Background
Momo Mohammed Kanneh was tried in the District Court of Burleigh County on a charge of continuous sexual abuse of a child under N.D.C.C. § 12.1-20-03.1(1). A jury convicted him following deliberations during which the jury reported to the court that it was deadlocked. In response, the district court issued a supplemental instruction — commonly known as an Allen charge, after Allen v. United States, 164 U.S. 492 (1896) — urging jurors to continue deliberating toward a verdict.
Kanneh appealed from the resulting criminal judgment, arguing that the supplemental instruction coerced the jury into reaching a verdict. Central to his argument was the fact that the district court became aware of the jury’s numerical division during deliberations, which he contended rendered the instruction presumptively coercive.
The Court’s Holding
The North Dakota Supreme Court affirmed the conviction per curiam, summarily disposing of the appeal under N.D.R.App.P. 35.1(a)(7). Applying a totality-of-the-circumstances standard drawn from State v. Knight, 2023 ND 130, 993 N.W.2d 528, the court held that the supplemental instruction was not coercive.
The court emphasized two factors. First, the Allen charge included an offsetting cautionary instruction reminding jurors not to abandon their honest convictions — language that courts have recognized as negating coercion. Second, the court learned of the jury’s numerical split only because the jury volunteered that information, not through any judicial inquiry. Under these circumstances, the totality of the record did not support a finding that the verdict was coerced.
Key Takeaways
- A supplemental Allen-type instruction is not coercive when it pairs the directive to continue deliberating with a reminder that jurors must not surrender their honest convictions.
- A trial court’s awareness of a jury’s numerical division does not automatically render an otherwise proper Allen charge presumptively coercive, at least where the jury volunteered that information rather than being solicited by the court.
- North Dakota courts assess Allen charge coercion claims under the totality of the circumstances, following State v. Knight, 2023 ND 130.
Why It Matters
This decision reinforces the continued viability of Allen charges in North Dakota criminal proceedings, clarifying that the key safeguard is whether the instruction preserves each juror’s right to vote their honest conviction. Defense practitioners should note that challenging an Allen charge requires more than showing the court knew the jury’s numerical split — particularly where that information came from the jury itself rather than from judicial inquiry.
For prosecutors and trial courts, the case confirms that a properly balanced supplemental instruction will survive appellate scrutiny under the totality-of-the-circumstances test, provided the offsetting cautionary language is present and the court has not actively probed the jury’s numerical division.