Robert Leake v. United States , 77 A.3d 971 ( 2013 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 11-CF-0554
ROBERT LEAKE, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF2-17133-10)
(Hon. Anthony C. Epstein, Trial Judge)
(Argued April 30, 2013 Decided October 17, 2013)
(Amended November 7, 2013)*
Esteban Morin, Public Defender Service, with whom Samia Fam and James
Klein, Public Defender Service, were on the brief, for appellant. Matthew S.
Hellman, Jenner & Block LLP, was on the reply brief, for appellant.
Christine Macey, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, Kenya Davis and Elizabeth Trosman,
Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and
NEBEKER, Senior Judge.
*
This opinion is amended to update the Super. Ct. Crim. R. 31 (d) language
taken from Crowder v. United States, 383 A.2d 336 (D.C. 1978), on page 8.
2
BLACKBURNE-RIGSBY, Associate Judge: Before us is an appeal challenging
the trial court’s actions following an aborted jury poll. Appellant Robert Leake
was convicted of carrying a pistol without a license, unlawful possession of a
firearm, possession of an unregistered firearm, and unlawful possession of
ammunition.1 Appellant contends that the trial court abused its discretion by
failing to perceive the inherent potential for jury coercion following a juror’s
dissent in open court, and by relying on improper factors when it denied
appellant’s motion for a mistrial and required the jury to continue its deliberations.
Appellant argues that, taken together, the trial court’s actions require reversal. We
disagree and conclude that reversal is not required because in this case the potential
for coercion was only minimal and the trial judge’s actions neutralized the coercive
potential.
I. Factual Background
Appellant’s charges arise out of a traffic stop that occurred on September 14,
2010, when Metropolitan Police Department Officers required appellant and two
1
In violation of D.C. Code § 22-4504 (a) (2009 Supp.), D.C. Code
§ 22-4503 (a)(1) (2010 Supp.), D.C. Code § 7-2502.01 (2009 Supp.), and D.C.
Code § 7-2506.01 (a)(3) (2009 Supp.), respectively.
3
other individuals, including the driver and passenger, to step out of the vehicle
during the stop. Once one of the officers asked appellant to step out of the vehicle,
he noticed a bulge in appellant’s waistband. Appellant was subsequently arrested
for possessing a handgun.
Appellant’s first trial ended in a deadlocked jury that ultimately led to a
mistrial. At appellant’s second trial, the jury began its deliberations on February 3,
2011, at 4:06 p.m. Thirty minutes into its deliberations, the jury sent its first note
to the trial judge requesting fingerprint cards and a map. The judge granted the
request without any objection. The jury continued deliberations the next day and
sent a second note with two questions: “What is the legality of removing
occupants of a vehicle following a traffic stop for a simple moving violation?” and
“What legal basis do the officers have for removing a vehicle’s occupants and
handcuffing them?” The jury foreman stated in the note that these “are questions
that we feel need to be answered in order to satisfy some [j]ury members in
reaching a verdict.” After conferring with counsel, the trial judge responded in
writing: “You do not have to decide whether the officers’ actions following the
traffic stop were lawful. You are permitted to consider the actions of the officers
in assessing the credibility of the officers with respect to the question before you:
whether the [d]efendant is guilty beyond a reasonable doubt.”
4
At 3:02 p.m., the jury sent a note that it had reached a verdict. The
foreperson announced that the jury had found appellant guilty of all charges.
Upon appellant’s trial counsel’s request, the trial judge polled each of the jurors.
When asked whether they agreed with the verdict, Jurors One and Two answered
in the affirmative, but Juror Three answered: “Sort of yes — I mean, no. Not too
much.” The trial judge immediately stopped polling the jurors, stating that: “It’s
important that all of you agree. If there’s a question about it, I’m going to ask you
— I’m going to excuse you and ask you to continue deliberations until — is there
anything else you want — do either of the attorneys want to approach?”
During a bench conference with counsel, both sides agreed not to submit a
Winters anti-deadlock instruction because under the circumstances, the instruction
would be inappropriate. However, appellant’s trial counsel requested that the trial
judge provide a “brief instruction to remind [the jury] that [the verdict] has to be
unanimous.” Ultimately the trial judge instructed the jury as follows: “I’m going
to return the verdict form to the foreperson and I’m going to ask you to resume
your deliberations and let me know when you’ve reached a verdict or if you have
any more questions.” The jury then continued its deliberations.
5
At 3:10 p.m., several minutes after returning to the jury room, the jury
submitted an additional question to the trial judge asking how long fingerprints
last. After the trial judge summoned counsel, appellant’s trial counsel moved for a
mistrial claiming that it would be coercive to send the jurors back to deliberate
with the aim of reaching a unanimous verdict after a juror had dissented openly in
court. The trial judge denied the motion, observing: “I didn’t tell them to reach a
unanimous verdict, I told them to go back and continue their deliberations, and that
will mean if they’ve reached a verdict or if they have any additional questions.” In
response to appellant’s trial counsel’s claim of inherent coercive potential, the
judge found that “[t]he [j]ury is in the same situation as it would have been in if the
juror had said in the jury room I agree and then changes his mind there.” The
judge then responded to the jury’s question regarding fingerprints in writing: “The
jury must rely on the evidence presented at trial. The jury’s recollection of the
evidence controls.”
At 3:44 p.m., the jury alerted the court that it had reached a verdict. Prior to
the jury’s return to the courtroom, appellant renewed his motion for a mistrial.
Appellant informed the court that Juror Three had indicated during voir dire that he
had some scheduling concerns due to child care issues. Citing Harris v. United
States, 622 A.2d 697 (D.C. 1993), appellant argued that the instruction to the jury
6
to continue deliberations after Juror Three’s open dissent in court, combined with
the inevitable prolonging of the deliberation process, and its impact on Juror
Three’s childcare concerns, presented additional elements of jury coercion.
The trial judge delayed ruling on the motion and brought the jury into the
courtroom because he did not want to keep the jurors waiting. The jury found
appellant guilty on all four counts. The trial judge then polled the jurors, all of
whom agreed with the verdict. After dismissing the jury, the trial judge responded
to appellant’s motion for a mistrial, observing that Juror Three had expressed child
care concerns during voir dire but that “he didn’t say it wasn’t possible” to find
child care. The trial judge additionally observed that, when polled the second time,
Juror Three “answered yes, kind of straightforward. He didn’t seem to be
equivocal . . . [and] there was no sign either he felt pressured into reaching a
verdict by reasons of time or anything else.”
The trial judge recognized that it retained discretion in determining whether
to grant a mistrial and noted that “[t]his is clearly a situation where it is — you
know, it’s clear at least in some substantial degree that the split was, you know,
probably eleven to one.” The court also stated that it could “take into account the
question that preceded by a short period of time the initial note that they’d reached
7
a verdict,” which the court observed “was more about the conduct of the police
officers than about the conduct of Mr. Leake.” Lastly, the court commented on the
timing between the jury’s return to deliberations and the verdict:
And I think under all of the circumstances, you know, the
[j]ury . . . went back for a period of . . . about a half an
hour or a little more . . . which is adequate opportunity to
have talked things through and give any concerns or [sic]
chance to be voiced and addressed. It doesn’t suggest
that the juror just got rolled over or more than one juror
got rolled over and just said, okay, I just want to go home
to my child, and I’ll do anything to go home.
The trial judge denied the second motion for a mistrial and remarked that the jury’s
second note about the question of fingerprints indicated that “the [j]ury wasn’t just
focused on the issue of police misconduct,” which the judge found to be consistent
with “talking through a range of issues.”
II. Discussion
Appellant argues that reversal is required because the trial court abused its
discretion by failing to recognize the potential for jury coercion and by improperly
considering certain factors when it ordered the jury to continue deliberations.
Appellant cites to (James) Johnson v. United States, 398 A.2d 354 (D.C. 1979),
which provides that in assessing whether the trial court abused its discretion, this
8
court looks to whether the trial judge “failed to consider a relevant factor, . . .
relied upon an improper factor, and whether the reasons given reasonably support
the conclusion. Id. at 365 (citation omitted). The government contends that the
trial court did not abuse its discretion by failing to order a mistrial because the
circumstances were not sufficiently coercive, and because the trial judge’s reaction
ameliorated any potential for coercion. In assessing appellant’s claim, we first
discuss the legal framework used to assess coercion in jury poll cases.
A.
The jury poll serves as “the primary device for discovering the doubt or
confusion of individual jurors.” Crowder v. United States, 383 A.2d 336, 340
(D.C. 1978) (citations omitted). “Its purpose is to determine . . . that every juror
approves of the verdict . . . and that no juror has been coerced” into agreeing with
the verdict. Id. Under Super. Ct. Crim. R. 31 (d), when the jury returns a verdict,
the trial judge may poll the jury at the request of one of the parties or upon its own
motion. Id. “If upon the poll there is not unanimous concurrence, the jury may be
directed to retire for further deliberations or may be discharged.”2 Id. The trial
2
As of 2009, and the date of the events giving rise to this opinion, the
quoted language from Rule 31(d) was amended to read as follows: “If the poll
(continued…)
9
court is vested with the discretion to assess any dissent made by a juror during a
jury poll because it is in the best position to determine whether the juror freely
consented to the verdict and whether to require subsequent deliberations. Green v.
United States, 740 A.2d 21, 26 (D.C. 1999).
“An inquiry into jury verdict coercion is made from the perspective of the
jurors.” Harris, supra, 622 A.2d at 701 (citation omitted). Any alleged coercion
“must be evaluated in context and with regard to all of the circumstances of the
case.” (Tommie) Johnson, 360 A.2d 502, 504 (D.C. 1976) (citation omitted).
Evaluation of jury coercion requires this court to inquire into: (1) “the inherent
coercive potential before the trial court”; and (2) “the actions of the trial judge in
order to determine whether these actions exacerbated, alleviated or were neutral
with respect to coercive potential.” Harris, supra, 622 A.2d at 701. The two
factors must then be viewed jointly “to assess the possibility of any actual coercion
on any juror or jurors.”3 Id. at 701-02. We will find reversible error “where it is
(…continued)
reveals a lack of unanimity, the Court may direct the jury to deliberate further or
may declare a mistrial and discharge the jury.”
3
Coercion requires more than “simple pressure to agree; such pressure is a
natural function of sending twelve persons into a jury room to deliberate.” Smith v.
United States, 542 A.2d 823, 824 (D.C. 1988) (citation, internal quotation marks,
(continued…)
10
necessary to achieve a proper decision” but will allow the trial court’s exercise of
discretion to stand where its determination caused no significant prejudice.
(James) Johnson, supra, 398 A.2d at 366.
B.
1. Potential for Coercion
We begin by assessing the degree of inherent coercive potential facing the
trial court. In making this assessment, we look to a series of indicators, including:
(1) the extent of isolation of a dissenting juror; (2) whether the identity of a
dissenting juror is revealed in open court; (3) whether the exact division of the
jury’s verdict is disclosed; (4) whether the judge is aware of the identity of the
dissenting juror; (5) whether the dissenting juror knows of the judge’s awareness;
(6) whether other jurors feel “bound” by a verdict they announced; and (7) whether
the trial court issues an “anti-deadlock” instruction. Harris, supra, 622 A.2d at
705.
(…continued)
and ellipsis omitted). Pressure becomes coercive “when it goes so far as to force a
juror to abandon his honest conviction.” Id.11
In the present case, the third juror in the jury poll announced his dissent in
open court. We have recognized that the potential for coercion is minimal in cases
where the juror makes his dissent early in the polling because the positions of the
remaining jurors are not revealed, thus minimizing any degree of isolation that
might otherwise attach to the dissenting juror. Elliott v. United States, 633 A.2d
27, 36 (D.C. 1993). In Harris, for example, where the twelfth juror dissented, we
observed that:
less inherent coercive potential would be found if the
dissenting juror was earlier in line because the precise
numerical division of the jury would not be revealed, the
juror would not necessarily be the only dissenter and the
poll could be terminated without requiring the remaining
jurors to commit themselves in open court.
622 A.2d at 703 (citing Crowder, supra, 383 A.2d at 343 n.14).
Additionally, the trial judge ended the jury poll immediately after Juror
Three dissented, which prevented disclosing a clear division within the jury. Cf. In
re Pearson, 262 A.2d 337, 338-39 (D.C. 1970) (concluding that the trial judge’s
continued polling after the first juror dissented in open court served no “useful
purpose” and instead revealed the jury’s split in an already “magnified” coercive
atmosphere). The trial judge also carefully instructed the jury to answer only yes
or no when polled, avoiding any potential for a juror to provide a basis for his
12
dissent in open court. See Green, supra, 740 A.2d at 24, 30 (reduced potential for
coercion where the trial judge carefully instructed the jury to only indicate whether
the juror agreed with the verdict).
Here, after the aborted jury poll, the judge posited to counsel that he thought
the split was “probably eleven to one.” Notably, however, the judge’s observation
regarding the jury’s division was made outside the presence of the jury. For that
reason, the jury had no way to know that the judge felt Juror Three was the only
juror who had dissented to the verdict, which reduced any possible isolation Juror
Three might have otherwise experienced. See Artis v. United States, 505 A.2d 52,
58 (D.C. 1986) (observing that despite the trial court’s decision to continue polling
on some counts, there was minimal inherent coercive potential because the dissent
came first in line and all further polling ceased on that count).
Although the inherent coercive pressure on Juror Three after he dissented in
open court may not have been as slight as it would have been had he changed his
mind in the jury room, in this case the degree of inherent coercive potential was
not as great as some of our other jury coercion cases. Compare Green, supra, 740
A.2d at 29 (recognizing only minimal inherent coercive potential where the jury
poll was aborted after the eighth juror made his dissent known in open court), and
13
Elliott, supra, 633 A.2d at 36 (noting how the seventh juror’s early dissent in the
polling avoided revealing a jury split and isolating the dissenting juror), with
Harris, supra, 622 A.2d at 705-06 (acknowledging the increased potential for
coercion where the twelfth juror openly dissented and revealed herself as the lone
dissenter but ultimately finding no actual coercion), and Crowder, supra, 383 A.2d
at 343 (high degree of coercive potential where the twelfth juror registered her
dissent in open court, revealing the jury’s numerical split, and unequivocally
dissented from the verdict as to a specific charge because of the lack of evidence).
Additionally, the judge polled the jury on the verdict rather than on each
charge, thus making it impossible to know whether Juror Three dissented on one,
some, or all four of appellant’s counts. Juror Three also did not provide a basis for
his dissent. In Harris, this court ultimately determined that, notwithstanding the
twelfth juror’s dissent in open court, there was no prejudice because the twelfth
juror indicated that she disagreed with a verdict that pertained to two defendants.
622 A.2d at 706 (noting that it was unclear whether the twelfth juror’s dissent
related to appellant’s verdict, as opposed to appellant’s co-defendant’s verdict,
which had not yet been polled). In sum, on the continuum of inherent coercive
potential, the circumstances of this case place it closer to the less coercive cases
that this court has encountered.
14
2. Trial Court’s Actions
We next assess the trial judge’s actions to determine “whether these actions
exacerbated, alleviated or were neutral with respect to coercive potential.” Harris,
supra, 622 A.2d at 701. Specifically, we look to (1) whether the judge made any
affirmative efforts to dispel the coercive potential, (2) whether the judge’s actions
took a middle ground, (3) whether the judge’s actions exacerbated the problem by
effectively contributing to the potential for jury coercion, and (4) whether the
judge’s reaction independently created a coercive atmosphere for the jury. Id. at
705. Then, we view the coercive potential and trial judge’s actions jointly to
determine whether there is any actual coercion. Id. at 701-02.
Here, the trial judge’s instruction to the jury was neutral: “I’m going to ask
you to resume your deliberations and let me know when you’ve reached a verdict
or if you have any more questions.” This case is therefore similar to Green, where
we concluded that the trial judge’s instruction sending the jury back for further
deliberations without further comment was appropriate and did not warrant an
additional instruction4 to the jury because the judge took an “essentially neutral
4
The trial judge in Green instructed the jury according to Instruction 2.93
(now Instruction 2.603), “Return of the Jury After Polling,” which provides:
(continued…)
15
course of action” when faced with a “run-of-the-mill polling breakdown.” Green,
supra, 740 A.2d at 30.
(…continued)
In the polling of the jury it has become apparent that you
may not have reached a unanimous verdict. For this
reason, I am asking you to return to the jury room for
further consideration of your verdict. If you are
unanimous, your foreperson should send me a note so
indicating and I will poll you again. If you are not
unanimous, please resume deliberations and see if you
can reach a unanimous verdict.
740 A.2d at 28 (citation omitted). The judge in Green declined to give the
additional language, typically referred to as a Crowder instruction that reads
as follows:
It is your duty as jurors to consult with one another and
to deliberate with a view to reaching an agreement, if you
can do so without violence to individual judgment. Each
of you must decide the case for yourself but do so only
after an impartial consideration of the evidence with your
fellow jurors.
In the course of your deliberations do not hesitate to
reexamine your own views and change your opinion if
convinced it is erroneous. But do not surrender your
honest conviction as to the weight or effect of evidence
solely because of the opinion of your fellow juror or for
the mere purpose of returning a verdict.
Id. at 25 n.9 (quoting Crowder, supra, 383 A.2d at 342 n.11).
16
Appellant characterizes the trial court’s instruction as insisting that
“reaching a verdict was the paramount if not the only goal.” However, the
language used by the trial judge does not indicate that he was requiring further
deliberations in order to eliminate the third juror’s dissent. Had the court done so,
we would have cause for concern. See Crowder, supra, 383 A.2d at 342 n.11
(observing that further deliberations are particularly problematic where a twelfth
juror reveals his dissent in open court because the lone juror may perceive the
judge’s instruction as a means of eliminating his dissent). Instead, the judge left
room for an outcome other than reaching a unanimous verdict because it charged
the jury with either trying to reach a verdict or coming back to the court with
questions.5
5
Although the trial judge told the jury immediately after the breakdown in
the jury poll that it was “important that all of [them] agree,” any potential
coerciveness of this instruction was mitigated by the subsequent instruction to the
jury only minutes later that they “resume . . . deliberations and let me know when
you’ve reached a verdict or if you have any more questions.” We have recognized
that instructions to the jury are not read in isolation, but in their entirety. See
Knight v. Georgetown Univ., 725 A.2d 472, 483 (D.C. 1999) (concluding that the
initial instruction to the jury regarding the liability of aiders and abettors was not in
error because it was followed by the trial court’s discussion of the distinction
between the liability of the employer and that of an aider and abettor); Green,
supra, 740 A.2d at 30-31 (highlighting how the trial judge’s pre-deliberation
instruction to the jury to not surrender their honest convictions alleviated any
concerns regarding whether a subsequent Crowder charge was required because
the jury is presumed to follow instructions).
(continued…)
17
Appellant contends that the trial judge was required to either declare a
mistrial or take additional action to safeguard appellant’s rights, such as issuing a
Crowder instruction.6 We disagree. A Crowder instruction is not required in
every case involving a jury poll breakdown. See Green, supra, 740 A.2d at 28-29(stating that a Crowder instruction is not intended for routine use after a
breakdown in a jury poll). Rather, as the Commentary to Instruction 2.603
(formerly 2.93) in the District of Columbia’s Red Book notes, a Crowder charge is
recommended by this court “for use in cases where there is a particularly high
likelihood of juror coercion.”7 Criminal Jury Instructions for the District of
Columbia, No. 2.603 (5th ed. 2012). Though we recognize that a Crowder
instruction could have reduced the inherent coercive potential, here, a Crowder
(…continued)
Additionally, the language at issue here does not direct the jury to reach a
unanimous verdict with the implication that a known dissenting juror be
encouraged or pressured to agree with the verdict. Cf. Davis v. United States, 669
A.2d 680, 684-85 (D.C. 1995) (reversing where the trial judge issued a Winters
anti-deadlock instruction to a jury that had submitted a note indicating deadlock
and the judge knew that the dissenting juror was “perhaps the lone holdout”
because the dissenting juror could perceive the instruction was aimed at him or
her).
6
However, appellant’s trial counsel never requested a Crowder instruction.
7
In most cases, the baseline assumption is that “some, if not the majority of
poll breakdowns do not indicate such a high potential for undue coercion that
additional instruction is required.” Green, supra, 470 A.2d at 29.
18
instruction was not required because the trial judge faced only a nominal level of
coercive potential. See Brown v. United States, 59 A.3d 967, 974 (D.C. 2013)
(explaining that a Crowder instruction is “[t]he best instruction” a trial court can
give when the potential for coercion is high); Harris, supra, 622 A.2d at 704-05(recognizing that the purpose of a Crowder instruction is to alleviate coercive
potential (citing Perkins v. United States, 473 A.2d 841, 846-47 (D.C. 1984)).8
Lastly, we note that following the jury’s second verdict, the trial judge
specifically observed Juror Three and found that he “didn’t seem to be equivocal”
when he agreed with the verdict. This court has observed that the trial judge’s “on-
the-spot perception” of whether a juror was coerced is entitled to some deference.
Harris, supra, 622 A.2d at 701 n.6. Additionally, over thirty minutes had passed
between the time the court sent the jury back to deliberate and its final verdict,
which the trial court felt provided an “adequate opportunity to have talked things
8
Additionally, even though the trial judge discussed the possibility of
issuing a Winters anti-deadlock instruction, the trial judge opted not to do so. This
is not a case where the trial court faced a dead-locked jury requiring a Winters anti-
deadlock instruction. See Winters v. United States, 317 A.2d 530, 534 (D.C. 1974)
(providing an “emphatic charge” to jurors to reach agreement in cases of deadlock
but advising that less forceful charges may be appropriate according to the
circumstances of the case). Thus, the judge’s actions did not exacerbate the
potential for coercion. Cf. Barbett v. United States, 54 A.3d 1241, 1248 (D.C.
2012) (reversing the verdict where the trial court issued a Winters instruction as a
routine matter even though the jury re-deliberated for nearly an hour).
19
through and to give any concerns or [sic] chance to be voiced and addressed. It
doesn’t suggest that the juror just got rolled over . . . .” See Green, supra, 740
A.2d at 25, 32 (concluding that the jury was not coerced following a forty minute
gap between re-deliberations and the guilty verdict). The jury also sent a second
note during re-deliberations, which indicated to the trial court that the jury was
“talking through a range of issues.”
We agree with the trial judge’s assessment of the situation and conclude that
the second verdict was arrived at “freely” and “fairly,” particularly because the
trial court used neutral language in instructing the jury to resume its deliberations.
The facts in this case are closer to Green and Elliott, where the dissenting jurors
were polled early in line and the jury’s exact numerical division was unknown,
than to Crowder and Harris, where we found a great degree of inherent coercive
potential. For that reason, and because the judge’s actions defused the coercive
potential, we find no reversible error or actual coercion. Harris, supra, 622 A.2d
at 707. Accordingly, we affirm.
So ordered.