menu

Arkansas Law Review
School of Law
Waterman Hall 107
Fayetteville, AR 72701

Email: lawrev@gmail.com

Phone: (479) 575-5610



School of Law
1045 W. Maple St.
Robert A. Leflar Law Center
Waterman Hall
University of Arkansas
Fayetteville, AR 72701

Phone: (479) 575-5601

Law School Directory

Facebook Twitter Linkedin Youtube

Blueford v. Arkansas: Why the United States Supreme Court’s Construction of Arkansas’s Criminal Transitional Jury Instructions Is Not Binding on Arkansas Courts

Michael Kiel Kaiser*

I. Introduction

[[1083]]A man is charged with capital murder and all of the lesser-included forms of homicide in Arkansas state court.  His case is tried in front of a jury.  After hearing arguments from both sides, the jury retires to deliberate on the charges.  After several hours, the jury votes unanimously to acquit the man on the capital-murder charge. The jury also votes unanimously to acquit him on the first-degree murder charge.  The jury, however, reports to the trial court that it is deadlocked on a lesser-included offense.1 The twelve jurors desire either to convict the defendant of a lesser-included offense or to acquit him outright, but they cannot reach a unanimous verdict.  After a short period of continued deadlock, the trial court declares a mistrial, and the man’s case is retried.  Although the jury voted unanimously to acquit on both murder charges, the State recharges the defendant with capital murder.  According to the United States Supreme Court, this result is constitutional.2

In Blueford v. Arkansas, this very scenario played out.3 The United States Supreme Court held that the Double Jeopardy Clause of the U.S. Constitution4 did not bar a retrial because the [[1084]]jury’s votes to acquit the defendant on the murder charges were not formal acquittals.5 In reaching this decision, the Court relied on its construction of section 302 of the Arkansas Model Jury Instructions—Criminal (AMCI).6 Without reference to authority other than these transitional instructions, the Court interpreted AMCI 302 to allow a jury to revisit a unanimous vote against a greater offense after reaching a decision on a lesser offense.7 The instruction, however, does not expressly mention this right,8 and the Arkansas Supreme Court has not considered this issue.9

The Blueford Court’s construction of AMCI 302 essentially gives each juror a “reset button,” whereby he or she may compel the entire jury to reconsider a greater offense after it has already begun considering a lesser one.  The Court’s conclusion that the jury’s mid-deliberations report on the greater offenses was not an actual acquittal hinged on this construction of state law.10 In such cases, federal courts must predict how a state’s high court would resolve the issue.11 The Court made no such prediction in Blueford and, thus, improperly construed an unsettled matter of Arkansas law.12 Therefore, the majority’s construction of AMCI 302 is not binding on Arkansas courts; rather, it is valid, persuasive authority.13 Although the Arkansas Supreme Court’s treatment of the United States Supreme Court’s construction remains to be seen, practitioners have several ways to employ Blueford in practice.

Part II of this case note examines the procedural history of Blueford v. Arkansas.  Part III discusses how the majority in Blueford construed an unsettled matter of Arkansas law in its resolution of the constitutional question and, thus, concludes that [[1085]]this construction is not binding on Arkansas courts.  Part IV examines how the United States Supreme Court should have dealt with this unsettled matter of state law.  Additionally, in an effort to construe AMCI 302, this Part evaluates how courts across the country use transitional instructions. Finally, Part V considers Blueford’simplications for Arkansas practitioners and offers ways for them to use the majority’s construction of AMCI 302 in practice. Part VI concludes.

II. Blueford v. Arkansas

A. Initial Trial

In July 2008, the State of Arkansas charged Alex Blueford with capital murder in Pulaski County Circuit Court.14 The capital-murder charge included the lesser-included offenses of first-degree murder, manslaughter, and negligent homicide.15 Blueford was tried in August 2009.16 Following the presentation of evidence, the court instructed the jury to consider the offenses based on AMCI 302:

“If you have a reasonable doubt of the defendant’s guilt on the charge of capital murder, you will consider the charge of murder in the first degree . . . .  If you have a reasonable doubt of the defendant’s guilt on the charge of murder in the first degree, you will then consider the charge of manslaughter . . . .  If you have a reasonable doubt of the defendant’s guilt on the charge of manslaughter, you will then consider the charge of negligent homicide.”17

The prosecutor commented on the transitional instructions in his closing arguments, telling the jury that “‘before you can consider a lesser included [offense] of capital murder, you must first, all 12, vote that this man is not guilty of capital murder.”18 The prosecutor explained that “‘unless all 12 of you agree that this man’s actions were not consistent with capital murder, then and only then would you go down to murder in the first degree’”; further, “‘you don’t even get to [the first-degree [[1086]]murder] instruction until all 12 of you . . . vote that you do not believe this man is guilty of capital murder.’”19

After deliberating for four hours,20 the jury sent a note to the judge stating that one juror wanted “to know what happens if we cannot agree on a charge at all.”21  The judge brought the jury back to the courtroom, where the foreperson reported that she did not believe the jury could reach an agreement.22 The judge then gave the jury an Allen charge,23 requesting that the jury retire for further deliberations and try to reach a verdict.24

After another half-hour of deliberations,25 the jury sent a second note to the judge indicating that it remained deadlocked.26 When the jury returned to the courtroom a second time, the judge questioned the foreperson about the jury’s “count” on each of the charges over which it had deliberated.27 The foreperson explained that the jury was “unanimous against” both capital murder and first-degree murder and that nine jurors were for manslaughter while three jurors were against manslaughter.28 The foreperson also stated that the jurors did not vote on the lowest charge of negligent homicide because they thought they “were supposed to go one at a time” and “couldn’t get past the manslaughter” charge.29 The trial court instructed the jury to continue its deliberations, and when the jury again reported that it had not reached a verdict, the court declared a mistrial.30 Neither party objected, and the court scheduled a second trial for March 2010.31

B. Blueford’s Interlocutory Appeal

[[1087]]On retrial, the State once again charged Blueford with capital murder and the same lesser-included offenses.32 Blueford’s counsel moved to dismiss the capital-murder and first-degree-murder charges based on double-jeopardy protections.33 The trial court denied the motion, and Blueford filed an interlocutory appeal to the Arkansas Supreme Court.34

The Arkansas Supreme Court affirmed the trial court’s denial of Blueford’s motion.35 Although Blueford “called upon [the court] to decide the implications of [AMCI 302],”36 the court did not clarify the instructions any further.37 Instead, the court focused on the lack of a formal acquittal.38 The court emphasized the “bedrock principle of law that a judgment is not valid until entered of record,”39 holding that the foreperson’s announcement was neither a formal announcement of acquittal nor an implied acquittal40 on the top two murder charges.41 Blueford then petitioned for a writ of certiorari, which the United States Supreme Court granted on October 11, 2011.42

C. The United States Supreme Court Decision

In his brief filed before the United States Supreme Court, Blueford argued that he was entitled to double-jeopardy protection on the capital-murder and first-degree-murder charges for three reasons.43 First, Blueford argued that the jury’s announcement that it voted unanimously against the top two murder charges in open court constituted an acquittal for double-[[1088]]jeopardy purposes.44 Second, he argued that AMCI 302 established acquittals on the murder charges by virtue of the jury’s deadlock on manslaughter.45 Blueford noted that nothing indicated the jury ever “wished to reconsider its verdict on the murder charges” before the trial court declared a mistrial.46 Finally, Blueford argued that the court did not have a “manifest necessity”47 to declare a mistrial on the top two murder charges.48

In response, the State argued that a deadlocked jury was the classic example of manifest necessity warranting a mistrial.  The State also contended that Blueford waived any challenge to the trial court’s declaration of mistrial by failing to object when the trial judge announced that he would declare a mistrial if the jury could not reach a verdict.49 Additionally, the State argued that the jury foreperson’s mid-deliberations report of the jury’s votes on the top two charges did not constitute an acquittal on those charges, actually or impliedly.50  The State further contended that AMCI 302 did not require the jury to issue a verdict on a greater offense before considering any lesser-included offense and that the instructions did not foreclose the jury’s ability to reconsider its earlier votes.51 The State noted that there was “no basis to believe that the jury ultimately did not revisit its earlier votes on murder.”52

[[1089]]The United States Supreme Court affirmed the Arkansas Supreme Court’s ruling in a 6–3 opinion, holding that the Double Jeopardy Clause did not bar retrying Blueford on the top two murder charges.53 The Court summarized Blueford’s arguments as follows: (1) the jury actually acquitted him of the murder offenses by virtue of the mid-deliberations report; and (2) the trial court’s declaration of a mistrial was improper.54

In rejecting Blueford’s first argument, Chief Justice Roberts, writing for the majority, explained that the foreperson’s report was not an acquittal because the jury deliberated for an additional half-hour after giving the report.55 Nothing indicated that the jury’s votes remained the same following these additional deliberations.56 Further, under AMCI 302, the jury was free to reconsider the greater offense “notwithstanding its earlier votes” against it.57 The majority noted that “nothing in the instructions prohibited the jury from reconsidering” a greater offense after reaching a lesser one and that the “jurors were never told that once they had a reasonable doubt, they could not rethink the issue.”58 The court offered a hypothetical similar to the facts at bar to illustrate this point:

A jury enters the jury room, having just been given [AMCI 302].  The foreperson decides that it would make sense to determine the extent of the jurors’ agreement before discussions begin.  Accordingly, she conducts a vote on capital murder, and everyone votes against guilt. She does the same for first-degree murder, and again, everyone votes against guilt.  She then calls for a vote on manslaughter, and there is disagreement. Only then do the jurors engage in a discussion about the circumstances of the crime. While considering the arguments of the other jurors on how the death was caused, one of the jurors starts rethinking his own stance on a greater offense.  After reflecting on the evidence, he comes to believe that the defendant did knowingly cause the death—satisfying the definition of first-degree murder. At that point, nothing in the [[1090]]instructions prohibits the jury from doing what juries often do:  revisit a prior vote.59

The Blueford majority explained that even if AMCI 302 requires a unanimous vote against a greater offense before a jury can consider a lesser offense,60 the jury is free to reconsider any such votes.61  One “single juror’s change of mind is all it takes to require the jury to reconsider a greater offense” because the essence of the jury system is to achieve unanimity through precisely the type of discourse contemplated in the hypothetical.62  Thus, the Court’s determination of Blueford’s first constitutional argument hinged on its construction of AMCI 302.

The Blueford majority then explained that the trial court properly declared a mistrial.63 The Court found that, under Arkansas law, the jury only had two options:  (1) to convict on one of the charges; or (2) to acquit on all.64  The majority held the trial court did not abuse its discretion by refusing to accept an acquittal on the top two charges without a conviction on any charge.65  Thus, the Court held that the Double Jeopardy Clause did not afford Blueford any relief.66

In her dissenting opinion, Justice Sotomayor emphasized the implications of AMCI 302.67  She argued that the language of AMCI 302 requires a “jury to complete its deliberations on a greater offense before it may consider a lesser [offense]” and, thus, the jury was required “unanimously to acquit on capital and first-degree murder before it could reach manslaughter.”68  Since the jury reached the manslaughter charge, it could not [[1091]]reconsider the murder charges once deliberations resumed following the foreperson’s report.69  Justice Sotomayor pointed to an Arkansas case explaining that, as a matter of law, “the jury must, in essence, acquit the defendant of the greater offense before considering his or her guilt on the lesser-included offense.”70 In response, the majority noted that the text of the instructions contained no such requirement71 and that the case discussed by the dissent did not address the issue of a jury’s right to reconsider.72

III. The Blueford Majority’s Construction of AMCI 302 Is Not Binding

The United States Supreme Court purported to decide Blueford on constitutional grounds,73 but in actuality, it did not.  In determining that the mid-deliberations report was not an actual acquittal for double-jeopardy purposes, the majority’s answer hinged on its construction of AMCI 302.74 Although federal courts frequently encounter state issues embroiled in federal questions,75 the Court has procedures for such cases that it failed to mention—let alone comply with—in this case.

First, AMCI 302 is a matter of state law.  The Arkansas Supreme Court has consistently held that Arkansas courts must employ model jury instructions—as opposed to modified, non-model instructions—so long as they accurately reflect state law.76  AMCI 302 is a state-law matter because: (1) the [[1092]]Arkansas Supreme Court presumes AMCI 302 is a correct statement of the law;77 and (2) the Arkansas Supreme Court has upheld convictions in several cases where trial courts instructed juries using AMCI 302.78 Further, AMCI 302 is an unsettled matter of state law because: (1) the Arkansas Supreme Court has not dealt with the implications of AMCI 302;79 and (2) the parties in this case disagreed as to whether AMCI 302 included a transitional “reset button.”80

In construing matters of unsettled state substantive law, federal courts “must apply state law in accordance with the controlling decisions of the highest court of the state.”81 This requirement is known as the Erie doctrine.82 Since the Arkansas [[1093]]Supreme Court has not construed AMCI 302, a federal court “must attempt to ascertain how [the Arkansas Supreme Court] would rule if it were faced with the issue.”83 Federal courts may consult a host of “interpretive aids,” such as opinions from a state’s lower courts, other federal courts’ constructions of the state law at issue, restatements of law, law-review articles, and persuasive authority from other jurisdictions.84 Although the precise “interpretive aids” that courts should consult is unclear,85 the Supreme Court clearly failed to consult any such aids in its construction of AMCI 302.86

Instead, the Court construed AMCI 302 based on a plain reading of its language and without reference to the available sources of authority.87 The Court did not even mention that the Arkansas Supreme Court had yet to rule on the implications of AMCI 302.88 Had the Court followed the procedure outlined above, it would have been able to better justify this interpretation.89 The Court’s failure to follow this procedure was improper under federal law.

When a litigant’s claim hinges on a matter of unsettled state law, a federal court “must do its best . . . to determine what that law is.”90 A federal court cannot simply “impose its ideal [[1094]]solution without regard to existing” state law and persuasive authority,91 which is precisely what the Blueford majority did.  “Mere syllogistic deduction” is improper in this context. 92

The majority’s construction of AMCI 302 is not binding on Arkansas courts.93 Although a federal court’s ruling regarding a matter of state law is binding on the parties to the litigation, it does not become the law of that state.94 Had the Court acknowledged that it was construing a matter of unsettled state law, the non-binding nature of its construction of AMCI 302 would be more apparent. The Court’s failure to make this acknowledgement essentially concealed that its construction is not binding on Arkansas courts.

In suits based on diversity of citizenship, a federal court adjudicating a matter of state law is, “in effect, only another court of the State.”95 Therefore, a state high court should treat a federal determination of its state law as persuasive authority similar to how it treats the rulings of its intermediate appellate courts.96  Although Blueford involved an appeal from a state high court97 and, thus, was not a diversity case, the same precepts apply.98 The Erie doctrine applies equally to state-law claims regardless of the ground for federal jurisdiction.99 Therefore, the majority’s construction of AMCI 302 is not binding on Arkansas courts, though it represents valid, persuasive authority.

[[1095]]Although the precise method federal courts should follow to ascertain unsettled matters of state law is unclear,100 the Supreme Court clearly failed to consult any “interpretative aids.” While the Blueford majority’s ruling ultimately turned on this improper construction of state law, the Court also failed to acknowledge that it construed Arkansas law. Thus, the majority’s construction of AMCI 302 is not binding on Arkansas courts.

IV. How the Blueford Majority Should Have Approached the Issue

The Blueford majority should have consulted authorities other than the text of AMCI 302. The Court should have made a “factual assessment” of how the Arkansas Supreme Court would have resolved the issue.101 Given the lack of direction from Arkansas caselaw, the Court should have considered transitional instructions from across the country to aid its construction of AMCI 302.

The following sections:  (A) survey transitional instructions from across the country as the Supreme Court ought to have done in Blueford; (B) attempt to classify AMCI 302 accordingly; and (C) note the remaining ambiguities with the instructions.

A. Overview of Transitional Instructions

Transitional instructions guide the jury in a criminal case in its progression from considering the charged offense to considering any lesser-included offenses during deliberations.102 A “wide divergence of opinion” exists regarding transitional [[1096]]jury instructions,103 but such “diversity has no constitutional significance.”104 This divergence of thought is so great that courts do not even agree on how many distinct types of transitional instructions exist.105 In United States v. Tsanas,the Court of Appeals for the Second Circuit noted two broad categories of transitional instructions, neither of which are wrong as a matter of law.106  Blueford’s brief described these categories as:  (1) “‘hard-transition’ instruction[s], in which the jury must acquit on a greater offense before it moves to a lesser offense”; and (2) “‘soft-transition’ instruction[s], in which the jury is allowed to consider the offenses in any order it chooses.”107 In practice, “a wider spectrum of views” trumps this “simple dichotomy.”108 In fact, several types of “soft-transition” instructions exist.

1. “Acquittal-First” or “Hard-Transition” Instructions

In “acquittal-first” states, the transitional instructions clearly and unambiguously instruct jurors that they must unanimously issue a verdict of not guilty on a charge before considering any lesser-included offense.109 A prime example is Tennessee’s pattern transitional instruction, which reads:

[[1097]]If you have a reasonable doubt as to the defendant’s guilt of [insert offense charged], as charged in [count of] the indictment, then your verdict must be not guilty as to this offense, and then you shall proceed to determine whether the defendant is guilty or not guilty of [insert offense charged], as charged in [count of] the indictment.110

Acquittal-first instructions tend to prevent a jury from inadequately discharging its duties with respect to a greater offense and moving too quickly to lesser-included offenses.111 Furthermore, a unanimous verdict on each greater offense “helps to assure the reliability of the ultimate verdict.”112 Recognizing that jury instructions can be confusing and, perhaps, even overwhelming, the Tennessee Supreme Court noted that an acquittal-first instruction is “beneficial” because “[i]t alleviates any internal struggles the jury may experience in setting its agenda, it requires the jury to focus and concentrate on one offense at a time, and it prevents the potential confusion arising from some jurors deliberating on one offense while other jurors deliberate upon another.”113

Nonetheless, acquittal-first instructions have their pitfalls. For example, because such instructions require the jury to unanimously acquit on a greater charge before considering a lesser charge, they may prevent a conviction on the lesser charge that otherwise would have occurred, thus, necessitating a retrial on all charges.114 Further, if a jury is heavily in favor of convicting on the highest charge, dissenters favoring lesser-included offenses may yield to the majority rather than cause a mistrial that would allow the defendant to avoid conviction [[1098]]altogether.115 Many courts view acquittal-first instructions as a way of preventing these types of compromise verdicts.116

2. “Soft-Transition” Instructions

“Soft-transition” instructions do not require a jury to adjudicate a greater charge before considering a lesser-included one.117 At least two types of “soft-transition” instructions exist:  (a) those that allow a jury to consider, but not adjudicate, a lesser charge before acquitting on a greater offense; and (b) “reasonable efforts,” or “unable to agree,” instructions.

a. Instructions Allowing a Jury to Consider, but Not Acquit, on Lesser Offenses Prior to Acquitting on a Greater Offense

At least two states employ this type of transitional instructions.118 These instructions are similar to acquittal-first instructions because both instructions require the jury to adjudicate the greater charge before adjudicating a lesser one, but they do not require a strict, step-down procedure.119 California Criminal Jury Instruction Number 640 provides a good example:

[For each count charging murder,] (Y/y)ou (have been/will be) given verdict forms for guilty and not guilty of first degree murder (, /and) [second degree murder] [(,/and)] [voluntary manslaughter] [(, /and)] [involuntary manslaughter].

[[1099]]You may consider these different kinds of homicide in whatever order you wish, but I can accept a verdict of guilty or not guilty of  ___________ <insert second degree murder or, if the jury is not instructed on second degree murder as a lesser included offense, each form of manslaughter, voluntary and/or involuntary, on which the jury is instructed> only if all of you have found the defendant not guilty of first degree murder, [and I can accept a verdict of guilty or not guilty of (voluntary/involuntary/voluntary or involuntary) manslaughter only if all of you have found the defendant not guilty of both first and second degree murder].120

b. “Reasonable Efforts,” or “Unable to Agree,” Instructions

“Reasonable efforts,” or “unable to agree,” instructions allow a jury to consider a lesser-included offense after making reasonable efforts to agree on the greater offense.121 These instructions typically allow a jury to consider lesser-included offenses if the jury remains “unable to agree” even after making all reasonable efforts to reach a verdict.122 For example, the State of Washington’s transitional instructions provide:  “If you find the defendant not guilty of the [greater offense], or if after full and careful consideration of the evidence you cannot agree on that crime, you will consider the lesser [offense].”123

These instructions reduce the risk of “compromise verdicts” by enabling the jury to better gauge the fit between the evidence and the offenses under consideration.124 They also [[1100]]minimize the prospect of hung juries and the significant costs of a retrial on all charges.125 Under these instructions, the jury is more likely to convict the defendant—but on a lesser offense—than it is under “acquittal-first” instructions.126

3. Defendant’s Choice of Instructions

Some jurisdictions allow a defendant to choose between “acquittal-first” or “reasonable efforts” instructions.127 Montana codified this approach as follows:

When a lesser included offense instruction is given, the court shall instruct the jury that it must reach a verdict on the crime charged before it may proceed to a lesser included offense. Upon request of the defendant at the settling of instructions, the court shall instruct the jury that it may consider the lesser included offense if it is unable after reasonable effort to reach a verdict on the greater offense.128

Because a defendant’s liberty interests are at stake, he should balance the advantages or disadvantages of each type of instruction and select the one that best suits his interests in the case.129 AMCI 302 is clearly not this type of instruction.

B. Construing AMCI 302

The text of AMCI 302 does not clarify the category of jury instructions in which it falls,130 nor does the single comment that guides the instruction’s use.131 AMCI 302 does not insist “on unanimity with respect to acquittal”132 before a jury may consider a lesser-included offense during its deliberations; [[1101]]indeed, it does not specify any order in which the jury may consider such offenses.133 Before Blueford, prosecutors in several Arkansas cases explained AMCI 302 along “acquittal-first” lines.134 The prosecutor in Blueford’s first trial commented on the instructions in a similar manner.135

Since Blueford’s first trial, the parties and the courts have construed AMCI 302 in contradictory ways.  Blueford’s counsel and Justice Sotomayor’s dissent interpreted AMCI 302 as “acquittal-first” instructions.136 On the other hand, the State described AMCI 302 in its brief as “instructions that suggest, but do not require, a step-down process and allow a jury to consider lesser-included offenses without first unanimously agreeing to [adjudicate] on the greater offense.”137 The Blueford majority never explicitly held on the issue, though it rejected the dissent’s “acquittal-first” construction in a footnote.138 Further, the Arkansas Supreme Court previously rejected a defendant’s amended transitional instructions that would have allowed a jury to consider a greater offense and a lesser-included offense simultaneously.139

Thus, AMCI 302 appears to be somewhere between acquittal-first and “unable to agree” instructions. Precisely where AMCI 302 lies along this continuum depends on how the State resolves the two major ambiguities that persist regarding the instructions.  First, the State must decide whether AMCI 302 allows a jury to revisit a charge as explained by the United [[1102]]States Supreme Court.140 The text of the instructions neither expressly forbids nor expressly confers this right.141 Second, the State must clarify whether Arkansas juries must vote unanimously against, let alone adjudicate, a greater offense before considering any lesser-included ones.142

V. Implications for Arkansas Practitioners

Arkansas courts are not compelled to follow the United States Supreme Court’s construction of AMCI 302; nonetheless, Blueford is persuasive authority.  In arguing for a jury’s right to revisit a charge, Arkansas practitioners have at least three options:  (1) request an amended instruction at trial that expressly confers this right; (2) explain the “reset button” concept to the jury in closing arguments; and (3) petition the Arkansas Supreme Court and its Committee on Model Jury Instructions—Criminal to amend AMCI 302.  These options are not mutually exclusive.

Practitioners may argue that AMCI 302 is incomplete insofar as it fails to expressly confer this right to revisit.  However, both the State of Arkansas and the United States Supreme Court were able to divine such a right from the text of the model instructions themselves.143 Further, Arkansas law gives model jury instructions substantial weight; a trial court must issue model instructions unless it finds that they do not accurately state or cover the applicable law.144 Arkansas courts presume that model jury instructions are correct statements of the law,145 and any party that wishes to challenge an instruction must rebut this presumption of correctness.146

Nevertheless, the Arkansas Supreme Court has affirmed a trial court’s denial of a defendant’s objections to jury [[1103]]instructions even though the instructions did not follow the statute to which they related.147 The court explained “this may be an issue that this court’s committee on model jury instructions should address.”148 Counsel, in contesting any amended instructions, may argue that the United States Supreme Court’s construction of AMCI 302 is not binding on Arkansas trial courts.149 Practitioners are unlikely to have success in amending AMCI 302 at trial to include the transitional “reset button.” Although the Arkansas Supreme Court has acknowledged a jury’s right to revisit a charge, the court has limited its application to determining whether a final acquittal has occurred for double-jeopardy purposes.150

Attorneys have other options. For example, they can comment on this right to revisit—as conferred by the Court’s interpretation of the model instructions—in their closing arguments.151 Practitioners can advise a jury that each juror has a transitional reset button that can compel the entire jury to reconsider its previous unanimous vote(s) against a greater offense. Arkansas practitioners can also petition the Arkansas Supreme Court152 and its Committee on Model Jury Instructions—Criminal to address the implications of AMCI 302. The Arkansas Supreme Court recently “urge[d] the Committee on Criminal Instructions to consider revising the instructions relating to lesser-included offenses so that juries may be instructed properly.”153 Arkansas practitioners should [[1104]]submit their comments and suggestions to the Committee before proposing any amendment to AMCI 302.

In situations like Blueford, where a jury is hung on a lesser-included offense, practitioners can try to prevent a jury from revisiting a charge in another way: they may request that the court poll the jury.154  In affirming the ruling of the trial court, the Arkansas Supreme Court noted that Blueford’s counsel “did not request that the circuit court poll the jury.”155 Perhaps such a poll would have led to a “final verdict.”

VI. Conclusion

In Blueford, the United States Supreme Court read a new right into AMCI 302: a jury’s right to revisit a voted-on charge.156 Though the Court purported to rule on constitutional grounds, its answer to one of Blueford’s constitutional questions hinged on its construction of an unsettled matter of state law.  Because the Court’s construction was improper,157 it is not binding on Arkansas courts.

[[1105]]Following the Court’s ruling, Blueford’s case was set for retrial in late June 2013158 on the original charges of capital murder and the lesser-included offenses.159 However, Blueford pled no contest to first-degree murder in exchange for a sentence of ten years in the Arkansas Department of Correction.160 The fate of Arkansas’s transitional instructions remains uncertain; AMCI 302 is more muddled now than when the case began.  First, it may confer a right to Arkansas juries that the text of the instructions does not expressly provide. Second, whether Arkansas juries must vote unanimously against a greater offense before considering any lesser-included ones is uncertain. The Arkansas Supreme Court and its committees should address these ambiguities in AMCI 302, and practitioners should offer their opinions if, or when, new instructions are promulgated. This course of action will allow Arkansas practitioners to take advantage of this transitional “reset button”—if it does indeed exist—and to accurately instruct juries on Arkansas’s step-down procedure in criminal cases involving lesser-included offenses.161


Notes

* The author thanks Laurent Sacharoff, Assistant Professor of Law, University of Arkansas School of Law, for his patience and sound editorial advice, and Madeline Kurrus, J.D. 2013, University of Arkansas School of Law, for her guidance and motivation throughout the editorial process.

[1]. A “lesser included” offense is:

A crime that is composed of some, but not all, of the elements of a more serious crime and that is necessarily committed in carrying out the greater crime . . . .  For double-jeopardy purposes, [it] is considered the “same offense” as the greater offense, so that acquittal or conviction of either offense precludes a separate trial for the other.

Black’s Law Dictionary 1187 (9th ed. 2009).

[2]. See Blueford v. Arkansas, 132 S. Ct. 2044, 2050-53 (2012).

[3]. Id. at 2048.

[4]. U.S. Const. amend. V.

[5]. Blueford, 132 S. Ct. at 2053.

[6]. Ark. Model Jury Instructions—Criminal 302 (2012) [hereinafter AMCI 302]. Transitional instructions guide a jury in a criminal case in its progression from considering the charged offense to considering any lesser-included offenses during its deliberations.   See State v. Daulton, 518 N.W.2d 719, 720 (N.D. 1994).

[7]. Blueford, 132 S. Ct. at 2051.

[8]. See AMCI 302, supra note 6.

[9]. See infra note 79.

[10]. See Blueford, 132 S. Ct. at 2047 (construing AMCI 302 to determine that mid-deliberations report was not actual acquittal for double-jeopardy purposes).

[11]. See, e.g., Weitz Co. LLC v. MacKenzie House, LLC, 665 F.3d 970, 976-77 (8th Cir. 2012) (“In the absence of guidance from the highest state court . . . the federal court’s task is to predict how the [state high court] would rule if confronted with the issue today.”).

[12]. See infra notes 87-89 and accompanying text.

[13]. See infra notes 94-99 and accompanying text.

[14]. Blueford v. State, 2011 Ark. 8, at 1, 370 S.W.3d 496, 497.

[15]. Blueford, 132 S. Ct. at 2048.

[16]. Blueford, 2011 Ark. 8, at 1, 370 S.W.3d at 497.

[17]. Blueford, 132 S. Ct. at 2048; AMCI 302, supra note 6.

[18]. Brief for Petitioner at 8, Blueford v. Arkansas, 132 S. Ct. 2044 (2012) (No. 10-1320), 2011 WL 5971358 at *8.

[19]. Id. at 9.

[20]. Id.

[21]. Blueford, 2011 Ark. 8, at 2, 370 S.W.3d at 498.

[22]. Brief for Petitioner, supra note 18, at 9.

[23]. An “Allen charge”—also known as a “dynamite” or “shotgun instruction”—is “[a] supplemental jury instruction given by the court to encourage a deadlocked jury, after prolonged deliberations, to reach a verdict.” Black’s Law Dictionary87 (9th ed. 2009) (citingAllen v. United States, 164 U.S. 492, 501-02 (1896)).

[24]. Blueford, 2011 Ark. 8, at 2, 370 S.W.3d at 498.

[25]. Brief for Petitioner, supra note 18, at 9.

[26]. Blueford, 2011 Ark. 8, at 2, 370 S.W.3d at 498.

[27]. Id. at 3, 370 S.W.3d at 498.

[28]. Id.

[29]. Id.

[30]. Id. at 3-4, 370 S.W.3d at 498-99.

[31]. Blueford, 2011 Ark. 8, at 4, 370 S.W.3d at 499.

[32]. Brief for Petitioner, supra note 18, at 12.

[33]. Id.

[34]. Id. at 12-13.

[35]. Blueford, 2011 Ark. 8, at 11, 370 S.W.3d at 502.

[36]. Id. at 5, 370 S.W.3d at 499.

[37]. See id. at 6-9, 370 S.W.3d at 500-01.

[38]. Id. at 6-10, 370 S.W.3d at 500-02.  Further, the opinion does not mention any right on the part of the jury to revisit greater offenses that the jury has already voted unanimously against. See id.

[39]. Blueford, 2011 Ark. 8, at 8, 370 S.W.3d at 501.

[40]. See Hagar v. City of Fort Smith, 317 Ark. 209, 212, 877 S.W.2d 908, 909 (1994) (“A determination of guilt in an inferior court on a lesser included offense operates as an implied acquittal of the greater offense barring any further proceedings on the greater offense . . . including an appeal to circuit court for a de novo review.”).

[41]. Blueford, 2011 Ark. 8, at 8-11, 370 S.W.3d at 501-02.

[42]. Blueford v. Arkansas, 132 S. Ct. 397 (2011) (granting Blueford’s petition for certiorari).

[43]. Brief for Petitioner, supra note 18, at 14.

[44]. Id.

[45]. Id. at 15.

[46]. Id. at 18 n.5.

[47]. See United States v. Perez, 22 U.S. 579, 580 (1824) (“[T]he law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.”).  The hung jury remains the classic example of this “manifest necessity.” See, e.g., Oregon v. Kennedy, 456 U.S. 667, 672 (1982); Arizona v. Washington, 434 U.S. 497, 509 (1978); Illinois v. Somerville, 410 U.S. 458, 463 (1973).

[48]. Brief for Petitioner, supra note 18, at 28.

[49]. Brief for Respondent at 8, 11, Blueford v. Arkansas, 132 S. Ct. 2044 (2012) (No. 10-1320), 2012 WL 20549 at *8, *11.

[50]. Id. at 14.

[51]. Id. at 26 (“Arkansas’s instructions require juries to consider greater and lesser-included offenses in a particular order as a sequencing guide, or a step-down procedure.  While the instruction may be called a ratchet to guide the jury down from a greater to a lesser-included offense, it is not a one-way ratchet. Having considered a lesser-included offense under the step-down procedure, Arkansas juries may step back up and revisit earlier votes on greater offenses.”).

[52]. Id. at 10 (emphasis added).

[53]. Blueford v. Arkansas, 132 S. Ct. 2044, 2050-53 (2012).

[54]. Id. at 2050, 2052.

[55]. Id. at 2050.

[56]. Id.

[57]. Id. at 2051.

[58]. Blueford, 132 S. Ct. at 2051.

[59]. Id.

[60]. The State argued this position in its brief.  See Brief for Respondent, supra note 49, at 25 n.3 (stating that since the Arkansas Supreme Court has yet to resolve the question definitively, “[t]he State is assuming for the sake of argument that the jury was only to sequence unanimously”). The United States Supreme Court relied on the State’s assumption in making this argument. See Blueford, 132 S. Ct. at 2051.

[61]. Blueford, 132 S. Ct. at 2051.

[62]. Id. (quoting Allen v. United States, 164 U.S. 492, 501 (1896)).

[63]. Id. at 2052.

[64]. Id.; see also Blueford v. State, 2011 Ark. 8, 10-11, 370 S.W.3d 496, 502 (holding that Arkansas does not require a partial verdict of acquittal as to a greater offense if the jury deadlocks on a lesser one).

[65]. Blueford, 132 S. Ct.at 2053.

[66]. Id.

[67]. See id. at 2055-56 (Sotomayor, J., dissenting).

[68]. Id. at 2054-56.

[69]. Id.

[70]. Blueford, 132 S. Ct. at 2054 (quoting Hughes v. State, 347 Ark. 696, 707, 66 S.W.3d 645, 651 (2002) (internal quotation mark omitted)).

[71]. Id. at 2051 (majority opinion).  Justice Sotomayor conceded as much in her dissenting opinion, though she pointed out that AMCI 302 “does not expressly permit reconsideration [of a greater offense] either.”  Id. at 2057 (Sotomayor, J., dissenting).

[72]. Id. at 2051 n.1 (majority opinion).

[73]. Id. at 2053 (“[T]he Double Jeopardy Clause does not stand in the way of a second trial . . . .”).

[74]. Blueford, 132 S. Ct. at 2047.  If the Court properly construed AMCI 302, then the majority opinion was entirely correct.  However, if AMCI 302 does not provide this right to revisit a charge, then the mid-deliberations report was an actual acquittal for double-jeopardy purposes. See id. at 2054, 2056 (Sotomayor, J., dissenting).

[75]. See Benjamin C. Glassman, Making State Law in Federal Court, 41 Gonz. L. Rev. 237, 240 n.3 (2006).

[76]. The trial court should only give non-model criminal jury instructions when the trial court finds that the model instructions do not accurately state the law. See Clark v. State, 374 Ark. 292, 306, 287 S.W.3d 567, 577 (2008); McCoy v. State, 348 Ark. 239, 240, 74 S.W.3d 599, 600 (2002); Moore v. State, 317 Ark. 630, 635, 882 S.W.2d 667, 669 (1994); Conley v. State, 270 Ark. 886, 889, 607 S.W.2d 328, 330 (1980).

[77]. McCoy, 348 Ark. at 240, 74 S.W.3d at 600.

[78]. See Flowers v. State, 373 Ark. 119, 125-26, 282 S.W.3d 790, 794-95 (2008); Boyd v. State, 369 Ark. 259, 264, 253 S.W.3d 456, 460 (2007); Porter v. State, 358 Ark. 403, 411-13, 191 S.W.3d 531, 537-38 (2004); Wilkins v. State, 324 Ark. 60, 66-68, 918 S.W.2d 702, 706-07 (1996).

[79]. The Arkansas Supreme Court has twice encountered challenges to AMCI 302 as ambiguous, but the court refused to consider the challenges because the defendants in both cases failed to preserve the issue by proffering a better instruction that corrected the alleged ambiguity.  See Flowers, 373 Ark. at 125, 282 S.W.3d at 795; Boyd, 369 Ark. at 264, 253 S.W.3d at 460. The issue in Boyd centered on what the word “you” meant in the instruction—specifically, whether it referred to the jury as a whole or to each juror individually. Boyd, 369 Ark. at 264, 253 S.W.3d at 460.  Like the prosecutor in Blueford’s initial trial, the prosecutor in Boyd explained that the only way that the jury could consider a lesser-included offense was if “all 12” jurors decided that the defendant was “not guilty” of the greater charge. Id. at 263-64, 253 S.W.3d at 460. The prosecutor in Flowers described the instruction similarly. See Flowers, 373 Ark. at 125, 282 S.W.3d at 795. Flowers argued that this representation “misled the jury into believing that before it could consider the lesser-included offense . . . all jurors had to have reasonable doubt” on the greater one.  Id.  The Arkansas Supreme Court failed to clarify AMCI 302 in Blueford as well.  See Blueford v. State, 2011 Ark. 8, 7-9, 370 S.W.3d 496, 500-01 (2011).

[80]. The parties in Blueford disagreed over whether the jury could revisit its prior unanimous votes against greater offenses.  Compare Reply Brief for Petitioner at 15, Blueford v. Arkansas, 132 S. Ct. 2044 (2012) (No. 10-1320), 2012 WL 242894 at *15 (“[T]he instructions contemplate . . . that ‘the jury must, in essence, acquit the defendant of the greater offense before considering his or her guilt on the lesser-included offense.’” (quoting Hughes v. State, 347 Ark. 696, 707, 66 S.W.3d 645, 651 (2002)), with Brief for Respondent, supra note 49, at 28 (“[The instructions] allow a jury to consider lesser offenses without requiring an initial ‘acquittal’ on the greater offense.”).

[81]. Meridian Mut. Ins. Co. v. Kellman, 197 F.3d 1178, 1181 (6th Cir. 1999) (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)).

[82]. See Erie, 304 U.S. at 78. Under Erie and its progeny, a federal court “sits as a state court in that, while it applies federal procedural rules,it is constitutionally bound to apply the substantive law of the state where it sits.” 1 Howard W. Brill, Law of Damages § 2:8, at 30 (5th ed. 2004).

[83]. Meridian, 197 F.3d at 1181.

[84]. See Gravquick A/S v. Trimble Navigation Int’l Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003) (citing Astaire v. Best Film & Video Corp., 116 F.3d 1297, 1300 (9th Cir.), amended by 136 F.3d 1208 (9th Cir. 1997)).

[85]. See Glassman, supra note 75, at 269-311 (noting at least three different federal approaches regarding which “interpretive aids” courts should consult when construing matters of unsettled state law); see infra note 100 and accompanying text (describing various approaches taken by jurisdictions).

[86]. See Blueford v. State, 132 S. Ct. 2044, 2050-51 (referring only to the text of the instructions themselves in construing AMCI 302).

[87]. See id.

[88]. See supra note 79 and accompanying text.

[89]. A small number of state courts have read the right for a jury to reconsider a vote into similarly worded jury instructions.  See, e.g., People v. Hickey, 303 N.W.2d 19, 21-22 (Mich. Ct. App. 1981) (“[I]t must be recognized as a practical matter that jury votes on [lesser-]included offenses may be the result of a temporary compromise in an effort to reach unanimity.  A jury should not be precluded from reconsidering a previous vote on any issue, and the weight of final adjudication should not be given to any jury action that is not returned in a final verdict.” (emphasis added)); see also Caldwell v. State, 884 A.2d 199, 216 (Md. Ct. App. 2005); Commonwealth v. Floyd P., 615 N.E.2d 938, 942 (Mass. 1993); Brief of Amici Curiae State of Michigan et al. in Support of the State of Arkansas at 3-11, Blueford v. Arkansas, 132 S. Ct. 2044 (2012) (No. 10-1320), 2012 WL 105561 at *3-11.

[90]. Arthur L. Corbin, The Laws of the Several States, 50 Yale L.J. 762, 775 (1941).

[91]. See Glassman, supra note 75, at 295.

[92]. See Corbin, supra note 90.  Instead, federal courts should consult “many sources in combination.”  Id.

[93]. State high courts are the “final arbiter[s]” of state law, not the federal courts.  West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236 (1940).

[94]. Id.

[95]. King v. Order of United Commercial Travelers of Am., 333 U.S. 153, 161 (1948) (quoting Guaranty Trust Co. v. York, 326 U.S. 99, 108 (1945)); see also Glassman, supra note 75, at 245 (noting that federal courts are “not authorized to make state common law”).

[96]. Glassman, supra note 75, at 307.

[97]. See 28 U.S.C. § 1257(a) (2006) (conferring appellate jurisdiction on the Supreme Court to hear appeals from judgments rendered by state high courts).

[98]. See 19 Charles Alan Wright et al., Federal Practice and Procedure § 4520, at 635 (2d ed. 1996) (noting that Erie and its progeny “apply in federal question cases as well”).

[99]. See Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234 F.2d 538, 540 n.1 (2d Cir. 1956) (“[I]t is the source of the right sued upon, and not the ground on which federal jurisdiction over the case is founded, which determines the governing law.”).

[100]. For example, the Ninth Circuit ruled in 2002 that a federal court should consult “state appellate court opinions, statutes and treatises” when resolving a matter of unsettled state law. Vasquez v. N. Cnty. Transit Dist., 292 F.3d 1049, 1054 (9th Cir. 2002).  Just one year later, the same court expanded the range of “interpretative aids” to include decisions from other jurisdictions.  See Gravquick A/S v. Trimble Navigation Int’l Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003). Other jurisdictions have ruled that a federal court may consult “other indicia of state law” unless there exists “persuasive data” from a state supreme court in deciding a question of unsettled state law.  See, e.g., Arnett v. Myers, 281 F.3d 552, 565 (6th Cir. 2002).

[101]. See Northrop Corp. v. Litronic Indus., 29 F.3d 1173, 1178-79 (7th Cir. 1994).

[102]. See State v. Daulton, 518 N.W.2d 719, 720 (N.D. 1994).

[103]. State v. LeBlanc, 924 P.2d 441, 444 (Ariz. 1996) (Martone, J., concurring); Daulton, 518 N.W.2d at 721; see also State v. Davis, 266 S.W.3d 896, 905 (Tenn. 2008).

[104]. Blueford v. Arkansas, 132 S. Ct. 2044, 2054 (2012) (Sotomayor, J., dissenting).

[105]. Compare United States v. Tsanas, 572 F.2d 340, 346 (2d Cir. 1978) (noting two types of transitional instructions), with Davis, 266 S.W.3d at 905 (noting “at least four” types of transitional instructions).

[106]. 572 F.2d at 346; Brief for Petitioner, supra note 18, at 25.

[107]. Brief for Petitioner, supra note 18, at 25.

[108]. Brief for Respondent, supra note 49, at 23.

[109]. See, e.g., Pharr v. Israel, 629 F.2d 1278, 1281 (7th Cir. 1980) (“[I]f the jury should unanimously find the accused ‘Not Guilty’ of the crime charged . . . then the jury must proceed to determine the guilt or innocence of the accused as to any lesser[-included] offense . . . .”); Lindsey v. State, 456 So. 2d 383, 387 (Ala. Crim. App. 1983) (holding as correct statements of law the trial court’s instruction that “the jury should not consider the lesser included offenses unless it found the appellant ‘not guilty’ of the capital offense” and that “the jury’s decision should be unanimous”); State v. Sawyer, 630 A.2d 1064, 1071 (Conn. 1993) (“[T]he court must direct the jury to reach a unanimous decision on the issue of guilt or innocence of the charged offense before going on to consider the lesser included offenses.”);; State v. Raudebaugh, 864 P.2d 596, 599 (Idaho 1993) (“If your unanimous verdict is that [the defendant] is not guilty of murder, you must next consider the included offense of voluntary manslaughter.” (emphasis omitted)); State v. Van Dyken, 791 P.2d 1350, 1356 (Mont. 1990) (“In order to reach a verdict in this case, it is necessary that you consider the crime of deliberate homicide first, and that all twelve of you find the Defendant either guilty or not guilty of that charge.”).

[110]. 7 Tennessee Pattern Jury Instructions—Criminal 41.02(2013).

[111]. Tsanas, 572 F.2d at 346; see also Blueford v. Arkansas, 132 S. Ct. 2044, 2057 (2012) (“[T]he purpose of an acquittal-first instruction is to ensure careful and conclusive deliberation on a greater offense.”); State v. Davis, 266 S.W.3d 896, 906 (Tenn. 2008) (noting that acquittal-first instructions “tend[] to avoid the danger that the jury will not adequately discharge its duties with respect to the greater defense, and instead will move too quickly to the lesser one”).

[112]. State v. Daniels, 542 A.2d 306, 315 (Conn. 1988), abrogated by Cobham v. Comm’r of Corr., 779 A.2d 80 (Conn. 2001).

[113]. Davis, 266 S.W.3d at 907.

[114]. Id. at 906.

[115]. Id.

[116]. See State v. Sawyer, 630 A.2d 1064, 1073 (Conn. 1993); State v. Daulton, 518 N.W.2d 719, 722 (N.D. 1994).

[117]. Brief for Petitioner, supra note 18, at 25.

[118]. See Dresnek v. State, 697 P.2d 1059, 1064 (Alaska Ct. App. 1985) (“[T]he jury is free to deliberate on the charged offense (the greater offense) and the lesser-included offenses in any order it wishes. The jury is merely precluded from returning a verdict on a lesser offense without also returning a verdict on the greater offense.”); see also People v. Kurtzman, 758 P.2d 572, 577 (Cal. 1988).

[119]. Compare 1 Judicial Council of Cal., Criminal Jury Instructions No. 640, at 395 (2013) (“You may consider these different kinds of homicide in whatever order you wish, but [the judge] can accept a verdict of guilty or not guilty . . . only if all [the jurors] have found the defendant not guilty of first degree murder . . . .”), with 7 Tennessee Pattern Jury Instructions—Criminal 41.02 (2013) (“If [a jury has] reasonable doubt as to the defendant’s guilt . . . then [its] verdict must be not guilty . . . and then [it] shall proceed . . . .”).

[120]. 1 Judicial Council of Cal., Criminal Jury Instructions No. 640, at 395.

[121]. See Green v. State, 80 P.3d 93, 97 (Nev. 2003) (explaining that the “court must instruct the jury that it may consider a lesser-included offense if, after first fully and carefully considering the primary or charged offense, it either (1) finds the defendant not guilty, or (2) is unable to agree whether to acquit or convict on that charge”); see also Donaldson v. United States, 856 A.2d 1068, 1073 (D.C. Cir. 2004) (allowing jury to consider involuntary manslaughter if, “after making all reasonable efforts,” it was unable to reach a verdict on second-degree murder); State v. Daniels, 156 P.3d 905, 908 n.2 (Wash. 2007) (instructing jury to consider second-degree murder if it could not agree on finding the defendant guilty of homicide by abuse); State v. Truax, 444 N.W.2d 432, 436 (Wis. Ct. App. 1989) (“[I]f after full and complete consideration of the evidence, you conclude that further deliberation would not result in unanimous agreement on the charge of [first-degree murder], you should consider whether the defendant is guilty of [second-degree murder].”).

[122]. People v. Handley, 329 N.W.2d 710, 712 (Mich. 1982).

[123]. State v. Linton, 132 P.3d 127, 129 (Wash. 2006).

[124]. Green, 80 P.3d at 96.

[125]. Id.

[126]. See United States v. Tsanas, 572 F.2d 340, 346 (2d. Cir. 1978).

[127]. State v. Davis, 266 S.W.3d 896, 906 (Tenn. 2008); see, e.g., Jones v. United States, 620 A.2d 249, 252 (D.C. Cir. 1993) (“[W]e believe that the decision as to which instruction is preferable must be left to the defendant.”); United States v. Jackson, 726 F.2d 1466, 1469 (9th Cir. 1984) (“[T]he court should give the form of instruction which the defendant seasonably elects.”); Catches v. United States, 582 F.2d 453, 459 (8th Cir. 1978); State v. Powell, 608 A.2d 45, 47 (Vt. 1992).

[128]. Mont. Code Ann. § 46-16-607(3) (West 2013).

[129]. Tsanas, 572 F.2d at 346.  The Second Circuit explained that the “worst that can happen to the Government under the less rigorous instruction [if the defendant so chooses] is his readier conviction for a lesser rather than a greater crime.”  Id.

[130]. See AMCI 302, supra note 6.

[131]. See AMCI 302, supra note 6, note on use.

[132]. Tsanas, 572 F.2d at 346.

[133]. See AMCI 302, supra note 6.

[134]. See supra note 79; see also Wilkins v. State, 324 Ark. 60, 66-67, 918 S.W.2d 702, 706 (1996) (holding that a criminal defendant appealing his capital-murder conviction failed to show unfair prejudice after the prosecutor explained AMCI 302 as requiring a finding of “not guilty” on a greater offense before reaching a lesser one).

[135]. See Blueford v. Arkansas, 132 S. Ct. 2044, 2048 (2012) (majority opinion).

[136]. See Blueford, 132 S. Ct. at 2054 (Sotomayor, J., dissenting); Brief for Petitioner, supra note 18, at 15.

[137]. Brief for Respondent, supra note 49, at 26-27.

[138]. See Blueford, 132 S. Ct. at 2051 n.1 (majority opinion) (noting that AMCI 302 did not expressly require the jury to acquit on a greater offense before proceeding to a lesser offense and calling “the dissent’s attempt to glean such a requirement . . . unavailing”).

[139]. See Porter v. State, 358 Ark. 403, 412, 191 S.W.3d 531, 537 (2004). In Porter v. State, the defendant argued that AMCI 302 was improper because it: (1) required the jury to reach a unanimous acquittal on the greater charge before considering a lesser-included offense; and (2) mandated the order for jury deliberations. Id. at 413, 191 S.W.3d at 538.  The Arkansas Supreme Court refused to address these arguments because the defendant never mentioned them in his original challenge to AMCI 302. Id.

[140]. See Blueford, 132 S. Ct. at 2051 n.1, 2057.

[141]. Id. at 2057; see AMCI 302, supra note 6.

[142]. The State only assumed AMCI 302 confers a right to revisit charges for the sake of argument, and the Supreme Court relied on the State’s assumption in its analysis.  See supra note 60.

[143]. See Blueford, 132 S. Ct. at 2050; Brief for Respondent, supra note 49, at 26.

[144]. See Clark v. State, 374 Ark. 292, 306, 287 S.W.3d 567, 577 (2008); McCoy v. State, 348 Ark. 239, 240, 74 S.W.3d 599, 600 (2002); Moore v. State, 317 Ark. 630, 635, 882 S.W.2d 667, 669 (1994); Conley v. State, 270 Ark. 886, 889, 607 S.W.2d 328, 330 (1980).

[145]. McCoy, 348 Ark. at 239, 74 S.W.3d at 600.

[146]. Id.

[147]. See Thessing v. State, 365 Ark. 384, 406, 230 S.W.3d 526, 543 (2006).

[148]. Id.; see infra notes 153-54.

[149]. See Glassman, supra note 75, at 307 (“[A] subsequent state court properly views a federal opinion on an unsettled state-law issue in the same manner as it would the opinion of a court of appeals in that state.”); supra Part III.

[150]. Fincham v. State, 2013 Ark. 204, at 9, ___ S.W.3d ___, ___ (“The State is correct that the [Blueford] Court discussed the possibility that an Arkansas jury could find reasonable doubt on a greater offense, move then to consideration of a lesser offense . . . and then reconsider guilt as to the greater offense.  However, that discussion was pertinent to whether the jury foreperson’s report served as an acquittal of the greater offense for double-jeopardy purposes.”).

[151]. 3 John Wesley Hall, Jr., Trial Handbook for Arkansas Lawyers § 92:10, at 454 (2006 ed.).

[152]. See, e.g., Charles Harrison et al., Proposed Arkansas Model Fraud Jury Instructions, 20 U. Ark. Little Rock L.J. 51, 51 (1997).

[153]. Fincham, 2013 Ark. 204, at 11, ___ S.W.3d at ___.  The Arkansas Supreme Court routinely refers ambiguous matters, such as the implications of model instructions, to one or more of its committees to promulgate a new rule or instruction.  See, e.g., Clark v. State, 374 Ark. 292, 304, 287 S.W.3d 567, 576 (2008) (“[B]earing in mind the difficult task of drafting a rule . . . we believe that the criminal justice system will be better served if our supervisory authority [the Committee on Criminal Practice] is brought to bear on this issue.”).

[154]. Ark. Code Ann. § 16-64-119(b) (Repl. 2005).  Both parties have an “absolute right, on demand, to have a jury polled.”  Wingfield v. State, 95 Ark. 71, 72, 128 S.W. 562, 562 (1910).

[155]. Blueford v. State, 2011 Ark. 8, at 10, 370 S.W.3d 496, 502 (2011) (affirming the ruling of the circuit court, the Court noted that Blueford’s counsel “did not request that the circuit court poll the jury”).

[156]. The Arkansas Supreme Court has since acknowledged a jury’s right to revisit, but only in a limited capacity. Fincham, 2013 Ark. 204, at 9, ___ S.W.3d at___ (“The State is correct that the [United States Supreme] Court discussed the possibility [in Blueford] that an Arkansas jury could find reasonable doubt on a greater offense, move then to consideration of a lesser offense as required by our jury instructions, and then reconsider guilt as to the greater offense. However, that discussion was pertinent to whether the jury foreperson’s report served as an acquittal of the greater offense for double-jeopardy purposes.”).

[157]. Others have gone further, arguing that the Court’s ruling was altogether incorrect. See Kara Larson, Note, Ruling from a Vacuum: Using Common Sense, Psychology, and Statistics to Provide a More Realistic and Fair Basis for Deciding Blueford v. Arkansas, 58 Loy. L. Rev. 773, 773-74 (2012) (arguing that the jury foreperson’s report was a final verdict for double-jeopardy purposes and that the trial court improperly declared a mistrial).

[158]. In Re Charge of Alex Blueford, State v. Blueford, Case No. 60CR-08-2797 (Ark. Cir. Ct. Dec.14, 2012), available at http://docsdms.pulaskiclerk.com/DocsDMS/Default.aspx?A=3/ck_image.present?DMS_ID=H3HWC9N3AM5CD1V7QX203ENMM7FSZR.

[159]. Sentencing Order, State v. Blueford, Case No. 60CR-08-2797 (Ark. Cir. Ct. June 24, 2013) available at http://docsdms.pulaskiclerk.com/DocsDMS/Default.aspx?A=3/ck_image.present?DMS_ID=BNS9XWN2XJ22621ZPS15IWXPSOSKF6.

[160]. Id.

[161]. See, e.g., Kunselman v. State, 501 S.E.2d 834, 836 (Ga. Ct. App. 1998) (“Rather than requiring an acquittal before consideration of the lesser offense, our pattern charge requires the inverse: a finding that the jurors do not believe beyond a reasonable doubt that the defendant is guilty of the greater offense. We believe there is a distinct legal difference between these two approaches. The pattern instruction circumvents the possibility that jurors will believe a unanimous acquittal is required before consideration of the lesser offense.”).