Charles A. GRANT, Appellant,
UNITED STATES, Appellee.
Argued May 14, 2013.
Anna B. Scanlon, for appellant.
Nebiyu Feleke, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Elizabeth Trosman, Assistant United States Attorney, and Chrisellen R. Kolb, Assistant United States Attorney, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY and EASTERLY, Associate Judges, and KING, Senior Judge.
KING, Senior Judge.
On July 12, 2011, appellant Charles A. Grant was convicted by a jury of bias-related threats, and acquitted of bias-related assault (with a bottle), and two counts of possession of a prohibited weapon (a bottle and a knife). On appeal, he contends that his conviction should be reversed because there was a substantial risk that the jury verdict was coerced by the trial court's response to a jury note regarding a " difficult" environment in the jury room, and the trial court violated Superior Court Criminal Procedure Rule 36-I by reading a juror's note to the jury without the court reporter's presence. We affirm.
On March 18, 2011, at approximately 3:50 a.m., Ryan Barrett was walking home on Georgia Avenue, Northwest, with his two friends, Christopher Fenwick-Williams and Rufus Lofty. The streets were empty, except for Grant, who walked ahead of the group. Grant stopped walking, and as Barrett and his friends walked by, he said " Shut the fuck up, you faggots." Barrett noticed that Grant " smelled of alcohol, ... was staggering, and his voice was breaking." Barrett and Grant engaged in a verbal altercation, and as Barrett and his friends continued to walk down the street, Grant yelled " Fuck you, faggot, I'll kill a faggot out here. Y'all faggots don't mean nothing to me."
The three men continued to walk away, at which point Barrett was hit in the right elbow with a glass bottle. Barrett did not see Grant throw the bottle, but when he turned around there was no one else in the area. Barrett told Grant that he " would fuck [him] up" and Grant continued to " briskly" follow Barrett and his friends saying, " What? What? You'll do what?", until they entered a nearby McDonald's to call the police. Barrett described Grant to the 911 operator as " a light-skinned black male, standing about 5' 9", with a thick build and full facial hair, wearing a black leather jacket and some dark jeans."
Barrett said that Fenwick-Williams told him that Grant had a knife, which Barrett himself did not see. Fenwick-Williams testified that he saw Grant holding something black in his hand, and that he ran toward them saying " he was going to stab [them]." Metropolitan Police Department (MPD) Detective Kristal Boyd, who responded to the 911 call, testified that when interviewed after the incident, Barrett and his friends mentioned that Grant " appeared to have ... reached in his pocket as if he had something or was trying to pull something out," but they never mentioned a weapon, or a knife.
MPD officers responded to the area, and about five minutes after the call spotted Grant, who matched the lookout description. MPD Officer Von Galery testified that when they made a U-turn to stop and question Grant, he " made a gesture, throwing a hard object to the ground that made a clinging sound of steel, hitting a steel trashcan." Once out of the police vehicle, Officer Galery " noticed that there was a knife that was on the ground." The officers conducted a show-up procedure and both Barrett and Fenwick-Williams separately identified Grant, stating that he was the individual that threw a bottle at Barrett.
The jury began deliberations at approximately noon on Friday, July 8, 2011. At 3:45 p.m. the jury sent the court a note that read: " We, the jury, can't come to agreement of the identity of the assailant beyond a reasonable doubt. We need further instructions." Grant requested that the court re-read the identification instruction to the jury and give an anti-deadlock instruction, and the government suggested that it was premature for an anti-deadlock instruction. The court responded as follows:
Members of the jury, thank you for your note regarding the status of the jury's discussions. I'm directing that you deliberate further in the case and that you keep an open mind about the case, with a view to listening to others and expressing your own point of view to see whether you can reach a unanimous decision. Please continue with your deliberations.
After being dismissed for the weekend, the jury resumed deliberations on Monday, July 11, and sent a note at 12:30 p.m. reading: " We as a jury are hung." Both parties requested that the court read the Winters anti-deadlock instruction, Winters v. United States, 317 A.2d 530, 534 (D.C.1974) (en banc), but the court proposed its own anti-deadlock instruction. Grant's counsel objected to the first sentence of the proposed instruction, but the judge included that sentence in its instruction. The court then read the following (the " anti-deadlock" instruction) to the jury, after which the jurors were dismissed to continue deliberations:
In many cases, absolute certainty cannot be attained or expected. Although the verdict must be the verdict of each juror and not a mere acquiescence in the conclusion of the other jurors, you should examine the questions submitted to you with candor and with proper regard and deference to the opinions of each other.
You should consider that it is desirable that the case be decided, that you are selected in the same manner and from the same source from which any future jury must be selected, and there is no reason to suppose that the case will ever be submitted to twelve persons more intelligent, more impartial or more competent to decide it, or that more or clearer evidence will be produced on one side or the other.
And with this view, it is your duty to decide the case, if you can conscientiously do so. You should listen to each other's arguments with a disposition to be convinced. Thus, where there is disagreement, jurors for acquittal should consider whether their doubt is a reasonable one, which makes no impression upon the minds of others equally honest, equally intelligent with themselves, and who have heard the same evidence with the same attention and with an equal desire to arrive at a fair verdict and under the sanction of the same oath.
And on the other hand, jurors for conviction ought seriously ...