October 28, 1999
ULYSSES L. GREEN, APPELLANT,
UNITED STATES, APPELLEE.
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)
Argued June 2, 1999
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 deliberations and see if you can reach a unanimous verdict. With that you are excused back into the jury room to continue your deliberations.
Forty minutes later the jury returned another guilty verdict *fn11 which survived a renewed poll.
The purpose of the jury poll was articulated a century ago by the Supreme Court in Humphries v. District of Columbia, 174 U.S. 190, 194 (1899): "Its object is to ascertain for a certainty that each of the jurors approves of the verdict as returned; that no one has been coerced or induced to sign a verdict to which he does not fully assent." In fact, "[t]he jury poll is the primary device for uncovering the doubt or confusion of individual jurors . . . [and] has long been regarded as a useful and necessary device for preserving the defendant's right to a unanimous verdict." Crowder v. United States, supra note 9, 383 A.2d at 340 (internal citations omitted). Although no jury deliberations are devoid of elements of pressure, the unanimity requirement, which polling aims to preserve and ensure, does not constitute coercion in and of itself. Harris v. United States, 622 A.2d 697, 701 (D.C. 1993). A court may legitimately seek to reach a conclusion on the merits, because to do otherwise "constitutes an unnecessary and undesirable waste of resources, and the trial court has a right and duty to urge a jury to work diligently to reach a fair and freely arrived at verdict if possible." Id. The delicate problem presented to the trial court is to balance this effort against improper court-induced or court-ignored jury coercion. Benlamine v. United States, 692 A.2d 1359, 1363 (D.C. 1997)("reversal is required when it appears from the circumstances that a juror was forced into conforming to the majority's vote"); Smith v. United States, supra note 5, 542 A.2d at 824 ("Coercion of a jury verdict does not mean simple pressure to agree . . . that pressure becomes coercive, however, when it goes so far as `to force a juror to abandon his honest conviction'" (quoting Winters v. United States, supra note 7, 317 A.2d at 532)).
"It is not the law, however, that impermissible coerciveness is demonstrated by the mere fact that the announcement by one juror seems to differ from the judgment of the other jurors." Williams v. United States, 136 U.S. App. D.C. 158, 164, 419 F.2d 740, 746 (1969). Hence, when a jury poll reveals a lack of unanimity, the court is governed by Super. Ct. Crim. R. 31(d), which allows either declaration of a mistrial or further deliberations by the jury. *fn12 The trial court has considerable discretion in responding to a non-unanimous jury poll because it is best able to assess the impact of the dissenting vote and whether that juror ultimately gave its free consent to a subsequent verdict. Benlamine v. United States, supra, 692 A.2d at 1362-63. *fn13 Thus "even in the potential minefield of a jury poll, the trial court enjoys an appreciable measure of discretion." Ellis v. United States, 395 A.2d 404, 408 (D.C. 1978).
To require further deliberation after a breakdown in a poll, just as in response to an indication from the jury of a deadlock, is a court action "perfectly acceptable in appropriate circumstances when carried out with care. Indeed, [it is] part of the normal functioning of the jury system." Harris v. United States, supra, 622 A.2d at 701. To determine whether proceedings crossed the line into undue coercion and hence an abuse of trial court discretion, we look to the particular circumstances of each case. Elliot v. United States, 633 A.2d 27, 30 (D.C. 1993). Further, we conduct our review of a claim of juror coercion from the "perspective of the jurors." Benlamine, supra, 692 A.2d at 1363. Our consideration of the issue involves generally inquiries into two areas: (1) the inherent coercive potential of the circumstances; and (2) any actions of the trial court which may have exacerbated or alleviated the coercive potential of the situation. Davis v. United States, 669 A.2d 680, 683 (D.C. 1995); Harris v. United States, supra, 622 A.2d at 701.
At bottom, the question in this appeal concerns the instructions that may be required when a jury is sent back for further deliberations after a jury poll reveals a lack of unanimity. *fn14 In addressing this issue, it may be useful to briefly summarize here the already adumbrated structure of the several instructions set forth in the Red Book, based on prior court decisions.
The Red Book instructions address separately two distinct situations that may face the trial court during jury deliberations. The first, Instruction 2.91, is headed "When Jurors Cannot Agree." It addresses what is commonly referred to as an apparently "hung jury," that is, a situation where the jury reports itself as "deadlocked," but where the trial court is of the view that further deliberation may in fact achieve a unanimous verdict. The Instruction presents three possible alternatives for an "anti-deadlock" instruction. Alternative A is based upon an anti-deadlock instruction developed by the American Bar Association in Standards for Criminal Justice, Trial by Jury, Standard 15-4.4 (2d ed. 1980), in a version specifically approved in United States v. Thomas, 146 U.S. App. D.C. 101, 108 n.46, 449 F.2d 1177, 1184 n.46 (1971). *fn15 Alternative B was approved by this court sitting en banc in Winters v. United States, supra note 7, 317 A.2d at 534. *fn16 In Winters, we explicitly stated: "We are only setting the high water mark for an anti-deadlock charge. Use of a less emphatic charge . . . may be deemed appropriate, either in the original charge or after deadlock becomes apparent." Winters v. United States, supra note 7, 317 A.2d at 534. Finally, the comments to Instruction 2.91 present what is, in effect, an alterative C, the so-called Gallagher charge. This is based on Judge Gallagher's concurring opinion in Winters and has been sanctioned as an alternative instruction in the discretion of the trial court. Epperson v. United States, supra note 16. *fn17 In terms of emphatic effect, we have said that Winters is the high water mark, followed by the Gallagher charge and then alternative A. Epperson v. United States, supra note 16, 471 A.2d at 1017 n.2. *fn18
The problem of a deadlocked or "hung" jury, however, is not necessarily the same as a jury that, in polling, simply reveals a split. An anti-deadlock charge in the federal system, sometimes referred to generically as a "dynamite charge," is addressed as a separate instruction from an after-poll charge. *fn19 The District's Red Book does likewise. It is Instruction 2.93 that addresses itself to "Return of the Jury After Polling." The "standard" charge in 2.93 is a single paragraph, which, although perhaps capable of more sinister interpretations, appears on its face to be a simple and straightforward instruction to go back and deliberate further. *fn20 It reads:
In the polling of the jury it has become apparent that you may not have reached a unanimous verdict. For this reason, I am asking you to return to the jury room for further consideration of your verdict. If you are unanimous, your foreperson should so indicate and I will poll you again. If you are not unanimous, please resume deliberations and see if you can reach a unanimous verdict.
This was the instruction that the trial court chose to give following the aborted poll here. See supra text accompanying notes 8-10.
Instruction 2.93 then contains two additional paragraphs in brackets. These paragraphs constitute the instruction suggested in Crowder for possible use in a case where the jury is sent back after an aborted poll. The Comment to the instructions makes it clear, however, that in the view of the Red Book compilers, this is not intended for routine use in such situations. To the contrary, the Commentary states: "Paragraph one of this instruction is intended for use where a poll of the jury reveals lack of unanimity in the verdict and the court determines that further deliberations are appropriate. . . . The last two bracketed paragraphs are not ordinarily required, but they have been recommended by the Court of Appeals for use in cases where there is a particularly high likelihood of juror coercion." From the instruction and its commentary emerges a baseline assumption that at least some, if not the majority, of poll breakdowns do not indicate such a high potential for undue coercion that additional instruction is required. *fn21 We think this assumption is correct and that the situation presented to the trial court here was not one where any additional instruction was mandated on pain of reversal. We turn to that issue.
We evaluate the facts of this case in light of the two-part framework first set forth in Harris v. United States, discussed earlier. We look first to the coercive potential inherent in the situation. The identity of at least one dissenter was revealed in open court, and thus both the judge and jurors were aware that the court had some knowledge of individual juror positions. However, in terms of the degree of isolation of the dissenting juror, the poll was terminated the moment the eighth juror's position was revealed, and the juror was not interrogated, questioned, or otherwise singled out. The juror gave no indication as to the reason for the answer, "Disagree." *fn22 Though it appeared that the eighth juror represented at least a minority position on one count, and perhaps was a lone holdout, see Davis v. United States, supra, 669 A.2d at 684, four other jurors had not stated their votes aloud. This was not a situation in which the court knew the exact numerical division of the jury, nor was it a situation where the split did not reveal itself until the twelfth juror spoke, thus identifying that juror clearly as the sole obstacle to unanimity as in Crowder and Harris.
Furthermore, this was not a case where the trial court already was facing a deadlocked jury. No anti-deadlock instruction had been given after the jury's first note requesting advice. While Green highlights this note as an indication that the jury had been deadlocked and left without guidance, thus enhancing coercive potential, we disagree with this characterization. The jury note did not state that it was "hopelessly deadlocked," but simply, "We are unable to reach an agreement. Please advise." The jury had not been deliberating for any considerable period of time or with any marked indication of inability to eventually agree on a verdict. As already noted, even the degree of uncertainty of the eighth juror was veiled in this case due to the careful instructions of the trial judge as to how a juror should respond in the polling. *fn23
We think it therefore reasonable to view the situation facing the trial court as somewhat of a run-of-the-mill polling breakdown. "A juror's change of mind during a poll of the verdict is not unusual." Lumpkin v. United States, 586 A.2d 701, 705 n.4 (D.C. 1991). While there were to be sure indications of greater jury difficulty in reaching a verdict than would be true in the cleanest of cases, we do not think that the coercive potential here was that markedly different from most other situations where a juror in the polling process indicates that the jury has not yet reached unanimity.
Therefore, the issue really becomes whether in such circumstances the law mandates that some sort of instruction in addition to that provided in the first paragraph of Instruction 2.93 must be given, or whether it is proper for the trial court to simply send the jury back for further deliberation without further comment. We see no basis here to fault the trial court for its essentially neutral course of action.
Appellant mischaracterizes the instruction given by the court as insisting that the jury reach unanimity. In fact, the instruction is far more neutral, asking the jury only to "see if you can reach a unanimous verdict." An exhortation to the jury to continue deliberating, without more, has never been held by this court to approach an anti-deadlock instruction. Carey v. United States, 647 A.2d 56, 60 (D.C.1994) (instruction to "deliberate further . . . and continue to give this case your best efforts" not anti-deadlock charge); Lumpkin v. United States, supra, 586 A.2d at 703-06 (instruction twice to resume deliberations "without comment" after first juror dissented in poll not plain error); Coleman v. United States, 515 A.2d 439, 452-53 (D.C. 1986)(two instructions to "continue deliberating" were not anti-deadlock instructions precluding the giving of an actual anti-deadlock charge later on); Wilson v. United States, 419 A.2d 353, 355-56 (D.C. 1980) ("please continue" not an anti-deadlock charge); Calaway v. United States, 408 A.2d 1220, 1229-30 (D.C. 1979) ("please keep trying" not plain error anti-deadlock language).
Indeed, our recent cases indicate the care that a trial court must exercise in expanding its instructions to a jury in an aborted poll situation, and in particular giving an instruction which may be construed as anti-deadlock in nature. Recently in both Davis v. United States, supra, and Benlamine v. United States, supra, we have reversed convictions where a trial court, after learning through a jury poll of the existence of a minority for acquittal, subsequently gave the anti-deadlock Winters charge. While in such a situation it presumably cannot be an abuse of discretion to give the far milder Crowder charge contained in the two optional paragraphs of Instruction 2.93, with its recognized coercion-reducing elements, see Benlamine v. United States, supra, 692 A.2d at 1361; Harris v. United States, supra, 622 A.2d at 707, a trial court may properly take into account its anti-deadlock origins (discussed supra) in deciding on another course of action, namely, silence, in ordinary circumstances.
We also take particular note of the fact that in this case, the trial court had, in its initial instructions, effectively given the Crowder instruction with its language on remaining faithful to a juror's honest convictions. Cf. Epperson v. United States, supra, 495 A.2d at 1173. This is not a case, then, where the jury was left entirely on its own in the face of a split, and the trial court here noted that what the defendant was essentially seeking was reinstruction. We have often said that jurors are presumed to follow instructions, Knight v. Georgetown Univ., 725 A.2d 472, 483 (D.C. 1999), and that decisions on reinstruction are left to the broad discretion of the trial court. Graham v. United States, 703 A.2d 825, 832 (D.C. 1997).
In an attempt to provide an alternative to a per se rule mandating use of the full text of 2.93, appellant argues that this case is akin to Crowder and its progeny, lifting it out of the average jury poll breakdown case. Crowder was the case in which we suggested that cautionary language might be used beyond a neutral request to continue deliberations in the face of a split jury. In that case, a jury poll revealed the last juror to be the single dissenter. That twelfth juror not only expressed his disagreement with the guilty verdict announced by the foreperson, but announced that his dissent was based on "lack of evidence," further isolating him from his juror colleagues. Crowder, supra note 9, 383 A.2d at 340. While we generally endorsed the language of Instruction 2.93 in that opinion, id. at 342 n.11, we held that a mistrial was mandated, at least without some additional instruction. Id. at 342. The holding was based on "(1) the inevitable increase in potential coerciveness which occurs when both the numerical division of the jury and the identity of the lone dissenter are revealed in open court, and (2) the degree of assurance with which the single juror dissented." Id. at 343. We went on to suggest the additional instruction, discussed above, that we said might have dispelled some of the coercive effect on the dissenter and potentially saved the case from the fate of a mistrial. Id. at 342 n.11. We stressed, however, that we were ruling only "on the facts of this case." Id. (emphasis in original). The case now before us, as already indicated, differs from Crowder in marked respects.
Since Crowder was decided in 1978, we have reversed two convictions returned after juries broke down during a poll. In both cases, the jury was returned for further deliberations, indicated they remained deadlocked after these additional deliberations, and the court responded with a Winters instruction. We concluded each time that the Winters instruction put too much targeted pressure on the revealed minority juror or jurors, and determined the court had created undue coercion, thus abusing its discretion. Davis v. United States, supra, 669 A.2d at 684 (Winters instruction to combat a deadlock note after earlier jury poll had revealed a dissenter "`may be interpreted by the minority as an implied command to agree with the majority'" and therefore was error (quoting Smith v. United States, supra note 5, 542 A.2d at 824)); Benlamine v. United States, supra, (after a poll breakdown, where a jury returned one unanimous verdict but reported a deadlock on another count, a Winters instruction to reach unanimity on the remaining count was coercive because minority had been revealed).
We have also upheld two convictions returned after a jury poll breakdown in the years subsequent to Crowder. In Harris, supra, superficially similar to Crowder, the dissenting vote came from the twelfth juror, who stated he agreed only with part of the verdict. The judge immediately stopped the poll and asked the jury to continue its deliberations, without adding Crowder cautionary language. 622 A.2d at 699. Shortly thereafter, the jury submitted a note indicating that they were unable to reach unanimity. Because the court saw the possibility of a partial verdict, it elected to send the jury home for the evening, stating that it would respond to their note the following morning. The next day, the court proceeded with a Crowder-like instruction, containing its coercion-reducing elements. Id. at 707 n.20. *fn24 Subsequently the jury returned a verdict that survived a poll. Because the Harris judge "did not give an `anti-deadlock' instruction nor did he single the dissenting juror out in any way," we found that the court did nothing to exacerbate and indeed alleviated a potentially coercive situation. Id. at 706. As such, there was no abuse of discretion.
In Elliott, supra, after the seventh juror expressed dissent in a poll, the court instructed with the first paragraph of 2.93, which at that time included the following additional language: "After you return to the jury room any member is free to change his or her vote on any issue submitted to you. Each juror is free to change his or her vote until the jury is discharged." *fn25 633 A.2d at 31. The court refused the defense's request, made the following morning, to further instruct with language assuring the jury that a verdict was not mandatory. *fn26 We ruled the instruction was neutral and the verdict fairly and freely reached. Id. at 36. Among other things, we found a primary distinction between Elliott and Crowder in that it was not the twelfth juror who expressed dissent. Id. at 37 n.18. *fn27
Taking into account the factual circumstances already discussed , we conclude the case at bar is closer to Harris and especially Elliott than to those cases in which a Winters instruction was given to a jury that had demonstrated a split with an identified minority position. We see no reason to conclude here that the jury was "coerced into conforming to the majority's vote" or that it did not "freely and fairly arrive[ ] at a unanimous verdict." Harris v. United States, supra, 622 A.2d at 701 (quoting Smith v. United States, supra).