Before Terry, Steadman and Reid, Associate Judges.
The opinion of the court was delivered by: Steadman, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Noel A. Kramer, Trial Judge)
Before us is yet another appeal challenging the trial court's actions following an aborted jury poll. Appellant Green was charged with assault with a deadly weapon and possession of a firearm during a crime of violence. On the second day of deliberation, the jury foreperson reported a verdict of guilty on both counts. When polled, the eighth juror stated, "Disagree," whereupon the trial court discontinued the poll and instructed the jury to continue deliberations, using the language in the first paragraph of the standardized Criminal Jury Instructions for the District of Columbia (the "Red Book") No. 2.93, "Return of the Jury After Polling" (4th ed. 1993). Appellant argues that this instruction, without more, was coercive because it did not remind jurors to remain true to their honest convictions. Under the circumstances presented in this case, we find no abuse of discretion by the trial court and therefore affirm. *fn1
Green was accused of having fired multiple gunshots at the apartment door of Floyd Borum. While no physical evidence tied Green to the scene, Floyd Borum identified Green as the perpetrator, and both Floyd and his brother Joseph gave testimony explaining the motive behind the assault. Floyd Borum stated he had purchased crack cocaine from Green on two occasions before a final transaction that led to a dispute between them. During this third and last transaction, Borum testified that he paid twenty dollars for what he presumed was crack cocaine. When Borum attempted to smoke the product he had purchased, he realized it was not crack and flushed it down the toilet.
Borum gave no further thought to the fraud, chalking it up to experience, until he encountered Green on the street two days later. He confronted Green with the fact that he was given something other than crack, whereupon Green stated that it must have been heroin and therefore the actual price was forty dollars. Green demanded payment of the additional twenty dollars, and Borum refused. The next evening, Green appeared at Borum's apartment. Borum again refused to pay additional money for a product he had not requested and told Green to leave. When Borum saw Green reach behind the small of his back and pull out a gun, Borum slammed the door and moved out of the way. He heard pounding, then shots, and then footsteps as Green presumably fled. Borum then woke his brother Joseph, told him of the events, and called 911 with the news that "somebody shot at my door" and police were needed.
Green's defense theory was that he was being framed by Borum who was angry about losing his twenty dollars in the bad drug deal (one characterized by Green as a sale of soap, not heroin, to Borum).
After three days of presentation of evidence and after closing arguments, the court instructed the jury on its duties, including an admonition not to be inappropriately swayed by the majority. *fn2 On the first day of deliberations, which began shortly before 1:00 p.m., the jury had not reached a verdict by 4:30 p.m. and was recessed for the evening. *fn3 The next morning at 10:55 a.m., *fn4 the jury sent the court a note stating: "We are unable to reach an agreement, please advise." The court could not immediately reply because the defendant was not yet in the courtroom. *fn5 One hour and five minutes later, at noon, the jury indicated it had reached its verdict. *fn6 At 2:14 p.m., after the defendant arrived in the courtroom, the jury foreperson announced a guilty verdict on both counts.
Green requested a poll, which the court conducted by asking each juror whether he or she agreed or disagreed with the verdict as announced. The trial court cautioned the jury: "If you disagree in any way, simply say I disagree. Say nothing else. Again, it is not the time for explanations or comments. So if you agree with the two verdicts of guilty as I call your number, say I agree. If you disagree with the two verdicts of guilty in any way, simply say I disagree. Give no explanation or comment." The first seven jurors stated their agreement, but Juror Eight said, "Disagree." The court immediately excused the jury with an admonition to do nothing until further instructed.
The parties and the court then discussed alternatives. The defense first requested a mistrial, which was denied, and then requested that if an instruction was to be given that it be the "Gallagher" instruction, laid out as an alternative in the commentary to Red Book Instruction No. 2.91, entitled "When Jurors Cannot Agree." *fn7 The court determined that the more appropriate instruction was the first paragraph of Instruction No. 2.93, entitled "Return of the Jury After Polling." *fn8 It declined the defense's further request that the last sentence of the bracketed language in 2.93 be added to the proposed instruction to remind jurors to remain true to their honest convictions. *fn9 The court reasoned that the language was not necessary because the situation did not present unusual coercive circumstances different from a typical jury poll breakdown, and further noted that the jury had been reminded of its obligation to heed honest convictions before deliberations had begun. *fn10 Ultimately the instruction given to the jury was as follows, which was very close to the language contained in the first paragraph of Instruction 2.93, intended for use on "Return of the Jury After Polling":
Ladies and gentlemen, in the polling of the jury that took place just then it became apparent that you had not actually reached a unanimous verdict in this case or unanimous verdicts. I don't know whether it's verdict or verdicts. For this reason, I'm going to be asking you to return to the jury room for further consideration of your verdicts in this case. If you are unanimous, your foreperson should send me a note so indicating and I will poll you again. If you are not unanimous, I would ask that you resume your ...