Submitted on Briefs: November 15, 2017
Court of the Thirteenth Judicial District, In and For the
County of Yellowstone, Cause No. DC 13-839 Honorable Russell
C. Fagg, Presiding Judge
Appellant: Chad Wright, Appellate Defender, Lisa K.
Korchinski, Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Tammy A.
Hinderman, Assistant Attorney General, Helena, Montana
D. Twito, Yellowstone County Attorney, Mary Leffers Barry,
Christopher Morris, Deputy County Attorneys, Billings,
A jury found Kogan J. Santiago (Santiago) guilty of sexual
intercourse without consent. The Thirteenth Judicial District
Court, Yellowstone County, sentenced Santiago to thirty years
incarceration, with fifteen years suspended. Santiago appeals
his conviction. We affirm and address the following issue:
Did the District Court abuse its discretion in giving the
deadlocked jury an Allen-instruction?
AND PROCEDURAL BACKGROUND
The State charged Santiago with sexual intercourse without
consent following an incident that occurred in April 2013.
Santiago pleaded not guilty and the case proceeded to a jury
trial. On the last day of trial, the jury began deliberations
at 11:30 a.m. and shortly thereafter had lunch. At 4:00 p.m.,
the jury sent the Judge a note indicating it was deadlocked
and could not form a unanimous decision. Specifically, the
jury indicated its vote was eleven-to-one and that the one
juror was unwilling to change his or her position.
In response, the State suggested the court provide an
Allen-instruction, also frequently referred to as a
dynamite-instruction. An Allen-instruction may be
given to a deadlocked jury and is meant to encourage further
jury deliberation. This Court specifically approved the
State's requested Allen-instruction in State
The judicial process assigns tasks to the people involved in
the case. It is the task of the witnesses to testify
truthfully to the facts as they recall them. It is the task
of the lawyers to prepare the case for final submission to
the trier of the facts, the jury. It is the task of the Judge
to preside, to instruct you as to the law, and to rule on
whether certain evidence will be allowed at trial. It is the
task of the jury to decide the case. You are not partisan nor
are you advocates in this matter; you are neutral judges of
the facts. It is you and you alone that can decide this
cause. There is no reason to believe that any other
12 people would possess any more ability, intelligence, and
courage to do the task assigned to a jury under the American
system of justice.
The purpose of this instruction is to encourage you to
collaborate with your fellow jurors in order to reach a just
and fair verdict in this case. This instruction is not meant
to coerce or to force a verdict. You should ...