Jackson v. US

• Decision Date: 17 October 1996
• Docket Number: No. 95-CF-1218.,95-CF-1218.
• Citation: 683 A.2d 1379
• Parties: Roger D. JACKSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

683 A.2d 1379

Roger D. JACKSON, Appellant, v. UNITED STATES, Appellee.

No. 95-CF-1218.

District of Columbia Court of Appeals.

Argued April 11, 1996.

Decided October 17, 1996.

Ted Kavrukov, Arlington, VA, appointed by the court, for appellant.

Ronald W. Sharpe, Assistant United States Attorney, Washington, DC, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Thomas C. Black, Assistant United States Attorneys, were on the brief, for appellee.

Before STEADMAN, FARRELL and REID, Associate Judges.

STEADMAN, Associate Judge:

Appellant challenges his convictions on two counts of unlawful possession with intent to distribute a controlled substance ("PWID").¹ This case requires us to consider the proper course of action for the trial court when a jury instructed to make "all reasonable efforts" to agree on a greater offense expresses disagreement on that offense but returns a verdict on a lesser included offense, when the trial court is not satisfied under the circumstances that the jury has yet made adequate efforts. We reject appellant's argument that the trial court must accept the jury's verdict on the lesser offense and discharge the jury. We hold that the trial court retains discretion in such a case to require further deliberations on the greater offense, and we affirm the convictions.

I.

Appellant faced charges on two counts of PWID, a felony. At the close of all the evidence, the defense requested that the trial court instruct the jury on the lesser included offense of unlawful possession of a controlled substance,² a misdemeanor. The defense also requested that the trial court instruct the jury to first consider the greater offenses and to proceed to the lesser offenses if, after making "all reasonable efforts," they were unable to reach a unanimous verdict on the felony charges. Both the jury instructions and the verdict form reflected the lesser offense and the reasonable efforts instruction.³ After less than four hours of deliberation,⁴ the jury sent a note advising the court that they "were unable to reach a verdict" on the greater offenses but had reached a verdict on the lesser offenses.

A colloquy ensued among the court, defense counsel, and the prosecutor regarding the proper response to the jury's note. Defense counsel argued that this court's case law on the reasonable efforts instruction required the trial court to accept the verdict on the lesser offenses and discharge the jury. The trial court said it would do so only if the defendant waived double jeopardy protection for possible retrial on the greater offenses, which defense counsel declined to do. The prosecutor requested that the court take the verdicts on the lesser offenses but require the jury to deliberate further on the greater. Defense counsel opposed that course of action as well. Defense counsel then proposed that the court voir dire the jury as to whether they had "substantially and vigorously" considered the greater offenses; if they said that they had, he argued, the logic of the reasonable efforts instruction required that the court accept the lesser verdicts and discharge the jury.

The court agreed to ask the jury whether they had exhausted all reasonable efforts to reach a verdict on the greater offenses, but disagreed with defense counsel as to the significance of the answer. The court stated that an affirmative response would signify deadlock, permitting it to give a Winters⁵ instruction telling the jury to deliberate further on the greater offense. Expressing concert that "this reasonable efforts business lets the jury off the hook so easily" and deprives the government of verdicts on greater offenses, the court indicated that it would require further deliberations on the felony charges. The court gave defense counsel the choice whether or not to accept the verdict on the misdemeanors. Defense counsel declined to do so "under the circumstances," noting that he objected to all the choices presented him but believed foregoing the misdemeanor verdicts to be the "lesser evil."

The court called the jury into the courtroom and asked the foreperson whether she "believed that the jury has exhausted all reasonable efforts to reach a verdict on the greater offenses." The foreperson replied "I do." The court immediately informed the jury that "what I am going to do is rather than take whatever your verdict is on the lesser offenses, I am going to give you some additional instructions. We will then let you go to lunch and then you will return and deliberate further on the greater offenses." The court then gave the anti-deadlock instruction approved in the majority Winters opinion,⁶ Winters, supra note 5, 317 A.2d at 533 & app.; Red Book 2.91(B), and concluded with the instruction that "when you return from lunch, continue deliberating on the greater offenses." After approximately two more hours of deliberation, the jury returned guilty verdicts on the greater offenses.

II.

For some time an "acquittal first" instruction was the standard instruction given in this jurisdiction. (Nathan) Jones v. United States, 544 A.2d 1250, 1252 (D.C. 1988). The acquittal first instruction requires a jury to unanimously acquit a defendant on a greater offense before returning a verdict on a lesser offense. Id. In (Nathan) Jones, however, this court held that when the jury reported a deadlock on the greater offense, the acquittal first charge could not be given on reinstruction over defense objection. Id. at 1254. Instead, a "reasonable efforts" instruction should be given, permitting a jury to consider a lesser offense after making "all reasonable efforts" to reach a verdict on the greater offense.⁷ Id. Subsequently, because each instruction presents distinct tactical advantages and disadvantages, and because the defendant's liberty is at stake, we held in Wright v. United States, 588 A.2d 260 (D.C. 1991), that a defendant who timely requests the reasonable efforts instruction is entitled to it at the time of the initial charge to the jury. Id. at 262; see Cosby v. United States, 614 A.2d 1291, 1296 & n. 6 (D.C.1992) (noting that defendant entitled to reasonable efforts re instruction upon request).

Appellant argues that fidelity to the defendant's election of the reasonable efforts instruction requires the trial court to accept the jury's verdict on the lesser charges and discharge the jury, if the jury reports that they have exhausted all reasonable efforts to agree on the greater charges. We agree with appellant's assertion only if the jury has truly exhausted all reasonable efforts. We do not agree that that determination is for the jury alone to make.

A.

The purpose of the reasonable efforts instruction, distinguishing it from the acquittal first instruction, is to permit the jury to consider the lesser offense without reaching a unanimous verdict on the greater offense. Jurors favoring conviction on the lesser offense are thereby relieved of the pressure of a zero-sum choice between "throwing in the sponge" on the greater offense and holding out for a mistrial "that would leave the defendant with no conviction at all." Wright, supra, 588 A.2d at 261 (quoting United States v. Tsanas, 572 F.2d 340, 346 (2d Cir.), cert. denied, 435 U.S. 995, 98 S.Ct. 1647, 56 L.Ed.2d 84 (1978)). Although we have not had occasion to address the precise point previously, we see no basis to differentiate between "considering" a lesser offense and "returning a verdict" upon that offense.⁸ Indeed, our previous discussions of the tactical considerations underlying a request for a reasonable efforts instruction plainly contemplate that the jury may return a verdict on a lesser offense after exhausting all reasonable efforts to agree on the greater offense. See, e.g., (Robert) Jones, supra note 8, 620 A.2d at 252 (reasonable efforts instruction may increase the probability that the jury will convict on the lesser offense); (Nathan) Jones, supra, 544 A.2d at 1253 (instruction may cause conviction of an offense less serious than the government wanted).

The government cites Cosby, supra, for the proposition that a trial court may always reject a jury's verdict on a lesser included offense in favor of requiring further deliberations on the greater offense. The critical difference between Cosby and this case, however, is that the jury in Cosby received an acquittal first instruction. Cosby, supra, 614 A.2d at 1294. The acquittal first instruction requires the jury to reach a unanimous verdict on the greater offense before considering the lesser. Thus, when the jury foreperson in Cosby informed the trial court that the jury had reached a verdict on the lesser offense but not on the greater, the court properly concluded that the jury had not "done its job."⁹ Cosby, supra, 614 A.2d at 1295-96.

The terms of the acquittal first instruction controlled the Cosby court's analysis of the order in which the jury should return its verdicts and the trial court should accept them. Likewise, the terms of the reasonable efforts instruction control the return and entry of verdicts when the jury has been instructed thereon. Under reasonable efforts the jury has "done its job" when it has made all reasonable efforts to agree on the greater offense and has reached a verdict on the lesser offense. Accordingly, the trial court should then accept the verdict and discharge the jury.

B.

This approach does not, however, bind a trial judge to accept a verdict on a lesser offense when the judge is not convinced that the jury has yet discharged their duty to make all reasonable efforts to reach a verdict on the greater offense. No basis exists in our jurisprudence for appellant's assertion that the jury itself should decide when the jury has exhausted all reasonable efforts. Trial courts need not accept at face value a jury's assertion of deadlock. See, e.g., Carey v. United States, 647 A.2d 56, 61 (D.C.1994); Epperson v. United States, 495 A.2d 1170,...