Harris v. US, 91-CF-279.
| Decision Date | 02 April 1993 |
| Docket Number | No. 91-CF-279.,91-CF-279. |
| Citation | 622 A.2d 697 |
| Court | D.C. Court of Appeals |
| Parties | Robert HARRIS, Jr., Appellant, v. UNITED STATES, Appellee. |
David Merchant, Public Defender Service, with whom James Klein and Elizabeth Taylor, Public Defender Service, were on the brief, for appellant.
Thomas R. Eldridge, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Elizabeth Trosman and Clifford R. Cronk III, Asst. U.S. Attys., were on the brief, for appellee.
Before STEADMAN and KING, Associate Judges, and PRYOR, Senior Judge.
Appellant, Robert Harris, Jr., and his codefendant, Calvin V. Johnson, were indicted and charged together with several offenses stemming from the death of Paul Moore.1 A jury trial commenced on December 3, 1990. The jury was given instructions and began deliberating on December 10, 1990. On December 14, appellant was found guilty of second-degree murder while armed, possession of a firearm during a crime of violence, and carrying a pistol without a license. Co-defendant Johnson was found guilty of carrying a pistol without a license. Appellant argues that his convictions should be reversed and remanded for a new trial because events surrounding a jury poll where the twelfth juror disagreed with part of the verdict announced by the foreperson on the second day of deliberations led to a coerced verdict. We disagree and affirm the convictions.
On Monday, December 10, 1990, the jury in appellant Harris' case was instructed and sent to deliberate at 3:15 in the afternoon. They continued deliberating until 3:50 p.m. the next day, at which point the trial court received a note stating that the jury had reached their verdict. The jury came in and the foreperson was asked if the jury had reached a unanimous verdict in the case of Robert Harris. The foreperson stated that the jury found appellant Harris guilty of second-degree murder, of possession of a firearm while committing a crime of violence and of carrying a pistol without a license. The foreperson was then asked if the jury had reached a verdict in the case of Calvin Johnson. He stated that it had reached a unanimous verdict of guilty on the same three counts.
Counsel for both defendants requested a poll of the jurors. The court addressed the jury:
The court then asked each juror if he or she agreed with the verdict as announced by the foreperson. The first eleven jurors replied "Yes." The twelfth juror was then polled and the following exchange took place:
At approximately 4:00-4:15 p.m., the jury was excused.
Appellant's counsel requested a mistrial arguing that because one juror had isolated herself from the rest of the jurors, and because the court and the other jurors knew of the split, there was too much pressure on her to change her vote. The court recognized appellant's counsel's concerns, noting that "it's a different matter, of course, when the second or third jurors polled indicate some disagreement and we send them back and there is no way of knowing how many others might be in that posture." However, by that time—4:30 p.m.—the court had received a second note from the jury stating,
The court did not know how to interpret the note and was concerned with the fact that the twelfth juror had only disagreed with part of the verdict—possibly even with the co-defendant's verdict and not appellant Harris' verdict. The court felt that a partial verdict was a possibility, but noted that it had not instructed the jury on whether they could give a partial verdict or not. The trial court said that it would normally send home a jury that had been deliberating this long and have it resume the next day. After further discussion among the parties—at approximately 5:00 p.m.—the trial court sent the jury home saying that it would respond to the note the next day.
The following day, December 12, before the jury came in or began any deliberations, the court entertained suggestions as to how it should proceed. Appellant's counsel argued that any further action—instructions or further deliberations—would be unduly coercive. The court decided to give an instruction based on a suggestion by this court in Crowder v. United States, 383 A.2d 336, 342 n. 11 (D.C.1978), where a somewhat similar situation arose. Thus, before the jury began deliberating for the day, the court instructed the jury:
Later that day, at 4:35 p.m., the court received a note from the jury stating "We still have not reached a verdict." The court decided to take no action and just send the jury home and allow them to continue the next day.2 The following day, December 13, the jury deliberated without significant communication.3 At the end of the day, the jury sent a note saying, "We have not reached a verdict as of yet!"4 The court decided to send the jury home again without further instructions.
The next morning, December 14, the jury began deliberating at approximately 9:45. At 10:35 a.m., the court received a note stating that the jury had come to a unanimous decision in both cases. The jury found appellant guilty on all three counts and co-defendant Johnson guilty on only the count of carrying a pistol without a license. The jury was polled without dissent.
The jury poll is the primary device for discovering doubt or confusion of individual jurors and has long been regarded as a useful and necessary tool for preserving the defendant's right to a unanimous verdict. Crowder v. United States, 383 A.2d 336, 340 (D.C.1978). The purpose is to determine with certainty the approval of every juror of the verdict and to assure that no juror has been coerced or induced to agree with a verdict with which he dissents. Id.
Super.Ct.Crim.R. 31(d) clearly vests the trial judge with discretion in assessing the impact of a dissenting vote during a poll and reasonable exercise of this discretion should be given proper deference by a reviewing court. United States v. Brooks, 137 U.S.App.D.C. 147, 150, 420 F.2d 1350, 1353 (1969). The trial judge is in a much better position to determine whether a dissenter who, after the jury has been sent back to deliberate further, eventually acquiesces to a majority's guilty verdict, in fact reached that decision freely. Id. However, if a juror is forced to abandon an honest conviction, the resulting verdict cannot stand. Smith v. United States, 542 A.2d 823, 824 (D.C.1988). Thus, "it is settled that even in the potential minefield of a jury poll, the trial court enjoys an appreciable measure of discretion," but reversal must result if a juror was coerced into conforming to the majority's vote. Ellis v. United States, 395 A.2d 404, 408 (D.C.1978), cert. denied, 442 U.S. 913, 99 S.Ct. 2830, 61 L.Ed.2d 280 (1979)...
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