MARCELLUS MCCRAY, LAMONTE HENSON, ANTONIO FORTSON, and TIMOTHY PARKER, APPELLANTS,
UNITED STATES, APPELLEE
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).
Domenic Scavuzzo for appellant McCray.
T. Heslep for appellant Henson.
R. Cowden for appellant Fortson.
H. Meyers for appellant Parker.
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.
GLICKMAN and FISHER, Associate Judges, and REID, Senior
SMITH REID, J.
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. Appellants Marcellus McCray, Lamonte
Henson, Antonio Fortson and Timothy Parker were tried
together by a jury presided over by the Honorable Henry F.
Greene. At the conclusion of the trial, which
lasted about two months, they were convicted of some of the
charges. 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.
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
government presented evidence of shootings in April and
May 2010, and other months, in part of the Benning Terrace
housing complex. 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.
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."
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."
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.
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.
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]
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.
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.
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
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
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. 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?"
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.
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. 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.
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.
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. 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.
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.
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
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. 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
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.
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.
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.
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." 
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."
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."
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.
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
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 ...