Background
The Utah Court of Appeals ordered a new trial or other appropriate proceedings on Mark Allan Wahlstrom’s driving-under-the-influence charge after concluding that a supplemental instruction to a divided jury was coercive. Wahlstrom was found intoxicated in the driver’s seat of his work truck on a mountain road, with the key in the ignition but the engine off. His defense did not dispute intoxication. The central trial question was whether he had actual physical control of the truck, an element of the charged DUI offense.
The jury also considered charges involving the lack of an ignition-interlock device, driving on a suspended license, and an open alcohol container. During deliberations, jurors indicated that they had agreed on the non-DUI counts but remained split on the DUI count. The court first responded to several questions about actual physical control and later learned, through the bailiff, that one or two jurors were holding out for acquittal while the others favored conviction.
At about 10:10 p.m., after a two-day trial and more than three hours of deliberation, the court delivered an Allen charge—a supplemental instruction named for the United States Supreme Court decision approving efforts to help a deadlocked jury reach unanimity. The instruction directed jurors in the minority to reconsider their views in light of the majority’s position, but it did not give a balanced reminder that no juror should abandon a conscientiously held belief merely to reach a verdict. Eleven minutes later, the jury returned a guilty verdict on DUI. Defense counsel did not object to the instruction.
The Court’s Holding
Judge John D. Luthy’s opinion held that the instruction was coercive when assessed in context. Its language singled out minority jurors for reconsideration, and the trial court knew that the minority favored acquittal. The timing intensified the pressure: jurors were deliberating late in the evening after a trial scheduled to last two days, and the court had told them that it hoped to finish that night. The rapid verdict after the charge reinforced the conclusion that the instruction had improperly pushed the holdouts toward conviction.
The court emphasized that a deadlock instruction need not use a single approved script, but it must be balanced. Language asking jurors to reconsider their positions should also state that jurors should not surrender honest convictions simply to secure unanimity. Here, the absence of that counterweight, combined with the minority-focused wording and the known numerical division, created an unacceptable risk that the verdict reflected pressure instead of each juror’s independent judgment.
Because the claim arose through ineffective assistance of counsel, Wahlstrom had to establish both deficient performance and prejudice. The court found no reasonable strategic basis for counsel to accept an instruction likely to move the known holdouts toward conviction. It also found a reasonable probability of a hung jury without the error, satisfying the prejudice requirement. The court reversed only the DUI conviction; the jury had already agreed on the other counts. It separately ordered a limited remand for the district court to resolve an alleged inaccuracy in Wahlstrom’s presentence investigation report, an error the State conceded.
Key Takeaways
- A supplemental deadlock instruction should address all jurors evenhandedly and remind them not to abandon conscientiously held views merely to achieve unanimity.
- The wording of an Allen charge is evaluated together with timing, the court’s knowledge of the jury’s split, scheduling pressure, and how quickly a verdict follows.
- Failure to object can constitute ineffective assistance when an instruction predictably pressures known acquittal holdouts and a hung jury was reasonably probable without it.
Why It Matters
Wahlstrom gives Utah trial lawyers a concrete framework for handling a jury that reports division. Counsel should request neutral, counterbalanced language, object before a coercive instruction is delivered, and ensure that discussions about the jury’s numerical split and schedule are preserved on the record. Trial judges should avoid language aimed specifically at minority jurors, particularly when the court knows which result those jurors favor.
The decision also shows why context matters in post-trial review. A familiar pattern instruction can become coercive when paired with late hours, an announced desire to finish, knowledge of the vote, and an immediate verdict. For appellate counsel, the opinion demonstrates how the same record can establish both deficient performance and a reasonable probability of a different outcome without requiring proof that the jury necessarily would have acquitted.