Appeal from the Superior Court of the District of Columbia (M-1423-98) (Hon. Mary Gooden Terrell, Trial Judge)
Before Terry, Steadman, and Schwelb, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
Submitted November 1, 2001
Appellant was convicted of possession of marijuana with intent to distribute it. On appeal he contends that the trial judge committed plain error by continuing to poll the jury after the fifth juror indicated disagreement with the announced verdict. We agree and reverse. *fn1
On January 30, 1998, Officer Milton Norris of the Metropolitan Police was driving eastbound in the 900 block of Crittenden Street, Northwest. He pulled into an alley on the north side of the street in order to turn around and travel back in the opposite direction. As he entered the alley, he saw appellant and another man standing a short distance away. Appellant was holding a clear ziplock bag. When he saw the officer, he threw down the bag and began to run away, but Officer Norris' partner tackled him. Norris retrieved the bag, which contained fifty-six smaller bags, each of which contained marijuana.
Appellant testified that the bag recovered by Officer Norris did not belong to him. In addition, appellant's cousin, who was present at the time of the arrest, and a friend who had dropped appellant off near the alley both testified that appellant did not have any drugs in his possession that evening.
The jury began its deliberations at around 1:00 p.m. At 4:15 p.m. the jury sent a note to the judge stating that it was deadlocked and could not reach a verdict. In response, the judge sent a note back instructing the jurors to "keep working" and telling them that they could be excused for the day at 4:45 p.m. Deliberations resumed the next morning at 10:15 a.m., and at 12:05 p.m. the jury sent another note requesting clarification of the testimony of one of the police officers and inquiring about a lunch break. After lunch, at 1:50 p.m., the jury sent a final note indicating that it had reached a verdict.
In the courtroom, after the foreman said that the jury had found appellant guilty, defense counsel requested a poll of the jury. The court then told the jurors, "In response to the foreman's verdict, you are to either answer, if you agree, yes, and if not, say no when your seat number is called." Jurors in seats one through four responded "Yes" to the clerk's call. The juror in seat number five, however, responded "No." The judge then said, "Go on," and the clerk continued to call on the remaining jurors, all of whom answered "Yes" to the clerk's question. After the last juror voiced agreement with the announced verdict, the following discussion took place:
The Court: All right. We do not seem to have a unanimous verdict here.
The Clerk: Seat number 5.
The Juror: I misunderstood.
The Clerk: Seat number 5, how do you find the defendant, ...