Appeal from the Superior Court of the District of Columbia (CF1-19120-09) (Hon. Thomas J. Motley, Trial Judge)
The opinion of the court was delivered by: Ferren, Senior Judge:
Submitted December 12, 2012
BeforeBLACKBURNE-RIGSBY and OBERLY, Associate Judges, and FERREN, Senior Judge.
This appeal comes from a trial of five defendants involving two related, though not overlapping, conspiracies.*fn1 The only issue on appeal arose out of the jury deliberations, so we forego recitation of the evidence presented at trial. For the reasons that follow, we reverse and remand for a new trial.
On April 11, 2011, the jury sent a note to the trial court indicating that it had reached a verdict on some of the charges against several defendants but were deadlocked on other charges. The following day, the court asked the jury to complete the verdict form for the defendants as to whom it had reached verdicts and promised "further instructions" as to the remaining defendants. The jury complied, announcing guilty verdicts against appellant Marcus Brown on five counts while acquitting him on a sixth.*fn2 The jury also announced verdicts acquitting two other defendants, Joshua Benton and Christian Benton, on all charges.
After the foreman read the verdicts, defense counsel for Brown requested a jury poll. The court informed the jury that "we‟re going to have a poll with respect to defendant Marcus Brown as to him individually." The court then instructed the jurors that if "your verdict agrees with that as announced by your foreperson," each juror should say "yes." If a juror disagreed, then he or she should say "no." The court instructed the jury not to "say anything other than "yes‟ or "no‟ and do not say anything unless and until your seat number is called." The court then asked each juror the following question: "[D]oes your individual verdict agree with that as announced by your foreperson?" Each juror answered "yes" until the court reached the eleventh juror, who answered "no."
At this point, the court stopped the poll and asked counsel to approach. After denying motions for a mistrial, the court informed the assembled attorneys that it was "going to ask [the jury] to return and continue the deliberations with regard to Mr. Brown and the two remaining defendants." The court instructed the jury as follows:
Ladies and gentlemen, I‟m going to ask you to return and continue deliberations with regard to Mr. McCorkle and Mr. McAllister and with regard to Mr. Brown since it‟s not indicated that the jury has reached a unanimous verdict, so I‟m going to ask you to return. And I‟m going to give this -- actually, we‟ll give this form back to you and -- with regard to Mr. Brown. Since you have not reached a unanimous verdict, continue deliberations. Thank you.
After sending the jury back, the court again rejected mistrial motions by counsel for the defendants who had not yet received adverse verdicts. Both counsel based their motions on concerns that the aborted jury poll would have a coercive effect on continuing deliberations. Although the court rejected the motions, it did agree to the government‟s request that the court provide the jury with a copy of the first paragraph of Jury Instruction 2.603, applicable to jury polls after verdict.*fn3 Brown‟s counsel asked the court to include the additional bracketed language that followed this initial instruction.*fn4 The court reviewed the language and ruled that "the other language, that seems to me that that would be a language if the jury was deadlocked." The court worried that "if I give that to them[,] I would be foreclosed in giving any anti-deadlock instruction if I give that to them at this point in time." The court then declined to "give the bracketed language." The court agreed, however, to specify that the instruction it did give -- Instruction 2.603*fn5 -- was given with "regard to Mr. Brown."
Shortly after the court gave the instruction, counsel for Brown called the trial court‟s attention to this court‟s opinion in Crowder v. United States,*fn6 where we recommended the language now contained in the bracketed portion of Instruction 2.603*fn7 in situations with a high potential for juror coercion. Counsel also moved for a mistrial. The government responded that Harris v. United States,*fn8 a more recent decision of this court, suggested that the trial court‟s more limited instruction, as given, was the appropriate response to the jury poll. The trial court denied the motion for mistrialwithout addressing either Crowder or Harris.
The jury quickly returned to the courtroom. The foreman announced the
same verdicts against Brown, and the jury was polled a second time.
The court began with the juror in seat number eight.*fn9
This time, all the jurors agreed with the announced verdict.
Brown again moved for a mistrial; the motion was denied, and the court
instructed the jury to continue its deliberations with regard to the
two remaining defendants.*fn10
Before addressing Brown‟s appellate claim -- i.e., the court‟s alleged
error in failing to instruct with the bracketed language at the end of
instruction 2.603*fn11 -- we
pause to discuss the case law in this jurisdiction that has developed
around what we have referred to as a "breakdown ...