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McCray v. United States

Court of Appeals of Columbia District

March 10, 2016


         Argued June 9, 2015

          Appeals from the Superior Court of the District of Columbia. (CF1-4749-11, CF1-4744-11, CF1-4729-11, and CF2-12342-10). (Hon. Henry F. Greene, Trial Judge).

         Stephen Domenic Scavuzzo for appellant McCray.

         Thomas T. Heslep for appellant Henson.

         William R. Cowden for appellant Fortson.

         Peter H. Meyers for appellant Parker.

         David P. Saybolt, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, Jeff Pearlman, and Laura Bach, Assistant United States Attorneys, were on the brief, for appellee.

         Before GLICKMAN and FISHER, Associate Judges, and REID, Senior Judge.


         INEZ SMITH REID, J.

         These appeals arise from the indictment of nine men on multiple felony charges relating to shootings, assaults, and murders that occurred in the Benning Terrace housing complex in the Southeast quadrant of the District of Columbia from 2009 to 2011.[1] Appellants Marcellus McCray, Lamonte Henson, Antonio Fortson and Timothy Parker were tried together by a jury presided over by the Honorable Henry F. Greene.[2] At the conclusion of the trial, which lasted about two months, they were convicted of some of the charges.[3] They present numerous arguments on appeal: (1) Mr. Fortson argues that the trial court abused its discretion by permitting a juror who violated the court's instructions to continue serving, thus denying Mr. Fortson his Sixth Amendment right to an impartial jury; (2) Messrs. McCray, Fortson, and Parker claim error pertaining to the trial court's urban gun battle and aiding and abetting instructions; (3) Messrs. McCray, Henson, and Fortson contend that the evidence was insufficient to convict them of specified charges; (4) Mr. McCray and Mr. Parker contend that the trial court abused its discretion by curtailing their efforts to obtain mental health information in order to impeach a key government witness and former codefendant; and (5) appellants make several other arguments, some of which we treat summarily.

         For the reasons stated below, we (1) discern no abuse of discretion with respect to Judge Greene's approach to and resolution of the alleged juror misconduct issue; (2) conclude that (a) the trial court's urban gun battle and aiding and abetting instructions did not result in a constructive amendment of the indictment, and (b) there was no prejudice to the defendants resulting from these instructions, and hence, any error would be harmless; (3) hold that the evidence was sufficient to convict Mr. McCray of counts 8 and 9; (4) hold that the evidence was sufficient to convict Mr. Fortson, Mr. McCray, and Mr. Parker, as co-principals, of the lesser-included offense of voluntary manslaughter (count 10), as well as the related weapons charges; (5) reverse Mr. Henson's CPWL conviction (count 16) on insufficiency of evidence grounds; (6) conclude that the government's evidence was sufficient to convict Mr. Fortson of ADW (counts 5 and 6); (7) hold that the government proved by a preponderance of the evidence that the statements in Mr. McCray's videotaped confession were voluntary; (8) conclude that the trial court did not abuse its discretion in denying Mr. McCray's severance motion; (9) reject Mr. Parker's contention that the trial court abused its discretion in permitting Ms. Rajah to testify on redirect that she relocated, in part, because of her fear of Mr. Parker, and we also reject Mr. Parker's merger arguments; (10) remand Mr. Parker's and Mr. McCray's cases to the trial court solely to provide them with an opportunity to show, at a hearing and through expert opinion, whether at the time of his trial testimony Mr. Faison's mental disabilities seriously impacted his credibility; and (11) conclude that appellants' other contentions are not persuasive.


         The government presented evidence of shootings[4] in April and May 2010, and other months, in part of the Benning Terrace housing complex.[5] The shootings took place in two areas: (1) an area known as " the circle" where several low-rise apartment buildings are located to the north of and on the west and east sides of 46th Place, and (2) an area known as " the Avenue" because it is located near Alabama Avenue where other housing units are located.

         The shootings arose from a " beef" or feud between young men who identified with " the circle" and others who were linked to " the Avenue." The feud grew out of drug transactions in the circle area of the housing complex. Jovan Clay, who at one time lived in the 620 building on 46th Place, testified that the feud occurred because young men from the Avenue were " trying to come in the circle and rob people in the circle." [6] Joshua Johnson, who lived on F Street, near Alabama Avenue, but who hung around the circle, stated that " there was a dispute between individuals who hung over on the Avenue and individuals who hung in the circle." The feud between the young men from the circle and those from the Avenue involved the use of guns. As Mr. Clay put it, the circle and Avenue men were " trying to kill each other." According to Mr. Johnson, Mr. Fortson once said " bi**h a*s nig**s from the Avenue, they always . . . think they're going to come out here and do what they want and we[']re not going to do nothing to them." Mr. Johnson also heard Mr. McCray say, " he kill[ed] when he was over there [the Avenue], some bi**h a*s nig**s."

         The first shooting that was the subject of the case against appellants concerned Melvin White who was shot and killed on April 10, 2010. After the government presented compelling evidence that Curtis Faison shot and fatally wounded Mr. White, Mr. Faison entered a guilty plea to various charges, including the murder of Mr. White.

         The second and third shootings pertaining to the case against appellants took place on May 30, 2010. Linwood Hopkins, who lived on the third floor in the 610 building on 46th Place with his wife and their children, testified that on May 30 he and his family returned from a cookout around 7 p.m. That night he heard shots coming from the back of his building towards Alabama Avenue. He looked out of a window and saw someone running towards some dumpsters. He went to his balcony at the front of his apartment to alert people who were having a cookout to go inside. He heard more shots and saw a man run from the side of his building while shooting; the man ran behind building 600. Mr. Hopkins also witnessed a man dropping in front of his building, and he heard " a lot of shooting" ; it sounded as though two or three guns were being fired.

         Although he could not remember the exact date on which he saw and heard shootings at the Benning Terrace complex, Carl Brown, a maintenance worker for the District of Columbia Housing Authority, testified that it was a " warm day" in 2010. While he was working on a house at 46th Place and G Street, he heard shots and saw Lamont Thomas (who entered a guilty plea during trial), Mr. Fortson, and about four other men. Mr. Brown got under a truck. Mr. Thomas started shooting; he had " something like" " a 357." Young men walking up G Street were shooting back. Mr. Fortson had a small handgun in his hand but Mr. Brown did not see Mr. Fortson fire the gun. Mr. Fortson went behind a building on the right side of 46th Place, and Mr. Brown heard " a whole lot of shooting . . . back and forth." Mr. Brown testified before the grand jury that following the shooting, Mr. Fortson said to him, " [my] bad." At trial, Mr. Brown said Mr. Fortson declared, " [my] bag."

         One of the government's main witnesses regarding the events of May 30, 2010, was Angelo Wages. He grew up in Benning Terrace and lived in the 4600 block of G Street with his mother and sisters. At the time of the May shootings he had lived alone in a first floor apartment in building 620 on 46th Place for about three years. He was a reluctant trial witness and the prosecutor often used his grand jury transcripts of September 10, 2010, and September 24, 2010, to refresh his recollection or to impeach him about details relating to the events of May 30 and the actions of the appellants.

         Mr. Wages recognized all of the appellants at trial. He admitted having a conversation with Mr. Fortson about keeping guns at his (Mr. Wages's) apartment. He had seen Mr. Parker around Benning Terrace with Mr. Buckner, a young man who lived in the circle part of Benning Terrace and who was killed late on the night of May 30. That night, Mr. Wages observed several young men with guns, including Mr. Henson, Mr. Thomas, Mr. Mungo, and Mr. Magruder. Earlier on May 30, before Mr. Buckner was shot, Mr. Wages heard gunshots and went outside. Mr. Thomas, Mr. Magruder and someone else were engaged in conversation. Mr. Thomas said, " They're shooting at the Avenue." The day after the May 30th shootings, Mr. Wages spoke with Mr. McCray who said that before the later shootings on May 30, he had been " shooting at the Avenue boys." The shooting was coming from the " back cut" near building 620. Mr. McCray said he was shooting with Mr. Mungo and Mr. Mungo indicated that he was shooting at the Avenue.

         Following the first shootings on May 30, Mr. Wages later sat with Mr. Buckner and another person at the mailboxes, located near buildings 601, 603 and 605. Mr. Wages heard shots and got up to go into building 601. Mr. Buckner was behind him, carrying a chair and a wine bottle. Mr. Buckner never made it inside building 601. Mr. Wages saw Mr. Buckner get shot and fall to the ground. Mr. Buckner got up and staggered; he was " leaning forward, like he couldn't quite stand up straight." Mr. Wages watched Mr. Buckner from a window on the second floor of building 601 where he could see the mailboxes and half of the circle. Mr. Henson and Mr. Fortson were shooting in the courtyard between buildings 601, 603 and 605. They also had shot in a grassy area between buildings 600 and 601, near a playground. Mr. Henson and Mr. Fortson were " shooting across the circle to the cut between [buildings] 604 and 610." They fired " over eight" shots in the grassy area between buildings 600 and 601, and " four shots" into the grassy area between buildings 604 and 610. At trial, Mr. Wages denied being able to see Mr. Henson's and Mr. Fortson's faces, but he was impeached with his grand jury testimony stating that when he looked out of the window he saw their faces. On the night of May 30, Mr. Wages had a conversation with Mr. Henson and Mr. Fortson about what had happened. Mr. Henson said " he was putting in work," and Mr. Fortson " said he was putting in work, meaning shooting back."

         Mr. Clay was another government witness. He described his relationship with Mr. Henson as that of a brother. The two men lived together in 2008 and 2009. Between July 4, 2009, and the time of his [Mr. Clay's] arrest in 2010, including April and May 2010, Mr. Clay " always" saw Mr. Henson with guns, " different type[s] of guns." These included Glock .40 caliber and .45 caliber " handguns" with barrels between 9 and 10 inches in size, as well as guns with bigger barrels of 9 to 11 inches. He never saw Mr. Henson with " a big rifle or shotgun."

         Mr. Clay witnessed shootings on May 30, 2010. Early in the morning and before the murder of Mr. Buckner, Mr. Clay and Mr. Fortson were outside. A man named Junior walked through a cut below building 620. Mr. Fortson " was coming through the cut by the mailbox" near building 605 and Mr. Fortson " started shooting at [Junior] [a]nd he ran back on the [A]venue." Later, Mr. Clay walked around the circle and stood, with another man, by the mailboxes near the courtyard of building 605. He saw Mr. Buckner sitting in a little chair by the mailboxes; Mr. Fortson was by the mailboxes. Mr. Clay heard shots " coming from off the Avenue." Before hearing additional shots he saw Mr. McCray, Mr. Hebron and Mr. Mungo walk by the mailboxes towards the parking lot where dumpsters were located. A resident, Shunedia (" Nita" ) Rajah, stepped out on her balcony. She told everyone to run because people were about to start shooting. Mr. Clay saw three men; shots were fired towards the back hill. He ran to the second floor of building 605 and looked out of the window. A person from the Avenue came out of a cut shooting towards the parking lot by building 605. Mr. Hebron shot back. Mr. Mungo and Mr. McCray stood in the middle of the parking lot near dumpsters, taking turns shooting back with a Glock that had a 30-shot clip in it.[7] Mr. Mungo proceeded down the sidewalk towards G Street while Mr. McCray continued to shoot before following Mr. Mungo. Mr. Fortson went into one of the buildings; he had his Glock .40, gave it to Kevin Johnson and asked him to " put this up." After the shooting stopped, Mr. Clay exited building 605 and noticed Mr. Buckner on the ground. Later that night, Mr. Clay had conversations with Mr. Hebron and Mr. McCray and they both commented on the earlier shootings saying, " Man they always come down here. Why we can't go up there first?"

         Toni Hopkins, the wife of Linwood Hopkins, and Ms. Rajah testified on behalf of the government. Ms. Hopkins was in her bedroom towards the front of her apartment on May 30. Ms. Rajah, who lived in the apartment below the Hopkins' apartment, was with Ms. Hopkins when they heard gunshots which appeared to come from the back, near a field. Ms. Rajah went out onto the balcony and later Ms. Hopkins took her a phone so she could call 911. Ms. Rajah asked Ms. Hopkins, " Did you hear my door slam," and Ms. Hopkins asked, " You didn't lock your door?" The next day Ms. Hopkins was in Ms. Rajah's apartment when a man known as " Son" (Mr. Magruder) came in and asked Ms. Rajah if anyone gave her anything. Mr. Magruder told Ms. Hopkins to get up from the couch; he retrieved a gun from underneath a cushion. Ms. Rajah " flicked off" and Son " told her to shush" and left the apartment.

         Ms. Rajah used to live on the second floor of building 610. When she came home on the evening of May 30, 2010, a lot of people were outside having a cookout. She went up to visit the Hopkins. During her visit, Mr. Hopkins called her to the balcony. She saw Mr. Parker, Mr. Henson, Mr. Clay, kids and neighbors. She observed Mr. Parker move from the mailboxes near building 605, cross the street and walk towards building 610. He had a rag over the top of his hand, and was making the kids and neighbors go inside the building. Ms. Rajah saw and heard Mr. Parker shoot a gun once at a man coming up the hill and going around the building. Later, he aimed the gun towards a fence. Mr. Parker was shooting -- " pow, pow" -- and then gunshots rang out from the hill between buildings 604 and 610, by the playground between buildings 600 and 601, and the area around building 620. She claimed she saw William Spriggs (" Wheetie" ) fire the fatal shot that killed Mr. Buckner. The day after the shootings, Ms. Hopkins was in Ms. Rajah's apartment when Mr. Magruder came and asked whether Mr. Parker had left anything in her apartment. She replied, no, but also indicated that her door was unlocked and she had been upstairs. Mr. Magruder removed a gun from under a couch pillow and a bullet. Ms. Rajah had not seen the gun before; it was a semi-automatic weapon.[8] In June 2010, Ms. Rajah looked out of her kitchen window and saw Mr. Henson shooting a gun towards houses off of G Street, but she could not see the kind of gun that he possessed. On cross-examination, Ms. Rajah acknowledged that she received a voucher for housing paid for by the government after she relocated to a different address. On redirect examination, she testified that she left the Benning Terrace complex because she " was scared" and afraid of Mr. Spriggs, Mr. Parker, and Mr. Magruder.

         During his testimony after he entered guilty pleas to certain charges, Mr. Faison implicated both Mr. Parker and Mr. McCray. On the night that Mr. Buckner was killed, Mr. Parker told Mr. Faison that he was in the area of the mailboxes chilling, and that he grabbed a gun hidden underneath the steps at the 605 building. Mr. Parker said he " crossed the circle and had his hand and the gun covered with a scarf of some sort." Mr. Parker " started pushing people into the building" " when he saw William Spriggs or Wheetie come out the back hill." Mr. Parker " shot once but the gun jammed." He went inside the building, fixed the jam " [a]nd then he came back out shooting." During a conversation with Mr. Parker in March 2011, for which Mr. Fortson, Mr. Henson, Mr. Thomas and Mr. McCray were present, Mr. Parker and others sent Mr. Hebron over to the Avenue and " they did a bulls**t job." Mr. Fortson said he was involved in sending Mr. Hebron " and them" over to the Avenue to shoot prior to the shootout that ended with Mr. Buckner's fatal shooting, and that he was over by the mailboxes and shot at someone by the playground and back towards the hill. Mr. McCray asserted that prior to the shootout, he went over to the Avenue and shot with Mr. Hebron and Mr. Mungo.[9]

         In addition to testimony from fact witnesses about the events in Benning Terrace in May and June 2010, the government presented ballistics evidence, and the testimony of Dr. Marie-Lydie Pierre-Louis, the District's Chief Medical Examiner at the time of Mr. Buckner's murder. Metropolitan Police Department (" MPD" ) officers and technicians collected shell casings from the scene and an independent firearms technician linked the casings to weapons fired by appellants during the shootings on May 30, 2010.[10] Dr. Pierre-Louis performed the autopsy of Mr. Buckner and stated that the cause of death was a gunshot to the head and neck. She " recovered a copper-jacketed bullet" and two small fragments from Mr. Buckner's body. The independent firearm examiner testified that the .38 class copper-jacketed bullet removed from Mr. Buckner was " not consistent" with any of the four firearms (two 9-millimeter Glock 19 pistols, a .40 CZ semiautomatic pistol, and a Talon 9-millimeter pistol) introduced by the government. A .38 class would include a 9-millimeter, a .38 special and a .357 magnum firearm.


         Alleged Juror Misconduct

         Mr. Fortson contends that the trial court abused its discretion by permitting a juror who violated the court's instructions to continue serving without proper investigation as to " whether that juror really had pre-decided the case at the outset of the trial, and possibly spoken about her decision with even more jurors," thus denying his Sixth Amendment right to an impartial jury.

         The Factual Context

         We first set forth the factual context for this issue. Before the jurors retired to begin deliberations on the afternoon of Tuesday, July 3, 2012, Judge Greene cautioned them that, " It is unwise for any juror on entering the jury room to voice an emphatic expression of his or her opinion on these cases or to announce a determination to stand only for a certain verdict as to a particular count or a particular defendant." He further instructed the jurors, " To each of you I would say that you must decide these cases for yourself, but you should do so only after discussing them with your fellow jurors and you should not hesitate to change your opinion if you become convinced that it's in error."

         Judge Greene received four notes on Thursday, July 12, 2012, all from the foreperson -- the first at 11:57 a.m., the second at 1:29 p.m. and the last two at 3:15 p.m. The first note concerned the conspiracy counts, which are not at issue in this appeal; the second note said, " We would like to see gun #6," and that note was a follow-up to the jury's July 5 request to see all of the guns.[11] The third note stated, " I would like to have a private conversation with Judge Greene about an important matter concerning a specific juror who has had their mind made up on the first week." The fourth note read, " If we are deadlocked on one count, would that negate all the rest of the charges and how long does it have to take to deliberate if we still can't come to a conclusion."

         Counsel and Judge Greene initially disagreed about when and how to respond to the jury about the third and fourth notes. The judge proposed that given the 4:00 p.m. hour, he simply tell the jury that he was not prepared to respond at that time and excuse the jury for the weekend. The prosecutor disagreed, noting that the jury had been deliberating only for " maybe four and a half hours a day," and that " [t]here's clearly a problem." She opposed a three-day delay without obtaining some " clarification about the note with a specific juror who has their mind made up." If the juror both had his or her mind made up and was refusing to deliberate, the prosecutor argued " that that would require us to take additional steps" and an alternate might have to be designated to deliberate. One defense counsel agreed with Judge Greene's proposal.

         Judge Greene declined to follow the government's suggestion, saying " the worst thing one can do here is act precipitously, and it may be the worst thing one can do is to get clarification," " or to isolate a juror early on in this process." He observed that cases in which the verdict was sustained " tend to be [those] where judges acted cautiously and did everything they could to avoid isolating jurors and avoid anything that would look like coercing them." He also referenced the significance of the fourth note concerning a deadlock. After further argument from the prosecutor and following views of other defense counsel in favor of Judge Greene's proposal, the judge decided to follow his proposal. He explained to the jury that he needed to discuss the notes with counsel. The judge also informed the jurors that he appreciated their service, and he conveyed his understanding that the process was not " easy" and that is why jurors are " encouraged . . . to express [their] own views . . . [and] to try to deal with each other in a civil and courteous and respectful fashion." He complimented the jurors for doing that, and dismissed them until Monday morning.

         After dismissing the jury, Judge Greene informed counsel about his preliminary thoughts on the notes, as well as case law that he considered helpful. On Monday morning, he pondered whether the third note meant that the juror had his or her mind made up since the first week of trial or the first week of deliberations. Following discussion with counsel, he brought the foreperson in for the purpose of answering that question. Judge Greene first informed the foreperson that he could never have a private conversation with any juror, and then posed the question, to which the foreperson responded, " first week of trial." The judge sent the foreperson back to the deliberation room with instructions not to discuss the matter with the other jurors.

         Judge Greene informed counsel that he wanted to find out what is meant by " had her mind made up." However, he regarded the foreperson as " somebody [who] could talk expansively," and thus, the judge wanted to pose " very specific questions" to her. Counsel for Mr. Fortson advocated identifying the juror whose mind had been made up and then conducting a voir dire of that juror. He also thought that in order to determine " taint," the court should conduct a voir dire of the entire jury panel to determine whether the other jurors " agree[d] with the foreperson's assessment that this juror is not deliberating." Judge Greene and Counsel for Mr. Fortson continued to exchange views about how to proceed. The judge agreed with Counsel that they needed to determine whether the foreperson's statement was " based on a hunch," although he suspected that it was not. But Judge Greene again expressed concern that the foreperson was " a fairly voluble foreperson," and hence, he " want[ed] to be very careful about what additional things he asked her." [12]

         Following a caucus of defense counsel, there were further discussions between counsel and the court. Counsel for Mr. Fortson particularly wanted to know whether other jurors were present when the juror in question spoke with the foreperson about his or her mind being made up. Judge Greene made it clear that he would not ask the foreperson to identify the juror. He summarized the types of questions he might ask the foreperson, and the prosecutor thought they were " way too much." After further reflection, Judge Greene remarked that " everybody agrees that we ought to find out . . . whether this was a one-time remark or whether it has been repeated, and whether [the foreperson] has only discussed it with the juror or with all of the jurors." Counsel for Mr. Fortson concurred, and added, " In terms of identifying the particular juror, obviously as the court said, that would be a final step in the process. And I am not, if the [c]ourt believes that taking this process incrementally we need to go there, and that is fine."

         Judge Greene summoned the foreperson, instructed her to respond only to the questions posed, and after a preliminary question asked when the foreperson learned that " the juror had their mind made up." From the options provided by the judge, the foreperson said, " During the trial." With additional questioning Judge Greene learned that the foreperson spoke with the juror " [a]round the first week of the trial," and the juror spoke only to the foreperson and not in the presence of all the jurors. The juror spoke with the foreperson " [o]nly one time."

         While the foreperson waited in the back of the courtroom, Judge Greene conversed with counsel about whether additional inquiry should be made. Those participating in the conversation as to whether, and if so what, additional questions should be posed to the foreperson were counsel for Mr. Henson and Parker, and the prosecutor. After narrowing the follow-up questions to one, Judge Greene decided to accept the prosecutor's suggestion that instead of asking the foreperson whether she spoke with any other jurors, he instruct the foreperson not to discuss the matter with other jurors. Counsel for Mr. Henson, the only defense counsel to speak on this approach stated, " That will probably be good, because it will nip it in the bud." Judge Greene brought the foreperson forward and gave instructions not to discuss the matter with other jurors, and told the foreperson that the court would speak with the jury panel. Neither counsel for Mr. Fortson, nor any other defense counsel, raised an objection.

         When the jurors assembled, Judge Greene gave a lengthy charge, stating in part:

One question raised the issue whether if the jury finds itself unable to reach a decision on one count does that mean the jury cannot continue to deliberate and reach verdicts on other counts. The short answer to that question is no.
In other words, if the jury finds itself unable to reach a verdict as to one defendant on one count, the jury still may proceed to consider any remaining defendants charged under that count, if they are charged, and reach an individual verdict of guilty or not guilty as to each of those defendants.
Likewise, similarly, if the jury finds itself unable to reach a verdict as to all of the defendants charged under a particular count the jury may proceed to consider all of the other counts in which defendants are charged, and reach individual verdicts of guilty or not guilty as to each defendant on each remaining count with which that defendant is charged . . . .
[A] second question asked was how long the jury must deliberate if it cannot reach verdicts as to every defendant on every count, with which that defendant is charged. In response to that question, let me say as I think I may have told you earlier, there is no prescribed time for deliberations in any case. And, I am inclined to give the jury as much time as it needs to reach verdicts.
It is not my intention to force or coerce the jury to reach a verdict, but on this topic I think I should note that this has been a very long trial, close to two months. And longer than almost any other trials we have in Superior Court in the course of an average year.
I don't know exact numbers here, but I believe the jury has heard over 60 witnesses, it has had in excess of 500 exhibits to consider during its deliberations. And, as I reviewed the verdict form, before preparing these remarks, I counted at least 27 verdicts that you must consider when you add up all the verdicts requested on the verdict forms for all of the four defendants . . . . Thus, I would expect it to take a considerable amount of time to reach a resolution of the matters before you.
My best judgment is that up to this point I think you have been deliberating about five and a half days when you add . . . all the time together, which is certainly not an unusual length of time in cases of this length and complexity.
So, in sum, in response to the second question, I am going to ask that you deliberate further in these cases, and give them your best efforts, as I am sure you have been doing.
Now, before I let you return to the jury room though, I have to address the third question I received indicating concern about what happens if jurors make up their minds about issues in the case, either before all of the evidence, and testimony is in, or before jurors have heard the views of all their colleagues on the jury, and thus may not have been fully involved in the deliberation process up until now.
As I told you, in my preliminary instruction two months ago, . . . it is important during trial that each of you keep an open mind during the entire trial, and that each of you not decide any issue in this case until the entire case is submitted to you with my final instructions.
As I told you in my final instructions it is unwise for any juror at the outset of deliberations to voice an emphatic expression of his or her opinion on these cases, or to announce a decision or a determination to stand only for a certain verdict as to a particular count or a particular defendant until you have listened to and discussed the views of all of your colleagues on the jury.
As you left last Thursday, I talked to you a little bit about how difficult your job is. I know that jury deliberations involve serious issues, and serious views expressed by all members of the jury. The views each of you express are to be taken seriously and considered seriously. That is why I encourage each of you to express your views, and listen to each other's views and to always speak and listen in a courteous, thoughtful manner with respect for civility towards one another.
Bear in mind, that even during deliberations there is no verdict on an issue you are deliberating about until all 12 jurors agree, and each of you are free to change your mind at any time from a position you previously had to a new position if you wish to and you think, you are convinced the new position is the correct one.
With these thoughts in mind, ladies and gentlemen, I am going to ask you to resume your deliberations . . . .
Now, if any of you feel for any reason that you have not been able to, or are not able to follow the instructions I have given you, please let me know in a written note, but do not discuss any personal concerns you may have in this regard with any of the other jurors. You can send me a note in writing if you ...

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