Appeal from the Superior Court of the District of Columbia; (Hon. Robert A. Shuker, Trial Judge)
Before Ferren, Terry, and Schwelb, Associate Judges. Opinion for the court by Associate Judge Schwelb. Dissenting opinion by Associate Judge Terry.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge: Arenetta Whitaker was convicted by a jury of possession of a firearm during a crime of violence (PFCV), *fn1 in violation of D.C. Code § 22-3204 (b) (Supp. 1992). On appeal, she contends that the trial Judge committed reversible error by failing to reinstruct the jurors when it became apparent that, in the absence of reinstruction, they were likely to return inconsistent verdicts incompatible with the Judge's original charge. She claims that as a result of this erroneous failure to reinstruct, the jurors found her guilty of a compound offense although they were unable to agree as to her guilt of any "predicate offense," and that this result was avoidable and unlawful. We agree and reverse.
In the early morning hours of February 21, 1990, Ms. Whitaker, who was then twenty-seven years of age, was riding in a green Renault Alliance which was being operated by her niece. Ms. Whitaker's seventeen-year-old stepdaughter was also a passenger. Three other young women, who became the complaining witnesses, were in the area on foot. The two groups spotted each other, and there was trouble.
Ms. Whitaker's niece, apparently believing that the three pedestrians were staring at her and making fun of her, demanded to know "what the fuck you are looking at." A verbal altercation ensued, and one of the occupants of the green Renault escalated the contretemps from words to deeds by firing a pistol. No one was struck or injured in the shooting.
At trial, all three of the complainants testified unequivocally on behalf of the prosecution that the shooter was Ms. Whitaker and that the weapon was fired at or towards them. Both Ms. Whitaker and her stepdaughter insisted, on the other hand, that the niece, who by all accounts had precipitated the incident with inflammatory words, had also done the shooting. Ms. Whitaker and her stepdaughter also claimed that the shot was fired into the air above the complainants' heads, evidently to scare rather than to wound them. The niece testified briefly on rebuttal, denied that she was the shooter, and professed not to know who was. *fn2
Although only a single shot was fired, the indictment charged Ms. Whitaker (and originally her niece) *fn3 with three separate counts of assault with a dangerous weapon (ADW), with PFCV, and with the three misdemeanor possessory weapons offenses described in note 1, (supra) . Ms. Whitaker entered a plea of not guilty, and the case went to trial on December 3, 1990.
The following day, after both sides had rested and closing arguments had been presented, the Judge delivered his charge to the jury. He explained the elements of ADW, and then turned to the offense of PFCV. He instructed the jurors that ADW is a crime of violence, and that
if you're not satisfied beyond a reasonable doubt that the defendant committed the crime of violence of assault with a dangerous weapon, as I've given you the elements, if you're not satisfied of that, then you must find the defendant not guilty of .
On December 5, 1990, the third day of trial, the jurors sent the Judge a series of four notes, two before lunch and two after lunch. They informed him on each occasion that they were unable to agree on a verdict with respect to the first three (ADW) charges, but that they had reached a verdict as to the remaining four (PFCV and the three misdemeanors). After the content of the last of these notes was disclosed, Ms. Whitaker's counsel requested the Judge to reinstruct the jury:
My point, Your Honor, is that I believe, to protect my client's rights, I have to ask for the jury to be instructed before they announce their verdict, that they cannot find her guilty of the fourth count unless they have convicted her of count one or two or three, and it would be like a murder case where the jury's told not to go on to count two, murder II, unless they found her not guilty of murder I.
They can't find her guilty of the fourth count. Maybe they found her not guilty. But if they have found her guilty, I don't want that inconsistent verdict to stand on appeal just because inconsistent verdicts are allowed to stand where the jury, I believe, should know, but apparently they do not, that they can't find her guilty of that.
The Judge declined counsel's request. He noted that the jurors had not expressed any confusion, that the instructions were proper, and that he knew of no justification for instructing them further. Ruling that the four notes "evinced enough strong indication of hopeless deadlock to say that on counts one through three they are not realistically going to reach unanimous verdicts," the Judge stated that he would receive the verdict as to the counts on which the jury was unanimous and declare a mistrial with respect to the remaining charges. The jury then announced that it had found Ms. Whitaker guilty of PFCV and of the three weapons misdemeanors. In accordance with the statutory five-year mandatory minimum sentence for PFCV, Ms. Whitaker, who had no prior criminal record, was sentenced to imprisonment for no less than five years and no more than fifteen. This appeal followed.
In general, "decisions regarding reinstruction of a jury are committed to the discretion of the trial court; absent abuse of that discretion we will not reverse." Davis v. United States, 510 A.2d 1051, 1052 (D.C. 1986) (per curiam). Where a jury has demonstrated confusion, however, the trial Judge may not allow that confusion to continue, but must make an appropriate and effective response. Murchison v. United States, 486 A.2d 77, 83 (D.C. 1984); Bedney v. United States, 471 A.2d 1022, 1024 (D.C. 1984) (per curiam); United States v. Bolden, 169 U.S. App. D.C. 60, 67, 514 F.2d 1301, 1308 (1975); see also United States v. Laing, 281 U.S. App. D.C. 266, 275, 889 F.2d 281, 290 (1989) cert. denied, 494 U.S. 1069,110 S.Ct. 1790, 108 L.Ed.2d 792(1990). Indeed, "when a jury makes explicit its difficulties, a trial Judge should clear them away with concrete accuracy." Bollenbach v. United States, 326 U.S. 607, 612-13, 66 S.Ct. 402, 90 L.Ed. 350(1946). Ms. Whitaker contends that jury confusion was demonstrated in this case. We are persuaded by her contention.
Because of the close relationship in this case between the predicate offense (ADW) and the compound offense (PFCV), a guilty verdict as to PFCV could not be reached logically or in conformity with the evidence and the Judge's instructions, unless a guilty verdict was also reached as to at least one ADW count. Similarly, the jury could not logically find Ms. Whitaker not guilty of PFCV unless she was also found not guilty of ADW. Indeed, the government does not argue to the contrary, nor has it suggested in its brief that there can be any logical reconciliation of the verdict as to PFCV and the mistrial as to the ADW counts. If the jurors were satisfied beyond a reasonable doubt that Ms. Whitaker shot at one or more of the complainants, then they were required to convict her both of ADW and of PFCV. If they entertained a reasonable doubt as to the identity of the shooter, or as to whether she shot at anyone, they were required to acquit her both of the predicate offenses and of the compound offense. Ms. Whitaker could not have committed PFCV without also having committed ADW, for ADW is the "crime of violence" which is an element of PFCV. She likewise could not be guilty of ADW without also being guilty of PFCV, because the weapon with which she allegedly assaulted the complainants was concededly a firearm, and ADW is a crime of violence. There was no logical way, under the court's instructions or as a matter of common sense, in which a juror could be undecided as to all three ADW's but nevertheless reach a verdict as to PFCV.
It is true, as the Judge noted, that the jurors did not report to the court that they were confused. That, however, can hardly be conclusive. Counsel for Ms. Whitaker put it well in his brief on appeal:
A group of people (such as a jury) may not realize they are lost, and they may still be lost. They will then continue to be lost until they realize their situation or until someone informs them of it. This jury obviously did not realize it was confused, but it ...