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12/20/91 CHARLES E. PARKER v. UNITED STATES

December 20, 1991

CHARLES E. PARKER, APPELLANT
v.
UNITED STATES, APPELLEE; SYLVESTER J. LEWIS, APPELLANT V. UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; (Hon. Herbert B. Dixon, Jr., Trial Judge)

Before Terry and Steadman, Associate Judges, and Newman, Senior Judge.*

The opinion of the court was delivered by: Steadman

Opinion for the court by Associate Judge Steadman.

Opinion Concurring in part and Dissenting in part by Senior Judge Newman.

Steadman, Associate Judge: Appellants, the occupants of the front seat of a car on which was located a paper bag containing a quantity of drugs, *fn1 were both convicted of possession of heroin with intent to distribute, D.C. Code § 33-541(a)(1) (1988), and simple possession of cocaine, id. § 33-541(d). During deliberations, the jury asked if it could convict on the offense of simple possession of heroin without reaching agreement on the greater offense of possession with intent to distribute. The trial court on two separate occasions reinstructed the jury that it must reach a unanimous agreement on the greater offense before it could consider the lesser. We hold that the giving of this instruction, "sometimes known as the 'acquittal first' instruction," Jones v. United States, 544 A.2d 1250, 1252 (D.C. 1988), in the circumstances here constituted reversible error and requires that appellants be granted a new trial on the possession with intent to distribute charge. We reject the appellants' other contentions. *fn2

I.

The trial court issued its general charge to the jury at the close of trial on Wednesday, January 21, 1987. Before instructing the jury on the elements of the lesser included offense of possession of heroin, the trial court told the jury: "After your consideration of [the possession with intent to distribute] charge, if you define a particular defendant not guilty as to the charge of possession with the intent to distribute of heroin, then you shall consider the charge of possession of heroin." At 12:10 p.m. on Tuesday, January 27, *fn3 the jury sent the court a note stating, "We are unable to reach a verdict on one of the counts. How should we proceed?"

Confronted with this note, the parties agreed that the trial Judge, accompanied by the court reporter but not the attorneys, should "stop into the jury room . . . and give a very brief message to the jury . . . to ask them to continue their deliberations." *fn4 The trial Judge informed the parties that "substantively, I am going to say very little." However, upon entering the jury room, the Judge instructed the jury that "you may consider the offense of possession of heroin if and only if the jury returns a verdict of not guilty of the charge of possession with intent to distribute heroin." The trial Judge then repeated that the jurors "may only consider the charge of possession of heroin if and only if the jury has unanimously agreed on a verdict of not guilty with respect to the charge of possession with intent to distribute heroin. You may only consider a lesser included offense if you have returned a verdict of not guilty as to the greater offense."

At approximately 4:18 p.m. on January 27, the jury sent the court a second note which asked more specifically, "Is there any way to convict on possession of heroin without agreeing on distribution?" *fn5 During the colloquy on how to respond, counsel for appellant Parker argued that since the jury in effect had to decide whether his client possessed heroin before deciding whether he did so with intent to distribute, the jury could find the defendants guilty of simple possession without resolving the intent to distribute question. Accordingly, he argued that the trial court should answer "yes" to the jury's question whether it could convict on possession of heroin without agreeing on distribution. The trial court immediately responded, "I think under the law they have to consider the greater offense first." *fn6 The Judge then again instructed the jury that "you must come to a unanimous decision on the charge of Possession With Intent to Distribute Heroin before you may undertake any consideration of the lesser included offense." The jury deliberated for approximately twenty-five minutes before being excused for the evening; the next morning, at 11:25, the jury found both appellants guilty of the greater offense of possession of heroin with intent to distribute. *fn7

In Jones v. United States, supra, 544 A.2d at 1253, we described the "flaw" associated with the "acquittal first" instruction. We explained that such an instruction "'improperly interfere with the jury's deliberations'" because the jury "is encouraged -- some would say coerced -- to favor conviction of the greater offense." Id. (citation omitted).

Accordingly, we held that "when the jury reports a deadlock between the greater and the lesser offense, the 'acquittal first' instruction should not be given because it is impermissibly coercive." Id. at 1254. Instead, we said, the jury should be given the less-stringent "reasonable efforts" instruction.

More recently, in Wright v. United States, 588 A.2d 260 (D.C. 1991), we had occasion to revisit this general issue in the context of the court's initial charge to the jury, a matter we had specifically left open in Jones, supra, 544 A.2d at 1254. We observed that "either version of the instruction has advantages and disadvantages for each side in a trial," and that neither was wrong as a matter of law. Wright, supra, 588 A.2d at 261-62. Invoking considerations analogous to those underlying the rule of lenity, we held that the defendant's wishes should prevail. Accordingly, "where timely requested, the trial court should give an instruction which allows the jury to consider the lesser included offense, if unable to reach a verdict on the greater offense, after making all reasonable efforts to do so." Id. at 262.

Applying these principles to the instant case, *fn8 we must conclude that the trial court erred in giving an "acquittal first" instruction after the jury reported a deadlock on the greater offense of possession with intent to distribute. *fn9 As in Jones, supra, 544 A.2d at 1254, a retrial is necessary on the charge of possession of heroin with intent to distribute "since we cannot know what verdict a properly instructed jury would have returned." We see no basis, however, for reversing appellants' convictions of possession of cocaine because of the erroneous reinstructions. *fn10 The jury's deadlock involved only the question whether appellants had the requisite intent to distribute heroin. That issue was irrelevant to appellants' guilt on the simple possession of cocaine charges. Accordingly, ...


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