Barbett v. United States, No. 11–CF–362.

• Decision Date: 11 October 2012
• Docket Number: No. 11–CF–362.
• Citation: 54 A.3d 1241
• Parties: Robert Vernon BARBETT, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

54 A.3d 1241

Robert Vernon BARBETT, Appellant,

v.UNITED STATES, Appellee.

No. 11–CF–362.

District of Columbia Court of Appeals.

Argued Sept. 11, 2012.

Decided Oct. 11, 2012.

Gregory S. Smith for appellant.

Kenechukwu O. Okocha, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, Chrisellen R. Kolb, and Kimberly Nielson, Assistant United States Attorneys, were on the brief, for appellee.

Before OBERLY and BECKWITH, Associate Judges, and NEBEKER, Senior Judge.

OBERLY, Associate Judge:

In a five-count indictment, Mr. Robert Barbett, appellant, was charged with carrying a pistol without a license (Count 1); ¹ unlawful possession of a firearm by a felon (Count 2); ² possession of an unregistered firearm (Count 3); ³ unlawful possession of ammunition (Count 4); ⁴ and offenses committed during release (Count 5). ⁵ The jury acquitted Mr. Barbett on Count 1, found him guilty on Count 4, and later, after receiving an anti-deadlock instruction, found him guilty on Counts 2 and 3.⁶

Mr. Barbett appeals his convictions on Counts 2 and 3; he does not challenge his convictions on Counts 4 and 5. In challenging Counts 2 and 3, Mr. Barbett first argues that the trial court erred in refusing to grant a joint motion for mistrial and by giving an anti-deadlock instruction as a matter of routine without carefully examining the nature of the case and the length of the deliberations. Second, he argues that the trial court erred in giving an anti-deadlock instruction that he contends was more coercive than the instruction approved in Winters v. United States, 317 A.2d 530 (D.C.1974) (en banc). ⁷ As we have held repeatedly, “[f]ailure to exercise choice in a situation calling for choice is an abuse of discretion ... because it assumes the existence of a rule that admits of but one answer to the question presented.” (James) Johnson v. United States, 398 A.2d 354, 363 (D.C.1979). Here, we are forced to conclude that the trial court abused its discretion by failing to exercise its discretion in determining whether it was appropriate to issue an anti-deadlock instruction. Therefore, we reverse the convictions on Counts 2 and 3 and remand for further proceedings.

I. FACTS

On September 1, 2010, Mr. Barbett was charged with five criminal offenses stemming from a traffic stop during which the arresting officer saw the butt of a gun sticking out from under Mr. Barbett's thigh. A jury trial before the Honorable Jennifer M. Anderson began in the morning on December 15, 2010. The jury began its deliberations on Thursday, December 16, 2010, at 3:25 p.m. At 4:44 p.m., the jury requested further explanation of the terms “intent” and “control” within the definition of constructive possession. The judge conferred with counsel and invited them to submit proposed instructions to respond to the jury's questions. At 4:50 p.m., the jury was brought into the courtroom, was told it would be provided instructions in response to its questions the next morning, and was excused for the day.

Deliberations resumed at 10:05 a.m. the next morning and at 12:13 p.m., the jury sent a note indicating it had “a unanimous position on Charges 1 and 4,” but was “unable to reach a decision on Charges 2 and 3.” The government requested that a partial verdict be taken; appellant requested a mistrial. The jury delivered a partial verdict acquitting Mr. Barbett on Count 1 (carrying a pistol without a license) and finding him guilty on Count 4 (unlawful possession of ammunition). At 12:40 p.m., the jury was told to “return to the jury room and continue deliberating on the other two counts.”

Less than four hours later, at 4:13 p.m. on Friday afternoon, the jury sent a third note stating that it “cannot reach a unanimous decision” on the remaining counts and it saw “no chance for unanimity.” Mr. Barbett's counsel requested a mistrial and the prosecutor said, “with the holidays coming up[,] I actually would move with [Mr. Barbett's counsel] for a mistrial at this point.” Judge Anderson quickly rejected counsel's joint motion, stating, “I'm not giving a mistrial. Absolutely not.... I'm not giving a mistrial before I've even Winterized them. I mean, why should I—I don't understand, why should I do that?” Neither counsel responded to her seemingly rhetorical question. The judge asked the prosecutor if she was “not going to be here on Monday” to which the prosecutor responded that she had not intended to be in on Monday but that she would make herself available. The judge told the parties that the jurors would be instructed to return on Monday and she would give them “some additional instructions” at that time. After telling the jurors the same thing, the judge told them to “[p]ut the case out of your mind, come back to it fresh on Monday.”

On Monday, December 20, 2010, the court recalled to the jury that “[y]our note indicates that you have been unable to reach a unanimous verdict at this time, and I would like to give you the following advice.” The judge then gave an anti-deadlock instruction that mirrored the Winters instruction as set forth in the Criminal Jury Instructions for the District of Columbia, No. 2.91(III)(B) (4th ed. rev.2008). Jury deliberations resumed at 10:10 a.m. and at 11:08 a.m., the jury sent a fourth note indicating it had “reached a unanimous verdict” on the remaining two counts. The jury found Mr. Barbett guilty on both counts. When polled, each juror adopted the verdict.

II. DISCUSSION

Mr. Barbett alleges that the trial judge “erroneously treat[ed] a Winters instructionas a routine charge that should ordinarily (or even always) be given before a court allows a mistrial” and that the court “failed to engage in the type of ‘careful consideration’ contemplated by this Court's precedent before proceeding sua sponte with its Winters charge.” Our review is for abuse of discretion. (James) Johnson, 398 A.2d at 362. That review requires us to determine, “first, whether the matter at issue was committed to the court's sound discretion; second, whether the trial court recognized that it had discretion and, if so, whether the court purported to exercise that discretion; and third, whether the record reveals sufficient facts upon which the court based its decision” and whether that discretion was exercised erroneously. Geddie v. United States, 663 A.2d 531, 534 (D.C.1995); (James) Johnson, 398 A.2d at 365. If we find error, we must determine whether it is of such a “magnitude to require reversal.” Id. at 366.

A. Whether or Not to Give an Anti–Deadlock Instruction Is a Decision Committed to the Discretion of the Trial Judge.

Addressing the first factor, it is without question that the determination whether or not to give an anti-deadlock instruction is committed to the court's discretion, but only after the court assesses whether or not the jury truly is deadlocked.⁸See Hankins v. United States, 3 A.3d 356, 361 (D.C.2010) (“Whether to give an anti-deadlock instruction when a jury reports itself at an impasse ... [is] [a] question[ ] committed to the trial judge's discretion.”). In Winters, noting that the approved instruction carries a “sting,” this court cautioned that it is not to be used “prematurely or without evident cause.” Winters, 317 A.2d at 533. This is because an anti-deadlock “instruction ... should be in the nature of an ultimate judicial attempt, not a preliminary attempt, to secure a verdict.” Thompson v. United States, 354 A.2d 848, 851 n. 8 (D.C.1976). Accordingly, “its use should be confined to instances where deadlock is apparent.” Winters, 317 A.2d at 533.

“It is for the trial judge” to determine whether the jury is “genuinely deadlocked” or, put another way, if there is a hung jury. Epperson v. United States, 495 A.2d 1170, 1172 (D.C.1985). In making that determination, the trial judge must consider the “nature and complexity of the trial issues, the duration of the trial and the length of the jury deliberations, as well as the representations of the jury to the court about the state of its deliberations.” Id. Although here the jury, in its third note, stated that it saw “no chance for unanimity,” a “jury is not necessarily a ‘hung jury’ simply because it says it has been unable to reach a unanimous verdict.” Id. at 1175 n. 10. Indeed, “[s]ome juries make this representation prematurely,” id., thus requiring the trial judge to take a closer look at the state of the jury's deliberations.

B. The Trial Judge Failed to Exercise Her Discretion.

Turning to the second factor, we cannot conclude that the “record reveals sufficient facts upon which the court based its decision.” Geddie, 663 A.2d at 534. In fact, the record is barren as to the reasons for the trial judge's decision to give an anti-deadlock instruction save for her statement that, “I'm not giving a mistrial before I've even Winterized them” and her rhetorical question, “I mean, why should I—I don't understand, why should I do that?” Accordingly, we can only conclude that the court gave the instruction as a matter of routine and not after carefully considering whether or not the court had “before it a genuinely ‘hung jury.’ ” Epperson, 495 A.2d at 1172.

This is error of a significant magnitude as we have repeatedly stated that anti-deadlock instructions “should not be given routinely,” Harris v. United States, 622 A.2d 697, 703 n. 9 (D.C.1993) (internal quotation marks omitted), and “is not a course to be taken precipitously and automatically when a jury announces an inability to reach a verdict.” Thompson, 354 A.2d at 851 n. 8;see also Harris, 622 A.2d at 703 n. 9 (“[A]n ‘anti-deadlock’ instruction ... ‘should not be given routinely, but only after careful consideration by the trial judge of the nature of the case and length of the deliberations.’ ”) (quoting Smith v. United States, 542 A.2d 823, 825 (D.C.1988)); Wilson v. United States, 419 A.2d 353, 356 (...