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January 31, 1991


Appeals from the Superior Court of the District of Columbia; Hon. Reggie B. Walton, Trial Judge

Rogers, Chief Judge, and Ferren and Terry, Associate Judges. Rogers, Chief Judge, Concurring in part and Dissenting in part.

The opinion of the court was delivered by: Ferren

Lumpkin, Austin, and Fields present an array of challenges to their convictions for conspiring and attempting to rob and kill fellow drug dealers who, in fact, were undercover police officers. There are three significant issues on appeal: whether the trial court (1) committed plain error in failing to give a special unanimity instruction as to the overt acts of the charged conspiracy; (2) committed plain error in twice ordering the jury to continue its deliberations, without giving a cautionary instruction to minimize juror coercion, after a poll each time revealed juror number one voted "not guilty"; and (3) erred in refusing to grant a severance so that one co-defendant could testify on behalf of another without sacrificing the testifier's Fifth Amendment rights. Finding these contentions unconvincing, we affirm.


During a drug sale a gunman, later identified as Lumpkin, attempted to rob, and shot, two "drug dealers" who actually were undercover Metropolitan Police officers, Gerald Awkard and Troy Pumphrey. The transaction began when two men, later identified as Fields and Austin, approached the officers' car at a prearranged meeting place. After discussing details of the sale, Fields and Austin left. Austin then called Pumphrey on a beeper, telling him to change the location of the buy because of Austin's perception that "police were all over the area." They agreed to meet at a local gas station. At the gas station, Lumpkin and Austin approached the car. The record is not clear as to Fields' whereabouts during the shooting. *fn1 After some Discussion, Lumpkin shot the two officers, shot at the backup officers (Watkins and Hayes), and escaped. Austin was arrested at the scene; he confessed to being the lookout while Lumpkin robbed the officers. Later, Fields and Lumpkin turned themselves in.

Lumpkin, Austin, and Fields were convicted of conspiracy to commit robbery while armed, D.C. Code § 22-105 (a) (1989). Fields also was convicted of two counts of unarmed assault with intent to commit robbery of Awkard and Pumphrey, id. § 22-501, and received a cumulative sentence of 11 years and 8 months to 35 years in prison. Austin also was convicted of two counts of assault with a dangerous weapon upon Awkard and Pumphrey, id. § 22-502, and assault upon Awkard and Pumphrey with intent to commit robbery while armed, id. §§ 22-501, -3202. He received a cumulative prison sentence of 21 years and 4 months to life. Lumpkin also was convicted of two counts of assault upon Awkard and Pumphrey with intent to commit robbery while armed, id., one count of assault upon Pumphrey with intent to kill while armed, id. §§ 22-501, -3202, three counts of assault with a dangerous weapon upon Awkard, Watkins, and Hayes, id. § 22-502, and one count of carrying a pistol without a license, id. § 22-3204. He received cumulative sentences of 39 years and 4 months to life imprisonment.


Lumpkin claims plain error in the trial court's failure sua sponte to instruct that, in order to convict for conspiracy, the jury had to be unanimous on at least one overt act (rather than having some jurors agree on one act while the others agreed on another). See Scarborough v. United States, 522 A.2d 869, 872 (D.C. 1987) (en banc). There was no such error. The sole object of the conspiracy, robbery of the undercover officers, had twenty-two alleged overt acts. Even without a special unanimity instruction the jury must have unanimously agreed on at least three of these acts, namely the three underlying offenses for which the jury unanimously convicted Lumpkin: unlawfully arming himself with a pistol, assaulting Pumphrey and Awkard with the intent to rob them while armed, and shooting at Awkard, Watkins, and Hayes to facilitate escape. See (supra) Part I. Each of these was an overt act sufficient to justify the conspiracy conviction. See United States v. Castro, 887 F.2d 988, 993-94 (9th Cir. 1989). Accordingly, there was no risk that the jury was divided about the underlying acts necessary to justify that conviction. Cf. United States v. Hubbard, 281 U.S. App.D.C. 262, 264, 889 F.2d 277, 279-80 (1989) (no plain error when there was virtually no risk jury was divided over object of conspiracy, since appellant was convicted of one underlying substantive offense, and all but one of alleged overt acts fell within same conceptual group).


On two occasions the jury foreperson announced a unanimous verdict and the trial Judge began to poll the jury. On each occasion, after all jurors announced "guilty" on the first (conspiracy) count, the Judge polled as to the second count: assaulting Pumphrey with a dangerous weapon. Each time juror number one replied "not guilty." Each time the Judge -- without further comment -- asked the jury to return for further deliberations.

Austin complains his verdict was tainted by the trial Judge's failure to take precautionary action sua sponte before returning the jury to deliberate after the second poll *fn2 -- for example, an inquiry to deal with possible juror confusion, or a cautionary instruction to prevent the Dissenting juror from feeling coerced to give up her views. The government replies that, absent a request for such action, the trial court did not commit plain error (or, for that matter, any error at all).


The purpose of the jury poll is to uncover doubt or confusion of individual jurors, Johnson v. United States, 360 A.2d 502, 505 (D.C. 1976), to eliminate uncertainty concerning the verdict, Arnold v. United States, 511 A.2d 399, 417 (D.C. 1986); United States v. Mathis, 175 U.S. App.D.C. 341, 345, 535 F.2d 1303, 1307 (1976), and to assure that no juror is coerced to join in a verdict with which the juror does not agree. Arnold, 511 A.2d at 417. The trial court has substantial discretion to decide how to poll the jury, United States v. Mangieri, 224 U.S. App.D.C. 295, 307, 694 F.2d 1270, 1282 (1982), and once a poll has shown a lack of unanimity the trial court may either order further deliberations or declare a mistrial on the counts reflecting disagreement. Kendall v. United States, 349 A.2d 464, 467 (D.C. 1975). See Super. Ct. Crim. R. 31(d).

In arguing their respective positions, appellant relies primarily on Crowder v. United States, 383 A.2d 336, 341-43 (D.C. 1978), while the government stresses Artis v. United States, 505 A.2d 52, 58 (D.C.), cert. denied, 479 U.S. 964, 107 S. Ct. 464, 93 L. Ed. 2d 409 (1986). In Crowder, a juror was obviously the lone Dissenter because that juror was the twelfth one polled after all other jurors had announced "guilty." In that context, we reversed for abuse of discretion in not discharging the jury and declaring a mistrial. We concluded that the lone juror might reasonably have interpreted the trial court's direction, returning the jury to deliberate, as a message to change the juror's vote -- especially because that juror had expressed her lone Dissent for "lack of evidence," not out of apparent confusion. Crowder, 383 A.2d at 342.

By contrast, in Artis the trial court cut short the jury poll on count four when juror number one said the defendant was "not guilty" (although the court continued to take unanimous verdicts on the other counts). Artis, 505 A.2d at 57. There was no indication about the votes of the other eleven jurors on count four. We accordingly ruled that the court had not committed plain error in failing to give a cautionary instruction (which had not been requested) when the trial court ordered further deliberation on count four. We said that the juror who had voted "not guilty" during the poll was not likely to have felt coerced because that juror had not been "isolated as a sole Dissenter." Id. at 58. We also noted that other jurors were not likely to have felt coerced "because the numerical split of the jury on count four was not revealed in open court." Id.; see Crowder, 383 A.2d at 343 n.14.

We agree with the government that Artis governs here. We note, first, that Austin did not request at trial the kind of inquiry or cautionary instruction he now insists the court should have initiated; thus, as in Artis, we review for plain error. See Artis, 505 A.2d at 58. *fn3 We find none. On each occasion, the trial court immediately discontinued the poll and ordered further deliberations when juror number one responded "not guilty." At no point did the trial court know whether juror number one was a lone Dissenter, for the other eleven jurors were never polled. Furthermore, because the numerical split of the jurors was not revealed in open court, other jurors may have been more willing to consider the Dissenter's concerns during renewed deliberations than they would have been "if they had already given a contrary opinion in open court, when polled." Crowder, 383 A.2d at 343 n.14. Under these circumstances, it is unlikely that the Judge's action intimidated juror number one or any other juror.


Austin further contends, however, that such a simple application of Artis misses the point. He emphasizes that the first juror must have felt isolated after the second poll, if not after the first, because by that time "juror number one at least must have perceived himself to be the lone Dissenter." That observation, however, does not carry Austin's argument far enough. The concern is not that a juror may recognize he or she is the lone Dissenter; that is often the case in the jury room. The concern, rather, is that the juror will believe the Judge knows he or she is the lone Dissenter, and thus will believe the Judge has ordered further deliberations to coerce a change of mind. See Artis, 505 A.2d at 58. On this record, this concern is substantially overstated.

After the second attempted poll the Judge could not have known, any more than after the first poll, that juror number one was a lone Dissenter; nothing more was revealed the second time.

When the "not guilty" incident occurred a second time, the Judge may have begun to suspect that the first juror was a lone Dissenter. But this repeated sequence did not necessarily isolate that juror in the Judge's eyes; the Judge would still have had to speculate that no more than one juror in a case of many counts and lesser included offenses was likely to have last-minute misgivings. *fn4 Because the Judge could not have known the vote -- any more than he could have known it after the first poll -- we are not persuaded, absent objection by counsel at the time, that a reasonable juror would have believed the Judge was trying to coerce a result by a second use of the same simple procedure. Jurors know the verdict must be unanimous. The Judge's approach reflected a neutral recognition of an obvious inconsistency between the foreperson's announcement and the juror's response. We believe a reasonable juror, therefore, would have recognized that this approach was merely a proper insistence on a unanimous verdict, not an improper pressure for a verdict to go a particular way.


Austin argues, however, that the only possible basis for believing a juror would not feel coerced upon twice resuming deliberations under these circumstances would be if the juror was confused, not necessarily a Dissenter. Austin stresses that the Judge himself apparently believed the juror was merely confused -- a premise that cannot properly be assumed, he says, absent an inquiry to that effect, which the Judge did not make. Austin accordingly urges us to recognize the importance of the right of Dissent by considering this case on the only premise that would clearly protect the juror's position: as in Crowder, 383 A.2d at 342, juror number one knew exactly what she was doing in Dissenting from conviction on count two. It follows, says Austin, that the court should have either provided a cautionary instruction to assure the Dissenting juror felt protected in her position or else declared a mistrial.

The record, however, belies Austin's contention. As Austin himself recognizes, the trial Judge did perceive the Dissenter was merely confused, not self-assured in Dissent. Moreover, there is a record basis for the Judge's perception. Soon after the Judge sent the jury back to deliberate after the first aborted poll, the foreperson sent a note asking if the jurors could "make a note or carry. . . a memo as to the individual verdicts." After consulting with counsel, the Judge called the jury back, reiterated that he would poll only as to guilty verdicts, and took the second poll without having responded to the foreperson's note. Later, after he had sent the jury back for the second time, he told counsel during the recess: "I think the first juror is just confused. I don't think I can let them take notes." We do not find a basis for concluding this was an erroneous perception. For that reason we do not believe the court erred, absent objection, in having the jury twice resume deliberations without additional inquiry or instruction.


Even if Austin is correct that the trial court should have perceived juror number one was certain, not confused, in twice announcing "not guilty" in open court, we do not believe there was coercion enough for us to conclude, absent objection from counsel, that plain error occurred in the court's failing sua sponte to make further inquiry or to give the jury a cautionary instruction. The incident occurred only twice; the Judge took action consistent with every juror's understanding (the verdict must be unanimous); the juror was not noticeably a lone Dissenter; and the Judge did not use words that any juror could reasonably have taken even as a hint to decide a particular way. Obviously, if the same result occurred after several aborted polls, the emerging specter of a hung jury might leave the trial court, as well as this court, required to say the only proper course would be a careful inquiry into possible confusion or a cautionary instruction to protect Dissent during further deliberations. Or, in some instances, a mistrial would be appropriate. But, on this record, we do not perceive the coercive effect Austin claims. The Judge's neutral action in twice ordering resumption of deliberations without comment or fanfare does not suggest a miscarriage of Justice.

We want to emphasize, however, that this is a "plain error case. See (supra) note 3. Had defense counsel requested a careful inquiry or a cautionary instruction of the sort suggested in Crowder, 383 A.2d at 342 n.11, in order to minimize any possible feeling of juror coercion which counsel believed likely under the atmosphere in court at the time, the Judge's failure to give an instruction ...

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