Appeal from the Superior Court of the District of Columbia, (F-2919-03), (Hon. Susan R. Winfield, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before REID and GLICKMAN, Associate Judges, and FARRELL, Senior Judge.*fn1
We have held that where a single count of an indictment encompasses separate incidents on which a conviction could be based, the judge must instruct the jury that it has to reach unanimous agreement on at least one of the incidents in order to return a verdict of guilty. Appellant David Williams requested such a jury instruction in this case with respect to the charge that he had threatened to injure Rhea Shaw, his former girlfriend, in violation of D.C. Code § 22-1810 (2001). The judge's denial of the requested unanimity instruction requires us to reverse appellant's conviction on that count.
David Williams was Rhea Shaw's boyfriend from 1998 to 2002. Following their break-up, Williams was arrested for allegedly burglarizing Shaw's apartment and sexually assaulting her. Williams was tried on those charges in August 2002 and was acquitted. The present case concerns accusations against Williams made by Rhea Shaw, her friend Stacy Coffin, her cousin Lacey Shaw, and her new boyfriend Corbett Turner, regarding threats, assaults and destruction of property allegedly committed by Williams in the aftermath of the 2002 trial. Williams was indicted on those charges in 2003 and tried before a jury in 2004. In the end, the jury found Williams guilty only on one count, which charged him with having threatened to injure Rhea Shaw "[b]etween on or about August 1, 2002, and on or about December 1, 2002."
To prove Williams guilty of this single charge (and another charge of threatening Stacy Coffin), the government presented evidence of several incidents involving threats allegedly made by Williams to different individuals at different times and places. The witnesses to these incidents described them as follows:
(1) Rhea Shaw testified that in September 2002, approximately two weeks after the August trial, Williams confronted her in person outside her former home, berated her and said "he was going to get [her]."
(2) After that confrontation, Rhea Shaw testified, Williams called her on the telephone on several occasions "on and off for about . . . a month" and said "he was going to get [her]."
(3) Lacey Shaw testified that Williams came to her window some time during the Fall of 2002 and agitatedly questioned her about Rhea Shaw's whereabouts. During this visit, Lacey Shaw reported, Williams started screaming obscenities and declared, "I'm going to kill that bitch."
(4) Corbett Turner testified to a telephone conversation in September 2002 in which Williams said that he was "going to get [Rhea Shaw] and that bitch Stacy [Coffin]" and that Turner "better not get in his way."
(5) Finally, Stacy Coffin testified that, on many occasions between September and December 2002, in telephone calls and in personal visits, Williams told her that "if he ever caught [Rhea Shaw], he was going to kill her." According to Coffin, Williams also repeatedly threatened to kill her too.
Toward the end of trial, the judge asked the parties to consider over a weekend recess whether there was a unanimity issue with respect to the two threats counts. The following week, the parties stated their positions. The prosecutor proposed that the jurors be instructed that they would have to agree only that Williams threatened Rhea Shaw (or Stacy Coffin) "on one or more occasions" between August and December 2002. Defense counsel disagreed, arguing that the jurors should have to agree not merely that Williams made a threat against Shaw (or Coffin), but also on the "specific incident" or incidents in which he did so. The judge appreciated the unanimity problem that would be posed if different jurors were to rely on different incidents to find Williams guilty of a single threats count. Nonetheless, expressing concern that it would be impossible for the jury to "pick a date" on which any particular threat was made because the witnesses could not specify the dates of the incidents they reported, the judge declined to instruct the jury in accordance with the defense request. She asked defense counsel whether he would be satisfied instead with an instruction requiring the jury to agree on whether Williams made "the same kind of a threat," "[m]eaning by phone or in person." Counsel rejected that compromise, saying he wanted an instruction calling for unanimity not merely as to the "same kind of threat," but also as to the "[same] time period or incident."
In lieu of requiring the jury to agree unanimously on a specific incident to support a conviction on either of the threats ...