Appeal from the Superior Court of the District of Columbia (F-7877-04) (Hon. Robert I. Richter, Trial Judge).
The opinion of the court was delivered by: Farrell, Associate Judge
Before FARRELL and THOMPSON, Associate Judges, and TERRY, Senior Judge.
A jury found appellant guilty of second-degree murder while armed, a lesser-included offense of the charged crime of armed first-degree murder. Evidence permitted the jury to find beyond a reasonable doubt that Jones had shot Kevin Jackson to death on December 2, 1997.
Jones's principal argument on appeal is that the trial judge erred in giving the model anti-deadlock instruction adopted by the court in Winters v. United States, 317 A.2d 530 (D.C. 1974) (en banc), after the judge had charged the jury before deliberations on the "attitude and conduct of jurors" in words balanced one-sidedly toward the desirability of a verdict. Although, for reasons to be stated, the predeliberation charge given in this case was error, appellant did not object to the giving of the instruction, nor did he adequately preserve objection to the judge's decision to give the Winters charge later when the jury deadlocked. Applying plain error analysis, as we must, see United States v. Olano, 507 U.S. 725 (1993), we affirm his conviction.
Responding to a radio run for gunshots, Officer Dyson of the Metropolitan Police Department (MPD) found Kevin Jackson lying dead on the steps of an apartment building on 18th Place, Northeast. He had been shot four times in the back of the head, the back, and an armpit. Ronnie Tucker, the government's main witness, had known Jackson and appellant (hereafter Jones) from growing up in the area. According to Tucker, he and Jones were dealing drugs in the neighborhood at the time and both were getting their drugs from Jackson. Jones "didn't feel too good" about the fact that he owed Jackson a thousand dollars for drugs, particularly since Jackson had not repaid a debt to him. In 1995, police had searched Jones's house looking for drugs belonging to Jackson, and had seized Jones's drugs along with Jackson's, after which Jackson agreed to repay Jones in drugs for his loss.
Tucker recounted that on the evening of December 2, 1997, he, Jones, and Jackson, all of whom had been drinking, met on M Street and went to get something to eat and "blunts" to use to smoke marijuana. Jones initially had his Mac 11 gun in his waistband, then stowed it in a closet in the hallway of the apartment building where the men had gathered just outside. In the course of their socializing (and drinking and smoking), Jackson said that to "be around for his son" he was "get[ting] out of the lifestyle" of selling drugs, and told Jones and Tucker that he would "take care" of them by giving them crack cocaine so they could "get on [their] feet." He also told Jones not to worry about the money he owed Jackson. Later, when Jackson was ready to leave, Jones told him to wait so he could walk with him. Jones first went inside, apparently to retrieve his gun, and shortly thereafter Tucker heard four or five shots that sounded "[l]ike a machine gun" coming from the hallway. Though Tucker did not see the shooting, he saw Jackson lying on the ground and Jones standing in the hallway "looking crazy." Jones put the gun in his waistband, shook his head, stepped over Jackson and walked away. As Tucker rode away from the scene in the company of another person, Jones called him on his cell phone and asked, "[I]s he dead?"
Seven years later, in December 2004, Jones was arrested in South Carolina for killing Jackson after Tucker reported the shooting as part of a cooperation agreement with the government stemming from his arrest on federal drug conspiracy charges. When Detective Richmond of the MPD met with Jones in South Carolina and introduced himself, Jones replied that "this has something to do with them young 'uns from around M street. I have not been around there for years." In a formal interview with Detective Richmond, after being told why he had been arrested, Jones said, "I know Tuck is snitching on me." In a later taped telephone conversation between Jones and his brother, Jones again said that it was "Ronnie [Tucker] . . . who tried to do that to me." Ballistics evidence confirmed that two of the bullets from Jackson's body were fired from the same weapon and that all four recovered bullets could have been fired from a Mac 11.
A defense witness, Larry Gooch, testified that Tucker had confessed to the shooting of Jackson, and a second defense witness, Joseph Blackson III, testified that Jones had not been in the immediate area of the shooting as of an hour before it took place. A government witness, Akida Manley, also had not seen Jones outside the apartment an hour to an hour and a half before the shooting.
At the conclusion of the final charge to the jury, the trial judge admonished the jurors - without objection, but in an instruction forming a principal basis of this appeal - that "[i]t is not appropriate for a juror, upon entering the jury room, to voice a strong expression of an opinion on the case, or to announce a determination to stand for a certain verdict"; that indeed "[t]he final test of the quality of your service will lie in the verdicts that you return to this courtroom; not in the opinions that any of you may hold before agreement on a verdict"; that "you will make a definite contribution to efficient judicial administration if you arrive at a just and proper verdict"; and that "in your deliberations in the jury room, your purpose should not be to support your own opinion, but rather to ascertain and declare the truth."
After deliberating for about an hour the first day, the jury continued deliberating the next day until 4:35 p.m. when it sent out a note asking, "What shall we do if we can not come to a unanimous decision?" The record does not show whether the judge replied to the note. On the third day, at 12:20 p.m., the jury sent a note stating that it could not reach a unanimous verdict. Defense counsel moved for a mistrial, a request the judge denied. When the prosecutor then requested an anti-deadlock instruction, the judge asked if there was any reason not to give the charge adopted by the court in Winters, supra, and defense counsel first answered "no," then requested instead the "Gallagher" instruction fashioned by the concurring judge in the Winters case.*fn1 Denying that request, the judge "Winterized" the jury shortly before a lunch break, and the jury resumed deliberations after lunch. At 4:45 p.m. it returned a guilty verdict on the lesser-included offense of second-degree murder.
Without objection, the trial judge concluded his general charge to the jury with an instruction concerning the "attitude and conduct ...