Appeal from the Superior Court of the District of Columbia (No. F-3620-02) (Hon. Russell F. Canan, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before GLICKMAN, Associate Judge, and BELSON and SCHWELB, Senior Judges.*fn1
Jermaine J. Wilson was charged with armed carjacking and related offenses. He contends that the trial judge committed reversible error by refusing to enforce his right to an "acquittal first" instruction when the jury convicted him of the lesser- included offense of (unarmed) carjacking without first acquitting him of the greater offense of armed carjacking (on which it ultimately deadlocked). Wilson further contends that double jeopardy principles bar his retrial on the armed carjacking charge.
We reject Wilson's first contention because his trial counsel, informed that the jury had not reached a verdict on the armed carjacking charge, expressly approved taking the partial verdict on the lesser- included offense. Wilson's rights therefore were respected, not violated, and we affirm his (unarmed) carjacking conviction. We also affirm his other convictions, which he has not challenged on appeal. Wilson's double jeopardy claim is moot, for the government has represented that it will not re-prosecute him for armed carjacking if his (unarmed) carjacking conviction is upheld. In line with that representation, we remand with directions to the trial court to dismiss the armed carjacking count with prejudice.
According to the government's evidence at trial, Wilson stole a 2000 Honda CR-V from its driver and a passenger, at gunpoint. Police spotted the stolen car approximately ten minutes later. A brief high speed chase ensued, which ended when the car flipped over. Wilson was captured after he climbed out the window and tried to flee on foot. Although both victims identified Wilson on the scene as the carjacker, his defense was misidentification. Highlighting discrepancies between descriptions of the carjacker given to the police and his actual appearance, and the fact that a gun was not recovered, Wilson argued that he was not the person who stole the Honda CR-V even though he was in the vehicle when it crashed.
The indictment charged Wilson with four offenses: armed carjacking, possession of a firearm during a crime of violence (PFCV), unauthorized use of a motor vehicle (UUV), and first-degree theft. At the conclusion of the trial, the government requested that the jury also be instructed on the lesser-included offense of (unarmed) carjacking. Wilson did not object. The only difference between carjacking and armed carjacking is that the latter offense requires the government to prove that the carjacker committed the crime "while armed with or having readily available any pistol or other firearm . . . or other dangerous or deadly weapon. . . ." D.C. Code § 22-2803 (b)(1) (2001).
A verdict form was prepared showing armed carjacking as Count 1 and carjacking as Count 1-A. (PFCV, UUV and first-degree theft were Counts 2, 3 and 4, respectively.) The judge instructed the jury to consider Count 1-A if it found Wilson not guilty of Count 1.*fn2
After deliberating for about two hours, the jury sent a note stating that it had "reached a verdict on some counts but not on others." Observing that the jurors "haven't said they're hung," the trial judge suggested taking the partial verdict and asking the jury to continue deliberating on the remaining counts. The prosecutor agreed with that suggestion. Wilson's counsel concurred ("I think that's fine, Your Honor"), adding that her "only concern [was that] there are some complications in what they can consider and what they cannot consider, but I'm assuming that if they have any questions about that they would send a note."
Before taking the partial verdict, the trial judge asked the foreperson to identify the counts on which the jury had reached agreement. The foreperson answered that the jury had reached a verdict on Counts 1-A, 3, and 4. The judge inquired whether the jury had reached a verdict on Count 1, and the foreperson stated that it had not.*fn3 Without objection from either Wilson or the government, the judge then proceeded to take the partial verdicts. The jury found Wilson guilty of carjacking, UUV, and first-degree theft. After being polled and breaking for lunch, the jurors resumed their deliberations on the remaining counts.
Later that afternoon, the jury sent a second note reporting that its members saw "no prospect o[f] any agreement on the last 2 charges." Denying Wilson's motion for a mistrial, the judge gave an anti-deadlock instruction,*fn4 and the jury continued deliberating for another hour before being dismissed for the day.
The following morning, as the jury again resumed its deliberations, Wilson's counsel orally moved for a mistrial on the armed carjacking, carjacking, and PFCV counts. A mistrial was appropriate, counsel argued, because the jury had violated its initial instructions and rendered "an improper verdict" by considering the (unarmed) carjacking charge without first having acquitted Wilson on the armed carjacking count. Alternatively, Wilson's counsel asked the court to vacate the carjacking verdict and resubmit Count 1-A to the jury with an instruction not to consider it unless the jury first found Wilson not guilty of the armed carjacking charge.*fn5 The prosecutor objected that Wilson's motion came too late -- he should have asked the judge not to take the jury's verdict on count 1-A before it was announced. Wilson's counsel responded that she thought all parties and the judge had assumed that the jury had acquitted Wilson of armed carjacking, and that she had not realized until later in the day that the jury was hung on that count. At the time the jury returned with its partial verdict, counsel added, she "wasn't certain about the instructions and . . . what [the jury] could come back with."
The trial judge denied Wilson's motion, concluding that there were no valid grounds either to grant a mistrial or to vacate the carjacking verdict and reinstruct the jury. The jury deliberated for another hour, at which time it reported itself still deadlocked and unable to reach a verdict on the remaining counts. Wilson's counsel moved for a "directed verdict" of ...