Before Terry and Schwelb, Associate Judges, and Belson, Senior
The opinion of the court was delivered by: Terry, Associate Judge
Appeal from the Superior Court of theDistrict of Columbia (Hon. Reggie B. Walton, Trial Judge)
Appellant was convicted of second-degree murder while armed, assault with a dangerous weapon, and two related firearms offenses. On appeal he argues that the trial court coerced the jury into a guilty verdict when, after the jurors revealed their numerical split, the court instructed them to decide the case "without other extraneous, irrelevant issues coming into play." We affirm.
On the afternoon of July 23, 1996, sixteen-year-old Bobby Blackwell had an argument with appellant Ford near a basketball court on 50th Street, N.E. Blackwell left and returned several times, each time threatening to kill Ford (and others),*fn1 but eventually Blackwell left and did not return. About fifteen minutes later, Ford's cousin and co-defendant, Donyee Bradley, arrived on the scene. He asked Ford how he could let Blackwell threaten him like that and do nothing about it, but Ford did not respond. Ford and Bradley then went to visit a friend, Delonte Floyd, who lived in a nearby apartment building. After about ten or fifteen minutes, the two of them came out of the building, got into Floyd's Cadillac, and drove off.
A few blocks away, Blackwell and another young man, Charles Dorsey, were riding in Blackwell's car, a red Chrysler. They had stopped to pick up Blackwell's girl friend when Ford and Bradley pulled up alongside the Chrysler. Ford thrust his hand out the right front window of the Cadillac and fired two shots, killing Blackwell and wounding Dorsey in the leg. The Cadillac then drove away up 51st Street.
Several witnesses testified to these events in the course of an eight-day trial. Ford claimed that he had fired the shots in self-defense.
The jury retired to deliberate at 11:35 a.m. on Friday, October 3, 1997. After the luncheon recess, Bradley's attorney requested that the aiding and abetting instruction be reread in order to clarify a point that might have confused the jury. After some discussion, it was agreed that the judge*fn2 would tell the jury that "in order to find Mr. Bradley guilty under an aiding and abetting theory, you have to find he was present at the time of the shooting." The jury was brought back into the courtroom and was so instructed. Then, before the jury retired for further deliberations, a juror submitted a note to the judge which asked, "Can defendants be guilty of conspiracy individually, i.e., would one be guilty and the other not guilty?"*fn3 After further discussions with counsel, the judge sent the jury back to the jury room and promised to provide an answer to the question at a later time. Later in the afternoon, however, the substitute judge excused the jury for the weekend, having decided that the trial judge should respond to the question on Monday morning. On Monday, October 6, the trial judge instructed the jury that "in order to conclude that there was in fact a conspiracy to kill in this case, you would have to conclude that the two defendants did in fact conspire to commit the killing."
At 3:25 p.m. on Tuesday, October 7, the jury sent out another note which read: "We have examined all of the counts that we are permitted to examine at this stage and are deadlocked. It might be helpful if you could expand on the concept of mitigation." Defense counsel requested a Winters anti-deadlock instruction,*fn4 but the judge declined to give one, saying, "I don't think it is appropriate to give the Winters instruction at this point because they qualified their deadlocked position with the indication that [if] something more [were] given to them regarding mitigation, they might be able to resolve the case." The judge then sent a written instruction on mitigation to the jury and urged it to "please continue with [its] deliberations."
At 10:00 a.m. on Wednesday, October 8, the jury sent a note stating, "May we please have a dictionary, or dictionary definitions of `moment' and `impulse?' " In response, the judge sent back written definitions of these two terms taken from a dictionary.
At 2:05 p.m. on Thursday, October 9, the jury sent two notes. The first one said: "If the jurors agree on all of the elements of a charge, does that constitute a verdict, or must there be a unanimous vote on that specific verdict?" The second note said:
Your Honor, It's gotten to the point where people are becoming disrespectful and vulgar* (which is unnecessary).
* - Juror #2 (man) grabbing himself - that action is inappropriate as well as offensive to me and the other jurors. This ...