Leake v. United States, 11–CF–0554.

• Decision Date: 07 November 2013
• Docket Number: No. 11–CF–0554.,11–CF–0554.
• Citation: 77 A.3d 971
• Parties: Robert LEAKE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

77 A.3d 971

Robert LEAKE, Appellant,

v.UNITED STATES, Appellee.

No. 11–CF–0554.

District of Columbia Court of Appeals.

Argued April 30, 2013.

Decided Oct. 17, 2013.

As Amended Nov. 7, 2013.

Esteban Morin, Public Defender Service, with whom Samia Fam and James Klein, Public Defender Service, were on the brief, for appellant. Matthew S. Hellman, Jenner & Block LLP, Washington, DC, was on the reply brief, for appellant.

Christine Macey, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Kenya Davis and Elizabeth Trosman, Assistant United States Attorneys, were on the brief, for appellee.

Before GLICKMAN and BLACKBURNE–RIGSBY, Associate Judges, and NEBEKER, Senior Judge.

BLACKBURNE–RIGSBY, Associate Judge:

Before us is an appeal challenging the trial court's actions following an aborted jury poll. Appellant Robert Leake was convicted of carrying a pistol without a license, unlawful possession of a firearm, possession of an unregistered firearm, and unlawful possession of ammunition.¹ Appellant contends that the trial court abused its discretion by failing to perceive the inherent potential for jury coercion following a juror's dissent in open court, and by relying on improper factors when it denied appellant's motion for a mistrial and required the jury to continue its deliberations. Appellant argues that, taken together, the trial court's actions require reversal. We disagree and conclude that reversal is not required because in this case the potential for coercion was only minimal and the trial judge's actions neutralized the coercive potential.

I. Factual Background

Appellant's charges arise out of a traffic stop that occurred on September 14, 2010, when Metropolitan Police Department Officers required appellant and two other individuals, including the driver and passenger, to step out of the vehicle during the stop. Once one of the officers asked appellant to step out of the vehicle, he noticed a bulge in appellant's waistband. Appellant was subsequently arrested for possessing a handgun.

Appellant's first trial ended in a deadlocked jury that ultimately led to a mistrial. At appellant's second trial, the jury began its deliberations on February 3, 2011, at 4:06 p.m. Thirty minutes into its deliberations, the jury sent its first note to the trial judge requesting fingerprint cards and a map. The judge granted the request without any objection. The jury continued deliberations the next day and sent a second note with two questions: “What is the legality of removing occupants of a vehicle following a traffic stop for a simple moving violation?” and “What legal basis do the officers have for removing a vehicle's occupants and handcuffing them?” The jury foreman stated in the note that these “are questions that we feel need to be answered in order to satisfy some [j]ury members in reaching a verdict.” After conferring with counsel, the trial judge responded in writing: “You do not have to decide whether the officers' actions following the traffic stop were lawful. You are permitted to consider the actions of the officers in assessing the credibility of the officers with respect to the question before you: whether the [d]efendant is guilty beyond a reasonable doubt.”

At 3:02 p.m., the jury sent a note that it had reached a verdict. The foreperson announced that the jury had found appellant guilty of all charges. Upon appellant's trial counsel's request, the trial judge polled each of the jurors. When asked whether they agreed with the verdict, Jurors One and Two answered in the affirmative, but Juror Three answered: “Sort of yes—I mean, no. Not too much.” The trial judge immediately stopped pollingthe jurors, stating that: “It's important that all of you agree. If there's a question about it, I'm going to ask you—I'm going to excuse you and ask you to continue deliberations until—is there anything else you want—do either of the attorneys want to approach?”

During a bench conference with counsel, both sides agreed not to submit a Winters anti-deadlock instruction because under the circumstances, the instruction would be inappropriate. However, appellant's trial counsel requested that the trial judge provide a “brief instruction to remind [the jury] that [the verdict] has to be unanimous.” Ultimately the trial judge instructed the jury as follows: “I'm going to return the verdict form to the foreperson and I'm going to ask you to resume your deliberations and let me know when you've reached a verdict or if you have any more questions.” The jury then continued its deliberations.

At 3:10 p.m., several minutes after returning to the jury room, the jury submitted an additional question to the trial judge asking how long fingerprints last. After the trial judge summoned counsel, appellant's trial counsel moved for a mistrial claiming that it would be coercive to send the jurors back to deliberate with the aim of reaching a unanimous verdict after a juror had dissented openly in court. The trial judge denied the motion, observing: “I didn't tell them to reach a unanimous verdict, I told them to go back and continue their deliberations, and that will mean if they've reached a verdict or if they have any additional questions.” In response to appellant's trial counsel's claim of inherent coercive potential, the judge found that “[t]he [j]ury is in the same situation as it would have been in if the juror had said in the jury room I agree and then changes his mind there.” The judge then responded to the jury's question regarding fingerprints in writing: “The jury must rely on the evidence presented at trial. The jury's recollection of the evidence controls.”

At 3:44 p.m., the jury alerted the court that it had reached a verdict. Prior to the jury's return to the courtroom, appellant renewed his motion for a mistrial. Appellant informed the court that Juror Three had indicated during voir dire that he had some scheduling concerns due to child care issues. Citing Harris v. United States, 622 A.2d 697 (D.C.1993), appellant argued that the instruction to the jury to continue deliberations after Juror Three's open dissent in court, combined with the inevitable prolonging of the deliberation process, and its impact on Juror Three's childcare concerns, presented additional elements of jury coercion.

The trial judge delayed ruling on the motion and brought the jury into the courtroom because he did not want to keep the jurors waiting. The jury found appellant guilty on all four counts. The trial judge then polled the jurors, all of whom agreed with the verdict. After dismissing the jury, the trial judge responded to appellant's motion for a mistrial, observing that Juror Three had expressed child care concerns during voir dire but that “he didn't say it wasn't possible” to find child care. The trial judge additionally observed that, when polled the second time, Juror Three “answered yes, kind of straightforward. He didn't seem to be equivocal ... [and] there was no sign either he felt pressured into reaching a verdict by reasons of time or anything else.”

The trial judge recognized that it retained discretion in determining whether to grant a mistrial and noted that “[t]his is clearly a situation where it is—you know, it's clear at least in some substantial degree that the split was, you know, probably eleven to one.” The court also stated that it could “take into account the question that preceded by a short period of time the initial note that they'd reached a verdict,” which the court observed “was more about the conduct of the police officers than about the conduct of Mr. Leake.” Lastly, the court commented on the timing between the jury's return to deliberations and the verdict:

And I think under all of the circumstances, you know, the [j]ury ... went back for a period of ... about a half an hour or a little more ... which is adequate opportunity to have talked things through and give any concerns or [sic] chance to be voiced and addressed. It doesn't suggest that the juror just got rolled over or more than one juror got rolled over and just said, okay, I just want to go home to my child, and I'll do anything to go home.

The trial judge denied the second motion for a mistrial and remarked that the jury's second note about the question of fingerprints indicated that “the [j]ury wasn't just focused on the issue of police misconduct,” which the judge found to be consistent with “talking through a range of issues.”

II. Discussion

Appellant argues that reversal is required because the trial court abused its discretion by failing to recognize the potential for jury coercion and by improperly considering certain factors when it ordered the jury to continue deliberations. Appellant cites to ( James ) Johnson v. United States, 398 A.2d 354 (D.C.1979), which provides that in assessing whether the trial court abused its discretion, this court looks to whether the trial judge “failed to consider a relevant factor, ... relied upon an improper factor, and whether the reasons given reasonably support the conclusion.” Id. at 365 (citation omitted). The government contends that the trial court did not abuse its discretion by failing to order a mistrial because the circumstances were not sufficiently coercive, and because the trial judge's reaction ameliorated any potential for coercion. In assessing appellant's claim, we first discuss the legal framework used to assess coercion in jury poll cases.

A.

The jury poll serves as “the primary device for discovering the doubt or confusion of individual jurors.” Crowder v. United States, 383 A.2d 336, 340 (D.C.1978) (citations omitted). “Its purpose is to determine ... that every juror approves of the verdict ... and that no juror has been coerced” into agreeing with the verdict. Id. Under Super. Ct.Crim. R. 31(d), when the jury returns a verdict, the trial judge may poll the jury at the request of one of the parties or upon its own motion. Id. “If...