Before Terry and Schwelb, Associate Judges, and Belson, Senior Judge.
On Appellant's Petition for Rehearing
Appellant's convictions of second-degree murder while armed and other related offenses were affirmed by this court in Ford v. United States, 759 A.2d 643 (D.C. 2000). In our opinion we stated that the trial judge "announced his intention to tell the jurors that they could return a verdict on the lesser charge of manslaughter if, after reasonable efforts, they could not achieve a unanimous verdict on second-degree murder. There is no written instruction to this effect in the record, however, nor is there any transcript of such an instruction given orally in court." Id. at 645-646. Appellant has filed a petition for rehearing,*fn1 pointing out that in fact the record does contain a handwritten instruction (apparently written by the trial judge), which we overlooked, and which reads in its entirety as follows:
If you are unable to reach a verdict on the charge of second-degree murder while armed after making all reasonable efforts to to so [sic], you are permitted to return a verdict on the lesser charge of voluntary manslaughter, provided that your verdict on the voluntary manslaughter charge is unanimous.
Appellant also notes that in the transcript of Thursday, October 9, after the jury had sent several notes which we summarized at pages 644 and 645 of our opinion, the court and counsel discussed this instruction, and that both counsel expressed agreement with it before it was sent to the jury.
With the jury out of the courtroom, the court said that the jury was "entitled
. . . to reach a verdict on the lesser charge of manslaughter if they [cannot], after making all reasonable efforts, [reach] a unanimous verdict on the greater charge. I agree. Anybody disagree with that?" Appellant's counsel replied, "No," and the prosecutor said he was "satisfied." Counsel for co-defendant Bradley said that "it really doesn't concern me because they don't have that option" (i.e., to return a manslaughter verdict as to Bradley), and the court responded, "That's true." Bradley's counsel then suggested a small correction (changing "to to so" to "to do so"); the court agreed, made the correction, and then said it would "just send this back to them." We read this exchange as indicating that the handwritten instruction (to which "this" evidently refers), signed by the judge, was sent to the jury in the jury room after it was approved both by appellant's counsel and by government counsel, but that it was not given orally in open court. We therefore acknowledge that, insofar as we said that the record contained "no written instruction" on reasonable efforts, we were mistaken. Nevertheless, we are not persuaded that our mistake requires us now to rescind or otherwise alter our affirmance of the judgment of conviction.
During their deliberations, which lasted for several days,*fn2 some of the jurors sent a series of notes to the court which were the focus of the appeal. At least one of the notes indicated that the jury was having difficulty deciding between the lesser included offenses of second-degree murder and manslaughter.*fn3 It was in response to this note that the trial judge "announced his intention to tell the jurors that they could return a verdict on the lesser charge of manslaughter if, after reasonable efforts, they could not achieve a unanimous verdict on second-degree murder." 759 A.2d at 645; see Jones v. United States, 544 A.2d 1250, 1252-1254 (D.C. 1988) (discussing the "reasonable efforts" instruction). This was the point at which the judge apparently sent the written instruction, quoted above, to the jury with the consent of both the prosecutor and appellant's counsel.
The next morning a note came from Juror No. 2, who said that a "small group" of jurors "don't want to send these two (2) AFRO-AMERICAN to jail" and that these jurors were "unwilling to move from these position[s]." 759 A.2d at 646. Another note from another juror came at the same time, but because it revealed the numerical split of the jury, the judge's law clerk gave it back to the juror who sent it "and asked that it be resubmitted without any reference to the numerical division."
Id. That note was never seen by the judge. Two more notes then came in quick succession. The first said simply, "We are still deadlocked. Please help." The second note, however, "rescind[ed] the note saying we are deadlocked." The judge then instructed the jurors that they were required to be "fair and impartial to both sides," and reminded them that they had "an obligation to decide this case based upon the evidence presented without other extraneous, irrelevant issues coming into play and impacting on how you decide the case" (emphasis added). After further deliberation, the jury returned a unanimous verdict later that day, finding appellant guilty of second-degree murder while armed and other offenses, but acquitting him of a conspiracy charge.*fn4
The only argument that appellant raised on appeal was that the italicized language in the last instruction coerced the jurors into returning guilty verdicts. Appellant emphasized that the jurors had already revealed their numerical split in one of the earlier notes - which the judge had not seen, thanks to his alert law clerk - and we took that fact into account:
[E]ven though the judge did not actually know how the jury was divided, the jury had no way of knowing whether the judge knew or not. Therefore, since the judge did not tell the jury that he did not read the note, the jury may have "reasonably assume[d] that the judge had read its note[ ]
759 A.2d at 647 (citation omitted). We held nevertheless that the instruction which told the jury to decide the case "without other extraneous, irrelevant issues coming into play" did not ...