Johnson v. United States, 9713.

• Court: D.C. Court of Appeals
• Writing for the Court: Kelly
• Citation: Johnson v. United States, 360 A.2d 502 (D.C. 1976)
• Decision Date: 14 July 1976
• Docket Number: No. 9713.,9713.
• Parties: Tommie A. JOHNSON, Appellant, v. UNITED STATES, Appellee.

360 A.2d 502

Tommie A. JOHNSON, Appellant, v. UNITED STATES, Appellee.

No. 9713.

District of Columbia Court of Appeals.

Argued March 18, 1976.

Decided July 14, 1976.

Frederick H. Weisberg, Washington, D. C., appointed by this court, for appellant. W. Anthony Fitch, Washington, D. C., also entered an appearance for appellant.

Regina C. McGranery, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Joseph B. Valder, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY, GALLAGHER and HARRIS, Associate Judges.

KELLY, Associate Judge:

Tommie A. Johnson, convicted by a jury of committing two armed robberies,¹ urges on appeal that the trial judge coerced the verdicts by, among other things, allowing the jury to continue deliberating notwithstanding a second announcement that a verdict could not be reached on the robbery charges. He argues also that the judge erred in denying the jury foreman's request to approach the bench immediately before the rendition of the final verdict and that he committed plain error when he referred in a portion of his final charge to armed robbery as requiring proof of general intent rather than specific intent. We affirm.

In the late evening of June 16, 1974, two robberies were committed in Northwest Washington by a person clad in a woman's yellow pantsuit and carrying a brown shoulder bag. In each instance, the victim was a motorist who had been solicited for a ride by this individual and robbed a short time later. The first victim surrendered his cash after being threatened with a letter opener. The second victim was assaulted with a starter postol and, after a brief struggle, lost his wallet to the assailant. Shortly after the second robbery, the victim of that offense encountered appellant on the street and identified him as the robber.² The police who were summoned arrested the appellant and took him to a nearby police station. Coincidentally, the victim of the first robbery was inside the station reporting that offense at the time of appellant's arrival. Upon noticing appellant, he immediately identified him as the perpetrator of the offense of which he was making complaint.

The jury began deliberating in the early afternoon of the third day of trial. About two hours later a deadlock was announced. The judge determined that a deadlock instruction should be given at that time despite the suggestion of both counsel that he delay this action until the jury had been given an opportunity to deliberate further.³ The jury was then returned to the courtroom and given the Winters⁴ instruction. The judge prefaced the charge with the following remarks:

Ladies and Gentlemen of the Jury, I received a note from the Foreman saying that you were hopelessly deadlocked, which is premature. Some 200 years ago there was a Navy man who was hanged for his remarks: "We are not just begun to fight." That means the carrying out of his duty and responsibility. This case was given to you approximately a little over an hour. . . .

Following a full morning of deliberation the next day the jury returned guilty verdicts on the lesser included offenses of assault with a deadly weapon and possession of a prohibited weapon. A deadlock was reported with respect to the counts of armed robbery, robbery and larceny. At this time, both government and defense counsel agreed that the jury should be allowed to deliberate further after a luncheon recess. On returning from the recess, however, defense counsel moved for a mistrial on the remaining counts, expressing the concern that to require further deliberation would have a coercive effect on the jury. The motion was denied and less than one hour later the jury reported verdicts of guilty on both counts of armed robbery.

Appellant Johnson contends that the circumstances surrounding the giving of the Winters charge contributed to an atmosphere of coercion which invaded the province of the jury.⁵ Specifically, he urges that by expressing his view that the deadlock was premature and adding the gratuitous and inappropriate comment about the Navy man, the trial judge intimated that the jury was required to reach a verdict.

As appellant candidly recognizes, the coercive effect of the court's statements must be evaluated in context and with regard to all the circumstances of the case. Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965). Applying this test in the instant case, we are not convinced that the trial judge's remarks exerted undue pressure on the jury. Indeed, the lack of any significant coercive effect is apparent from the fact that the deadlock on the armed robbery counts persisted following the delivery of the Winters charge, for the remarks did not deter the jury from concluding once again the next day that it was unable to reach a verdict on these counts.

With respect to the asserted error in allowing continued deliberations in the face of a second deadlock announcement, this contention was rejected in Thompson v. United States, D.C.App., 354 A.2d 848 (1976), in a factual context remarkably similar to this case. There too, after having been read the Winters instruction, the jury reported a second deadlock. The Thompson. court cautioned that once the Winters instruction was given and a second deadlock was announced after a "reasonable period," it may be coercive to require further deliberations. Id. at 850. But noting, inter alia, that the jury was "given to rather short deliberation spans before reporting an inability to reach a verdict," the court concluded that under the circumstances the trial judge acted properly. Ibid.

Here, the jury was given the Winters instruction at the close of the first day of deliberations and following the next morning of deliberations concluded again that a verdict could not be reached on the armed robbery counts. In announcing that the jury would be required to deliberate further after lunch the trial judge merely stated: "I would like you to resume your deliberation on the other six counts." On these facts, considering the totality of the circumstances we do not view his ordering of continued deliberation at this point as coercive.⁶

Immediately after the announcement of the jury's guilty verdict on one of the armed erobbery charges, the following exchange occurred:

THE DEPUTY CLERK: Mr. Foreman, have you and the members of the jury reached a unanimous verdict with respect to count five of the indictment, which...