Scarborough v. United States, 84-754.

• Decision Date: 18 March 1987
• Docket Number: No. 84-754.,84-754.
• Citation: 522 A.2d 869
• Parties: Eddie M. SCARBOROUGH, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

522 A.2d 869

Eddie M. SCARBOROUGH, Appellant, v. UNITED STATES, Appellee.

No. 84-754.

District of Columbia Court of Appeals.

Argued En Banc May 30, 1986.

Decided March 18, 1987.

Geoffrey D. Allen, Washington, D.C., appointed by the court, for appellant.

Thomas J. Tourish, Jr., Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Judith Hetherton, Leonard E. Birdsong, and Gerald W. Heller, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Jennifer P. Lyman, Public Defender Service, with whom James Klein, Public Defender Service, Washington, D.C., was on the brief, filed an amicus curiae brief for appellant.

Before PRYOR, Chief Judge, and NEBEKER, MACK, NEWMAN, FERREN, BELSON, TERRY, ROGERS and STEADMAN, Associate Judges.

FERREN, Associate Judge:

In Scarborough v. United States, 496 A.2d 277 (D.C. 1985) (per curiam), a division of this court affirmed appellant's conviction for receiving stolen property (felony), D.C. Code § 22-2205 (1981). The division premised its opinion on the second holding of Barkley v. United States, 455 A.2d 412, 415-16 (D.C. 1983). Several months later, we granted appellant's petition for rehearing en banc and vacated the division opinion and judgment. Scarborough v. United States, 507 A.2d 141 (D.C. 1986). Appellant argues that the trial court abused its discretion in denying his motion for a new trial. He cites the court's failure to instruct the jurors that, in order to convict under a single count of receiving two distinct classes of stolen property, they must unanimously agree on what class of items he unlawfully received. We agree that this omission of a special unanimity instruction violated appellant's sixth amendment rights. Consequently, we overrule the portion of Barkley that is inconsistent with our ruling here. Because, however, we also conclude that the error was harmless beyond a reasonable doubt, Delaware v. Van Arsdall, ___ U.S. ___, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), we affirm appellant's conviction.

I.

Complainant, Bradford Callahan, maintained an automobile body shop in which he engaged in body and fender work as a hobby. On Saturday evening, November 21, 1982, Callahan locked up his shop for the weekend. When he returned Monday morning, he discovered that the locks had been cut off and that various tools and supplies had been stolen. He reported the theft to the police. He then went to see appellant, who worked as a mechanic in the neighborhood, to inquire about a car that appellant had wanted him to paint. Appellant advised Callahan that he planned to try painting the car himself, whereupon Callahan asked to see appellant's spray paint gun. Appellant showed him several spray guns, three of which Callahan recognized as his own. Two of the spray guns had Callahan's initials on them; he recognized the third by identifying certain replacement parts he had just installed. Callahan testified that he had paid $90 for one of the guns and between $125 and $175 apiece for the other two. He further stated that, because the retail value of similar spray guns had increased since he had bought his, the spray guns were currently worth more than $100 each. Appellant told Callahan that he had purchased the three spray paint guns from a man who had come by the shop and done some work in the neighborhood. Callahan asked appellant to identify this man, and appellant agreed to help Callahan locate him. The search was unsuccessful; appellant returned the spray guns to Callahan.

A few days later, Callahan spoke to Detective Vacin of the Metropolitan Police Department and told him that he had recovered the spray guns from appellant. Callahan identified appellant from some police photographs, then accompanied Vacin to a nearby garage belonging to Ms. Mazel Smith, where appellant sometimes worked. Appellant stored some of his tools there and had exclusive use of the garage. There, Callahan found a grinder which he identified as his because it had a cracked handle and two cuts in the power cord. Callahan testified at trial that the grinder had a current value of at least $150.

At trial, appellant presented separate defenses as to each class of property stolen. He repeated his claim that he had purchased the spray guns in good faith from a man in the neighborhood. He asserted that he had received the grinder as a gift from his common law wife, Pensie Thraxton. She corroborated this account, testifying that the grinder recovered by the police looked like the one she had given appellant following her father's death in 1979. James Postell, a friend of appellant's and a member of the Metropolitan Police Department, testified that in 1982 he had damaged appellant's grinder by driving over the cord in his car. He also identified the grinder recovered by the police as the same one damaged by his car.

At the close of the evidence, the court discussed proposed instructions with counsel and announced its intention to give the standard unanimity instruction.¹ Appellant's counsel neither objected to the court's proposal nor requested a special instruction, and he later advised the court that he was "satisfied" with the instructions. The court accordingly instructed the jury on the elements of the crime and added that "Mil order to return a verdict, it is necessary that each juror agree to the verdict. Your verdicts must be unanimous."

Following the jury's verdict, appellant filed a motion for a new trial, asserting that the trial court had erred in failing to instruct the jury that it must unanimously agree on which items of Callahan's property appellant had feloniously received. Appellant argued that it would have been possible for the jury to convict under the court's instruction if, for example, six jurors had believed appellant guilty of receiving the spray guns but not the grinder while the other six believed him guilty of receiving the grinder but not the spray guns—a nonunanimous verdict as to any of the property. The court denied this motion, applying Barkley.

II.

In arguing that the court abused its discretion in denying his new trial motion, appellant relies on the following line of cases: Davis v. United States, 448 A.2d 242, 244 (D.C. 1982) (per curiam); Hack v. United States, 445 A.2d 634, 641 (D.C. 1982); Hawkins v. United States, 434 A.2d 446, 449 (D.C. 1981); Johnson v. United States, 398 A.2d 354, 368-370 (D.C. 1979). In Hawkins, for example, we said that the sixth amendment requirement for a unanimous verdict² requires that "[w]here one charge encompasses two separate incidents, the judge must instruct the jury that if a guilty verdict is returned the jurors must be unanimous as to which incident or incidents they find the defendant guilty." 434 A.2d at 449 (citation omitted). Such an instruction is necessary to prevent the possibility that some jurors might vote to convict based solely on one incident while others vote to convict based solely on the other. Id. at 448-49. We have held, moreover, that the failure to give such a unanimity instruction in such circumstances can be "plain error of a constitutional magnitude" requiring reversal. Id. at 449; compare Davis, 448 A.2d at 244 (plain error), with Hack, 445 A.2d at 641 (error harmless beyond reasonable doubt).

Appellant acknowledges that we have rejected a similar sixth amendment "unanimity" claim when the charge of stealing two distinct classes of property was based on a single incident. In Barkley, appellant was convicted of petit larceny for the theft of various items from complainant's apartment one Thanksgiving Day. Appellant raised separate defenses for these items. He conceded taking one, a stereo amplifier, but defended that taking by a claim of right. He denied participation in the theft of the other items, blaming his codefendant. 455 A.2d at 413-14. We rejected appellant's argument that these two classes of thefts were conceptually severable because of appellant's distinct defense theories. We said that the thefts and appellant's alleged participation

are founded in just one set of factual circumstances not separated by time or by intervening incidents. The evidence as to each theory of liability is the same. There was but one offense based on a unitary event, rather than two separable and distinct offenses, as there were in Hack.

* * * * * *

In the case at hand, the jury was instructed to return a unanimous verdict . . . and there is no indication that they did not, in fact, agree unanimously as to what property appellant stole. However, whatever credence the jury may have accorded appellant's defenses, the jury was at least unanimous in finding that appellant took some of the complainant's property, having some value, without his consent and without right. These are the essential elements of the offense of petit larceny, D.C. Code 1981, § 22-2202, and under these circumstances involving a single uninterrupted event, we conclude that the unanimity requirement is satisfied.

Id. at 415-16.

In order to understand the problem in Barkley, it is important to examine the policy underlying the requirement for unanimous verdicts in criminal trials. The constitutional right to a unanimous jury verdict in federal criminal trials is a principle long assumed to be an indispensable feature of the sixth amendment right to trial by jury. See, e.g., Johnson v. Louisiana, 406 U.S. 356, 369-71, 92 S.Ct. 1620, 1637-38, 32 L.Ed.2d 152 (1972) (Powell, J., concurring); Andres v. United States, 333 U.S. 740, 748-49, 68 S.Ct. 880, 884, 92 L.Ed. 1055 (1948); Patton v. United States, 281 U.S. 276, 288-90, 50 S.Ct. 253, 254-55, 74 L.Ed. 854 (1930). Although the Supreme Court has rejected the argument that unanimity is necessary in order to effectuate the requirement of proof beyond a reasonable doubt, Johnson, 406 U.S. at 360-63, 92 S.Ct. at 1623-25; see Apodaca v. Oregon, 406 U.S. 404,...