Appeal from the Superior Court of the District of Columbia (M-2277-01) (Hon. Patricia A. Wynn, Trial Judge)
Before Wagner, Chief Judge, and Farrell and Washington, Associate Judges
The opinion of the court was delivered by: Farrell, Associate Judge
A jury found appellant guilty of one count each of distributing marijuana and possessing marijuana with intent to distribute. The sole question on appeal is whether the trial judge abused her discretion when, after the jury had begun deliberating, she (a) dismissed a juror upon finding that he had refused to take part in the deliberations and (b) allowed a jury of eleven to continue to verdict. Although the issue brings into focus once more the particular dangers of removing a juror "for just cause" during jury deliberations, see D.C. Code § 16-705 (c) (2001); Shotikare v. United States, 779 A.2d 335 (D.C. 2001), we find no abuse of discretion in the trial judge's careful application of the statute, and affirm.
Along with a co-defendant, Bryant, appellant was tried on two counts of distributing marijuana -- first to undercover police officer Johnson, then to undercover officer Ashby -- and one count of possessing marijuana with intent to distribute. Bryant was acquitted on all charges, and the jury ultimately acquitted appellant of the distribution to Ashby, but found him guilty of the other two charges. As appellant makes no challenge to the sufficiency of the evidence, the facts relating to the crimes need not occupy us.
The facts that are relevant begin after the jury started its deliberations, having been reminded by the judge of its "duty to follow the law" as stated by the court and to render a decision "solely on the evidence." Somewhat less than two hours later, the judge received a note from the foreperson, Juror Seven, stating that the jury had reached a verdict on defendant Bryant but that "[w]e cannot come to a unanimous agreement on the 3 counts against Ms. Brown for reasons unrelated to debate about the evidence." After accepting the verdict as to Bryant and discussing the jury note with counsel, the judge instructed the jury simply to continue deliberating, but reminded it of "the grounds that you are to use in reaching a decision[: c]onsidering the evidence, finding the facts and basing your decision on the facts that you find and any reasonable inferences that follow from those facts."
Fifteen minutes after resuming deliberations, the jury sent out a second note signed by Juror Seven, stating: "The issue we have is that of juror nullification. Because of this we are unable to come to a unanimous decision on the 3 counts against Ms. Brown." The jury was excused for the night. The next morning the judge discussed the matter with counsel and crafted a second supplemental instruction, more elaborate than the first, stating in relevant part:
Let me remind you that each of you took an oath to render a true verdict based on the law and the evidence in this case being fair to both parties.
As jurors, you have a solemn responsibility to act in accordance with that oath.
You must put aside any preconceptions or personal beliefs or biases and decide this case solely on the evidence presented here in Court, the inferences that follow from that evidence and the law as I have stated it to you.
Each of you must decide the case for yourself. But, do so only after an impartial consideration of the evidence with your fellow jurors.
You should not surrender your honest convictions about the weight of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of reaching a verdict. However, after finding the facts, you must follow the law as I have set it out in my earlier instructions.
Our system of justice depends on the willingness of each juror to follow the law so that each person is treated equally in accordance with the laws that have been adopted in our community.
You have sworn to follow the law and it is your duty to do so. So, with those instructions, I would ask that you retire to the jury room and continue with your deliberations. Thank you very much.
Twelve minutes after this instruction was given, however, the jury foreperson sent a third note to the judge, stating: "There is one juror who is unwilling to participate in the deliberation process." Appellant's counsel moved for a mistrial, which the judge denied, and the discussion moved -- in the judge's words -- to "the difficult question" of how the court should determine what, if anything, was blocking the jury's deliberations while "not appearing in any way to be coercive" and without "getting into the deliberations of the jurors." Ultimately, the judge gave the jury the following third supplemental instruction:
You have sent us a note earlier stating that one juror was unwilling to participate in the deliberative process.
It is your responsibility as jurors to judge this case based only on the evidence and the testimony presented in the courtroom. It is your obligation not just to argue and to talk at one another but to talk to one another and to listen to what is said.
That means that you must approach your responsibilities here with an open mind, not a closed mind.
As I said earlier, each of you must decide the case for yourself. But, do so only after an impartial consideration of the evidence with your fellow jurors.
You should not surrender your honest convictions about the weight or the effect of the evidence solely because of the opinions of your fellow jurors or merely to reach a verdict. However, you are bound by the oath that you have taken to follow the Court's instructions.
If any juror believes for reasons of conscience or otherwise that that juror is unable to follow any of the legal instructions that I have given to you or is unable to continue to deliberate, that juror should send me a note and so advise me. However, do not tell me in any such note how you stand on any of the charges or the issues before the jury for ...