Before Steadman, Ruiz and Reid, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. William M. Jackson, Trial Judge)
(Argued January 13, 2000 Decided May 18, 2000)
Appellee Darrian D. Allen was convicted of the lesser included offense of possession of cocaine, a violation of D.C. Code § 33-541 (d) 1998); but the jury did not reach a verdict on the greater offense with which he was charged, possession with intent to distribute cocaine, a violation of D.C. Code § 33-541 (a) (1) (1998). After accepting the verdict on the lesser included offense, the trial judge instructed the jury to continue deliberations regarding the greater offense. Eventually, the jury announced that it had made "a reasonable effort to reach a conclusion" and that additional deliberation would not result in a verdict on the greater offense. At the request of Allen, and despite the objection of the government, the trial judge declared a mistrial as to the greater offense. Later, the government decided to retry Allen on the greater charge. Allen sought to preclude retrial, and ultimately, the trial court determined that the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States *fn1 prohibited retrial of Allen on the greater offense. The government filed a timely appeal. We reverse the order of the trial court. Further, we hold that the Double Jeopardy Clause of the Fifth Amendment is not a bar to retrial of a defendant, under a continuing jeopardy theory, where the jury expressly states that it is unable to reach agreement on the greater offense of possession with intent to distribute a controlled substance, and the trial court has declared a mistrial as to the greater offense after the jury finds the defendant guilty of the lesser offense of possession. Accordingly, we remand this matter to the trial court for further proceedings consistent with this opinion.
On February 12, 1998, Allen was indicted on one count of possession with intent to distribute cocaine. He was tried by jury on March 12 and 13, 1998. The government's evidence, presented through the testimony of police officers, showed that on February 7, 1998, around 2:30 a.m., two Metropolitan Police Department officers received a radio broadcast concerning a robbery at 18th and Columbia Road, N.W. They responded to the radio broadcast and were met by the robbery victim who informed the officers that he had been robbed at the Lion's Den Restaurant and Bar, located at 2427 18th Street, N.W. The officers proceeded to the Lion's Den, accompanied by the victim.
Upon entering the Lion's Den, one officer observed a person, later identified as Allen, sitting down at a table. Another man was standing next to Allen. The officer watched while the other man handed Allen a ten dollar bill. Allen was in the process of passing something to him when the other man saw the officer. The other man dropped the ten dollar bill and disappeared into the crowd at the restaurant. The officer continued to watch Allen who had a sandwich bag in his hand, and then walked over to him. The officer discovered that the sandwich bag contained eighty-six ziplock bags of a substance later identified as cocaine base, with a street value of about $1,720.00. The sum of $290.00 was found on Allen's person.
As part of his defense, Allen testified that a friend gave him three hundred dollars with which to purchase cocaine for a party and a trip to Atlantic City, New Jersey. Allen went to the Lion's Den where he saw someone from whom he had previously purchased drugs. Since Allen wanted to test the cocaine before buying approximately one hundred and fifty dollars worth of the drug, he decided to make a ten dollar purchase. He was in the process of removing one packet from the seller's bag when a police officer flashed a light in his eyes and arrested him. Allen denied that the eighty-six bags of crack cocaine belonged to him.
The trial judge charged the jury on the offense of possession with intent to distribute, as well as the lesser included offense of possession. Furthermore, the trial judge gave the jury a reasonable efforts instruction:
[W]hen you consider your deliberations, you should go back and consider first whether the defendant is guilty of possession with intent to distribute cocaine.
If you find the defendant guilty, do not go on and consider the lesser offense.
If you find the defendant was not guilty, or if after making all reasonable efforts to reach a verdict you are not able to do so, you are allowed to consider the lesser offense of possession -- simple possession of cocaine.
After about one-and-one half hours of deliberation on May 13, 1998, the trial judge received a note from the jury saying, "Dear Judge, we are stuck on what is reasonable efforts. How long do we have to go over the first charge before we can move on to the lesser?" Following a discussion between the trial judge and counsel for Allen and the government, the judge told the jury:
It's important that you try to resolve the greater charge before you go onto the lesser charge. There is no fixed time. And -- but if you can resolve the lead charge, I'd like you to work hard to do that, to resolve it one way or another.
[I]f you - - after collectively agreeing . . . that you've expended all reasonable efforts . . . you can obviously . . . move onto the other charge. But you have to be in agreement on that.
After taking lunch, the jury deliberated for approximately twenty more minutes before sending the trial judge a note which read: "We have a verdict." When the trial judge asked the jury what verdict it had rendered on the charge of possession with the intent to distribute cocaine, the foreperson replied: "[We] didn't come to a unanimous decision on that one." The judge then inquired whether the jury had reached a unanimous verdict on the possession charge. The foreperson responded in the affirmative and stated that the verdict was "guilty." The judge held a bench conference with counsel and said: "I'm not really sure how to proceed on this particular matter . . . . I could tell them to go back and consider the other charge." Counsel for Allen objected on the ground that a verdict had been rendered in the matter and the jury should be discharged. The prosecutor disagreed and argued that there was "unfinished business" in that no verdict had been given as to the charge of possession with intent to distribute cocaine. Therefore, the jury should resume deliberations on that charge and make "reasonable efforts" to reach a verdict. The trial judge asserted that he had expected the jury to say guilty or not guilty on the greater offense. When the trial court asked defense counsel whether he was asking for a mistrial, counsel replied: "Your Honor, . . . I want the Court to recognize that there is a verdict in this case." The trial court decided to send the jury back for further deliberation on the greater offense.
The jury engaged in another hour of deliberation on May 13th, and at the end of the day asked for further instruction on reasonable doubt. The jury was reinstructed on reasonable doubt on the morning of May 14th, and after another hour of ...