Police syntax in a Fourth Amendment analysis, and trial courts wresting deadlocked charges from a jury

Comm. v. Luczki, 2019 PA Super 179 (June 7, 2019)

Out of Allegheny County.  The Superior Court affirmed the trial judge’s denial of suppression, the circumstances of which involved a plain-clothes police officer, displaying his badge, saying to Appellant, “I need to speak with you,” after seeing him and his co-defendant engage in suspicious behavior in a high-crime area of Pittsburgh.  Of relevance, under a totality analysis, the Superior Court dismissed Appellant’s argument that he was “seized” without reasonable suspicion at the point the officer made the declaratory statement, “I need to speak with you.”  The Court said this:

The officers’ displayed badges, which merely identified their employment, conveyed no demand for compliance or threat of tangible consequences from refusal.

Furthermore, there was no evidence of a commanding tone in Officer Luffey’s comment to Appellant: “I need to speak with you.”  Although Officer Luffey’s comment was a statement, rather than a question, we decline to characterize his initial interaction with Appellant based solely on punctuation.  To the contrary, the officers’ primary behavior was so temperate that, in response, Appellant and his companion simply separated and turned to walk away.  Thus, we conclude the officers’ limited contact fell within the ambit of non-escalatory conduct; and their initial interaction with Appellant and his companion were a mere encounter.

Comm. v. Fudge, 2019 PA Super 192 (June 20, 2019)

Out of Cumberland County.  Fudge had been charged with various offenses stemming from a traffic stop, namely possession of a controlled substance, carrying a firearm without a license, and DUI.  The DUI offense was his first, punishable up to six months imprisonment, thus it was a “petty” offense which was not triable to a jury.  Nonetheless, the trial court erroneously submitted the DUI offense to the jury along with the other charges.  The jury came back and found Fudge guilty of all of the offenses, but it was deadlocked on the DUI charge.  The trial court accordingly dismissed the jury and then rendered a guilty verdict on the DUI charge as if heard at a bench trial as it should’ve been originally.  The Superior Court said that was an abuse of discretion.

The essence of the Superior Court’s holding was that the moment the DUI offense was submitted to the jury and the jury indicated that it was deadlocked, then the trial court’s options were to send the jury back for further deliberations or to grant a mistrial.  When the trial court took the charge from the jury and did not render a mistrial but entered a verdict, the Superior Court noted that that action usurped the normal process and was an abuse of discretion.  Moreover, it overstepped prosecutorial discretion in retrying the case.  Thus seemingly, based on the Court’s opinion, if a charge is improperly given to a jury that it shouldn’t have had in the first place, then if the jury’s deadlocked on that charge the trial court may not assume the role of fact-finder.  There’s no turning back at that point: either order further deliberations or declare a mistrial. Here, the Superior Court ordered that the DUI conviction be vacated because of this misstep. 

The interesting issue arises if a mistrial had been granted, does the defendant get the benefit of a jury on that DUI charge on the second go-around since he erroneously had it the first time?  I suspect the answer is no, but you never know until it’s litigated.