Dyke v. United States, 08–CF–1378.

• Decision Date: 01 September 2011
• Docket Number: No. 08–CF–1378.,08–CF–1378.
• Citation: 27 A.3d 1114
• Parties: Tracy VAN DYKE, Appellant,v.UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

27 A.3d 1114

Tracy VAN DYKE, Appellant,

v.UNITED STATES, Appellee.

No. 08–CF–1378.

District of Columbia Court of Appeals.

Argued Sept. 15, 2010.Decided Sept. 1, 2011.

Joanne Vasco, Hyattsville, appointed by the court, for appellant.Jay Apperson, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney and Roy W. McLeese III, Chrisellen R. Kolb, and Stephen J. Gripkey, Assistant United States Attorneys, were on the brief, for appellee.Before WASHINGTON, Chief Judge, REID,^* Associate Judge, RETIRED, and STEADMAN, Senior Judge.REID, Associate Judge, Retired:

Appellant, Tracy Van Dyke, was indicted for second-degree murder while armed ¹ and a jury convicted him of the lesser-included offense of voluntary manslaughter while armed. The charge arose from an altercation between Mr. Van Dyke and the decedent, Daniel Baldwin. He argues for reversal on the grounds that the trial court: (1) abused its discretion by instructing the jurors to continue to deliberate, in response to their initial note stating they were deadlocked; (2) committed constitutional error when it communicated ex parte with the jury; and (3) erred by failing to respond to a juror's note reminding the court about the juror's inability to serve beyond the end of the day, and by simultaneously delivering a reasonable efforts instruction to the jurors following their second note indicating deadlock. He asserts that the combination of the court's errors created a substantial risk of a coerced verdict that requires reversal.

We hold that (1) the trial court's response to the jury's initial deadlock note did not constitute error; (2) the court's ex parte communication with the jury was harmless; and (3) the combination of the ex parte communication, the reasonable efforts instruction, and the manner and substance of the court's response to the individual juror's note, did not create a substantial risk of a coerced verdict.

FACTUAL SUMMARY

The record reveals that on Thanksgiving Day 2004, Mr. Van Dyke and his wife, Angela Van Dyke, hosted Mr. Baldwin, and Vernetta Sampson for dinner. According to trial testimony, the evening began without incident: the four ate dinner, engaged in conversation, and watched the Van Dykes' wedding video. Subsequent to watching the video, however, the Van Dykes began to voice their concerns about Ms. Sampson's and Mr. Baldwin's illegal drug use; they questioned whether Mr. Baldwin was a good influence over Ms. Sampson. Mr. Baldwin and Mr. Van Dyke got into an argument and Mr. Baldwin cursed Mr. Van Dyke. Mr. Van Dyke asked Mr. Baldwin to leave the apartment and escorted him outside; Mr. Baldwin said: “[T]he next time you disrespect me, I'm going to kill you.”

Approximately 10–15 minutes later, Mr. Baldwin returned to the apartment and requested to be let back inside. He apologized to Mr. Van Dyke, who acquiesced and let him in. Immediately after re-entering the apartment, however, Mr. Baldwin became angry again. Mr. Van Dyke again escorted him outside; Mr. Baldwin stated that “he was going to f* * * [Mr. Van Dyke] up.” Shortly thereafter, Mr. Baldwin gained re-entry to the apartment and confronted Mr. Van Dyke in the kitchen.² He repeatedly asserted that Mr. Van Dyke had disrespected him. Mr. Baldwin rushed toward Mr. Van Dyke and punched him in the mouth, grabbed him by the neck, pushed and tackled him. They exchanged punches. Mr. Baldwin told Mr. Van Dyke: “I'm going to kill your b* * *h a* *.”

At some point during the exchange Mr. Van Dyke grabbed a frozen bottle from the sink and repeatedly struck Mr. Baldwin in the head with it until it broke. After the bottle broke, Mr. Van Dyke flipped Mr. Baldwin over, got on top of him, and pinned him down by his forearms. Mr. Baldwin continued to struggle, kicking his feet and punching Mr. Van Dyke while threatening to kill him. Mr. Van Dyke remained on top of Mr. Baldwin for “a long length of time,” in an effort to calm him down so that he “could get [him] some help.” After some time, Mr. Baldwin began to decrease his resistance; he eventually fell into a deep snore. Mr. Van Dyke thought that Mr. Baldwin was sleeping and immediately dialed 911 and reported his injuries. Shortly thereafter, the police arrived and discovered Mr. Baldwin unconscious in the kitchen, not breathing and without a pulse; paramedics were unable to revive him.

ANALYSIS

In essence, Mr. Van Dyke argues that the trial court abused its discretion and committed constitutional error in responding to jury notes during jury deliberations. We first set forth the factual context for the jury instruction issues.

Factual Context

Following closing arguments, the trial judge instructed the jury on both second-degree murder while armed and voluntary manslaughter while armed. At Mr. Van Dyke's request, the court delivered Jury Instruction 2.401,³ concerning the order of consideration of the charges. The court directed the jury to “first consider whether Mr. Van [D]yke is guilty of second-degree murder while armed ...” and “[I]f you find Mr. Van [D]yke not guilty, only then go on to consider voluntary manslaughter while armed.”

The jury began deliberations on May 6, 2008 at 1:38 p.m., took a break for lunch, and continued to deliberate until 4:45 p.m. The jury deliberated on May 12, 2008 from 10:00 a.m. to 3:00 p.m., with a lunch break. Deliberations resumed on May 13th until 12:15 p.m. when the jury sent a note to the judge stating: “[t]he jury is deadlocked.” The court reconvened at 12:33 p.m. but had to wait for Mr. Van Dyke to return before proceeding. The court noted its displeasure with his tardiness. The trial judge revealed his plan to send a note asking whether the jurors were deadlocked as to second-degree murder or voluntary manslaughter. Initially, defense counsel offered no objection to the judge's proposed response. The prosecution, however, questioned whether the judge's approach would “necessarily ... give [the court] any information?” The trial judge responded by asking whether the parties agreed that a “reasonable efforts” instruction,⁴ directing the jury to consider the lesser-included charge of voluntary manslaughter, would be appropriate should the jury indicate that it was deadlocked as to second-degree manslaughter.⁵ Defense counsel responded that the note was a clear indication that the jury was unable to reach a verdict and moved for a mistrial on the ground that the proposed inquiry would unduly coerce the jury into delivering a verdict.

The prosecution opposed the mistrial, and maintained that the reasonable efforts instruction might be premature. The court proposed that it deliver the Mize instruction instead.⁶ Defense counsel again moved for a mistrial, which the court denied. The court asked defense counsel how he would like to proceed; counsel once again moved for a mistrial, but also stated that if the court did not grant a mistrial, he preferred the Mize instruction but “without the language of soliciting information on where [the jury is] with respect to second degree murder.” The government suggested that the court instruct the jury using Redbook Instruction 2.91, the initial instruction to be used when jurors cannot agree.⁷ Defense counsel objected to one sentence—“I would expect that it would take some time to reach a resolution of this matter”—on the ground that it communicated to the jury the court's expectation of a verdict. The court agreed to omit the sentence from the instruction. During the actual reinstruction, however, the court began to state the objected-to language before being interrupted by defense counsel:

Court: Good afternoon, ladies and gentlemen, your note obviously indicates that you have been unable to reach a unanimous decision at this time. This has been a relatively long trial, longer than many trials that we have at this courthouse. Th[ere] were a number of witnesses who testified and a substantial amount of a evidence received. I would expect that it would take some time to—

Defense Counsel: Your Honor ...

The court promptly revised its instruction to exclude the remainder of the statement:

Court: I would expect—well, it's not unexpected that you would be deliberating at this time. It's not unusual in cases such as this. As a result, I would ask that you go back and deliberate further in this case and that you continue to give it your best efforts. Please resume your deliberations at this time. Thank you.

Defense counsel did not raise any specific objection to the reinstruction, as delivered, and declared that “in a vacuum standing alone” the instruction was not coercive. Counsel expressed the view, however, that future instructions could become coercive: “[E]ach step may become more coercive.” The court acknowledged counsel's concern about the cumulative effect of instructions, saying: “[L]et's work to avoid that here.” The court instructed the parties to “[s]tay close by,” because it expected another note from the jury and wanted to be able to respond quickly. The court complained that “[i]t took about a half an hour to get everybody back here [earlier].”

The transcript for May 13, 2008 notes, “case passed at 1:08 and recalled at 3:11 p.m.” Apparently, at some time prior to 3:11 p.m., the trial judge had received two notes from the jury. One stated that the jury was “firmly deadlocked,” while the other was a note from an individual juror reminding the court that she was not able to continue service beyond that day (May 13th). The notes read as follows:

From Juror 160 (foreperson): The jury remains firmly deadlocked.

From Juror 737 (individual juror): As previously notified I will be unable to serve on the jury after May 13, 2008. I have a wedding outside the U.S. and my flight is scheduled for Wednesday, May 14th at 8:15am.

After waiting twenty-five minutes, the trial judge decided to respond to the foreperson's note before the arrival of the defendant, defense counsel, and government counsel. When the...