dissenting.
Although I agree with the majority that the issue in this case is whether the Allen charge given by the Kentucky trial judge was coercive under the totality of the circumstances, see Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060, 13 L.Ed.2d 957 (1965), I do not agree that the version of the Allen charge used here comports with the defendant’s sixth amendment right, as made applicable to the states by the fourteenth amendment, to a fair trial. Accordingly, I dissent.
My disagreement with the majority stems primarily from its application of relevant Sixth Circuit case law. Although no prior Sixth Circuit decision has considered an Allen charge identical to the one at issue, those cases identify several elements often present in variations of the Allen charge which, in combination with each other and when viewed under all the circumstances, can render these charges coercive. It should be emphasized that it is the combined effect of these elements, rather than the presence or absence of any one element, that determines whether a particular version of the Allen charge is constitutionally sound.
First of all, the trial judge in this case instructed the jury that the defendant’s guilt or innocence “must be decided by someone either now or in the future” (emphasis supplied). This court has twice criticized this type of instruction and has distinguished it from statements to the effect that a case “must be disposed of sometime” (emphasis supplied). See United States v. LaRiche, 549 F.2d 1088, 1092 (6th Cir.), cert, denied, 430 U.S. 987, 97 S.Ct. 1687, 52 L.Ed.2d 383 (1977); United States v. Harris, 391 F.2d 348, 355-56 (6th Cir.), cert, denied, 393 U.S. 874 (1968).
In Harris, the court held that instructing a jury that a criminal case “must be decided” is inaccurate because the jury receives the impression that ultimate inability to agree is an unacceptable result. 391 F.2d at 355. In fact, the federal constitution entitles “a defendant to rely on the possibility of disagreement by the jury.” Id. The majority counters that since the trial judge in the present case “alluded to the possibility that a new jury might be necessary and also told the jury to return to court if agreement could not be reached,” the version of the Allen charge given here “did not suggest that the jury was required to agree.” Ante at 850. The majority overlooks the fact, however, that although similar allusions were made by the trial judge in Harris, 391 F.2d at 351, 353, the instruction that the case “must be decided” nevertheless was held constitutionally unsound.
Furthermore, the Harris court found that instructing a jury that a case “must be decided” tends to pressure minority jurors into surrendering conscientiously held opinions about the ultimate verdict for the sake of reaching unanimous agreement. Id. at 356. Contrary to the majority’s assertion, ante at 850, therefore, the fact that the *853trial judge did not expressly admonish the minority jurors to reconsider their position in light of their minority status is not of central importance under the circumstances of this case. The Hams court specifically held that an instruction that a matter “must be decided” pressures minority jurors to forsake conscientiously held convictions concerning the proper verdict.
Second, it is noteworthy that the version of the Allen charge used here, unlike the original Allen instruction, failed to instruct the jurors not to surrender conscientiously held convictions about what would be the correct verdict merely to obtain unanimity if some jurors remained convinced of their opinion after open-mindedly reconsidering their position. This court has held that “the reminder that no juror should merely acquiesce in the majority opinion is ... one of the most important parts of the Allen charge.” United States v. Scott, 547 F.2d 334, 337 (6th Cir.1977). This reminder may be necessary in order to protect the defendant’s “right to rely on the fact that an ultimate jury disagreement is a permissible result of a trial.” Id. As has been indicated, this court afforded the latter interest constitutional status in Harris. 391 F.2d at 355.
A third problem with the Allen charge under review here is that immediately before it was given, the trial judge asked how the jury was numerically divided and was informed by juror Almy that the count was 7-5. Although I agree with the majority that eliciting the numerical division of a deadlocked jury, without more, is not reversible error in habeas cases, it is equally clear that such an inquiry and response, when proceeded by an Allen charge, can result in constitutional error under the totality of the circumstances test. See, e.g., Locks v. Sumner, 703 F.2d 403, 406-07 (9th Cir.), cert, denied, — U.S.-, 104 S.Ct. 338, 78 L.Ed.2d 307 (1983); Ellis v. Reed, 596 F.2d 1195, 1199-1200 (4th Cir.), cert, denied, 444 U.S. 973, 100 S.Ct. 468, 62 L.Ed.2d 388 (1979). Though finding no constitutional error under the facts of the particular case, the Eighth Circuit stated in Cornell v. State of Iowa, 628 F.2d 1044, 1048 n. 2 (8th Cir. 1980), cert, denied, 449 U.S. 1126, 101 S.Ct. 944, 67 L.Ed.2d 112 (1981):
The coercive impact of even a modest Allen charge is heightened when preceded by any inquiry as to the jury’s numerical division. When that is done, the impression is inherently conveyed to the jury that the relevation of their division prompted the giving of the subsequent verdict-urging instruction and that it is, therefore, directed toward the minority jurors.
This coercion of minority jurors can only be compounded where, as here, elicitation of the jury’s numerical division is immediately followed by a suspect Allen charge. See Jones v. Norvell, 472 F.2d 1185, 1186 (6th Cir.), cert, denied, 441 U.S. 986, 93 S.Ct. 2275, 36 L.Ed.2d 964 (1973).
Fourth, I do not agree with the majority that a relatively short trial and period of deliberations necessarily renders a jury un-susceptible to coercion. Indeed, this court has held that any time that a jury notifies a trial judge that it has been unable to reach a verdict, the trial judge must be:
acutely sensitive to the probability that the jurors will listen to his additional instructions with particular interest and will rely more heavily on such instructions than on any single portion of the original charge.
United States v. Giacalone, 588 F.2d 1158, 1166 (6th Cir.1978), cert, denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979) (quoting United States v. Carter, 491 F.2d 625, 633 (5th Cir.1974)). Consequently, despite the fact that the trial in the present case took less than a day and that the jury deliberated for less than two hours before reporting itself deadlocked, the jury may have accorded special weight to the version of the Allen charge given here.
In summary, I would hold that the combination of instructing the jury that this case *854must be decided, of eliciting the numerical division of the jury and of failing to instruct the jurors on their duty not to surrender conscientiously held convictions deprived the defendant of his constitutional right to a fair trial.1 The case law establishes that the first two factors pressured the jurors (particularly the minority jurors) to forsake any conscientiously held opinions in order to reach a unanimous verdict. This coercion was not offset by an instruction not to surrender those convictions.2
Finally, I am convinced that the constitutional error occurring in this ease was not harmless. First, within 27 minutes after the trial judge gave the Allen charge, either five or seven of the jurors changed their minds3 and the jury returned a guilty verdict. Although the speed with which a jury reaches a verdict after an Allen charge is given may not be considered in determining whether that charge was coercive, the elapsed time is relevant in deciding whether an Allen charge otherwise found improper may be deemed harmless. See Giacalone, 488 F.2d at 1167-68. Moreover, Williams’ claim of self-defense was not insubstantial. The record shows, for instance, that the defendant had been physically beaten by Richard Torian two days before the shooting and had been told by Vanessa Thomas that Torian had been armed. If a jury were further to believe Williams’ testimony that the second encounter with Torian was a surprise and that Torian moved suddenly as if to draw a gun, then that jury could conclude under all the circumstances that Williams acted reasonably in self-defense. Thus, the trial court’s error was not harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). I respectfully dissent.
. The Kentucky Court of Appeals approved an Allen charge that was indistinguishable from the one used here in Earl v. Commonwealth, 569 S.W.2d 686 (Ky.App.1978). I am of the opinion that the Earl case was wrongly decided.
. Whether such an instruction would have sufficed to counterbalance the pressure exerted by the other two factors is a question that I do not reach.
. The trial judge did not elicit whether the 7-5 numerical division favored conviction or acquittal.