Jackson v. United States, 21012.

• Decision Date: 14 November 1967
• Docket Number: No. 21012.,21012.
• Citation: 128 US App. DC 214,386 F.2d 641
• Parties: Van Dyke JACKSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

128 US App. DC 214, 386 F.2d 641 (1967)

Van Dyke JACKSON, Appellant, v. UNITED STATES of America, Appellee.

No. 21012.

United States Court of Appeals District of Columbia Circuit.

Argued October 27, 1967.

Decided November 14, 1967.

Mr. R. Harrison Pledger, Jr., Washington, D. C. (appointed by this court), for appellant.

Mr. Lawrence Lippe, Asst. U. S. Atty., with whom Mr. David G. Bress, U. S. Atty., and Mr. Frank Q. Nebeker and Miss Carol Garfiel, Asst. U. S. Attys., were on the brief, for appellee. Mr. Albert W. Overby, Jr., Asst. U. S. Atty., also entered an appearance for appellee.

Before McGOWAN, TAMM and ROBINSON, Circuit Judges.

PER CURIAM:

Appellant was convicted of the crimes of robbery and of carrying a dangerous weapon. He received concurrent sentences of one to five years on the first, and one year on the second. On this appeal he complains only of the robbery conviction. One claim, not raised by motion at trial, is that the jury's verdict was founded upon insufficient evidence, but we think there was adequate testimony to support the result.¹ The more substantial contention is that the trial court erred in entering judgment upon a jury verdict which was not demonstrably unanimous. We have weighed this carefully, and have concluded that reversal is not required.

In mid-afternoon of the first full day of its deliberations, the jury reported to the court that it was in disagreement. The court thereupon gave the so-called Allen charge in the form contained in the District of Columbia Junior Bar Section's Criminal Jury Instruction Manual (No. 41). See Fulwood v. United States, 125 U.S.App.D.C. 183, 369 F.2d 960 (1966). The jury continued to deliberate for about an hour when, at 4:30 P.M., it was excused until the next day. Not long after reconvening the following morning, it reported itself in agreement. Although the giving of the Allen charge was objected to at the time, no error is claimed upon appeal, counsel (who also tried the case) being of the view that any coercive effect was dissipated by the overnight recess.

After what was presumably the usual inquiry by the clerk to the foreman, the foreman's announcement of the guilty verdicts, and the clerk's question as to whether the verdicts so reported were the verdicts of each of the jurors, there was a defense request for a poll. The transcript then shows the following:

"THE COURT: Members of the jury, counsel for the defendant has asked that you be polled. That means that when the Clerk calls your individual names, you will state your individual verdict. Do you understand that? You probably have been polled before in other cases; but, in other words, your foreman has stated your verdict. You will now each individually state your verdict as the Clerk calls your name.

"THE DEPUTY CLERK: Mrs. Aminta R. Knight, what say you as to the defendant on count one robbery of the indictment?

"MRS. KNIGHT: I went along with the majority — guilty.

"THE COURT: What did you say?

"MRS. KNIGHT: I went along with the majority.

"THE COURT: Guilty?

"MRS. KNIGHT: Yes.

"THE DEPUTY CLERK: On count two of the indictment?

"MRS. KNIGHT: Guilty."

The response of each of the other jurors was simply "Guilty."

Defense counsel was silent throughout the poll. Only after the jurors had been dismissed and dispersed did he object to the verdict on the ground that Mrs. Knight's answers to the poll showed the robbery verdict not to be unanimous. The only circumstance he alluded to at this time was the assertedly emotional...