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February 12, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Robert I. Richter, Trial Judge)

Before Ferren, Farrell, and King,* Associate Judges.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge : A jury convicted appellant Robert Jones, Jr., of possession of heroin with intent to distribute. See D.C. Code § 33-541 (a) (1) (1988 Repl.). The trial court sentenced him to five to fifteen years of imprisonment, with a mandatory minimum of four years. Appellant contends on appeal that the trial court committed reversible error when it gave an "acquittal first" instruction after the jury had announced it was deadlocked. After filing his notice of appeal, appellant also moved to vacate his sentence and conviction under D.C. Code § 23-110 (1989 Repl.), alleging ineffective assistance of counsel. The trial court denied this motion. Appellant's challenge to this ruling was consolidated with his appeal. We affirm.


According to the government's evidence, an undercover police team observed appellant in an alley between two abandoned buildings frequented by heroin addicts. Two officers saw appellant give a ziplock bag filled with white powder to an unknown person in exchange for U.S. currency. The bag was part of a larger bundle held by appellant. The two officers were about twelve to fifteen feet away at the time. When the officers began to approach, a third man in the alley warned appellant and took the money appellant had just received. The third man refused, however, to take the bundle when appellant tried to hand it to him. All three men then tried to flee. The police officers concentrated on stopping appellant. Once they had done so, the officers identified themselves. Appellant then popped the bundle into his mouth. The officers struggled with appellant to recover the bundle and one of them used the Heimlich maneuver to force appellant to spit it out. Appellant did so; the police recovered the bundle. The bundle contained ten packets of white powder, later analyzed as 1.695 grams of heroin at twelve per cent strength. Appellant did not testify.


Before instructing the jury on the lesser included offense of simple possession of a controlled substance, the trial Judge gave the jury the so-called "acquittal first" instruction:

If you find that the Government has not proven each of the elements of that offense [possession with intent to distribute] beyond a reasonable doubt, you must find the defendant not guilty of that charge and then and only then should you consider the lesser charge of simple possession.

Defense counsel did not object to this instruction.

The jury left the courtroom to begin deliberating at 11:25 a.m. At 3:14 p.m., the court received a note in which the jury said that it had been "unable to reach a unanimous decision on either charge." Noting, in a conference with counsel, that the jury was "only supposed to be deliberating on the first charge so that's their first mistake," the trial court proposed to "ask the foreperson if further deliberations would be useful in reaching a verdict on the first charge." If the answer was "yes," the trial Judge would send the jury back to deliberate. If the answer was "no," the trial Judge planned to give a Winters instruction. *fn1 The Judge added that he would also tell the jurors that they were to deliberate on the first count until they reached a verdict on that count. In response defense counsel moved for a mistrial but did not otherwise object to the Judge's proposals.

When the jury was called in, the following colloquy took place:

THE COURT: Let me first say to you that the instructions that I gave you and as the verdict form says, you are only supposed to deliberate on the first charge.


THE COURT: And you should not deliberate on the second charge until the jury unanimously finds the defendant not guilty of the first charge. So, right now you should only be deliberating on the first charge. Now, let me ask you do you understand that?

Your answer should be yes or no. Do you think that with further deliberations the jury will be able to reach a unanimous verdict on the first charge?

THE FOREPERSON: An honest opinion, Your Honor, no.

The Judge then gave the Winters instruction, see supra note 1, and sent the jury back to deliberate. At some time the next morning the jury announced that it had reached a guilty verdict. Appellant claims that this verdict was improperly coerced by the court's repetition of the "acquittal first" instruction after the jury had reported a deadlock.

In (Nathan) Jones v. United States, 544 A.2d 1250, 1254 (D.C. 1988), 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." See also Parker v. United States, 601 A.2d 45, 47-48 (D.C. 1991). In both (Nathan) Jones and Parker, however, defense counsel had specifically asked the trial court to allow the jury to consider the lesser-included offense. In this case, by contrast, defense counsel made no such request, nor did he otherwise object to the repetition of the "acquittal first" instruction, although he did move for a mistrial. We must therefore consider whether, under the circumstances of this case, the trial Judge's "acquittal first" reinstruction in the face of the jury note amounted to plain error. See Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc) ("errors not objected to at trial are unreachable on review unless they fall within the purview of the plain error rule"). We conclude that it did not.

The alternative to the "acquittal first" instruction is the "reasonable efforts" instruction, in which the court tells the jury that it may consider the lesser included offense if it is unable to reach a verdict on the greater offense after making all reasonable efforts to do so. See Cosby v. United States, 614 A.2d 1291, 1294 n.4 (D.C. 1992); (Lorenzo) Wright v. United States, 588 A.2d 260, 261-62 (D.C. 1991). In (Lorenzo) Wright, we held that the "reasonable efforts" instruction must be given where it is timely requested by defense counsel. 588 A.2d at 262. But we have never said that the court is obliged to give the "reasonable efforts" instruction absent a request by defense counsel. Indeed, we have concluded that neither the "acquittal first" nor the "reasonable efforts" instruction is wrong as a matter of law. Id.

Both the "acquittal first" and the "reasonable efforts" instructions present tactical advantages and disadvantages from the defendant's point of view. The advantage of the "acquittal first" instruction, for the defendant, is that where the jury fails to agree on conviction or acquittal of the greater offense, it cannot adopt the easy compromise of convicting on the lesser offense. Thus, the defendant may escape any conviction at all, even where the evidence with regard to the lesser charge is fairly strong, and the government will have to decide whether the case merits the time and expense of mounting a new trial. The disadvantage of the "acquittal first" instruction is that, faced with a choice between a conviction on the greater offense and no conviction at all, jurors who might have preferred to convict only on a lesser offense may go along with others who are willing to convict on the greater offense, especially where there is a majority in favor of conviction on the greater charge. The "reasonable efforts" instruction presents similar advantages and disadvantages in reverse. It may lessen the probability that the jury will convict on the greater offense, but it may also increase the probability that the jury will convict on the lesser charge. See id. at 261-62; United States v. Tsanas, 572 F.2d 340, 346 (2d Cir.), cert. denied, 435 U.S. 995, 56 L. Ed. 2d 84, 98 S. Ct. 1647 (1978). Determinations as to which instruction is better for the defendant will vary from case to case, depending upon the strength of the government's evidence and the defendant's own desires.

For these reasons, we believe that the decision as to which instruction is preferable must be left to the defendant. Were we to hold that a miscarriage of Justice results whenever the trial court gives an "acquittal first" instruction to a deadlocked jury, even when the defense does not object, we would, in effect, be taking this tactical decision out of the defendant's hands. Just as we have held that the trial court is obliged to instruct the jury in the form timely selected by the defendant, see (Lorenzo) Wright, 588 A.2d at 262, so we think it is not for this court to coerce the defendant's choice in this matter by ordaining in advance which instruction must be given to a deadlocked jury. Accordingly, bearing in mind both the relative strength of the government's evidence in this case and the tactical discretion involved in the choice between the "acquittal first" and the "reasonable efforts" instructions, we conclude that the trial court's instruction did not result in plain error. *fn2 As we observed in Allen v. United States, 495 A.2d 1145 (D.C. 1985) (en banc),

instructional errors not raised at trial will not be disturbed on appeal if . . . counsel's failure to object can be viewed as a tactical choice. For in such cases, it can hardly be maintained that the alleged error effected a "miscarriage of Justice."

Id. at 1152 (citing (James) Jones v. United States, 477 A.2d 231, 242 (D.C. 1984); Bennett v. United States, 375 A.2d 499, 504 (D.C. 1977); quoting Adams v. United States, 302 A.2d 232, 234 (D.C. 1973)).


Appellant also contends that his constitutional right to the effective assistance of counsel was violated by his counsel's failure to file a motion to suppress the bundle of heroin packets recovered from him through the use of the "Heimlich maneuver." In order to sustain this claim, appellant must satisfy the familiar two-part test set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Appellant must show, first, that counsel's performance was so deficient as to fall below an objective standard of reasonableness under prevailing professional norms and, second, that the deficient performance prejudiced the defense. Id. at 687-688. See also Gillis v. United States, 586 A.2d 726, 728 (D.C. 1991). We note further that, in deciding whether counsel's performance was deficient, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.

Appellant grounds his ineffective assistance claim on the premise that the use of the Heimlich maneuver to recover the heroin bundle from him was an illegal intrusion, analogizing this action to the forced vomiting at issue in Rochin v. California, 342 U.S. 165, 96 L.Ed. 183, 72 S. Ct. 205 (1952). It is true, of course, that even "searches incident to a valid arrest can be unconstitutional when the scope of the search is unjustified and the method used shocks the conscience." Washington v. United States, 594 A.2d 1050, 1053 (D.C. 1991) (remanding case for trial court to consider defendant's evidence of forcible body cavity search). In this case, however, the trial court concluded that the "'scope of the particular intrusion, the manner in which it conducted, the justification for initiating it, and the place in which it conducted' were proper." Order of November 26, 1991 (quoting Bell v. Wolfish, 441 U.S. 520, 559, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979), quoted in Washington, 594 A.2d at 1052). The trial court, therefore, rejected appellant's claim of ineffective assistance of counsel. *fn3

Without actually deciding whether the search method used in this case by police was unconstitutional, we conclude that there is no basis for reversing the trial court's ruling. The Heimlich maneuver, despite its abstruse-sounding name, is a familiar means of aiding choking victims by locking one's arms about the victim from behind and giving a sharp upward thrust just below the rib cage. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 774 (26th ed. 1981). This action involves no direct invasion or exposure of the body. Moreover, from the record in this case it appears that: the officers had probable cause to arrest before the search and had good reason to believe that the evidence concealed by appellant was contraband; there was some possibility that the evidence might be altered by appellant's action; the method used by the officers to recover this evidence threatened no danger to appellant's health or safety and was less demeaning to appellant than alternative methods; *fn4 and there was a high likelihood that this simple method would result in the recovery of the evidence. Under these circumstances, the applicable precedent in this jurisdiction, as well as relevant caselaw from other jurisdictions, undercuts appellant's suggested argument for suppression. *fn5 Consequently, we cannot say that the intrusion upon appellant's privacy was so obvious or so shocking to the conscience that the failure to file a motion to suppress this evidence clearly fell below the standard of reasonable professional assistance. "The Sixth Amendment . . . does not require defense counsel to 'make every motion in the book.'" Jefferson v. United States, 474 A.2d 147, 150 (D.C. 1984) (quoting Harried v. United States, 128 U.S. App. D.C. 330, 335, 389 F.2d 281, 286 (1967)).


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