Appeal from the Superior Court of the District of Columbia (FEL-6476-03) (Hon. Russell F. Canan, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID and GLICKMAN, Associate Judges, and KING, Senior Judge.
A jury found appellant Alvin M. Headspeth guilty of possession of an unregistered firearm (D.C. Code § 7-2502.01 (2001)).*fn1 Mr. Headspeth asserts that the trial court committed plain error in re-instructing and polling the jury, and that the error seriously affected the fairness and integrity of his trial. Because we agree, we are constrained to reverse the trial court's judgment, and to remand this case to the trial court for a new trial.
The government presented the testimony of Metropolitan Police Department ("MPD") officers showing that on October 17, 2003, MPD officers were on duty outside Cardozo High School in the Northwest sector of the District of Columbia during the school's homecoming football game. Officers Christopher Dove, David Casetta, and another officer were in a marked car in the 2400 block of 13th Street, N.W. Someone yelled that there was going to be a fight and there was a reference to a gun. They saw two persons move toward the rear of a black Ford Expedition vehicle. From the police car, Officer Dove "watched one of the individuals reach into his jacket, pull out a black and silver object, and hand it to another individual," later identified as Mr. Headspeth. Officer Dove clarified his statement, saying that "the back of the truck . . . blocked my view of the object when [the individual] passed it to Mr. Headspeth," and he did not actually "see [anyone] receive the object . . . ." However, Officer Dove observed Mr. Headspeth open the back door of the Ford Expedition, "lean" into a baby seat, "go under" the baby seat, and then close the back door. Later, Officer Casetta reached under the baby's car seat and "felt the top of a gun."
At the time of the incident, Officer James Culp was off-duty, but stopped by Cardozo High School to watch part of the football game. As he was parking his car, he saw "a large crowd ['between 25, 40 people'] coming out of . . . the entrance gate." Those in the crowd were "hollering and screaming, and . . . there was some type of commotion." Officer Culp "heard someone say, police, police, . . . looked in [his] side view mirror, . . . [and could see,  ] the lower torso of two people." He "saw one hand exchange what appeared to be a weapon to another, and [the recipient] stuck it in his waistband, went to the car [the Ford Expedition] either behind [him] or a car behind that, opened the door, and stuck it in the truck." MPD Officer Valerie Campbell, a crime scene technician took photographs and retrieved the gun. She was unable to remove any usable prints from the gun.
Mr. Headspeth testified that after attending the football game, he proceeded toward his black Ford Expedition truck. His girlfriend and his daughter were with him, as well as another child. There was a crowd (about 20-30 people) and "a lot of commotion" broke out -- "fighting or people [were] arguing." He used his remote control -- his "alarm key" so that "the crowd would move away from [his] truck" to unlock his vehicle. When he reached the vehicle, the back door was open and he saw a gun that he had never seen before "on top of" his little girl's car seat. He put the gun under the car seat. When asked why he did that, Mr. Headspeth answered: "Because I was thinking real fast and I didn't want to . . . tell the police that I got a gun over here. I was trying to hide it and I was going to take my daughter and just dump it away." On cross-examination, Mr. Headspeth asserted: I knew I had [the gun]. I had to get rid of it. I wasn't going to say, hey, there's a gun while all the fighting was going on." The police "grabbed" him, and after his arrest, he gave a statement to the police declaring: "I was putting nothing in the back seat of my car; I was trying to hide an unknown gun." Another defense witness, Mr. Headspeth's girlfriend, stated that she did not see Mr. Headspeth with a gun in his hands.
Not long after the jury began its deliberations, it sent two notes to the trial judge. One read: "Does presence of gun in car meet legal definitions of carrying and possession in charges one and two?"*fn2 The second note contained three questions: (1) "Can charges be reduced from felonies to lesser felonies or misdemeanors?" (2) "Can sentencing be limited to community service?" (3) "How can the jury recommend lightest sentence possible under the law?" The trial judge and both trial counsel discussed and agreed on how to respond to the jury's notes. As for the first note, the trial judge repeated and modified his instruction regarding "the concept of carrying," and on the notion of "possession" gave the instruction on actual and constructive possession. With respect to the second note, the judge repeated the instruction that "possible punishment is not relevant," but "add[ed]" the following:
[I]f the jury reaches a verdict, the jury may make a separate recommendation as well. Please understand that the verdict is the only official decision of the jury. If the jury wants to make a separate recommendation after the verdict, you may do so on a separate piece of paper. The Court will consider the recommendation, but it is not binding on the Court.
In the late afternoon of the first day of deliberations, the jury again sent two notes to the trial court. The first read: "The jury has reached verdicts on charges #2 [possession of unregistered firearm] and #3 [possession of ammunition], but not yet #1 [carrying a pistol without a license]." The trial judge announced that he would take the verdicts on counts two and three. With regard to the charge of possession of unregistered firearm, the jury foreperson announced:
Guilty technically with an addendum. The jury unanimously agrees the defendant technically violated the law. However, several jurors believe he did not violate it in spirit. Their concerns are to be reflected in an attached statement whose language has yet to be agreed upon . . . [t]hat we would ask the Court to read at the end of the trial proceedings.
The jury foreperson further indicated that the jury found Mr. Headspeth not guilty of possession of ammunition. After conferring with counsel, the trial judge polled the jury as to whether the jurors agreed with the verdict. Jurors number 1 through 5 responded, "[y]es," to the question, "do you agree with the verdict announced. . . ."
Juror No. 6 responded, "[y]es, with the notation as is altered." When the judge advised that he would "discuss that" and stated that "the verdict [on charge 2] is guilty," the juror said: "Technically, yes." The judge replied: "Not technically. The verdict is guilty. Do you understand, sir?" The juror began to answer: "We wrestled long and hard about that and --." The judge stated:
Sir, let me interrupt you, please. As I said in my note to the jury , that the only official decision of the jury is on the verdict form. And if you wanted to make a separate statement above that, the jury was free to do that or an individual is free to do that. I don't want to invade the jury's deliberations. So that's why I interrupted you here.
So there is not a technical guilt. He is guilty or not guilty. So I want that to be clear with the entire jury. As I said -- and I appreciate that you are all lay people and this is new to, I'm sure, most if not all of you. So the only verdict that's official is the official verdict form. Everything else on here is advisory. It's just what individuals may think. And, as I said before, that's something I will consider at the time of sentencing. But that is the -- that's the law.
So I'm going to start this again so that everyone is clear. I've tried to make it as clear as I can, that the verdict, the only official verdict, is guilty or not guilty.
The jury has reached a verdict of guilty as to count two, possession of an unregistered firearm and not guilty as to count three, possession of ammunition.
So I'm going to restate it, just redo it again, with my instructions that that's the only verdict that ...