Whitaker v. United States

617 A.2d 499, 1992 D.C. App. LEXIS 304, 1992 WL 364379

Opinions

SCHWELB, Associate Judge:

Arenetta Whitaker was convicted by a jury of possession of a firearm during a crime of violence (PFCV),¹ in violation of D.C.Code § 22-3204(b) (Supp.1992). On appeal, she contends that the trial judge committed reversible error by failing to rein-struct the jurors when it became apparent that, in the absence of reinstruction, they were likely to return inconsistent verdicts incompatible with the judge’s original charge. She claims that as a result of this erroneous failure to reinstruct, the jurors found her guilty of a compound offense although they were unable to agree as to her guilt of any “predicate offense,” and that this result was avoidable and unlawful. .We agree and reverse.

I

In the early morning hours of February 21, 1990, Ms. Whitaker, who was then twenty-seven years of age, was riding in a green Renault Alliance which was being operated by her niece. Ms. Whitaker’s seventeen-year-old stepdaughter was also a passenger. Three other young women, who became the complaining witnesses, were in the area on foot. The two groups spotted each other, and there was trouble.

Ms. Whitaker’s niece, apparently believing that the three pedestrians were staring at her and making fun of her, demanded to know “what the fuck you are looking at.” A verbal altercation ensued, and one of the occupants of the green Renault escalated the contretemps from words to deeds by firing a pistol. No one was struck or injured in the shooting.

At trial, all three of the complainants testified unequivocally on behalf of the prosecution that the shooter was Ms. Whitaker and that the weapon was fired at or towards them. Both Ms. Whitaker and her stepdaughter insisted, on the other hand, that the niece, who by all accounts had precipitated the incident with inflammatory words, had also done the shooting. Ms. Whitaker and her stepdaughter also claimed that the shot was fired into the air above the complainants’ heads, evidently to scare rather than to wound them. The niece testified briefly on rebuttal, denied that she was the shooter, and professed not to know who was.²

Although only a single shot was fired, the indictment charged Ms. Whitaker (and originally her niece)³ with three separate counts of assault with a dangerous weapon (ADW), with PFCV, and with the three misdemeanor possessory weapons offenses described in note 1, supra. Ms. Whitaker entered a plea of not guilty, and the case went to trial on December 3, 1990.

The following day, after both sides had rested and closing arguments had been presented, the judge delivered his charge to the jury. He explained the elements of ADW, and then turned to the offense of PFCV. He instructed the jurors that ADW is a crime of violence, and that

[i]f you’re not satisfied beyond a reasonable doubt that the defendant committed the crime of violence of assault with a dangerous weapon, as I’ve given you the elements, if you’re not satisfied of that, then you must find the defendant not guilty of [PFCV].

On December 5, 1990, the third day of trial, the jurors sent the judge a series of four notes, two before lunch and two after lunch. They informed him on each occasion that they were unable to agree on a verdict with respect to the first three (ADW) charges, but that they had reached a verdict as to the remaining four (PFCV and the three misdemeanors). After the content of the last of these notes was disclosed, Ms. Whitaker’s counsel requested the judge to reinstruct the jury:

My point, Your Honor, is that I believe, to protect my client’s rights, I have to ask for the jury to be instructed before they announce their verdict, that they cannot find her guilty of the fourth count unless they have convicted her of count one or two or three, and it would be like a murder case where the jury’s told not to go on to count two, murder II, unless they found her not guilty of murder I.

They can’t find her guilty of the fourth count. Maybe they found her not guilty. But if they have found her guilty, I don’t want that inconsistent verdict to stand on appeal just because inconsistent verdicts are allowed to stand where the jury, I believe, should know, but apparently they do not, that they can’t find her guilty of that.

The judge declined counsel’s request. He noted that the jurors had not expressed any confusion, that the instructions were proper, and that he knew of no justification for instructing them further. Ruling that the four notes “evinced enough strong indication of hopeless deadlock to say that on counts one through three they are not realistically going to reach unanimous verdicts,” the judge stated that he would receive the verdict as to the counts on which the jury was unanimous and declare a mistrial with respect to the remaining charges. The jury then announced that it had found Ms. Whitaker guilty of PFCV and of the three weapons misdemeanors. In accordance with the statutory five-year mandatory minimum sentence for PFCV, Ms. Whitaker, who had no prior criminal record, was sentenced to imprisonment for no less than five years and no more than fifteen. This appeal followed.

II

In general, “[djecisions regarding reinstruction of a jury are committed to the discretion of the trial court; absent abuse of that discretion we will not reverse.” Davis v. United States, 510 A.2d 1051, 1052 (D.C.1986) (per curiam). Where a jury has demonstrated confusion, however, the trial judge may not allow that confusion to continue, but must make an appropriate and effective response. Murchison v. United States, 486 A.2d 77, 83 (D.C.1984); Bedney v. United States, 471 A.2d 1022, 1024 (D.C.1984) (per curiam); United States v. Bolden, 169 U.S.App.D.C. 60, 67, 514 F.2d 1301, 1308 (1975); see also United States v. Laing, 281 U.S.App.D.C. 266, 275, 889 F.2d 281, 290 (1989) cert. denied, 494 U.S. 1069, 110 S.Ct. 1790, 108 L.Ed.2d 792 (1990). Indeed, “[w]hen a jury makes explicit its difficulties, a trial judge should clear them away with concrete accuracy.” Bollenbach v. United States, 326 U.S. 607, 612-13, 66 S.Ct. 402, 90 L.Ed. 350 (1946). Ms. Whitaker contends that jury confusion was demonstrated in this case. We are persuaded by her contention.

Because of the close relationship in this case between the predicate offense (ADW) and the compound offense (PFCV), a guilty verdict as to PFCV could not be reached logically or in conformity with the evidence and the judge’s instructions, unless a guilty verdict was also reached as to at least one ADW count. Similarly, the jury could not logically find Ms. Whitaker not guilty of PFCV unless she was also found not guilty of ADW. Indeed, the government does not argue to the contrary, nor has it suggested in its brief that there can be any logical reconciliation of the verdict as to PFCV and the mistrial as to the ADW counts. If the jurors were satisfied beyond a reasonable doubt that Ms. Whitaker shot at one or more of the complainants, then they were required to convict her both of ADW and of PFCV. If they entertained a reasonable doubt as to the identity of the shooter, or as to whether she shot at anyone, they were required to acquit her both of the predicate offenses and of the compound offense. Ms. Whitaker could not have committed PFCV without also having committed ADW, for ADW is the “crime of violence” which is an element of PFCV. She likewise could not be guilty of ADW without also being guilty of PFCV, because the weapon with which she allegedly assaulted the complainants was concededly a firearm, and ADW is a crime of violence. There was no logical way, under the court’s instructions or as a matter of common sense, in which a juror could be undecided as to all three ADW’s but nevertheless reach a verdict as to PFCV.

It is true, as the judge noted, that the jurors did not report to the court that they were confused. That, however, can hardly be conclusive. Counsel for Ms. Whitaker put it well in his brief on appeal:

A group of people (such as a jury) may not realize they are lost, and they may still be lost. They will then continue to be lost until they realize their situation or until someone informs them of it. This jury obviously did not realize it was confused, but it obviously still was. It was up to the court to clear away that confusion.

A jury is presumed to follow the court’s instructions. Thompson v. United States, 546 A.2d 414, 425 (D.C.1988). Where, as here, the jury indicated in successive notes to the judge that it was ready to return a verdict which would be logically irreconcilable with his instructions and with the jury’s inability to agree on the ADW counts, the existence of confusion was, at least, the most reasonable inference. As the court put it in Lansburgh & Bro. v. Clark, 75 U.S.App.D.C. 389, 341, 127 F.2d 331, 333 (1942),

[t]he same jury listened to the same argument and the same evidence, at the same time in both causes and rendered two irreconcilable verdicts. They either mistakenly or arbitrarily failed to perform their duty. Both verdicts cannot be right....

Assuming, as we must, that the jurors attempted to do their duty, they must necessarily have been confused as to what the judge’s instructions required.

The government argues, however, that there was no jury confusion because the notes from the jury revealed, at most, that inconsistent verdicts might be returned. Since, according to the prosecution, there is nothing wrong with inconsistent verdicts, there can likewise be nothing wrong with a communication from the jury that such verdicts may be about to emerge. This contention, if superficially plausible, does not withstand critical analysis.

It is, of course, true, as the government suggests, that inconsistent jury verdicts in a criminal case will not be disturbed on appeal merely because they are inconsistent. See, e.g., United States v. Powell, 469 U.S. 57, 62-69, 105 S.Ct. 471, 475-79, 83 L.Ed.2d 461 (1984); Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932) (Holmes, J.); Steadman v. United States, 358 A.2d 329, 332 (D.C.1976). Moreover, the Supreme Court has explicitly rejected the contention “that an exception to the Dunn rule should be made where the jury acquits a defendant of a predicate felony, but convicts on the compound felony.” Powell, supra, 469 U.S. at 67, 105 S.Ct. at 478. Although the logic of Dunn and its progeny has been challenged in some jurisdictions,⁴ and although a different rule applies to civil cases,⁵ the Dunn analysis is followed in the District of Columbia. But for the judge’s failure to reinstruct as requested, this court would be without authority to set aside Ms. Whitaker’s conviction for PFCY.

The readiness of courts to “tolerate” inconsistent jury verdicts in a criminal case, in preference to reversing a conviction after such verdicts have been rendered, see Haynesworth v. United States, 473 A.2d 366, 368 (D.C.1984); United States v. Fox, 140 U.S.App.D.C. 129, 132 n. 21, 433 F.2d 1235, 1238 n. 21 (1970), does not carry with it any proscription against taking reasonable measures to avert such inconsistency. Although jurors have the power, notwithstanding their oaths and the judge’s instructions, to return verdicts contrary to their “sworn duty” to decide the case based on the law and the evidence, that power is an “anomaly in the rule of law,” and its exercise should not be encouraged. Watts v. United States, 362 A.2d 706, 710-11 & n. 5 (D.C.1976) (en banc) (citations omitted).⁶ Toleration of a necessary evil, in other words, is not to be mistaken for the exuberant or joyful contentment with which we welcome a thing of beauty.

As Justice (now Chief Justice) Rehnquist observed for the Court in Powell, supra, 469 U.S. at 65, 105 S.Ct. at 477, “inconsistent verdicts ... present a situation where ‘error,’ in the sense that the jury has not followed the court’s instructions, most certainly has occurred_” (Emphasis added). Such error is not tolerated at all in civil cases. See Lansburgh & Bro., supra. Inconsistent verdicts in multi-count criminal prosecutions present different problems, however, largely because a retrial of the entire case would encounter apparently insurmountable constitutional obstacles. “[T]he Government [unlike the defendant] has no recourse if it wishes to correct the jury’s error; the Government is precluded from appealing or otherwise upsetting such an acquittal by the Constitution’s Double Jeopardy Clause.” Powell, supra, 469 U.S. at 65, 105 S.Ct. at 476-77 (citations omitted).⁷ A majority of the courts, including our own, find a result which plainly favors the accused at the expense of the prosecution to be so undesirable and so one-sided that they will go so far as to sustain verdicts in which, as the Court noted in Powell, jury error “most certainly has occurred.” Id. at 65, 105 S.Ct. at 477.

At the time of the trial judge’s ruling on which the present appeal hinges, however, no unacceptable price would have had to be paid in order to relieve jury confusion. Ms. Whitaker was not then requesting that a conviction be set aside. On the contrary, she was attempting to avoid ever having to make such a request. She asked only that the judge repeat or clarify an instruction which he had previously given. This proposed prophylactic measure was designed to avoid the prospect of verdicts incompatible with the judge’s instructions and with the jurors’ oaths. If the judge had granted the defense request, the Double Jeopardy .considerations which were deemed so important in Powell would not have been implicated at all.⁸

The choice which confronted the trial judge in this case when defense counsel asked him to reinstruct the jury was therefore quite different from that of an appellate court which has been requested to set aside a verdict inconsistent with the jury’s disposition of another count. If the judge in this case did nothing, illogical verdicts incompatible with his own prior instructions to the jury appeared likely to (and in fact did) become reality. If he had rein-structed, on the other hand, there was surely at least a substantial chance that, in conformity with the judge’s clarified instructions, as well as their own oaths to decide the case according to the law and the evidence, the jurors would have avoided making contradictory findings. The circumstances differed from the post-verdict situation in that a reinstruction posed no appreciable risk of harm, but argued substantial potential benefit.⁹

The experienced trial judge made what he viewed as a discretionary call in this case. We agree with the government that we should not lightly overturn it. The legal foundation for the judge’s decision, however, was his view that the jury’s apparent readiness to return inconsistent verdicts was not an indication of confusion. For the reasons stated above, we are unable to subscribe to this view. Judicial discretion must be founded upon correct legal principles, and an exercise of discretion based on an incorrect legal standard cannot stand. In re J.D.C., 594 A.2d 70, 75 (D.C.1991).

Ill

Ms. Whitaker’s conviction of PFCY is reversed, and the case is remanded for a new trial.

Affirmed in part, 10 reversed in part, and remanded.

Footnotes

1

. Ms. Whitaker was also convicted of carrying a pistol without a license, D.C.Code § 22-3204(a) (Supp.1992), unlawful possession of an unregistered firearm, D.C.Code § 6-2311(a) (1989), and unlawful possession of ammunition for that firearm, D.C.Code § 6-2361(3) (1989). She does not challenge in this court her convictions for these misdemeanor weapons offenses.

2

. Ms. Whitaker’s defense, as indicated above, was that it was her niece who had committed the charged offenses and that she (Ms. Whitaker) was innocently present. Aside from the identification of the niece as the shooter by the other two occupants of the car, there was testimony that police found the pistol in a coat which the niece had borrowed from the stepdaughter, that the weapon belonged to the niece’s boyfriend, and that the niece was in possession of (and presumably used) crack cocaine. Indeed, the niece entered a plea of guilty to possession of a controlled substance in connection with twenty-four bags of crack found by police when they came to make the arrest. The complainants, on the,other hand, expressed certitude that, although it was the niece who had verbally abused them, it was Ms. Whitaker (whom they described as having a distinctive appearance which made her easy to identify) who had shot at them.

3

.We were advised at argument that the weapons charges against the niece were dismissed, apparently in connection with her plea to the drug offense.

4

. See, e.g., DeSacia v. State, 469 P.2d 369, 376-78 (Alaska 1970); People v. Dercole, 72 A.D.2d 318, 326-33, 424 N.Y.S.2d 459, 464-69 (2d Dept. 1980); Annotation, Inconsistency of Criminal Verdict as Between Different Counts of Indict ment or Information, 18 A.L.R.3d 259, 281-83 (1967 & Supp.1992).

5

. See Lansburgh & Bro. v. Clark, supra, 75 U.S.App.D.C. at 341, 127 F.2d at 333.

6

. In this jurisdiction, as in others, the jurors swear to render a "true verdict," in conformity with the evidence and the judge’s instruction as to the law. United States v. Wooton, 518 F.2d 943, 946 (3d Cir.), cert. denied, 423 U.S. 895, 96 S.Ct. 196, 46 L.Ed.2d 128 (1975). "Once jurors are sworn, they are bound to render a verdict under the law as given by the court.” Cordero v. United States, 456 A.2d 837, 841 (D.C.1983) (citations and internal quotation marks omit-ted); see also United States v. Price, 577 F.2d 1356, 1366 (9th Cir.1978), cert. denied, 439 U.S. 1068, 99 S.Ct. 835, 59 L.Ed.2d 33 (1979).

7

.The Court also noted in Powell that it is impossible to determine from the inconsistent verdicts whether the prosecution or the defense has benefited from the inconsistency; “it is unclear whose ox has been gored.” 469 U.S. at 65, 105 S.Ct. at 477. It is said that "juries frequently convict on some counts but acquit on others, not because they are unconvinced of guilt, but simply because of compassion or compromise.” Fox, supra, 140 U.S.App.D.C. at 132 n. 22, 433 F.2d at 1238 n. 22 (citing Dunn, supra, 284 U.S. at 393-94, 52 S.Ct. at 191, and other authorities).

8

. In the present case, there is another reason why the unacceptably one-sided consequence of ordering a new trial to which the Supreme Court alluded in Powell does not arise. Ms. Whitaker was not acquitted of the ADW counts. Rather, the jury was unable to agree on a verdict as to any of them. Under these circumstances, the Double Jeopardy Clause will not preclude Ms. Whitaker’s retrial on the ADW counts. See United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195, 57 L.Ed.2d 65 (1978).

9

. The government suggested at argument that if the judge had reinstructed the jury as requested, his intervention might have pressured the jury to convict Ms. Whitaker on one or more of the ADW counts. A direction to follow an instruction which the court had previously given could hardly be viewed as coercive, either for acquittal or for conviction. But even assuming that concern regarding possible coercion would be an appropriate consideration if Ms. Whitaker had objected to the reinstruction, the fact is that it was counsel for Ms. Whitaker who was requesting the judge to take this necessary step to clear away apparent jury confusion. There is no question that Ms. Whitaker was represented by competent counsel, and we do not think that the judge’s refusal to give an otherwise appropriate and necessary reinstruction can be justified on the basis that it was bad tactics for counsel to request it.

10

.As noted in footnote 1, Ms. Whitaker has not asked us to reverse her convictions for the misdemeanor offenses, and they remain in effect.