Epperson v. United States
| Decision Date | 24 July 1985 |
| Docket Number | No. 81-332.,81-332. |
| Citation | 495 A.2d 1170 |
| Parties | Robert L. EPPERSON, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Edward N. Leavy, Washington, D.C., appointed by this court, for appellant.
Judith Hetherton, Asst. U.S. Atty., Washington, D.C., with whom Joseph diGenova, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the pleadings, for appellee.
Before MACK and FERREN, Associate Judges, and GALLAGHER, Associate Judge, Retired.
ON REHEARING
In its per curiam decision in this case (Epperson v. United States, 471 A.2d 1016 (D.C. 1984)), this court held, essentially, that a trial judge should not repeatedly give an "anti-deadlock" instruction to a "hung jury." Sometime later, the government filed a motion to recall the mandate and to consider its petition for rehearing. Upon the government's representation that, in its view, the court's opinion would have harmful effects "on the administration of justice in this jurisdiction," we recalled the mandate and afforded the parties further opportunity to be heard on the issue.1
Upon reargument, it appears that the government has in some respects misinterpreted our decision in this case. Perhaps we did not elaborate sufficiently because we were simply synthesizing what we felt to be an existing custom among most trial judges in this jurisdiction. First of all, in our earlier opinion we addressed ourselves only to a "hung jury," not just simply a jury.2 By "hung jury," we mean a jury which the trial judge has concluded is deadlocked, giving due consideration to such things as 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. See Thompson v. United States, 354 A.2d 848, 851 n. 8 (D.C. 1976). If the court decides it has before it a genuinely "hung jury," that is the type of jury to which our decision is addressed. The court should not repeatedly give an "anti-deadlock" instruction to a deadlocked jury, bearing in mind that a deadlocked jury is one which the trial judge has concluded is genuinely deadlocked, as previously related. It is for the trial judge to resolve this factor.3
The government states in its Motion to Recall Mandate that:
When we considered that the Court had found the mild ABA instruction [see infra] . . . to be the equivalent of a Winters charge, and had held that two such charges could not be given, we realize that the safest course for a trial judge to take under the holding was initially to refrain from giving any guidance to a jury which announces itself deadlocked and simply allow the deliberations to continue, no matter how premature or ambiguous the announcement of deadlock may be. Only after a substantial amount of time had passed and the jury had still not reached a verdict should any instruction be given. Then, the strongest charge possible — the Winters charge — should be given, since the judge will be able to address the jurors only once. [Emphasis added.]
The court's decision was concerned only with the matter of anti-deadlock instructions to a "hung jury." That being the case, the government's reference to instances "no matter how premature or ambiguous the announcement of deadlock may be" immediately takes the question out of the category of a genuinely "hung jury" and consequently outside the ambit of the court's opinion. The same would hold true of the government's apprehension that the court may not give the jury any "guidance." The court's opinion is restricted to "anti-deadlock" instructions to a jury which the court has concluded is a genuinely "hung jury." Naturally, as we point out in this opinion, it would not foreclose a judicial response to a request for guidance by a jury, nor, for example, would it foreclose a repetition of a "hung jury" instruction to a jury which indicates it did not understand the first "hung jury" instruction. While these things may seem obvious, it is just as well to point them out as a matter of caution.
Which "anti-deadlock" instruction it gives is in the discretion of the trial judge. One can mention three instructions of this nature in use in this jurisdiction: (a) the American Bar Association suggested anti-deadlock instruction, American Bar Association Standards for Criminal Justice, No. 15-44 (2d ed. 1980); (b) the instruction suggested by this court in Winters, supra note 1; and (c) the instruction suggested in the concurring opinion in Winters, supra. While they vary to some degree, all are directed toward "hung juries." These instructions all came into existence in relation to the nationwide movement4 of courts to abandon the so-called "dynamite charge" known as the Allen charge,5 and were designed as substitutes for the Allen charge. See, e.g., Winters, supra.
As we have indicated, in requesting rehearing it appears the government may have misinterpreted our opinion as not being restricted to "anti-deadlock" instructions to "hung juries." For instance, the government in support of rehearing cites us to decisions such as United States v. Washington, 144 U.S.App.D.C. 338, 340-41, 447 F.2d 308, 310-11 (1970), and Fulwood v. United States, 125 U.S.App.D.C. 183, 369 F.2d 960 (1966), cert. denied, 387 U.S. 934, 87 S.Ct. 2058, 18 L.Ed.2d 996 (1967). Those cases are cited to us for the proposition that a trial court may instruct a "hung jury" more than once. In those cases, however, the courts referred to a hung jury instruction given before the jury commences its deliberation. This is hardly then an instruction to a "hung jury." Those decisions held the court may properly give the instruction again after the jury actually becomes "deadlocked."
It is evident that those decisions have no application here. We are addressing ourselves entirely toward a practice of repeatedly giving "anti-deadlock" instructions to a "hung jury." A jury can hardly be hung before it begins deliberations. Consequently, that line of cases does not assist us here.
When the nationwide trend toward abolition of the "dynamite charge" (the Allen charge) began, it was apparent that in the public interest there should be a substitute instruction directed at breaking the deadlock when a jury becomes "hung." The first nationwide anti-deadlock instruction to supplant the Allen charge was the American Bar Association (ABA) suggested instruction for this purpose, to which we have referred. It seems quite plain that while it does not contain the "dynamite" of the Allen charge, it is nevertheless regarded nationally as an "anti-deadlock" instruction and was so intended by the ABA. See Winters, supra, 317 A.2d at 534-39 (concurring opinion). We say this because there seems to be a misunderstanding to the effect that since the American Bar Association instruction is more moderate than the Allen charge, for example, this means it is not an anti-deadlock instruction or, if it is, the court should be able to repeat an anti-deadlock instruction to a hung jury and, in so doing, graduate to a stronger "anti-deadlock" instruction the succeeding time (or times). This would be another avenue back to the disapproved situation in this jurisdiction resulting from the previously rejected Allen charge. By disapproved situation, we mean instances where the integrity of jury verdicts were in question due to the unwise coercive elements of the Allen charge.
In 1971, the federal circuit court for this jurisdiction, among other courts throughout the country (state and federal), made clear that the ABA charge is a hung jury instruction. Speaking for the court, now Chief Judge Robinson said:
[W]e conclude that . . . future rendition of Allen-type charges[6] must conform to the standard which has been approved by the American Bar Association and adopted by the Third and Seventh Circuits.
United States v. Thomas, 146 U.S.App. D.C. 101, 103, 449 F.2d 1177 (1971) (en bane) (footnote omitted).
It is elementary that a defendant is entitled to a jury in disagreement. It is in the public interest, however, that a jury reach a verdict if it can reasonably do so. Moreover, it is fundamental that a trial judge may not coerce a verdict. It is also apparent that a trial judge should give a temperate prod to a "hung jury" so as to bring out a verdict. It is our view, however, that to repeatedly give "anti-deadlock" instructions to a "hung" jury may well coerce a verdict from the jury. For this reason, we conclude that a jury believed by the trial judge to be "hung," as we related earlier in this opinion, should ordinarily be given an "anti-deadlock" instruction only once.7 As the court stated in United States v. Seawell, 550 F.2d 1159, 1163 (9th Cir. 1977):
Repetition of the charge, together with rejection of the jury's second report of deadlock, is almost certain to convey the thought that by failing to come to an agreement — by once again reporting themselves at impasse — the jurors have acted contrary to the earlier instruction as that instruction was properly understood. ("Apparently you didn't listen to what I said before, so I'll repeat it.") Given a second time, not at the request of the jury but at the instance of the judge, the charge no longer serves as an instruction; no matter how it may be softened it becomes a lecture sounding in reproof. [Emphasis added.]
See also United States v. Fossler, 597 F.2d 478 (5th Cir. 1979) (). The Ninth Circuit in Seawell went on to say:
On those rare occasions when the use of two Allen charges has been upheld by other courts the second charge was at the request of the jury, United States v. Kahaner, 317 F.2d 459, 484 (2d Cir.), cert. denied, 375 U.S. 836 [84 S.Ct. 73, 11 L.Ed.2d 65], reh. denied, 375 U.S. 926 [84 S.Ct. 263, 11...
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