Wilson v. United States

NEWMAN, Chief Judge,

dissenting:

The sole issue before us is whether the trial court’s actions and remarks directed to the jury resulted in a verdict that was coerced. I dissent because I believe that the trial court’s harsh comments admonishing a particular juror, who had previously requested to be excused, had attempted to leave in the midst of deliberations, and who was a member of a panel which had already indicated on two different occasions its inability to reach a decision, resulted in a verdict that was coerced. An examination of the specific communications between the jury and trial court is crucial to this case.

I

At approximately 11:30 a. m. Monday, November 6, 1978, about 20 minutes after deliberations had begun, the jury sent out its first note indicating that it could not reach a verdict. The communication was ignored until 12:28 p. m., when the trial court, without notifying appellant or his counsel, had the jury brought into the courtroom. At that time, the judge recessed for lunch and encouraged the jurors to continue their deliberations after the break.

When the court reconvened at 1:50 p. m., the clerk informed the court, in the presence of appellant and his counsel, that one of the jurors had approached him asking to be excused and indicating that she did not “think the jury would come back with any kind of verdict/’ [Tr. 3] The clerk explained that he told the juror “there was no way” she could be excused and instructed her to return to the jury room. Both parties at this juncture agreed that the jury should continue to deliberate. The court also advised appellant of the first jury note and the instructions that had been given prior to lunch.

The court reconvened with all the parties at approximately 3:00 p. m., after receiving a second note from the jury expressing an inability to agree. The court also informed counsel that a juror had attempted to leave the jury room and had to be escorted back by the Marshal. In explaining the situation and offering his impressions to counsel, the court commented:

I can hear them [the jurors] mumbling and going on here, and they have stopped mumbling, which means-And then we have that same juror that is trying to walk out of there, and it doesn’t make for a good jury for anybody really. The Marshal had to put her back in.

He * * * * *

I think things are rather unsettled. I don’t think you will get a good decision out of this group. (Emphasis added.)

Counsel for the appellant immediately moved for a mistrial while the government attorney requested that a Winters instruction be given. Without ruling on the motions, the trial court stated:

Well, I don’t think that Winters is the answer. I don’t mind giving Winters, but I don’t think it is the answer. I think there is something basically wrong with one or two of these jurors. That is what I think. They are not going to come out with anything. (Emphasis added.)

*359 In an attempt to make a determination as to whether the Winters instruction should be given, the judge summoned the juror who had attempted to leave the deliberations and placed her on the witness stand for questioning. The following exchange occurred:

THE COURT: I’m a little disturbed. There seems to be some trouble going on in the room. The report is that you tried to walk out of that room. Just answer yes or no.

THE JUROR: Yes.

THE COURT: You also, I understand, had a question asked of the court room Clerk, Mr. Overholser.

THE JUROR: Yes.

THE COURT: When you first went out.

THE JUROR: Yes.

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 why 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 have 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.

On the other hand, I am giving an additional instruction. You have a seat right there, and we’ll get the others out. I don’t want you to volunteer anything. I am not in a position to settle what your problem is. You just have a seat over there. We are going to get the rest of the jurors out.

[DEFENSE COUNSEL]: Your Honor, I want to save my objection.

THE COURT: Yes, you can have your objection. Is that what you want?

[DEFENSE COUNSEL]: Yes.

[PROSECUTOR]: Should the juror remain?

THE COURT: He is just objecting to the Winters. I know why. 1 (Emphasis added.)

The remaining jurors returned to the courtroom at 3:05 p. m., and the Winters instruction was given.

At 4:05 p. m., the court again reconvened and informed appellant and his counsel that it had received yet a third note from the jury. The third note indicated:

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.

Appellant’s counsel again moved for a mistrial, but the jury was excused until the next morning. Within one hour of returning the next day, the jury announced a verdict of guilty.

II

On several previous occasions we have analyzed a trial judge’s instructions to a jury, and yet the majority ignores the case which is clearly most analogous to this one. In Jackson v. United States, D.C.App., 368 *360 A.2d 1140 (1977), we reversed a conviction for armed robbery when a trial judge improperly commented to the jury after receiving a note that indicated a numerical split and expressed a juror’s inability to reach a verdict because of a recollection regarding a family member. In Jackson , the trial court, after receiving only its first note, had the clerk read the oaths taken by the jurors and commented:

And you answered, “I will.” Now, I-am going to tell you to go back and do your job, because this is not a clear indication that somebody says they cannot. It says they feel. I am not concerned with feeling. This whole job is a dirty job. Let’s be honest with it. You are supposed to find guilt or innocence here, ladies and gentlemen. [Jackson v. United States, supra at 1142.]

We found those comments to be coercive and specifically stated:

[W]here it was apparent that the trial judge knew which individual was holding out, it was error to direct an instruction toward that individual which intimated that she was guilty of either perjury or negligence in her response to questions on voir dire and that she was not complying with her oath as a juror. .

However annoying it may have been to discover that one juror had so belatedly recalled a similar case in her family, there was no indication that the juror here in question had deliberately deceived counsel and the court on voir dire. Such circumstances cannot justify pressuring the juror with the implicit threat of judicial action or at the very least displeasure should the verdict not be reached because of a disturbing recollection which restrained the juror from joining the majority position. If it were clear that the juror was incapable of fairly reaching a verdict, the court would have to have declared a mistrial. [Id. (footnotes omitted).]

Here, the facts are even more egregious than in Jackson . First, in this case the “troublesome juror” did not merely express a “feeling” that she was unable to deliberate, but specifically requested to be excused from the panel, maintained that a verdict could not be reached, and attempted to leave the jury deliberations. These actions unequivocally indicate her conviction that she could not arrive at a verdict. Second, the trial judge clearly acknowledged that he was aware of the holdout as indicated by his in-court inquiry of her. Third, the words uttered by the trial judge are undeniably harsher than those spoken in Jackson . The trial judge not only reminded the juror that she in fact had taken an oath which indicated her ability to deliberate, and that there was no one who could replace her, but reprimanded her by stating, “this is the first time since I have been sitting as a Judge, which is almost sixteen years, that I have ever had a juror attempt to walk out of a jury room.” Finally, it should be noted that although the trial court’s comments in Jackson were spoken to the entire jury, we stated that “this type of remark by a trial judge is even more coercive and egregious when obviously directed at a particular individual identified to the court, to the parties, and to her fellow jurors.” Jackson, supra at 1143 . Here, the trial court singled out the “troublesome juror,” placed her on the witness stand, and directed its harsh remarks exclusively at her. Thereafter, the remaining jurors were called into the courtroom and the Winters charge given over defense objection. Thus, Jackson clearly mandates that we find the trial court’s instructions coercive and reverse the conviction.

The majority also suggests that Nelson v. United States, D.C.App., 378 A.2d 657 (1977), supports its decision. A fair reading of that case indicates that it does not. In Nelson , a juror separated herself from the deliberations for approximately one hour and a half and the trial judge then proceeded to lecture the panel on the necessity of reaching a verdict. Although we upheld the conviction, we made clear that our decision was substantially governed by the fact that defense counsel not only failed to object, but encouraged the court to continue deliberations. In expressing disapproval of the trial court’s comments, we stated:

*361 The record indicates that shortly before the instruction was given, the trial court was disposed to declare a mistrial. It was only after repeated requests by defense counsel for a stronger anti-deadlock charge that the court finally made the challenged remarks. Presumably, defense counsel believed that the jury was about to acquit their clients. The instruction was not directed to any particular juror, and it appears that its effect was attenuated because the panel was discharged for the rest of the day and did not reach its verdict until late the following afternoon. Although we are troubled by the language used by the court, we are not persuaded that the instruction, when viewed “in its context and under all the circumstances” rose to the level of the plain error. [Nelson v. United States, supra at 661.]

But for the explicit request of the defendant in Nelson , it is clear that we would have reversed. Where, as here, there was strong objection by the defendant, 2 the majority’s reliance on Nelson is misplaced.

Furthermore, the majority’s opinion is also in contravention of a case recently decided by this court, Morton v. United States, D.C.App. 415 A.2d 800 (1980). In Morton , we held that the participation of a juror in deliberations after she requested to be excused because of her brother’s death followed by a Winters instruction created a sufficient possibility of a coerced verdict. Despite the fact the juror indicated that she was able to continue in the midst of emotional strain, we found that there was “a substantial risk of a coerced verdict . .”

Morton, supra at 802 . In addition, we noted that although it is not necessarily error to give the Winters charge, under these circumstances “the timing of the instruction could have well implied that a verdict was being demanded before the juror would be excused to attend to her personal business.” Id. at 803 .

All those things which led to the reversal in Morton exist her e-plus more. Unlike Morton , the juror here indicated an unwillingness to continue. This was coupled with the judge’s admonishing remarks in this case which did not occur in Morton .

The constitutional guarantee of trial by jury contemplates a jury free of judicial or other coercion. Recent events in the Superior Court reflect the unfortunate consequences of jurors feeling themselves unduly coerced. 3 I find it a sad day when this court sanctions such coercion. I dissent. 4

. The majority maintains that appellant did not specifically object to the court’s reprimanding the juror. The majority, however neglects to note that the “troublesome juror” was specifically called into the courtroom for questioning so that the judge could rule on appellant’s motion for a mistrial and the government’s request for a Winters charge. Thus, since appellant’s motion for a mistrial was still pending at the time of the inquiry, there was no reason to lodge another objection in the midst of the questioning. When it immediately became apparent, however, that the court was going to give the Winters charge, appellant again objected.

. See note 1, supra.

. See Washington Post, April 17, 1980, § C (Metro), at 1, col. 1, reporting a fight between two or more jurors during deliberation. The trial judge in that case, showing proper sensitivity, declared a mistrial upon defendant’s request.

. Contrary to the concurrence, “cutting through to the bone of the case,” the issue is not whether the “theatric[al]” juror was a “hold out” or a “hold up”. It is not whether the case was “an uncomplicated, minor, criminal” one. Nor does the issue turn on the measure of our esteem for “the seasoned, experienced trial judge.” The issue, simply stated, is whether appellant was deprived of his Sixth Amendment rights to a trial by a jury free of coercion.