Wilson v. United States

419 A.2d 353, 1980 D.C. App. LEXIS 328

• Court: District of Columbia Court of Appeals
• Decided: June 23, 1980
• Docket: 14227
• Status: Published

Opinions

PRYOR, Associate Judge:

Appellant, having been convicted of possession of narcotics, D.C.Code 1973, § 33-402, seeks reversal on the ground that the jury’s verdict was coerced. After reviewing the record, we affirm.

I

At trial, the government relied principally upon the testimony of two plainclothes police officers. At the request of school officials of a public school in Southeast Washington, Detectives Hicks- and Green responded in the afternoon to the school in an unmarked vehicle. After a discussion with administrative persons, they ascended to an upper floor in the school and observed appellant on a street corner approximately thirty feet away. During an interval of about thirty minutes, both officers observed appellant approach three different automobiles and exchange brown manilla envelopes for undetermined amounts of money. The officers returned to their vehicle and were, according to their testimony, going to seek the assistance of uniformed officers. As they were leaving, appellant approached another vehicle which was being operated immediately ahead of them. When appellant walked up to the unmarked police car, which had stopped, Detective Green exited the vehicle and stated he was a policeman. Appellant ran, with Green in pursuit. Hicks followed in the car; he also joined the chase on foot and ¡ subsequently caught appellant and observed him throw three envelopes to the ground. There was also evidence that the envelopes contained usable amounts of marijuana.

Appellant and two other witnesses testified that he had been playing basketball on a nearby playground. Shouts from people on the playground indicating “Feds” and “Stick-up boys” prompted appellant and others to run. He acknowledged seeing drugs being sold on the corner but denied that he was a participant.

II

After argument and instruction, the case was submitted to the jury on November 6, 1978 at 11:10 a. m. Within thirty minutes the judge received a note indicating the group was unable to reach agreement. Without consulting counsel, the court assembled the jury in the courtroom:

THE COURT: Now, this is a very critical time. And, don’t volunteer any information. Understand?

MR. FOREMAN: That’s right.

THE COURT: All you do is answer, “yes” or “no,” to my questions. If it doesn’t fall into one category or the other, don’t answer. All right?

MR. FOREMAN: All right.

THE COURT: Now, have you been able to reach a unanimous verdict in the case? MR. FOREMAN: No, sir.

THE COURT: No. Now, if you were to deliberate further, do you think you could reach a unanimous verdict?

MR. FOREMAN: Possible.

THE COURT: Now, you know you haven’t been in there very long.

MR. FOREMAN: No, sir.

THE COURT: Don’t say anything. Let me talk. You haven’t been in there very long, and I think it would do justice to everybody involved, so the case will not be tried again, that you should continue your deliberations. However, we will recess for lunch and be back here and in that room at one-forty-five. It’s a quarter until two. Okay.

Now, don’t talk about this case, until all twelve of you are together again. Can’t discuss this case, so don’t talk about it over lunch period, and we will see you at one-forty-five. Okay. Reconvene in that room.

After lunch, a series of events occurred in rapid succession. A clerk advised the court and counsel that a female juror had asked to be excused from the deliberations but was directed instead to return to the jury room. The court took this opportunity to discuss this event and the previous note with counsel. Counsel for appellant agreed that deliberations should continue. However, about an hour later a second note was received indicating an inability of the jury to agree. The judge was also informed that probably the same juror who had earlier asked to be excused had attempted to leave the jury room during deliberations. These matters were similarly discussed with the attorneys for both sides. The court summoned the juror, with counsel in attendance, but not in the presence of other jurors, and reminded her of her obligations:

THE COURT: Now, you understand that the alternate juror was excused from the case. We are only allowed to have twelve people in there. You understand that at the time that this jury was voir dired, or asked those questions, you were asked one question-whether anyone had any reason they could not sit on this jury panel and render a fair verdict, a fair and impartial verdict, and there was no answer from you that you couldn’t. You recognize that?

THE JUROR: Yes.

THE COURT: Now, this is the first time since I have been sitting as a Judge, which is almost sixteen years, that I ever had a juror attempt to walk out of the jury room. I am not going to ask you the reason for it, but you took your solemn oath that you would do your duty as a juror, and that is what is expected of you. I would like to ask you to go back and make every attempt to deliberate.

There was no objection to this procedure. Immediately afterwards, the jury was brought into the courtroom and given an additional instruction pursuant to Winters v. United States, D.C.App., 317 A.2d 530 (1974). As stated, this instruction had earlier been discussed out of the jury’s presence and was opposed by appellant’s counsel. Finally, at about 4:05 p. m. the court received and displayed a third note to counsel:

Your Honor,

Please excuse the inconvenience. I am not able to come to a conclusion at this time. I guess you know that I am the only hold up and the rest of the jury are ready with their verdict, and it would be best for all that I be removed or given another day to decide.

After hearing the views of both sides, and over appellant’s objection and request for mistrial, the jury was excused until the following day. Subsequently, a guilty verdict was returned.

Ill

The deliberations of a jury represent a critical stage of a trial. Having heard the evidence, as presented and argued by counsel, and the court’s instructions, they endeavor, in a confidential setting, to resolve the questions which have been put before them. It is the essence of the factfinding function that they should perform without coercion and a strong measure of independence. Nonetheless, it is true that while a jury is involved in deliberation an inquiry or an event may sometimes require a judicial response. With these concerns in mind, certain general principles have become firmly established: (1) Before responding to a communication from a jury, the court should inform the accused and his counsel and permit them to state their position. Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975); Roberts v. United States, D.C.App., 402 A.2d 441 (1979); Smith v. United States, D.C.App. 389 A.2d 1356 (1978). (2) Where there is an indication that a jury has not reached agreement, they should not be asked their numerical division. Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926); Blango v. United States, D.C.App., 335 A.2d 230 (1975). (3) Care should be taken in utilizing a supplemental charge to the jury such as the Winters instruction; it should only be given after considering the nature of the case and the time spent in deliberation. See Thompson v. United States, D.C.App., 354 A.2d 848 (1976); Winters v. United States, supra.

IV

The thrust of appellant’s argument is that the final note disclosing the division of the jury, when added to the other circumstances, produced a coerced verdict.

In reviewing the validity of a jury’s verdict, we must look to the total circumstances to determine whether it was coerced. Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965); Nelson v. United States, D.C.App., 378 A.2d 657, 661 (1977).

In this instance, the judge received the first note from the jury about one-half hour after the jury had begun its deliberations. As we have stated, the court was obliged to inform counsel before speaking to the jury on the subject. However, we have previously held that an error of this kind does not always require reversal. The question is whether appellant was prejudiced in a way that touches the standards by which guilt is determined, Roberts v. United States, supra; Smith v. United States, supra. Here the jury had not engaged in any substantial deliberations. When agreement was not reached within a brief period, this fact was communicated to the court.¹ In a careful manner designed to avoid disclosure of confidential information, the judge urged the jury to continue their efforts and immediately excused them for lunch. Indeed, after the luncheon recess when counsel were advised of the note and of the juror’s contact with the clerk, the attorneys for both sides agreed that the jury should continue. We find no prejudice to appellant.

Confronted with the second note and the information that a juror had attempted to leave the room, we think the court’s response was reasonable. In addressing the juror, out of the presence of the others, the judge was attempting to maintain the integrity and orderliness of the proceeding. In a concise way, the juror was reminded of her duties. The alternatives would have been to ignore the situation or abort the trial. We think this response by the court is supported by our decision in Nelson v. United States, supra. There the juror was absent from the jury room for one and one-half hours, but counsel requested the court not to question the individual regarding the circumstances. The verdict was not disturbed on the ground that no substantial prejudice resulted. We believe the same holds true in this instance, particularly where counsel did not object to the procedure employed by the court.

The second note,² similar in form to the earlier one, presented the question of whether a Winters instruction should be given. We have said that the use of that instruction is within the sound discretion of the trial judge. Thompson v. United States, supra, at 850, n.7. After conferring with counsel, and taking into account the straightforward questions of fact which had been presented to the jury and the short time which they had deliberated, a Winters instruction was given over the objection of appellant. The use of the instruction was within the ambit of the court’s discretion. Indeed, our description of the jury in Thompson, supra, at 850 is apt:

It appears from the record that this jury was given to rather short deliberation spans before reporting an inability to reach a verdict. The time spent in deliberation in this case was not prolonged, especially at the point the jury first began announcing its inability to reach a verdict .

Given this situation, the instruction was not error, particularly since it was delivered before the jury’s numerical division was revealed.

When the last note was received, the jury had deliberated for approximately four hours-one hour after the supplemental Winters charge. While the juror revealed the numerical division within the jury, that disclosure was not, of course, elicited by the court nor counsel. Under such circumstances, no mistrial is required; the question of continued deliberation is left to the discretion of the court. United States v. Diggs, 173 U.S.App.D.C. 95, 107, 522 F.2d 1310, 1322 (1975); see also Jackson v. United States, D.C.App., 368 A.2d 1140 (1977). Perhaps more important than the disclosure itself, is the court’s reaction to it. If the judicial response is coercive in nature, a subsequent conviction cannot stand. Thus, in Jenkins v. United States, supra, when a jury expressed its inability to agree and the judge stated, among other things, “You have got to reach a decision in this case,” the conviction was overturned. Similarly, in Jackson v. United States, supra, we reversed for precisely that reason. After being apprised of the jury’s numerical division, the trial judge also made comments which were deemed coercive.

Thus, the critical aspect of this case is whether the judge’s response to the final communication, in light of the preceding circumstances, was an exercise of discretion which was coercive to the jury’s verdict. We think it significant that the Winters charge was given well before the last note was received from the juror disclosing the jury’s division. In response to the note, the court excused the jury, without any substantial discourse until the following day. This was a measured response. No statement was made which could be characterized as an overreaction. Viewed in conjunction with the other circumstances which have been recounted, we do not find the decision to allow the jury to continue deliberations an abuse of discretion which, in turn, coerced this verdict.³

Accordingly, we affirm.

Affirmed.

1 . The note from the foreman stated: “We, as the jurors can’t come to a complete agreement on this case.”

2 . The second note from the foreman stated: We as the jurors still can’t come to a complete agreement on this case.”

3 . Contrary to the dissenting opinion, we view our holding as consistent with a recent decision, Morton v. United States, D.C.App., 415 A.2d 800 (1980). In that case the conviction was reversed where a juror’s brother died during the course of deliberations. The juror, after inquiry by the court, agreed to continue deliberating. No verdict was reached on that date. However, a Winters instruction was given on the following day. In setting aside the verdict, we held that “events extraneous to proof in the case (here, the death of the juror’s brother)” raised a substantial possibility of a coerced verdict. In the instant case, there were no external factors bearing on the jurors. Rather, this case involves a jury’s decision based solely on the proof offered at trial. We find no extraneous event nor action by the court which coerced the jury’s verdict. In this case, the juror gave no cognizable reason for not casting a vote one way or the other.