Jones v. US

• Decision Date: 12 February 1993
• Docket Number: 91-CO-1512.,No. 90-CF-447,90-CF-447
• Parties: Robert JONES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

620 A.2d 249

Robert JONES, Appellant, v. UNITED STATES, Appellee.

Nos. 90-CF-447, 91-CO-1512.

District of Columbia Court of Appeals.

Submitted January 19, 1993.

Decided February 12, 1993.

David Rosenthal, appointed by this court, for appellant.

Elizabeth H. Danello, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Thomas J. Tourish, Jr., and Randall D. Eliason, Asst. U.S. Attys., were on the brief, for appellee.

Before FERREN, FARRELL, and KING^*, Associate Judges.

FERREN, Associate Judge:

A jury convicted appellant Robert Jones, Jr., of possession of heroin with intent to distribute. See D.C.Code § 33-541(a)(1) (1988 Repl.). The trial court sentenced him to five to fifteen years of imprisonment, with a mandatory minimum of four years. Appellant contends on appeal that the trial court committed reversible error when it gave an "acquittal first" instruction after the jury had announced it was deadlocked. After filing his notice of appeal, appellant also moved to vacate his sentence and conviction under D.C.Code § 23-110 (1989 Repl.), alleging ineffective assistance of counsel. The trial court denied this motion. Appellant's challenge to this ruling was consolidated with his appeal. We affirm.

I.

According to the government's evidence, an undercover police team observed appellant in an alley between two abandoned buildings frequented by heroin addicts. Two officers saw appellant give a ziplock bag filled with white powder to an unknown person in exchange for U.S. currency. The bag was part of a larger bundle held by appellant. The two officers were about twelve to fifteen feet away at the time. When the officers began to approach, a third man in the alley warned appellant and took the money appellant had just received. The third man refused, however, to take the bundle when appellant tried to hand it to him. All three men then tried to flee. The police officers concentrated on stopping appellant. Once they had done so, the officers identified themselves. Appellant then popped the bundle into his mouth. The officers struggled with appellant to recover the bundle and one of them used the Heimlich maneuver to force appellant to spit it out. Appellant did so; the police recovered the bundle. The bundle contained ten packets of white powder, later analyzed as 1.695 grams of heroin at twelve per cent strength. Appellant did not testify.

II.

Before instructing the jury on the lesser included offense of simple possession of a controlled substance, the trial judge gave the jury the so-called "acquittal first" instruction:

If you find that the Government has not proven each of the elements of that offense possession with intent to distribute beyond a reasonable doubt, you must find the defendant not guilty of that charge and then and only then should you consider the lesser charge of simple possession.

Defense counsel did not object to this instruction.

The jury left the courtroom to begin deliberating at 11:25 a.m. At 3:14 p.m., the court received a note in which the jury said that it had been "unable to reach a unanimous decision on either charge." Noting, in a conference with counsel, that the jury was "only supposed to be deliberating on the first charge so that's their first mistake," the trial court proposed to "ask the foreperson if further deliberations would be useful in reaching a verdict on the first charge." If the answer was "yes," the trial judge would send the jury back to deliberate. If the answer was "no," the trial judge planned to give a Winters instruction.¹ The judge added that he would also tell the jurors that they were to deliberate on the first count until they reached a verdict on that count. In response defense counsel moved for a mistrial but did not otherwise object to the judge's proposals.

When the jury was called in, the following colloquy took place:

THE COURT: Let me first say to you that the instructions that I gave you and as the verdict form says, you are only supposed to deliberate on the first charge.

THE FOREPERSON: True.

THE COURT: And you should not deliberate on the second charge until the jury unanimously finds the defendant not guilty of the first charge. So, right now you should only be deliberating on the first charge. Now, let me ask you do you understand that?

Your answer should be yes or no. Do you think that with further deliberations the jury will be able to reach a unanimous verdict on the first charge?

THE FOREPERSON: An honest opinion, Your Honor, no.

The judge then gave the Winters instruction, see supra note 1, and sent the jury back to deliberate. At some time the next morning the jury announced that it had reached a guilty verdict. Appellant claims that this verdict was improperly coerced by the court's repetition of the "acquittal first" instruction after the jury had reported a deadlock.

In (Nathan) Jones v. United States, 544 A.2d 1250, 1254 (D.C.1988), we held that "when the jury reports a deadlock between the greater and the lesser offense, the `acquittal first' instruction should not be given because it is impermissibly coercive." See also Parker v. United States, 601 A.2d 45, 47-48 (D.C.1991). In both (Nathan) Jones and Parker, however, defense counsel had specifically asked the trial court to allow the jury to consider the lesser-included offense. In this case, by contrast, defense counsel made no such request, nor did he otherwise object to the repetition of the "acquittal first" instruction, although he did move for a mistrial. We must therefore consider whether, under the circumstances of this case, the trial judge's "acquittal first" reinstruction in the face of the jury note amounted to plain error. See Watts v. United States, 362 A.2d 706, 709 (D.C.1976) (en banc) ("errors not objected to at trial are unreachable on review unless they fall within the purview of the plain error rule"). We conclude that it did not.

The alternative to the "acquittal first" instruction is the "reasonable efforts" instruction, in which the court tells the jury that it may consider the lesser included offense if it is unable to reach a verdict on the greater offense after making all reasonable efforts to do so. See Cosby v. United States, 614 A.2d 1291, 1294 n. 4 (D.C.1992); (Lorenzo) Wright v. United States, 588 A.2d 260, 261-62 (D.C.1991). In (Lorenzo) Wright, we held that the "reasonable efforts" instruction must be given where it is timely requested by defense counsel. 588 A.2d at 262. But we have never said that the court is obliged to give the "reasonable efforts" instruction absent a request by defense counsel. Indeed, we have concluded that neither the "acquittal first" nor the "reasonable efforts" instruction is wrong as a matter of law. Id.

Both the "acquittal first" and the "reasonable efforts" instructions present tactical advantages and disadvantages from the defendant's point of view. The advantage of the "acquittal first" instruction, for the defendant, is that where the jury fails to agree on conviction or acquittal of the greater offense, it cannot adopt the easy compromise of convicting on the lesser offense. Thus, the defendant may escape any conviction at all, even where the evidence with regard to the lesser charge is fairly strong, and the government will have to decide whether the case merits the time and expense of mounting a new trial. The disadvantage of the "acquittal first" instruction is that, faced with a choice between a conviction on the greater offense and no conviction at all, jurors who might have preferred to convict only on a lesser offense may go along with others who are willing to convict on the greater offense, especially where there is a majority in favor of conviction on the greater charge. The "reasonable efforts" instruction presents similar advantages and disadvantages in reverse. It may lessen the probability that the jury will convict on the greater offense, but it may also increase the probability that the jury will convict on the lesser charge. See id. at 261-62; 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). Determinations as to which instruction is better for the defendant will vary from case to case, depending upon the strength of the government's evidence and the defendant's own desires.

For these reasons, we believe that the decision as to which instruction is preferable must be left to the defendant. Were we to hold that a miscarriage of justice results whenever the trial court gives an "acquittal first" instruction to a deadlocked jury, even when the defense does not object, we would, in effect, be taking this tactical decision out of the defendant's hands. Just as we have held that the trial court is obliged to instruct the jury in the form timely selected by the defendant, see (Lorenzo) Wright, 588 A.2d at 262, so we think it is not for this court to coerce the defendant's choice in this matter by ordaining in advance which instruction must be given to a deadlocked jury. Accordingly, bearing in mind both the relative strength of the government's evidence in this case and the tactical discretion involved in the choice between the "acquittal first" and the "reasonable efforts" instructions, we conclude that the trial court's instruction did not result in plain error.² As we observed in Allen v. United States, 495 A.2d 1145 (D.C.1985) (en banc),

instructional errors not raised at trial will not be disturbed on appeal if ... counsel's failure to object can be viewed as a tactical choice. For in such cases, it can hardly be maintained that the alleged error effected a "miscarriage of justice."

Id. at 1152 (citing (James) Jones v. United States, 477 A.2d 231, 242 (D.C.1984); Bennett v. United States, 375 A.2d 499, 504 (D.C.1977); quoting Adams v. United States, 302 A.2d 232, 234 (D.C.1973)).

III.

Appellant also contends that his constitutional right to the effective assistance of counsel was...