Boykins v. US, 95-CF-489.

• Decision Date: 31 July 1997
• Docket Number: No. 95-CF-489.,95-CF-489.
• Citation: 702 A.2d 1242
• Parties: Anthony BOYKINS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

702 A.2d 1242

Anthony BOYKINS, Appellant, v. UNITED STATES, Appellee.

No. 95-CF-489.

District of Columbia Court of Appeals.

Argued October 16, 1996.

Decided July 31, 1997.

Rehearing Denied August 20, 1997.

Thomas T. Heslep, appointed by Court, for appellant.

Whitney C. Ellerman, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas C. Black, and Stephanie Miller, Assistant United States Attorneys, on the brief, for appellee.

Before WAGNER, Chief Judge, and STEADMAN and KING, Associate Judges.

WAGNER, Chief Judge:

The principal issue raised by this appeal, one of first impression in this jurisdiction, is whether prior to final discharge of a jury, its partial verdict of guilty on one of several counts may be impeached after it has been announced in open court and confirmed by poll. We conclude that, under the circumstances presented, such a verdict may not be impeached; therefore, the trial court properly gave final effect to the jury's partial verdict. Finding no instructional error, as claimed in Boykins' second argument for reversal, we affirm.

I. Factual Background

Appellant, Anthony Boykins, was indicted for first-degree premeditated murder while armed (Murder I W/A) (D.C.Code §§ 22-2401, -3202) (1996); assault with intent to kill while armed (AWIK-W/A) (D.C.Code §§ 22-501, -3202) (1996); carrying a pistol without a license (CPWL) (D.C.Code § 22-3204(a)) (1996); and possession of a firearm during a crime of violence or dangerous offense (PFCV) (D.C.Code § 22-3204(b)) (1996). Following a jury trial, Boykins was found not guilty of Murder I W/A, but guilty of AWIK-W/A and the lesser-included offense of second-degree murder while armed. After further deliberations, the jury was unable to reach a verdict on the remaining counts, and the trial court granted the government's motion for a mistrial as to the unresolved counts. The trial court denied Boykins' motion for a new trial, and he appealed.

A. The Shooting

At trial the evidence showed that on the evening of June 12, 1994, Boykins, who was riding with three other men in a white convertible, fired a gun at a group of men who were congregated in front of the Amsterdam apartment building in the 1300 block of Fairmont Street, N.W. Antonio Watson, who was in front of the Amsterdam at the time, died as a result of gunshot wounds he sustained. A thirteen-year old, Steven Robinson, sustained three bullet wounds to his leg. Two eyewitnesses testified that they recognized Boykins that evening and that he fired the weapon from the car. One of the witnesses heard Boykins tell Tayon Glover, the younger brother of Boykins' best friend, to "watch out" before he started shooting. A third witness, who did not know Boykins, described the shooter by his clothing and his position behind the driver in the convertible, which was consistent with the testimony of the other two eyewitnesses.

The government introduced into evidence Boykins' video-taped statement which he gave to the police after his arrest on June 28, 1994. According to Boykins, the shooting was one of a series of incidents related to a feud between two groups who identified themselves with the neighborhoods located in the 1300 block of Fairmont Street (the "Fairmont group") and at the 3500 block of 14th Street (the "35 group"). Boykins had been shot on September 21, 1993, allegedly by someone from the 35 group, and there was a rumor that he planned to retaliate against them. According to Boykins, he went to the 35 group and explained that the rumors were not true, and he thought that peace had been achieved. However, a series of violent events occurred subsequently, including the murder of Boykins' best friend and a shooting at Boykins' house.

Boykins learned that "Neck-Neck," a member of the Fairmont group, was responsible for the shooting at his house. Boykins approached Harvey, one of the Fairmont group, told him, "I heard Neck-Neck shot up my house, Young. That's messed up. You all done got me in it. Now my family in it.... Now—it's—its in the air, man. You all—you all—it's just out of hand now. It's not in my hands no more."

On the day of the drive-by shooting which led to the charges in this case, Boykins received a telephone call from a man named Marquette who reported about a hostile encounter that day with some of the Fairmont group. Boykins offered to take Marquette and others down to the Fairmont group and try to "squash it," which apparently meant to talk to them in an effort to avoid further violence between the two groups. However, Boykins told Marquette, "If they can't squash it like that, man, it's just—you all going to have to do what you all got to do, man." He told the detective that he planned to await Neck-Neck's release from jail to confront him and that he did not intend to take it out on Neck-Neck's friends.

Boykins admitted that he and three men drove a white convertible in front of the Amsterdam apartment building that same evening. Boykins stated that although he did not see any guns, he knew that his companions were armed and told them so. Before going to Fairmont Street, he told them:

Man, I know you all don't feel safe going down here. I probably know you all got guns. But, Young, you all hold you all's gunfire, Young'un, until—you know, we going to try to get it squashed. If somebody shoot at you all—you know, if they don't want to squash it, we just—you all just do what you all—do what you all got to do.

Boykins testified at trial essentially as he did in his video-taped statement. He claimed that he was about to get out of the car when he heard a gunshot, and "I just seen Fairmont looked—they started running." Boykins sustained a head wound during the shooting.

B. Jury Deliberations and Return of the Verdicts

The jury began deliberations on the afternoon of February 21, 1995, and they were excused for the day at approximately 4:00 p.m. After deliberating all morning the following day, the jury sent a note which read, "Does `assault with intent to kill' on Steve Robinson apply to conscious disregard?" After conferring with counsel, the court responded with a note to the jury, explaining that "conscious disregard" applied only to the charge of second-degree murder.¹

During the afternoon, the court learned that the mother-in-law of one of the jurors had died. The court discussed with counsel whether a partial verdict should be taken. Both sides agreed that the jury should continue to deliberate and that the question of taking a partial verdict should be deferred until the next day. The jury sent a second note that afternoon which reported that they could not agree on the charge of assault with a dangerous weapon and that they "requested a mistrial." The court inquired whether the jury had reached a unanimous verdict on any of the charges. The jury reported that it had reached unanimous verdicts on counts 1.a (Murder I W/A), 1.b (Murder II W/A), 1.c (voluntary manslaughter while armed), and 2.a (AWIK-W/A).

The court inquired in open court of the foreperson whether the jury had reached a unanimous verdict as to some of the charges, and the foreperson stated that they had. The foreperson delivered the verdict of not guilty for both Murder I and Murder II. Another juror stated immediately, "second degree is guilty," and others appeared to nod in agreement. The trial court inquired whether the foreperson had the verdict form, and he said that he did not. The court requested that the jury return to the jury room, look at the verdict form and "make sure that you all agree as to what your verdict is."

When the jury returned to the courtroom, the court stated that it wanted to start all over "to make absolutely certain" about the verdict. The jury again delivered a verdict of not guilty as to Murder I, but guilty as to Murder II. At a bench conference, the court discussed with counsel for the parties the jury's earlier report that it had also reached a verdict on the charge of voluntary manslaughter while armed. Defense counsel agreed with the court that the jury should return to the jury room because they had been instructed not to consider the lesser included manslaughter count if they reached a verdict of guilty on the greater offense of second-degree murder. The court then instructed the jury again that it should consider the manslaughter count only if they found the defendant not guilty of the second-degree murder count.

When the jury returned to the courtroom, the court explained that it would begin again the process of taking their verdict. The jury, speaking through its foreperson, returned a verdict of not guilty of Murder I and AWIK-W/A and guilty of the Murder II count. Defense counsel immediately requested a poll of the jury. Each juror confirmed the verdict during the poll. The court excused the jurors for the evening with instructions that they return the next morning to continue deliberations. The court explained that it was too soon to conclude that they could not reach a unanimous verdict as to the count on which they had reported an impasse.

The following morning, the jury sent a note, which stated:

There was some discrepancy on the understanding of charge 1.B Murder II W/A. We understand this is serious, but no longer can we agree on the verdict of 1.B. As we deliberated at length on the second charge (a & b) we became aware of the error in full understanding of the charge of 1.B and believe we will not come to a consensus on any of the charges.

The government argued that the partial verdict delivered the day before was final, and that it could not be impeached. Defense counsel argued that the verdict was not unanimous under the circumstances and "to hold to a verdict that this jury ... clearly doesn't agree with would be a violation of Boykins' rights". He contended further that the rule favoring verdict finality should not apply because the jury had not yet been discharged, which, he...