Coley v. United States

• Decision Date: 15 November 2018
• Docket Number: No. 15-CF-512,15-CF-512
• Citation: 196 A.3d 414
• Parties: Victor COLEY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

196 A.3d 414

Victor COLEY, Appellant,

v.UNITED STATES, Appellee.

No. 15-CF-512

District of Columbia Court of Appeals.

Argued March 16, 2017

Decided November 15, 2018

Deborah A. Persico for appellant.

Patricia A. Heffernan, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, David Misler, and Jeffrey Nestler, Assistant United States Attorneys, were on the brief, for appellee.

Daniel Gonen, with whom Samia Fam and Stefanie Schneider were on the brief, for the Public Defender Service, amicus curiae, in support of appellant.

Before Glickman, Fisher, and Thompson, Associate Judges.

Glickman, Associate Judge:

After a jury trial, Victor Coley was convicted on multiple counts of assault with intent to kill while armed, aggravated assault while armed, and related firearms offenses. His principal contention on appeal, and the only one we find it necessary to address, is that the trial judge erred by failing to respond appropriately when a breakdown in the jury poll and a subsequent note from a juror revealed a substantial possibility that the juror felt coerced into surrendering her honest convictions and rendering a guilty verdict. We agree that Mr. Coley is entitled to a new trial on this ground.

I.

The charges against appellant arose from an incident on November 6, 2013, in which a lone gunman fired shots into a crowd of people gathered outside a Payless store in the 3900 block of Minnesota Avenue, N.E. At trial, the government presented evidence that the gunman was appellant. Appellant's defense was misidentification; he presented evidence that the shooter was someone else. Because the issue we address in this appeal arose out of the jury's deliberations, it is unnecessary to recite the evidence in detail.

In his charge to the jury at the conclusion of the trial, the judge informed the jury that if it needed to communicate with the court, it could send a note, signed by the foreperson or one or more jurors, through the court clerk or the marshal. The judge cautioned the jury not to reveal its numerical division with regard to conviction or acquittal. He explained that the jury's "mission" was "to reach a fair and just verdict based on the evidence"; that "[a] verdict must represent the considered judgment of each juror"; and that "[i]n order to return a verdict, each juror must agree on the verdict," i.e., its verdict "must be unanimous." There was no instruction to the effect that a juror should not surrender honestly held convictions to achieve unanimity.

The jurors began their deliberations on Friday afternoon, February 20, 2015. At 12:05 p.m. on Tuesday, the court received a note, signed by the foreperson, stating the jury had "reached a decision on all counts." In the courtroom, the foreperson announced that the jury unanimously found appellant guilty of all the charges against him.

The judge proceeded to poll the jury, asking each juror individually, "Do you agree with the verdicts as stated by your foreperson?" The first two jurors answered "yes." But when the third, Juror 668, was asked whether she agreed with the verdicts, she responded, "I can't" (or, possibly, "I can't agree").¹ The judge immediately stopped the poll and sent the jurors back to the jury room with instructions to refrain from discussing the case while he consulted with the parties.

In the jury's absence, the judge discussed with counsel how to proceed. Appellant moved for a mistrial, which the judge denied. Defense counsel argued that requiring further deliberations would create a high likelihood that Juror 668 would be coerced into changing her vote because her response to the poll indicated she almost certainly was the sole dissenter from the verdict announced by the foreperson. The judge disagreed. He found that Juror 668's "I can't" was ambiguous and did not necessarily mean she dissented from the declared verdict; rather, the judge observed, the juror simply may have been "confused," or she may have felt unable to "say that he's guilty even though the evidence supports it."² In addition, the judge deemed it "speculation" to conclude that Juror 668 was the only juror not joining in the announced verdict, inasmuch as she was only the third juror polled and the "exact numerical division" of the entire jury with respect to the verdict was unknown; this was not, the judge said, "the sort of situation where it's the 12th person who is polled, who's the only person that says no." Moreover, the judge noted that the jury had been deliberating for only "about a day and a half on about five full days of evidence," which was "a short period of time" in the judge's estimation.

For these reasons, the judge concluded that the "evidence" did not show "a particularly high likelihood of juror coercion" if he recalled the jury to the courtroom and instructed it to continue its deliberations. For the language of that instruction, the judge looked to Instruction 2.603 ("Return of the Jury After Polling") in the "Redbook."³ In accordance with the first paragraph of that instruction, the judge instructed the recalled jurors as follows:

[I]n the poll of the jury, it's become apparent that you may not have reached a unanimous verdict. Now, for this reason I'm going to ask you to return to the jury room for further consideration of your verdict. If you are unanimous your foreperson should send me a note indicating that, and I will poll you again. If you are not unanimous please resume deliberations and see if you can reach [a] unanimous verdict.

Instruction 2.603 contains two additional, bracketed paragraphs cautioning jurors that, while they should be willing to reexamine their views, they should "not surrender [their] honest conviction[s] as to the weight or effect of evidence solely because of the opinion of [their] fellow jurors or for the mere purpose of returning a verdict."⁴ In considering whether to include these bracketed paragraphs in his directions to the jury, the judge noted that the comment to Instruction 2.603 explains that the paragraphs "are not ordinarily required" but had been recommended by the Court of Appeals in Crowder v. United States⁵ "for use in cases where there is a particularly high likelihood of juror coercion."⁶ Because the judge perceived no such likelihood, he chose not to give the bracketed Crowder instruction.⁷

The judge excused the jury at 1:00 p.m., asking it to deliberate until 1:30 p.m. before taking a lunch break. At 1:25 p.m., the judge called the parties back to the courtroom to advise them of a new development – the clerk had informed him of a jury note. The judge explained that he had not seen the note and did not know what it said because the clerk had taken it directly to another judge (Judge Canan) for review, "which is her responsibility when a note might evidence ... a split or something like that in the jury." At Judge Canan's suggestion, the judge excused the jurors for lunch until 2:30 and instructed them not to discuss the case. The prosecutor inquired, "what do we do with that note or do we speak with Judge Canan, what's the next move?" The judge answered that he needed to talk to Judge Canan to "figure out ... the outline of the situation before I can tell you all what to do."

After a recess, the court reconvened at 2:30 p.m. The judge reported to the parties that he had conferred with Judge Canan. Their discussion was off the record, but the judge advised the parties that Judge Canan had confirmed that the note contained information he should not see and had suggested he remind the jury not to reveal its voting split under any circumstances.⁸ The judge stated that he intended to follow that suggestion and also tell the jury that he had not read the note, that he did not know who sent it, and that the jury should resume its deliberations. Appellant objected and asked for a mistrial or, if that was denied, for the judge to include the bracketed paragraphs of Instruction 2.603 when he directed the jury to resume deliberation. Noting that the parties apparently ("I guess") were "not going to see the note," defense counsel expressed concern that it likely revealed an 11 to 1 split; that the dissenter likely was the same juror who had disagreed with the announced verdict in the poll; and that a Crowder instruction would be necessary to reassure her that "she doesn't have to surrender her position" because, without it, the court's directive would "signal to her" that she would "have to agree with everyone else."

The judge acknowledged that defense counsel's concern might be justified if the facts were known. Nevertheless, the judge did not offer to let the parties inspect the note to ascertain what it disclosed, nor did he disabuse defense counsel of the notion that he was not allowed to see the note. Instead, the judge reasoned that because he himself intentionally had remained ignorant of what the note said or whether Juror 668 wrote it, he did not "have facts that support that she's the only one holding out" or that there was a "dramatic split." Concluding that the facts had not "changed radically," that he still lacked "actual evidence" of a likelihood of coercion, and that he would not "speculate" from "the paucity of evidence that [he] ha[d] available," the judge denied appellant's motion for a mistrial or a Crowder instruction. The judge then recalled the jurors to the courtroom and instructed them as follows:

We received a note from you all before I sent you to lunch. I haven't seen that note, I don't know what it said, or who wrote the note, and that's for the following reason. Madam Clerk knows that if a note is given by the jury that in some way might demonstrate a split amongst members of the jury; 6/6, 7/5 or 11/1 or anything like that, or whether people are going towards acquittal or conviction, Madam Clerk knows that I'm not supposed to see that, and so her procedure is – or our procedure is that she's

...