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December 18, 1992


Appeal from the Superior Court of the District of Columbia. (Hon. Noel Anketell Kramer, Trial Judge)

Before Ferren, Terry, and Steadman, Associate Judges.

The opinion of the court was delivered by: Per Curiam

PER CURIAM: Appellant was charged with first degree murder while armed, D.C. Code §§ 22-2401 and -3202 (1989 Repl. & 1992 Supp.), carrying a pistol without a license, D.C. Code § 22-3204 (a) (1989 Repl. & 1992 Supp.), and possession of a firearm during a crime of violence or dangerous offense, D.C. Code § 22-3204 (b) (1989 Repl. & 1992 Supp.). On the fifth day of its deliberations, the jury indicated that it was deadlocked. On appellant's motion, the court declared a mistrial. After the court discharged the jury, some jurors spoke with counsel for both parties. This Discussion, continued before the court, suggested that on the second day of deliberations the jury may in fact have unanimously found appellant not guilty of the first degree murder charge but had thereafter been unable to come to agreement on the lesser included offense of second degree murder. Afterwards, appellant moved for an order barring his retrial on the charge of first degree murder or, alternatively, for an order accepting a verdict of not guilty on that charge. The court's denial of this motion is the basis of this interlocutory appeal.

Appellant contends that the trial court erred (1) by failing, sua sponte, to instruct the jury about partial verdicts and to inquire whether it had reached such a verdict; (2) by finding that appellant's motion for mistrial waived any potential double jeopardy claim; and (3) by refusing to release appellant from pretrial detention on the basis that the results of the trial rebutted the presumption of dangerousness established by D.C. Code § 23-1325 (a) (1989 Repl. & 1992 Supp.). Incorporating by reference the sound and thorough opinion by Judge Kramer ruling on appellant's motion, we affirm as to the first two claims of error. Because no verdict was entered, as the trial Judge correctly ruled, appellant remains charged with first degree murder, and the presumption of § 23-1325 (a) still applies; thus, because the circumstances surrounding appellant's original bond hearing have not changed, Judge Kramer did not err in refusing to revoke his pretrial detention.







Crim. No. F-2245-91


This matter is before the court upon defendant's motion for an order barring his retrial on the charge of first degree murder while armed or, alternatively, for an order accepting a verdict of not guilty on the first degree murder charge. The government opposes the motion and requests that all counts of the indictment be submitted to the jury at defendant's retrial.

The motion presents the issues of whether a deadlocked jury can impeach its verdict after it has been discharged; whether the court is required, in the absence of a request from counsel or an indication of confusion from the jury, to instruct on or inquire about the return of a partial verdict; and whether, assuming the court has such an obligation, a defendant waives any right to assert a Double Jeopardy bar to retrial when he has moved for a mistrial. Having considered the arguments of both parties and after review of the pertinent authorities, the court concludes that defendant's motion should be denied.


The defendant was charged with one count each of first degree murder while armed (premeditated murder), carrying a pistol without a license, and possession of a firearm during a crime of violence. After a trial which began on November 7, 1991, the defendant requested that in addition to the instructions on each offense charged in the indictment, the jury be instructed on second degree murder while armed as a lesser included offense of first degree murder while armed. This request was granted.

During the course of the instructions, the jury was told that it should consider each offense and the evidence which applied to it separately and should return separate verdicts as to each count. The court instructed the jury that a finding of guilty on any one charge should not control or influence its verdict on any other charge. In explaining how to communicate with the court, the court provided the jury with the standard language in Instruction 2.72 cautioning the jury never to reveal to anyone, not even to the court, how the jury stands "numerically or otherwise" on the question of the guilt or innocence of the accused until after they had reached a unanimous verdict. See Criminal Jury Instructions for the District of Columbia, No. 2.72 (3d ed. 1978). The court then went on to elaborate, explaining to the jury that their internal preliminary votes are the jury's business, not the court's. At the end of the instructions, the court invited the jury to submit to the court any questions that might arise during the course of deliberations if the jurors believed the court could be of assistance in answering those questions.

A verdict form containing questions about the jury's Conclusions on the guilt or innocence of the defendant with respect to each of the charges was given to the jury to be used as a guide during deliberations. The court informed the jury that the verdict form would not be used for accepting a verdict and explained that the verdict on each charge individually would be taken in open court, with the foreperson announcing "guilty" or "not guilty" in response to questioning by the court.

On Monday, November 18, 1991, at approximately 9:50 a.m., the jury began its deliberations and at approximately 12:40 p.m., submitted a note to the court stating, "It seems we are unable to come to a unanimous decision. We need help." With concurrence of counsel for both sides, the court responded by simply instructing the jury to continue its deliberations.

The jury continued to deliberate on November 18 and November 19, until approximately 4:30 p.m. on November 19, when it submitted a note which read, "We, the jurors, have still been unable to agree on a unanimous decision. We have argued, discussed, and disputed. Still, no decision has been reached. It appears to be a useless case in terms of agreement." The jury was excused for the day and instructed to return the next morning. On November 20, 1991, the jury was given the standard "red book" Winters instruction concerning jury deadlock and was excused to continue its deliberations. *fn1

The jury then deliberated throughout the day on November 20 and continued its deliberations on November 21. On November 21, at approximately 10:15 a.m., the jury foreperson submitted a note stating that one of the jurors had been informally diagnosed with the skin condition known as "shingles." Several jurors believed that the condition was contagious and were concerned about further deliberations. The jury ceased deliberations for the afternoon while the juror who was thought to have shingles visited a dermatologist, as arranged by the court. The dermatologist determined that the juror did not have shingles, but merely a condition commonly known as hives. The jury returned again on November 22 and, after being informed that the individual juror did not have shingles, the jury was excused to continue its deliberations.

At 11:35 a.m. on November 22, the jury submitted two notes to the court, one from the foreperson and one from an individual juror. The note from the foreperson read, "This is to inform you up to this present time we still have not come to an agreement." The note from the individual juror read:

This is a note from me and me only. It has been determined, in my opinion, that no one is going to change their minds. From sitting in deliberations for a week, I have watched tempers flare, attitudes have arose, constant snapping at one another and it is getting worse each day. I know this is not what you want to hear but I personally cannot take another day of deliberations if everyone cannot get along. *fn2

At this point, out of the presence of the jury, the court said to counsel, "I don't know about you counsel. I'm ready to excuse them, but I want to hear from you." *fn3 The prosecutor responded, "I do not oppose that your honor; whatever (defense counsel) wishes." Defense counsel then stated, "Your honor, at this time I'll make a motion for a mistrial." The motion was granted without government objection.

The jurors were then brought into the courtroom and the court, referring to the two notes from the jury, stated, "I gather that this means that you have not been able to reach verdicts in the case. You have deliberated for a long period of time. I believe it is time to excuse you. It appears, if I understand correctly, that there is no realistic prospect that you will be able to reach a verdict in this case." Several jurors nodded agreement to the court's assessment of the deadlock and none voiced Dissent. Neither counsel requested that the court poll the jury to determine if all members agreed there was a deadlock.

After consulting with counsel, the court intructed the jurors that, once discharged, they were free to discuss the case with anyone, including counsel. The court invited any jurors who were interested to wait in the juryroom. The court then discharged the jury and took the luncheon recess to enable counsel to speak with any jurors who had remained, directing counsel to appear in the afternoon for the setting of a new trial date.

When the case was recalled after the luncheon recess, the court noticed that the foreperson was seated in the front row of the courtroom and asked counsel to approach the bench. During the bench conference, the court ascertained that after the discharge of the jury, both counsel had gone to the juryroom, as permitted, and spoken with an unspecified number of jurors who had remained. The jurors had the opportunity to ask questions of counsel about the case, which were answered. During this Discussion, and with both counsel present, reference was made to jurors who had found defendant not guilty on the first degree murder charge. Both counsel agreed it was not clear at that time that all of the jurors had found the defendant guilty on that charge. Nor did the jurors mention any written expression of this opinion at that time. After the prosecutor departed, defense counsel spoke further with some jurors, including the ...

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