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:
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 ...