Appeal from the Superior Court of the District of Columbia (No. F-3217-05) (Hon. Neal Kravitz, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before GLICKMAN and THOMPSON, Associate Judges, and PRYOR, Senior Judge.
At appellant Keith Hankins's murder trial, the jury sent a total of three notes reporting that it was hung. Shortly before the third note, a juror complained privately to the courtroom clerk during a break that one juror had stopped participating in the deliberations. When, at the trial judge's direction, the clerk spoke to the foreperson to ensure that any future complaints would be made to the court in writing, the foreperson unexpectedly told the clerk that the juror in question was participating again but was unalterably convinced that the defendant was not guilty. After the judge informed counsel of the third "hung jury" note and of the clerk's conversations with the two jurors, the judge decided to give an anti-deadlock instruction. Appellant's primary claim is that, by giving the anti-deadlock instruction under the foregoing circumstances, the judge improperly coerced the jury into returning a guilty verdict. We conclude, however, that the judge took sufficient precautions to avoid the risk of coercion. Accordingly, we affirm appellant's convictions.*fn1
After the jury in appellant's first trial was unable to reach a verdict, he was retried and convicted of murdering Conrad Fox on January 9, 2005, in a parking lot outside a convenience store located at 2420 Martin Luther King Avenue, S.E. The evidence of appellant's guilt, while sufficient to support his conviction, was not overwhelming. One witness claimed to have seen appellant, whom he knew, shoot Fox, but his testimony was impeached and contradicted in various respects. A second witness disavowed her earlier grand jury testimony, in which she too had implicated appellant in the shooting. Although the incident was captured on videotape by the convenience store's security camera, the tape was of poor quality, and appellant could not be identified as the shooter. The owner of the store knew appellant and observed that the shooter did not walk with a limp, as did appellant. Finally, a fourth witness testified that appellant had told him the day after the shooting that he recently had shot someone in the chest with a handgun. This witness was hoping to win a substantial reduction of his prison sentence by cooperating with the prosecution, and the admission he attributed to appellant arguably conflicted with the medical examiner's testimony that Fox was shot in the back.
The jury's deliberations stretched over four days. Beginning in the afternoon of the second day, the jury sent three notes reporting that it was unable to reach a unanimous verdict. The first note read: "We are divided as a jury and are unable to come to agreement. How should we proceed?" After conferring with the parties, the judge excused the jurors and asked them to return to their deliberations the following morning. At 11:10 that morning, the jury sent its second note, declaring that "We are divided as a jury. We are challenged with a lack of participation and communication." In light of the vagueness of this pronouncement, the judge declined to follow the government's suggestion that it inquire of the jury to determine whether there was actual juror misconduct. The judge also denied defense requests for a mistrial or an anti-deadlock instruction. Instead, to address the concern expressed in the note, the judge decided to remind the jurors of their obligation to "deliberate in a productive way" and "with an open mind," while also emphasizing that no juror should "feel any pressure from [the court] to give up his or her strongly held convictions." The judge then excused the jury for lunch. The jury resumed its deliberations at 2:00 p.m.
The jury's final note and the circumstances surrounding it are at the center of this appeal.
At 3:50 p.m., the courtroom clerk received the note and brought it to the judge's attention. The note read, "We are unable to reach a unanimous decision and are at an impasse." At this time, the clerk informed the judge of her contact with a female juror about an hour earlier. The clerk was escorting the juror to an ice machine during a break when the juror remarked to her that she was "very frustrated" because there was "one juror" who, having "stated what his decision was," had "backed away from the table" and was "no longer" speaking or participating in the deliberations.
Under the mistaken impression that the juror with whom the clerk had spoken was the jury's foreperson, the judge asked the clerk to go back and tell the foreperson that if he wanted the court to address the juror's non-participation, he would have to report it to the court in a written note. The clerk proceeded back to the jury room, asked the foreperson to step outside, walked with him down the hallway, and asked him if he was "going to send another note and if he was still having problems with that one juror." According to the clerk, the foreperson answered that, after the clerk's earlier conversation with the female juror, "they" had talked to the uncooperative juror, and "[the juror] participated," though "he had made up his mind [a]nd he wasn't changing his mind about anything." "[T]hat one juror had decided that the defendant was not guilty," the foreperson unexpectedly added, and he doubted further instruction "would make that juror change his mind."
The judge promptly reported the third jury note, as well the two conversations between the courtroom clerk and the jurors, to the parties. The clerk testified as described above to the substance of those conversations. Had the juror conversations not happened, the judge said, he would have been inclined to respond to the third jury note with an anti-deadlock instruction. However, the judge said, the foreperson "regrettably" had provided the clerk "more information than anyone was expecting." As a result, the judge observed, it was possible "that the juror who apparently has stated his firm position may be in a minority of one [and] would either know or suspect that his status as being in a minority of one has been communicated . . . to the Court, and that the Court's anti-deadlock instruction is aimed at him." On the other hand, the judge reasoned, this was "wildly speculative," inasmuch as the numerical split in the jury had not been revealed, the juror in question had not been identified, and there was "no reason" to believe that juror knew of the other jurors' conversations with the clerk (which had occurred out of the hearing of the other jurors). The prosecutor and defense counsel debated whether an anti-deadlock instruction would be coercive in these circumstances. Recognizing the lateness of the hour, the judge excused the jurors for the day, telling them that he and the parties were still conferring as to "the most appropriate way" to respond to their last note.
After an opportunity for legal research and further colloquy with counsel the next morning, the judge concluded that "there would not be an unacceptable danger" that a moderate anti-deadlock instruction would be coercive -- that it "would cause whichever person or persons might be in the minority here to feel that that instruction was aimed at them or him." With appellant preserving his objection to the giving of any anti-deadlock instruction, the discussion turned to which of three alternatives the judge would select: the Winters instruction, the Gallagher instruction, or the Thomas instruction.*fn2 To reduce the potential for coerciveness, the judge limited the choice to the latter two "less aggressive alternatives."*fn3 As between those, the prosecutor expressed a preference for the Gallagher instruction, while appellant preferred the Thomas instruction. The two instructions are similar -- in nearly identical words, they enjoin the jurors to "deliberate with a view to reaching an agreement," but without sacrificing their "individual judgment" or surrendering their "honest conviction as to the weight or effect of [the] evidence" because of other jurors' opinions solely in order to reach a verdict. The only substantive difference between the two instructions, which the judge noted, is that the Gallagher instruction adds an admonition to the jury to "consider that it is desirable that the case be decided if you can conscientiously do so; that you were selected in the same manner, and from the same source, from which any future jury must be[; and that] [t]here is no reason to suppose that the case will ever be submitted to 12 persons more intelligent, more impartial, or more competent to decide it, nor to suppose that more or clearer evidence will be produced on one side or the other."*fn4
The judge elected to give the jury the Gallagher instruction. In doing so, he began by commending the jury for complying with his instructions never to disclose its numerical split or the issues over which it was divided. Therefore, he stated, he had "absolutely no idea" as to how the jury was split or the direction in which it was leaning; he did not want to know any of that information and should not know it. The judge then explained that, before sending the jury back to resume its deliberations, he would read "an instruction that has been read to many juries in many cases in this courthouse over many years and that some juries have found helpful." With that preface, he proceeded to read the Gallagher instruction.*fn5 And at the end, he reminded the jury to put all future communications in writing, and not to reveal its numerical split if it decided to send another note.*fn6
The jury resumed its deliberations at approximately 11:00 a.m. At 12:11 p.m., it sent back a note saying it had reached a unanimous decision. The verdict on each count of the indictment was guilty. In the ...