the guilty verdict suggested the jury "may have been driven more by its desire to be released from its duty than its having reached a fair decision." Id.20. The jury's note that it "needed a new way to deliberate" was particularly concerning and suggested that the verdict was used as a "way of ending their deadlock rather than reaching a unanimous decision." Id.21. Consequently, the court found the instruction improper and the defendant entitled to a new trial. Id.26.