May 2, 2013
DELONTE C. FORTUNE, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CF1-7699-08) (Hon. Michael L. Rankin, Trial Judge)
The opinion of the court was delivered by: Glickman, Associate Judge:
Argued May 10, 2012
Before GLICKMAN and OBERLY, Associate Judges, and PRYOR, Senior Judge.
Following a short trial in appellant‟s first- degree murder prosecution the jury thrice reported itself deadlocked-stymied, it said in its second note to the court, by "a fundamental disagreement."
The third note, sent after more than eight hours of deliberation, informed the court that the jury was evenly split; that the jurors in each camp had "absolutely no doubt about their vote" on the question of appellant‟s "guilt or innocence"; that despite "several attempts to consider the evidence objectively," the jurors had "not been able to overcome this impasse"; and that "all 12 jurors" agreed they would be unable to come to a unanimous verdict "based on the evidence" they had heard. In response to this report, and over appellant‟s objection, the judge told the jurors he did not agree with them and that it was his "job to make that kind of decision." With that, the judge sent the jurors back for further deliberations, telling them not to reveal how they were voting "until after [they had] reached [a] unanimous verdict." Appellant objected that the judge‟s remarks had been unduly coercive. When the jurors resumed deliberations, it took them only 93 minutes to notify the court they had a verdict-one acquitting appellant of first-degree murder but finding him guilty of the lesser-included offense of second-degree murder.
After polling the jury and ascertaining from the jurors‟ on-the-record responses that their verdict was unanimous, the judge decided in light of appellant‟s objections to ask whether any jurors felt he had coerced them into reaching a verdict. Two of the jurors answered this question in the affirmative.
In response to follow-up questioning by the judge, these jurors confirmed that they felt he had forced them to produce a unanimous verdict. Based on their statements, the judge granted appellant a mistrial. However, on the government‟s motion for reconsideration, the judge reversed himself and reinstated the jury‟s verdict.
"[T]he principle that jurors may not be coerced into surrendering views conscientiously held is so clear as to require no elaboration."*fn1 Claiming that such coercion is manifest on the record before us, appellant argues that he is entitled to a new trial. The parties disagree about what evidence of coercion we may consider in evaluating appellant‟s claim-specifically, whether it is proper to rely on the jurors‟ post-verdict statements that they actually felt coerced. We agree with the government (as did the trial judge himself, upon reflection) that those statements must be disregarded because they purported to reveal the effect of the judge‟s instruction on the jurors‟ votes and their thought processes concerning the verdict.
Appellant argues that, even ignoring what the jurors said, we should recognize that the judge‟s response to the third jury note was impermissibly coercive, amounting to a clear message that "he believed that the case was capable of resolution and thus that [the jurors] had to come up with a unanimous verdict and would be deliberating indefinitely until they did so."*fn2 The government disagrees, arguing that "there was "no hint of coercion‟" in the judge‟s instruction, which "equated to nothing more than a direction to continue deliberating."*fn3
We conclude, without relying on the post-verdict statements of the jurors, that the judge‟s response to the third jury note was indeed impermissibly coercive and that appellant therefore must be granted a new trial.
Appellant was indicted for first-degree premeditated murder while armed, possessing a firearm during a crime of violence, and carrying a pistol without a license. The charges related to the shooting of Lamont Watkins sometime after midnight on August 7, 2005. Trial commenced on February 19, 2009. The presentation of evidence lasted just two and a half days and was not complicated.
The government presented no physical evidence linking appellant to the shooting; its case turned on the disputed credibility of the prosecution witnesses-especially that of the only professed eyewitness to the shooting, James Morrison.
Morrison testified that he was on his porch, smoking marijuana, when he saw appellant (whom he knew from the neighborhood by his nickname "Mayo") shoot Watkins in a nearby alley. Morrison nonetheless did not call the police or summon help for Watkins, nor did he speak to the police when they arrived to investigate. Afterward, Morrison was the source of an anonymous telephone tip to police that "Mayo" was the shooter, but he did not come forward until, some two years later, he contacted the police again, identified himself, and told them he had seen appellant commit the homicide. The defense theory at trial was that Morrison did not witness the shooting, and indeed could not have done so from his vantage point on the porch of his home, but believed that appellant was the perpetrator based on the rumors he had heard in the neighborhood.
A second witness, Bronson Covington, testified that he saw appellant and Watkins enter the alley, heard gunshots, and then saw appellant run away.*fn4 But Covington‟s credibility too was subject to challenge. He did not call the police or seek help for Watkins, and he initially told investigators he knew nothing about the shooting. Only in January 2009, after detectives told him they believed he knew something about the shooting and "could be in some legal trouble" if he did not help them, did Covington say he was a witness.*fn5
The case was submitted to the jury on February 25, 2009. Regarding the lead count, the jury was instructed to consider the lesser-included offense of second-degree murder while armed in the event it found appellant not guilty of first-degree murder while armed. The following morning, after one of the jurors 7 had to be excused and was replaced by an alternate, the judge instructed the jury to begin its deliberations anew.*fn6
At 4:28 that afternoon, the jury, having deliberated approximately four hours, sent a note stating it was unable to reach a unanimous verdict. The judge told the parties‟ counsel he doubted there was any "appropriate response other than to tell [the jury] I received it."*fn7 Both counsel agreed that it was too early for an anti-deadlock instruction. The judge brought the jurors into the courtroom and, regarding the note, addressed them as follows:
I read the note to the lawyers and it says, "[w]e the jury cannot reach a unanimous verdict." And one of the attorneys said, well, Judge, what are you going to say to-you going to say anything to the jury[?] Yeah, I‟m going to tell them I got your note.
Saying nothing more on the subject, the judge dismissed the jury for the weekend.
The jurors resumed their deliberations at 10:00 a.m. on Monday. Two and a half hours later, they sent a second note. This note stated: "[W]e cannot come to [a] unanimous decision based on a fundamental disagreement." Defense counsel asked the judge to give the jury a "Gallagher" anti-deadlock instruction,*fn8 arguing that, though the jury had not been deliberating "at great length," it had been a brief trial, and it now appeared the jurors were at "a significant impasse." The judge denied this request and chose instead simply to tell the jurors in a written reply to their note to continue their deliberations.
At 3:40 p.m., by which time the jury had been deliberating for roughly eight and a half hours, the jury sent a third note. It read:
Judge Rankin, there are an equal number of jurors evenly split [in] opinion who have stated that they have absolutely no doubt about their vote of guilt or innocence. After several attempts to consider the evidence objectively, we have not been able to overcome this impasse. At this time, all 12 jurors are in agreement in the belief that we will not be able to come to [a] unanimous verdict, based on the evidence presented in this case. Respectfully, the jury.
Now the government asked the judge to read the jury an anti-deadlock instruction.*fn9 Defense counsel moved for a mistrial, arguing that asking the jury to continue further deliberations at this point would be coercive. The judge declined to follow either suggested course of action, explaining that he considered it "fair for this jury to spend time and wrestle with this evidence and the issues presented" in this "serious case" and that, in his view, an anti-deadlock instruction would be "premature."
The judge proceeded to address the jury in open court by reading the third note aloud to it and then saying, "I hate to make myself the odd person out, but I don‟t agree with the jury, and it‟s my job to make that kind of a decision." With that, the judge instructed the jurors to return to the jury room for further deliberations at 10:00 the next morning and not "under any circumstances" to reveal "how jurors are voting until after you have reached [a] unanimous verdict."
After excusing the jury for the day, the judge afforded the parties an opportunity to object to what he had said. The prosecutor declared that the government had no objection and, in fact, agreed with the judge‟s decision not to give an anti-deadlock instruction at this juncture. Defense counsel renewed his request for a mistrial or, "at the least," an anti-deadlock instruction. He argued that merely telling the jurors to continue deliberating in these circumstances was coercive because it was calculated to make them feel "they have to reach some kind of verdict" even if it would be contrary to their convictions "in order to get out of this situation."*fn10 Unpersuaded by the defense argument, the judge responded that, in his judgment, the jury had "yet to put in the time that would allow them to say . . . or me to conclude that they are hopelessly deadlock[ed]."
The following morning, the jury reconvened at 10:20, and at 11:53 it notified the court that it had reached a unanimous verdict. Before the verdict was taken, defense counsel renewed his motion for a mistrial. Counsel focused on the judge‟s statement to the jury the preceding afternoon disagreeing with the jury‟s expressed belief that it was at an impasse and would be unable to come to a unanimous verdict. The judge‟s statement, counsel argued, "was a very coercive response, however it was intended," because "it could easily be construed as saying you‟re not allowed to disagree, you have to come to some kind of a verdict . . . . and, therefore, you need to go back until you can agree." "[I]n that sense," counsel said, "the Court‟s words were more coercive than even a Winters or Gallagher instruction that says, you know, try to keep an open mind, listen to others but without sacrificing your own position."
The judge denied the renewed mistrial motion and brought the jury in to the courtroom to take its verdict. The foreperson announced that the jury had found appellant not guilty of first-degree murder while armed but guilty of second-degree murder while armed and of the two weapons counts. The judge polled the jurors individually. After each juror stated that he or she agreed with the announced verdicts, the judge declared them to be unanimous and asked counsel to come to the bench before he excused the jury.
At the bench, the judge proposed submitting an interrogatory to each of the jurors before they were released, inquiring whether "they felt that the Court pressured them in reaching a verdict." Defense counsel affirmatively requested such an interrogatory. The government opposed it, arguing that the judge had said nothing coercive, that questioning the jurors was unnecessary and "could open up a hornet‟s nest," and that "if any one of these jurors says yes, then at that point we‟re . . . left bereft of options other than mistrial."
The judge responded that he did not feel his instruction had been coercive and that he "would much rather deal with this matter here and now rather than have the Court of Appeals on a cold appellate record after a year and a half" trying to determine the issue. Accordingly, after conferring with counsel about the procedure to follow, the judge distributed index cards and pencils to the jurors and instructed them to write their individual yes-or-no answers to the question, "[d]o you feel that the judge coerced you into reaching a verdict?"
Ten of the jurors answered "no" to that question-but two jurors answered "yes." The judge then undertook to voir dire the latter two jurors individually to determine "whether they believe[d] they were forced to reach a verdict" or merely "forced to continue deliberating." Both jurors stated they believed the judge had demanded they reach a verdict.
Juror 893, the foreperson, said she understood the judge‟s words to mean he "felt that we could come up with a verdict" and that the jury "had to go back and deliberate again" because "we needed to come up with another verdict." Asked specifically by the judge "[w]hether you believe that whatever the Court said and however the Court said it is what led to this verdict or is it what led to further deliberations," the foreperson responded, "[w]hat led to this verdict, what led to the verdict for me, it‟s for me, for me, what led to the verdict."
Juror 533, the second juror who answered "yes," similarly felt "coerced" by the judge‟s instruction to return a unanimous verdict. "I just feel," the juror explained, "that . . . you demanded us to come up with an answer. . . . I was coerced to continue, . . . to come up with an answer. . . . [Y]ou wanted us to come up with [a] unanimous decision, right?" The judge asked the juror "whether it is your belief that, because I directed you to continue deliberating, that you fel[t] that you were forced to reach a verdict." "Yes," the juror answered.
After hearing the two jurors‟ responses, the judge excused the jury and granted the defense motion for a mistrial.
Two weeks later, the government moved for reconsideration of that ruling. It argued that the judge, by basing his decision on the jurors‟ answers to his interrogatory and voir dire inquiries, had violated the rule that a final jury verdict may not be impeached by statements of jurors as to matters inhering in the verdict. Appellant responded to the motion, arguing, inter alia, that the rule against such impeachment was inapplicable in these circumstances and that the judge had exercised his discretion properly to ascertain whether a mistrial was required. In any event, appellant argued, the record showed a substantial risk of juror coercion even without considering the jurors‟ answers, making a new trial necessary.
On March 30, 2009, the judge granted the government‟s motion, concluding that he lacked authority for his post-verdict inquiry of the jurors. "[A]fter I polled the jury and the jury affirmed its verdict," the judge stated, "it was my duty to enter the verdict."
The ultimate question we must answer in this appeal is whether the trial judge abused his discretion by responding to the jury‟s declaration of deadlock in a manner that was impermissibly coercive.*fn11 Before we can address that question, there is a preliminary issue we need to resolve first: whether we may consider the post-verdict statements by two of the jurors that they felt the judge had forced them to agree to a verdict. Although a trial judge is vested with some discretion in conducting a poll of the jury,*fn12 whether the post-verdict inquiry in this case was a permissible exercise of that discretion, and whether the jurors‟ responses are admissible to impeach their verdict, are essentially legal questions, as to which our review is de novo.*fn13
"It is well settled that a jury‟s final verdict may not be impeached by matters that inhere in the verdict."*fn14 The words "inhere in the verdict" have a somewhat archaic quality to them, and it may not be immediately clear to modern ears what the common law phraseology connotes. The basic principle we follow is set forth more clearly in Federal Rule of Evidence 606 (b), which states:
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury‟s deliberations; the effect of anything on that juror‟s or another juror‟s vote; or any juror‟s mental processes concerning the verdict or indictment. The court may not receive a juror‟s affidavit or evidence of a juror‟s statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury‟s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form.
The Rule thus draws "a dividing line between inquiry into the thought processes of the jurors on one hand, and inquiry into the existence of conditions or the occurrence of events calculated to exert an improper influence on the verdict, on the other."*fn15 The court may inquire, for example, into the existence of an external influence on the jury, such as adverse publicity or contacts with outside parties, but "not as to how far that influence operated on [the jurors‟] mind[s]."*fn16 The policy reasons for "insulating the jury‟s deliberative process" are "weighty": Among other things, "full and frank discussion in the jury room, jurors‟ willingness to return an unpopular verdict, and the community‟s trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of post-verdict scrutiny of juror conduct."*fn17
Appellant, who urges us to consider the jurors‟ responses to the trial judge‟s post-verdict inquiry in this case, argues that the questioning did not intrude into the jury‟s deliberative processes. We disagree. In asking whether jurors felt the judge coerced them into reaching a verdict, whether they believed his comments led to the verdict they reached, how they understood his directive, and similar questions, the judge clearly was probing the effect of his instruction on the jurors‟ votes and the jurors‟ mental processes in arriving at their verdict. A juror may not impeach a verdict by claiming that an instruction was coercive or misunderstood.*fn18
Appellant further argues that the judge‟s inquiry into coercion was a
proper exercise of his discretion under Criminal Rule 31 to "poll the
jurors individually" before accepting a verdict as final.*fn19
We are not persuaded by this argument either. It is true that
the purpose of polling the jury "is to determine with certainty the
approval of every juror of the verdict and to assure that no juror has
been coerced or induced to agree with a verdict with which he
dissents."*fn20 But this goal is accomplished without
intruding into the jurors‟ deliberations and thought processes simply
by asking each juror on the record in open court whether he or she
agrees ("yes" or "no") with the verdict announced by the
foreperson.*fn21 The poll "test[s]
the uncoerced unanimity of the verdict by requiring "each juror to
answer for himself, thus creating individual responsibility,
eliminating any uncertainty as to the verdict announced by the
The discretion that a judge has over the conduct of a jury poll is not limitless. If the poll reveals a lack of unanimity, the judge "may either order further deliberations or declare a mistrial on the counts reflecting disagreement."*fn23
The judge should not "enter into an argument with the juror or require an explanation of his change of position,"*fn24 and of course the judge "must refrain from attempting to extract unanimity by questioning from the bench."*fn25 If, on the other hand, each juror agrees with the verdict without equivocation, as occurred in this case, the verdict is then final and "immutable."*fn26
Characterizing additional inquiry into the jurors‟ motivations as a legitimate continuation of the poll to confirm that their unanimous verdict was indeed uncoerced is unwarranted; the policy reasons forbidding the court from delving into the jurors‟ minds to explore the validity of their verdict apply as much at this stage as at other times. As the Seventh Circuit said in Sturman, the jury poll "is not intended to develop into a searching inquiry into the factual bases underlying the verdict," nor is it meant to be used "as a reinforcement against potentially misleading instructions" or whatever other "aspect of the case [might have been] confusing to the jury."*fn27
That the trial judge in this case could have believed his instruction had led to a coerced verdict (though in point of fact he did not hold that belief) does not alter our conclusion. If anything, it reinforces it. As we discuss below, when a judge has determined from the surrounding circumstances that there is a substantial risk of a coerced verdict, inquiry into the jurors‟ thought processes is unnecessary. The verdict cannot stand, and the judge must declare a mistrial without further ado. Where a judge does not find a substantial risk of coercion, further inquiry of the jurors to determine if they nonetheless felt coerced is uncalled for by the circumstances and hence inappropriate.*fn28
Accordingly, we conclude that the post-verdict inquiry of the jurors in this case was improper and that we must ignore the jurors‟ statements in determining whether the judge‟s response to their third deadlock note was coercive.
With that threshold question resolved, we now turn our attention to the dispositive issue in this appeal.*fn29
A jury instruction is impermissibly coercive if it "would objectively
appear to force a juror to abandon his honest conviction as a pure
accommodation to the majority of jurors or the court."*fn30
If the instruction created a substantial risk of such
coercion, the resulting verdict cannot stand.*fn31
"The question is one of probabilities, not certainties; from our
review of the record, we must be able to say with assurance that the
jury arrived at its verdict freely and fairly."*fn32
To assess whether there was a substantial risk of juror coercion, we
inquire into "the inherent coercive potential" of the situation before
the court and "the ameliorative or exacerbating impact" of the trial
judge‟s actions with respect to that coercive potential.*fn33
The issue is not what the trial judge intended by his words,
but their meaning and impact "from the perspective of the
Addressing first the coercive potential in the situation that confronted the trial judge, this court has recognized the "coercive force" that is present whenever jurors disagree,*fn35 and the "heightened" danger of coercion that exists where the jury has "been deliberating without result for a considerable length of time and ha[s] thrice reported itself deadlocked."*fn36 Here, the jury had deliberated for more than eight hours over the course of two days (with an intervening weekend) and sent the judge three notes stating unequivocally, and with increasing emphasis, that it was at an impasse. Despite "several attempts to consider the evidence objectively," the jurors in each camp declared they had "absolutely no doubt" about where they stood on appellant‟s guilt or innocence. All twelve jurors believed they had exhausted the possibilities for reaching a unanimous verdict "based on the evidence." To be sure, the jurors reported themselves evenly divided, suggesting this was not a case in which an isolated minority might have been intimidated by the trial court‟s actions into surrendering to the will of the majority.*fn37 Nonetheless, we agree with appellant that the potential for coercion in these circumstances-the prospect that any further pressure on this jury to reach a unanimous verdict would induce jurors to abandon their honest convictions in order to do so-was elevated. Having decided to ask the jury to continue deliberating (a decision with which we do not take issue), it was incumbent on the judge to do so "with sensitivity and skill to alleviate coercion."*fn38
Regrettably, in our view the judge‟s statement to the jury in response
to its third deadlock note exacerbated the coercive pressures on the
jurors. It usually is not coercive for a judge to respond initially to
a deadlock note simply by asking the jury in neutral, careful terms to
continue deliberating (i.e., before taking the next step of
administering the jolt of an anti-deadlock instruction). Indeed, a
pattern jury instruction is available for this purpose.*fn39
To give such a directive was, we have no doubt, all the
conscientious and experienced trial judge in this case meant to do.
But the judge did not draw on the pattern instruction, and what he
actually said to the jury was not so neutrally and carefully phrased.
By saying he disagreed with the jurors‟ unanimous belief they could
not reach a verdict, adding that it was his job to make that kind of
decision, and then requiring the jury to continue deliberating without
further explanation, we think the judge pointedly (if unintentionally)
conveyed the message that he personally wanted and expected a verdict
and that the jurors would have to continue deliberating indefinitely
until they had one. Arguably, at least, this message was reinforced by
the otherwise proper admonition that the jurors not "under any
circumstances" reveal how they were voting "until" they reached a
Even if there was some ambiguity in the judge‟s comments, they certainly were amenable to the interpretation we posit.
The instruction thus partook of the nature of a peremptory and deeply flawed anti-deadlock instruction. While a proper anti-deadlock instruction may communicate the desirability of reaching a verdict, it may not suggest (as did the instruction here) the virtual necessity of doing so.*fn40 It is well settled that a message from the judge "appear[ing] to give a jury no choice but to return a verdict is impermissibly coercive."*fn41 And as defense counsel argued at trial, the anti-deadlock instructions this court has approved include mandatory language making it clear that jurors should not surrender their honest convictions to return a verdict.*fn42 An explicit caveat of that sort, which helps to alleviate the potential coerciveness of an anti-deadlock instruction,*fn43 was absent from the judge‟s responses to the deadlock notes in this case.*fn44
After the jurors heard the judge‟s reaction to their third note, they did not remain deadlocked for long. It is striking that in just an hour and a half, twelve evenly divided jurors who had thrice declared themselves deadlocked, and who said they had "absolutely no doubt" about their opposing views, managed to set aside their "fundamental disagreement" respecting appellant‟s guilt or innocence and return a unanimous verdict of guilty-a verdict, moreover, that may well have been a compromise.*fn45 These circumstances further tend to substantiate appellant‟s contention that the verdict was coerced.*fn46
On the record before us (disregarding entirely, however, the post-verdict statements of the jurors), we are unable to "say with assurance that the jury arrived at its verdict freely and fairly."*fn47 "[C]oercion was probable, if not certain. Thus prejudice is presumed, and reversal is mandatory."*fn48
For the foregoing reasons, we vacate appellant‟s convictions and remand this case for a new trial.*fn49