Parker v. US

• Decision Date: 20 December 1991
• Docket Number: No. 87-565,89-847 and 87-1332.,87-565
• Citation: 601 A.2d 45
• Court: D.C. Court of Appeals
• Parties: Charles E. PARKER, Appellant, v. UNITED STATES, Appellee. Sylvester J. LEWIS, Appellant, v. UNITED STATES, Appellee.

601 A.2d 45

Charles E. PARKER, Appellant, v. UNITED STATES, Appellee.

Sylvester J. LEWIS, Appellant, v. UNITED STATES, Appellee.

Nos. 87-565, 89-847 and 87-1332.

District of Columbia Court of Appeals.

Argued May 10, 1990.

Decided December 20, 1991.

Matthew C. Leefer, appointed by this court, for appellant Parker.

Mindy A. Daniels, appointed by this court, for appellant Lewis.

Eric M. Acker, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Elizabeth Trosman, G. Michael Lennon and J. Edward Agee, Asst. U.S. Attys., were on the brief, for appellee.

Before TERRY and STEADMAN, Associate Judges, and NEWMAN, Senior Judge.^*

STEADMAN, Associate Judge:

Appellants, the occupants of the front seat of a car on which was located a paper bag containing a quantity of drugs,¹ were both convicted of possession of heroin with intent to distribute, D.C.Code § 33-541(a)(1) (1988), and simple possession of cocaine, id. § 33-541(d). During deliberations, the jury asked if it could convict on the offense of simple possession of heroin without reaching agreement on the greater offense of possession with intent to distribute. The trial court on two separate occasions reinstructed the jury that it must reach a unanimous agreement on the greater offense before it could consider the lesser. We hold that the giving of this instruction, "sometimes known as the `acquittal first' instruction," Jones v. United States, 544 A.2d 1250, 1252 (D.C.1988), in the circumstances here constituted reversible error and requires that appellants be granted a new trial on the possession with intent to distribute charge. We reject the appellants' other contentions.²

I.

The trial court issued its general charge to the jury at the close of trial on Wednesday, January 21, 1987. Before instructing the jury on the elements of the lesser included offense of possession of heroin, the trial court told the jury: "After your consideration of the possession with intent to distribute charge, if you define sic a particular defendant not guilty as to the charge of possession with the intent to distribute of heroin, then you shall consider the charge of possession of heroin." At 12:10 p.m. on Tuesday, January 27,³ the jury sent the court a note stating, "We are unable to reach a verdict on one of the counts. How should we proceed?"

Confronted with this note, the parties agreed that the trial judge, accompanied by the court reporter but not the attorneys, should "stop into the jury room ... and give a very brief message to the jury ... to ask them to continue their deliberations."⁴ The trial judge informed the parties that "substantively, I am going to say very little." However, upon entering the jury room, the judge instructed the jury that "you may consider the offense of possession of heroin if and only if the jury returns a verdict of not guilty of the charge of possession with intent to distribute heroin." The trial judge then repeated that the jurors "may only consider the charge of possession of heroin if and only if the jury has unanimously agreed on a verdict of not guilty with respect to the charge of possession with intent to distribute heroin. You may only consider a lesser included offense if you have returned a verdict of not guilty as to the greater offense."

At approximately 4:18 p.m. on January 27, the jury sent the court a second note which asked more specifically, "Is there any way to convict on possession of heroin without agreeing on distribution?"⁵ During the colloquy on how to respond, counsel for appellant Parker argued that since the jury in effect had to decide whether his client possessed heroin before deciding whether he did so with intent to distribute, the jury could find the defendants guilty of simple possession without resolving the intent to distribute question. Accordingly, he argued that the trial court should answer "yes" to the jury's question whether it could convict on possession of heroin without agreeing on distribution. The trial court immediately responded, "I think under the law they have to consider the greater offense first."⁶ The judge then again instructed the jury that "you must come to a unanimous decision on the charge of Possession With Intent to Distribute Heroin before you may undertake any consideration of the lesser included offense." The jury deliberated for approximately twenty-five minutes before being excused for the evening; the next morning, at 11:25, the jury found both appellants guilty of the greater offense of possession of heroin with intent to distribute.⁷

In Jones v. United States, supra, 544 A.2d at 1253, we described the "flaw" associated with the "acquittal first" instruction. We explained that such an instruction "`improperly interferes with the jury's deliberations'" because the jury "is encouraged — some would say coerced — to favor conviction of the greater offense." Id. (citation omitted).

Accordingly, 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." Id. at 1254. Instead, we said, the jury should be given the less-stringent "reasonable efforts" instruction.

More recently, in Wright v. United States, 588 A.2d 260 (D.C.1991), we had occasion to revisit this general issue in the context of the court's initial charge to the jury, a matter we had specifically left open in Jones, supra, 544 A.2d at 1254. We observed that "either version of the instruction has advantages and disadvantages for each side in a trial," and that neither was wrong as a matter of law. Wright, supra, 588 A.2d at 261-62. Invoking considerations analogous to those underlying the rule of lenity, we held that the defendant's wishes should prevail. Accordingly, "where timely requested, the trial court should give an instruction which allows the jury to consider the lesser included offense, if unable to reach a verdict on the greater offense, after making all reasonable efforts to do so." Id. at 262.

Applying these principles to the instant case,⁸ we must conclude that the trial court erred in giving an "acquittal first" instruction after the jury reported a deadlock on the greater offense of possession with intent to distribute.⁹ As in Jones, supra, 544 A.2d at 1254, a retrial is necessary on the charge of possession of heroin with intent to distribute "since we cannot know what verdict a properly instructed jury would have returned." We see no basis, however, for reversing appellants' convictions of possession of cocaine because of the erroneous reinstructions.¹⁰ The jury's deadlock involved only the question whether appellants had the requisite intent to distribute heroin. That issue was irrelevant to appellants' guilt on the simple possession of cocaine charges. Accordingly, there was no "prejudicial `spillover'" as a consequence of the instructional error on the possession of heroin with intent to distribute count. Gethers v. United States, 556 A.2d 201, 205 (D.C.1989).¹¹

II.

Appellants' other assertions of error do not merit relief.

A.

Appellants first contend that the police lacked probable cause to arrest them or to search their vehicle. The government's evidence at the suppression hearing showed that a citizen flagged down a police officer and told him that a man in a brown Plymouth with District of Columbia license plates was about to make a drug drop at a specified location a few blocks away. The citizen, who gave her name and address to the officer, stated that the drugs were located on the front seat of the car in a paper bag. The officer, joined by his partner, responded and observed a brown Plymouth with District of Columbia license plates as it pulled to a halt in front of the address given by the citizen informant. As the police approached the car, one officer observed a brown paper bag between the driver and passenger. On seeing the bag, the officer asked both occupants to exit the car. He then reached inside the car, retrieved the bag, opened it, and saw what appeared to be narcotics. The officer then placed appellants under arrest. The trial judge concluded that upon seeing the brown paper bag, the police had probable cause, and he therefore denied the motion to suppress.¹²

In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the Supreme Court recited the rule, originating in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), that

if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.

Ross, supra, 456 U.S. at 805, 102 S.Ct. at 2162 (quoting Carroll, supra, 267 U.S. at 149, 45 S.Ct. at 283-84)). The Court emphasized that this exception to the warrant requirement "applies only to searches that are supported by probable cause," and that such a search "is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained." Id., 456 U.S. at 809, 102 S.Ct. at 2164-65 (footnote omitted). In cases involving this automobile-contraband seizure rule, a reviewing court should employ the "totality-of-the-circumstances analysis" announced in Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), to determine whether an informant's tip would have established probable cause for a search warrant. Ultimately, our role "is to ensure that the trial court had a substantial basis for concluding that probable cause existed." Goldston v. United States, 562 A.2d 96, 98 (D.C.1989).

Along with an informant's basis of knowledge of criminal activity, the informant's general credibility and the reliability of the information he or she provides are important factors in a...