Watts v. United States

328 A.2d 770, 1974 D.C. App. LEXIS 317

• Court: District of Columbia Court of Appeals
• Decided: November 26, 1974
• Docket: 7777
• Status: Published

Opinions

FICKLING, Associate Judge:

This is an appeal from a jury trial conviction of appellant on one count of first degree burglary ¹ and two counts of assault ‘with a dangerous weapon.² The principal issue is whether the trial judge’s instruction, which required the jury to find appellant guilty if it concluded that he had committed acts which constituted the offense charged, deprived appellant of his constitutional right of a jury trial. We agree and reverse. In view of our disposition, we need not address the other issues which are raised.

During the early morning hours of December 24, 1972, Miss Bertha Inabinet and Miss Cynthia Celey were asleep in the living room of the apartment which they shared. At approximately 6 a. m., Miss Celey was awakened by a loud noise and observed a figure, whom she later identified as the appellant, standing over Miss Inabinet, holding the remains of a china cat with which he had struck her.³ Miss Celey began to scream and the appellant, discarding the china cat and seizing an ashtray, struck her. Following that, appellant departed. Miss Celey and appellant had known each other prior to this incident and had, at one time, been quite intimate. Their relationship had ended four or five months prior to December 1972.

At the trial two witnesses testified for the defense and stated that Miss Celey, who had described the above incident in her testimony, did not have a good reputation in the community for truth and veracity. The appellant also testified, denied any involvement in the incident, and interposed an alibi defense. Appellant’s cousin and a friend both corroborated that defense.

Appellant asserts that the trial judge committed error in instructing the jury that if they found beyond a reasonable doubt that appellant had committed acts which constituted the essential elements of the crimes charged, then he must be found guilty.⁴ The appellant claims that such language is equivalent to the trial judge’s directing a verdict of guilty, which violates appellant’s Sixth Amendment right to trial by jury.⁵ We agree.

The Sixth Amendment provides that a criminal defendant shall have the right to a trial by an impartial jury. From this guarantee derives the principle that a trial judge in a criminal proceeding may not direct a verdict. As Judge Prettyman poignantly stated in Cooper v. United States, 94 U.S.App.D.C. 343, 345, 218 F.2d 39, 41 (1954):

If upon the evidence there is a question whether the accused is guilty or is innocent, the jury must decide that question; the judge cannot decide such a question. And the judge cannot decide that upon the evidence the accused is guilty and direct a verdict accordingly; a finding of guilt is for the jury alone. .

This principle governs a criminal trial regardless of whether the judge attempts to partially direct a verdict⁶ or the evidence points conclusively toward guilt.⁷

Further, no particular incantation by a judge is necessary to conclude that the verdict was directed.

The rule against directed verdicts of guilt includes perforce situations in which the judge’s instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true. ... ⁸

The obverse of the principle prohibiting directed verdicts in criminal trials is the recognized prerogative of a jury to disregard the evidence or the judge’s instructions. This prerogative is embodied in the jury’s power to issue a general verdict of not guilty which is irreversible by the court and which does not reveal the jury’s rationale. United States v. Dougherty, 154 U.S.App.D.C. 76, 93, 473 F.2d 1113, 1130 (1972). This is not to say that a jury nullification instruction specifically drawing the jury’s attention to the prerogative is mandated; indeed, this court has held that it is not error to refuse such an instruction. Arshack v. United States, D.C.App., 321 A.2d 845, 849-852 (1974). The jury’s power to exercise its prerogative is nevertheless intact.

We must keep in mind that a judge’s most offhanded remark or inference is considered with the utmost respect by the jury. “[T]he influence of the trial judge on the jury is necessarily and properly of great weight, and ... his lightest word or intimation is received with deference, and may prove controlling.” Starr v. United States, 153 U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed. 841 (1894). Each word of a jury instruction must be weighed carefully so as to be certain that it does not convey to the jury the impression that it must render a verdict of guilty or that its prerogative is denied.

In the instant case, use of the phrase “must find the defendant guilty”⁹ could have been erroneously construed by the jury as denying its prerogative of finding the defendant not guilty, notwithstanding the evidence. The command “took from the jury an essential element of its function.” United States v. Hayward, 136 U. S.App.D.C. 300, 302, 420 F.2d 142, 144 (1969). Therefore, it was reversible error to give such instruction.

Reversed with instruction to grant a new trial.

1 . D.C.Code 1973, § 22-1801.

2 . D.C.Code 1973, § 22-502.

3 . Miss Inabinet, who had been wearing Miss Celey’s coat when she fell asleep, remained unconscious during the events and did not see her assailant.

4 . Instruction No. 2 charged the jury that “if you find beyond a reasonable doubt that on December the 24th, 1972, in the District of Columbia, the defendant, Stanley Watts, did enter the sleeping dwelling of Cynthia D. Celey, [that] said dwelling was occupied at the time, and that at the time of the entry the defendant possessed the specific intent to commit an assault upon Cynthia D. Celey, then you must find the defendant guilty of burglary in the first degree.” (Emphasis added.)

Instructions 5 and 6, which dealt with the charge of assault with a dangerous weapon against both Celey and Inabinet, also charged the jury that if it found, beyond a reasonable doubt, the facts to be as charged, then it “must find the defendant guilty.” (Emphasis added.)

5 . The government, in addition to denying appellant’s contention, also asserts that pursuant to Super.Ct.Cr.R. 51 appellant, by failing to object to the instructions when offered an opportunity to do so, waived his assignment of error. This court recognized in Barnes v. United States, D.C.App., 313 A.2d 106, 110 n. 8 (1973), that “a party seeking appellate review of erroneous jury instructions cannot raise the issue for the first time on appeal unless there is plain error.” Since, in the instant case, the jury instruction was equivalent to directing a verdict of guilty and thus denied the appellant his right to trial by jury, we hold that the instruction constituted plain error and is, therefore, properly reviewable in this court.

6 . Mims v. United States, 375 F.2d 135, 148 (5th Cir. 1967).

7 . United Bhd. of Carpenters & Joiners v. United States, 330 U.S. 395, 408, 67 S.Ct. 775, 91 L.Ed. 973 (1947); accord, Montford v. United States, 271 F.2d 52 (5th Cir. 1959).

8 . United States v. Hayward, 136 U.S.App. D.C. 300, 302, 420 F.2d 142, 144 (1969).

9 . Pew decisions from other jurisdictions review the precise language challenged here. In Straughter v. State, 247 A.2d 202 (Del.1968), where the court did review an instruction which employed the “must” phraseology, the court held that the instruction-was not erroneous. However, in Billeci v. United States, 87 U.S.App.D.C. 274, 184 F.2d 394 (1950), the challenged instruction was held to be erroneous. There the instruction read:

If you believe from the testimony that the defendants have committed the crime charged, then you must find a verdict of guilty, irrespective of whether the witnesses appealed to you or not. . . . [Id. at 279, 184 F.2d at 399; emphasis added.]

The court held:

That statement is not the law. The law is that if the jury believes beyond a reasonable doubt that the defendant has committed the alleged offense it should find a verdict of guilty, but if there be a reasonable doubt in the minds of the jurors they must acquit. The instruction given was error. [Id.\ emphasis added.]