# Jordan v. United States

> District of Columbia Court of Appeals · March 31, 2011 · 18 A.3d 703

URL: https://www.frixlaw.com/law-library/cases/9785208

## Case

- **Full name:** Percy JORDAN, Appellant, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** March 31, 2011
- **Citations:** 18 A.3d 703; 2011 D.C. App. LEXIS 150; 2011 WL 1158648
- **Precedential status:** Published
- **Opinion:** Concurrence by Ferren
- **Judges:** Fisher, Oberly, Ferren
- **Cited by:** 9 later opinions in the Frix Law Library

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## Opinion text

FERREN, Senior Judge,
concurring:
I concur fully in the opinion of the court but wish to add this postscript. The trial judge’s discretion as to reinstruction 1 signifies the right and responsibility to choose from “within the range of permissible alternatives.” 2 In the present case, the judge had to evaluate (1) whether there was a reasonable possibility that his failure to answer “yes” (without more) to the first question might lead the jury to convict appellant by misapplying the law (most likely by using an accomplice liability theory); and, on the other hand, (2) whether answering the question would coerce the verdict because, as counsel conceded on appeal, a “yes” answer would tell the jury that, upon a finding that appellant had struck David Rosenbaum — the only theory and direct evidence in this case — he had caused Rosenbaum’s death.
These two alternatives reveal the tension between the line of cases requiring trial judges to reinstruct when the jury is likely to misapply the law, 3 and case law warning judges against reinstruction that would apply law to the facts and thereby put the judge in the jury box. 4 For the sake of argument, I am willing to assume that, had the trial judge answered “yes” to the jury’s first question, he would have acted “within the range of permissible alternatives”, 5 in order to ward off improper jury speculation about accomplice liability (or even about an intervening cause of death during the two days that David Rosenbaum was lingering at the hospital). But, for the reasons stated in this court’s opinion, I am more than satisfied that the trial judge acted within his proper range of discretion by electing the second alternative, declining to answer the jurors’ question, and redirecting them to the initial instruction on “cause.”
Although it may have been possible, defense counsel did not suggest a way for the judge to point out that no evidence had *715 been presented concerning the cause of death, other than evidence that the victim had been physically struck, without leaving the impression that the judge himself was endorsing a finding that appellant had been the striker. And given the propriety of the trial judge’s decision not to rein-struct, he had no obligation to try to craft such an instruction sua sponte.
. Davis v. United States, 510 A.2d 1051, 1052 (D.C.1986) (per curiam).
. Johnson v. United States, 398 A.2d 354, 365 (D.C.1979).
. See Whitaker v. United States, 617 A.2d 499, 502 (D.C.1992), and Potter v. United States, 534 A.2d 943, 946 (D.C.1987) (both summarized in the court’s opinion, ante at note 14).
. See Graham v. United States, 703 A.2d 825, 832 (D.C.1997). This decision is (summarized in the court’s opinion, ante at note 13).
. Johnson, supra note 2 , 398 A.2d at 365 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9785208. Public record. Not legal advice.