Watts v. United States , 1976 D.C. App. LEXIS 343 ( 1976 )

HARRIS, Associate Judge:

A jury found appellant guilty of burglary in the first degree, D.C.Code 1973, § 22-1801 (a), and two counts of assault with a dangerous weapon, id. § 22-502.

In an opinion issued November 26, 1974, a division of this court, by a vote of 2-1, reversed the convictions and ordered a new trial on the ground that the trial court erred in instructing the jury that if it found that all elements of the charged offenses had been proven beyond a reasonable doubt, it “must find” appellant guilty. 328 A.2d 770. The majority accepted appellant’s argument that such an instruction was “equivalent to the trial judge’s directing a verdict of guilty, which violates appellant’s Sixth Amendment right to trial by jury.” Id. at 772.

On February 7, 1975, we granted the government’s petition for rehearing en banc and vacated the November 26 opinion. Having reconsidered the case en banc, we now hold that no error warranting reversal occurred and affirm appellant’s convictions.

The victims of the assault were Cynthia Celey and Bertha Inabinet. Celey had known appellant for about three years, during much of which they experienced an intimate but stormy relationship. Approximately a year prior to the incident involved in this case, Celey went to the Corporation Counsel’s office to complain that appellant had beaten her. Celey and appellant terminated their dating relationship several months prior to the events before us. At that time, appellant threatened her, and thenceforth she lived in fear of him. She testified that she had needed protection from him on several occasions, and that it became necessary to have the windows of her home nailed shut. Several weeks prior to the incident at issue, appellant cut a hole in a window in Celey’s home in an effort to gain entrance, but he withdrew when he was noticed by Inabinet.

The offenses in this case occurred early in the morning of December 24, 1972. Ce-ley and Inabinet were asleep in the living room of the house they shared with their respective children. A house guest and the children were sleeping upstairs. Inabinet was sleeping in a chair, fatefully having covered herself with Celey’s coat.

At approximately 6:00 a. m., Celey was awakened by a loud crash. She looked up and recognized appellant standing over In-abinet. In his hands were the remains of a china cat which had been hanging on the wall. Appellant had smashed the cat on Inabinet’s head, apparently under the impression that he was assaulting his ex-girlfriend. Celey screamed at appellant, calling him by name. Appellant then began an assault on her, first using the shattered remains of the china cat and then striking her with an ashtray. Appellant then fled.¹

In charging the jurors as to one count of the indictment, the trial judge instructed that if they found that the government had proven the existence of each element of the offense beyond a reasonable doubt, “then you must find the defendant guilty as charged. If you do not find the facts to be [itc] you must acquit the defendant.” ² Appellant contends that this was equivalent to directing a guilty verdict, depriving him of his Sixth Amendment right to a trial by jury. However, defense counsel did not object to the instruction at trial, and the argument on this question is pressed for the first time on appeal. Thus, unless the action now complained of constitutes plain error, the absence of timely objection effectively insulates the disputed language from appellate interference.³

The obvious reason for requiring that objections to instructions be made before the jury retires is to afford the trial court an opportunity to correct any instructional defect and thereby avoid error which otherwise might necessitate a new trial. See e. g., Villaroman v. United States, 87 U.S.App.D.C. 240, 241-42, 184 F.2d 261, 262-63 (1950); United States v. Indiviglio, 352 F.2d 276, 280 (2d Cir. 1965), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). In order to discourage the intentional withholding of objections by defense counsel, errors not objected to at trial are unreachable on review unless they fall within the purview of the plain error rule. Under that standard, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial. See Adams v. United States, D.C.App., 302 A.2d 232 (1973); Bunter v. United States, D.C.App., 245 A.2d 839 (1968). Evaluating this case in such a light, we conclude that the challenged instructions did not reach the level of plain error.

Certainly it is impermissible for a trial judge to direct a verdict of guilty. However, it cannot validly be said that the trial court did so in this case. It is axiomatic that “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L. Ed.2d 368 (1973). Among the carefully delivered instructions were those explaining the presumption of innocence and the government’s duty to prove each element of each offense beyond a reasonable doubt. After the judge enumerated the individual elements of each offense, he instructed the jury as to the meaning of reasonable doubt. When he had completed this process for all three of the charged offenses, he gave a detailed explanation of the necessity for the jury to keep each offense separate during its deliberations. He charged the jury on the government's need to establish the defendant’s presence at the time and place of the offense in the face of appellant’s alibi defense. Subsequent instructions reminded the jurors that although the verdict was their “sole and exclusive duty and responsibility”, it was their duty to accept the law as the court stated it and to determine the facts fairly and without prejudice. The instructions explicitly and fully explained that the jury was free to exercise its own judgment as to the credibility of witnesses and to reject that testimony which it felt was unreliable or implausible. Finally, the court charged the jury that it must consider the instructions “as a whole” without giving special attention to any particular one. Unlike the cases relied upon by appellant, the instructions here neither told the jury that it must find the defendant guilty if it rejected his alibi defense, see United States v. Hayward, 136 U.S.App.D.C. 300, 420 F.2d 142 (1969), nor that it must return a guilty verdict if it simply “believed” that the defendant had committed the offense. See Billeci v. United States, 87 U.S.App.D.C. 274, 184 F.2d 394 (1950). See also Baker v. United States, D.C.App., 324 A.2d 194 (1974).

In each of those cases, the defective instructions explicitly or impliedly sanctioned that which the law does not allow, namely, guilty verdicts returned on proof of less than every element necessary to constitute the offense, and evaluation of the government’s case under a standard more lenient than that of proof beyond a reasonable doubt.⁴ See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

In contrast, the trial court’s instructions in this case correctly advised the jury as to both its prerogative as the exclusive fact-finder and its solemn obligation to render the verdicts which the law and the facts compelled. Cf. Arshack v. United States, D.C.App., 321 A.2d 845 (1974). There could have been no uncertainty in the jurors’ mind's that unless they were convinced of appellant’s guilt beyond a reasonable doubt, no verdict but that of not guilty could be returned. The trial judge’s instructions conveyed the concept of proof beyond a reasonable doubt numerous times. The jury repeatedly was reminded that it had the sole power to determine the verdicts, and was told that it should disregard any intimated or expressed opinion of the trial judge. The jury was fully and properly guided with respect to both its obligations and its prerogatives.

We recognize that the law permits a jury to acquit in disregard of the evidence, and that such an acquittal is unreviewable. See Horning v. District of Columbia, 254 U.S. 135, 41 S.Ct. 53, 65 L.Ed. 185 (1920). Conceding this power of a jury, we do not feel its exercise should be encouraged.⁵ The present standardized jury instruction on burden of proof provides that the jury “must find” a defendant not guilty if the government fails to prove every element of an offense beyond a reasonable doubt, but gives the jury no guidance at all as to its duty if it finds that each element of the offense has been proven beyond a reasonable doubt.⁶ The jury’s option to reject both the evidence and the law is effectively communicated to it through various formal and informal channels.⁷ Careful consideration of the totality of the problem has led us to conclude that a meaningful degree of instructional equipoise is needed to guide jurors in arriving at their verdicts. To be silent as to a juror’s duty if guilt is proven beyond a reasonable doubt is to invite acquittals based not on the law and the facts, but on whim, sympathy, or prejudice. A verdict returned on such a basis scarcely is consistent with the profound obligation undertaken by each juror.⁸ We find no error— much less plain error — in the trial court’s use of “must find” in lieu of the term “should find” (as was sanctioned in Billeci v. United States, supra) in its instructions to the jury.

We are not alone in reaching such a conclusion. It is apparent from cases decided in other jurisdictions that numerous courts are concluding that sound principles of criminal jurisprudence require a balanced exposition of both sides of a juror’s basic duty. In such cases, where the jury properly has been instructed on the standard of proof beyond a reasonable doubt, appellate courts consistently have upheld the use of instructions which, in effect have advised the members of a jury that they have as great an obligation to convict where guilt has been proven as they do to acquit where it has not. See, e. g., United States v. Johnson, 462 F.2d 423, 429 (3d Cir. 1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed.2d 602 (1973); United States v. Minker, 312 F.2d 632, 636 (3d Cir. 1962), cert. denied, 372 U.S. 953, 83 S.Ct. 952, 9 L.Ed.2d 978 (1963); Straughter v. State, 247 A.2d 202, 203-04 (Del.

1968); State v. Devoe, 301 A.2d 541, 545-46 (Me.1973); State v. Bryant, 375 S.W. 2d 107,108-09 (Mo.1964).

While we conclude that no error occurred in the instructions as given, in the exercise of our supervisory authority over the Superior Court we deem it appropriate to sanction the prospective use of a variant of the existing standardized instruction. See Winters v. United States, D.C.App., 317 A.2d 530 (1974) (en banc). Accordingly, we endorse the following modification of the latter portion of Criminal Jury Instruction No. 2.08: “If you find that the government has proven beyond a reasonable doubt every element of the offense with which the defendant is charged, it is your duty to find him guilty. On the other hand, if you find that the government has failed to prove any element of the offense beyond a reasonable doubt, you must find the defendant not guilty.”⁹ In our view, such a charge would best serve the interests of justice.¹⁰

Appellant urges several other grounds for reversal. We find no merit in any of those arguments.¹¹ The government’s evidence against appellant was overwhelmingly persuasive, and there is no basis for reversing the convictions based thereon.

Affirmed.

MACK, J., took no part in the consideration or decision of the case.

1 . Appellant’s defense was alibi. He also presented two witnesses who testified to Celey’s poor reputation in the community for truth and veracity. On rebuttal, the government offered testimony which contradicted appellant’s alibi defense and disputed the negative character evidence regarding Celey.

2 . In another variation of the same theme, the court also gave the following instruction: “If after deliberation you find the Government has proved its case to your satisfaction beyond a reasonable doubt, then you must find the defendant guilty of this charge.”

3 . Super.Ct.Cr.R. 30 (which is identical to Fed.R.Crim.P. 30) deals with jury instructions. Among its provisions is the following:

No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.

See United States v. Williams, 172 U.S.App.D.C. 290, 521 F.2d 950 (1975).

In addition, Super.Ct.Cr.R. 52(b) (also identical to the corresponding federal rule) provides:

Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.

Fed.R.Crim.P. 54 specifically makes Rule 52 (b) applicable to proceedings in the United States Courts of Appeals, but the Superior Court rules contain no such provision. Nonetheless, where there is plain error concerning instructions, such an error is subject to review in our discretion. Bunter v. United States, D.C.App., 245 A.2d 839, 842 (1968); see Adams v. United States, D.C.App., 302 A.2d 232 (1973); Harris v. United States, 112 U.S.App.D.C. 100, 299 F.2d 931 (1962); D.C.Code 1973, § 11-721 (e).

4 . In Billeci v. United States, supra, the United States Court of Appeals sanctioned an instruction that a jury “should” find a defendant guilty if it believed beyond a reasonable doubt that he committed the offense. The true significance of the approved instruction can be gathered only from the context of the error the court’s holding was intended to correct. In Billeci, the trial judge, in his efforts to encourage a deadlocked jury to reach a verdict, stated:

You must confine yourselves strictly to the question and ask yourself honestly, “Do I believe from the evidence I have heard at this trial that the defendants have committed this crime?” If you answer the question “Yes,” you must find the defendants guilty. If your answer is “No,” then you must find them not guilty. [87 U.S.App. D.C. at 279, 184 F.2d at 399, quoting the trial judge.]

Holding those directions to the jury to be erroneous, the court of appeals concluded:

That statement is not the law. The law is that if the jury believed 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. [Id.]

The phrase of crucial importance which was omitted from the trial court’s instructions in Billed is “beyond a reasonable doubt”. See In re Winship, supra, 397 U.S. at 363, 90 S.Ct. 1068. The reversal in Billeci did not hinge upon the subtle distinction between the words “should” and “must”.

5 .The exercise of the jury’s prerogative-in-fact to acquit out of conscience or prejudice is a tolerated “anomaly in the rule of law.” United States v. Simpson, 460 F.2d 515, 519 n. 12 (9th Cir. 1972). Of course, juries can and have disregarded both uncontroverted evidence and the court’s instructions on matters of law. Nonetheless, it cannot be suggested that because a jury in fact may reject the instructions of the judge, it is erroneous to charge that its duty is to accept the law as the court states it. [Our jurors now are instructed in part: “It is your duty to accept the law as the court states it to you.” Criminal Jury Instructions for the District of Columbia, No. 2.01 (D.C.Bar Ass’n, 2d ed. 1972).] “Jury nullification” ultimately represents a jury’s defiance of the law, and an acquittal resulting from such defiance inevitably is the exercise of a power that the jury has been informed, in some way, that it does not possess. We stated in Arshack v. United States, supra, at 851:

No doubt juries sometimes act out of compassion and in disregard of the law. But we will not place upon such conduct by juries the stamp of judicial approval through an instruction from the court. To do so would actually encourage anarchy in the courtroom, and that might in the end harmfully infect organized society.

See also United States v. Dougherty, 154 U.S.App.D.C. 76, 96-97, 473 F.2d 1113, 1136-37 (1972); Fuller v. United States, 132 U.S.App.D.C. 264, 297, 407 F.2d 1199, 1232 (1968) (en banc), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969).

6 . See Criminal Jury Instructions for the District of Columbia, No. 2.08 (D.C.Bar Ass’n, 2d ed. 1972). Language such as that before us here, instructing as to a jury’s obligation to find guilt where it has been proven beyond a reasonable doubt, has been added to the text of the Bar Association’s standardized instruction on an ad hoc basis by various trial judges.

7 . See United States v. Dougherty, supra note 5, 154 U.S.App.D.C. at 98, 473 F.2d at 1135.

8 . At the start of every jury trial in the Superior Court, each juror solemnly swears that he or she will “a true verdict render according to the law and the evidence”. That oath must be considered to have deep meaning. It tells the jurors of the proper considerations which must guide them: (1) evaluation of the facts as they are presented without caprice or bias, and (2) application of the appropriate principles of law as enunciated by the court.

9 . We note that our views in this case are wholly consistent with those expressed in our en banc opinion in Winters v. United States, supra. There, in setting forth a modified version of a charge to be used when a jury reflects undue difficulty in reaching a verdict, we adopted the following language as a part of such a charge: “ . . . it is your duty to decide the case if you can conscientiously do so.” 317 A.2d at 634. Far from directing a guilty verdict, as our dissenting colleagues contend, what we sanction here is a balanced charge, advising of a duty to convict where guilt is proven beyond a reasonable doubt, or to acquit where it is not.

10 . In United States v. Johnson, supra, at 429, the Third Circuit sustained the use of the following specific instruction in the context of the instructions as a whole:

“It is also your sworn duty to find him guilty if the Government has carried its burden of proof and has established his guilt beyond a reasonable doubt. This is necessarily so and vitally important, because the failure on the part of courts and juries to enforce one law leads to the violation of other laws, thus undermining the morals, the peace and order of the nature and the general safety of the lives and property of the people.”

11 . Appellant cites as error several of the trial court’s evidentiary rulings and the failure to give certain limiting instructions. One of his contentions merits brief discussion. The government called Bertha Inabinet, the victim of appellant’s initial assault, as a witness. In response to a question asked on cross-examination, Inabinet stated that after she regained consciousness following the blow to her head, she asked Cynthia Celey why she had hit her. She further stated that she had thought that it was Celey who had struck her. The prosecutor claimed surprise, and the court permitted him to impeach Inabinet with a prior inconsistent statement in which she had told the grand jury that she thought, based on what Celey had told her, that appellant had been her assailant. Defense counsel requested no cautionary instruction on the purpose for which the grand jury statement was admitted. Appellant now claims that it was plain error for the trial court to have failed, sua sponte, to so instruct.

This argument has superficial appeal in light of this court’s decision in Lofty v. United States, D.C.App., 277 A.2d 99 (1971). However, Lofty was limited by Dixon v. United States, D.C.App., 287 A.2d 89, 98-99, cert. denied, 407 U.S. 926, 92 S.Ct. 2474, 32 L.Ed. 2d 813 (1972). See Johnson v. United States, D.C.App., 356 A.2d 639, 642 (1976) (Yeagley, J., dissenting); Jackson v. United States, D.C.App., 354 A.2d 869, 874 (1976). Additionally, two factors distinguish the instant ease from Lofty. Upon redirect examination by the prosecutor, Inabinet acknowledged the truth of the statement she had made to the grand jury. In so doing, she adopted the prior statement and it became part of her in-court testimony, subject to cross-examination. As the United States Court of Appeals for the Second Circuit noted in United States v. Borelli, 336 F.2d 376, 891 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965):

When a witness thus affirms the truth of a prior statement, the earlier statement is to be considered “not only as bearing on the credibility of the witness but as affirmative evidence.” [T]he trier of the facts has “two conflicting statements * * * of equal force as evidence”. [Citations omitted.]

See also United States v. Tavares, 512 F.2d 872 (9th Cir. 1975); United States v. Klein, 488 F.2d 481 (2d Cir. 1973), cert. denied, 419 U.S. 1091, 95 S.Ct. 683, 42 L.Ed.2d 684 (1974); United States v. Davis, 487 F.2d 112 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974); United States v. Carter, 417 F.2d 229 (3d Cir. 1969), cert. denied, 397 U.S. 999, 90 S.Ct. 1145, 25 L.Ed.2d 409 (1970); Harman v. United States, 199 F.2d 84 (4th Cir. 1952).

In addition, even if we were to choose not to follow the reasoning of Borelli, we see no prejudice flowing to appellant from the lack of the cautionary instruction. Neither In-abinet’s testimony on the stand nor her prior statement to the grand jury could have had any probative value on the issue of the identity of her assailant. Inabinet had testified that the blow she received rendered her unconscious, and she did not revive until later, when she was surrounded by police and neighbors. Her prior statement was based on information supplied to her by others, and we assume the jury attributed to it the negligible weight which it deserved.