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 ...