United States v. Brooks
Decision Date | 17 December 1969 |
Docket Number | No. 22330.,22330. |
Citation | 137 US App. DC 147,420 F.2d 1350 |
Parties | UNITED STATES of America v. Francis G. BROOKS, Appellant. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Richard F. Kessler, Washington, D. C. (appointed by this court) for appellant. Mr. Robert L. Randall, Washington, D. C. (appointed by this court) was on the brief, for appellant.
Mr. D. William Subin, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, and Lawrence Lippe, Asst. U. S. Atty., were on the brief, for appellee.
Before BURGER,* TAMM and ROBINSON, Circuit Judges.
Appellant was indicted for seven offenses arising out of two robberies which occurred in the District of Columbia. The first three counts, for armed robbery, robbery, and assault with a dangerous weapon, related to an attack upon a victim named Ellis; counts four through six, charging armed assault with intent to commit robbery, assault with intent to commit robbery, and assault with a dangerous weapon, involved a victim named Jackson. The final count charged appellant with carrying a dangerous weapon. After a three-day trial in the district court, a jury found the appellant guilty on all counts except the lesser included offenses charged in counts two and five. In this appeal the appellant contends that the judgment must be reversed because of the allegedly coercive circumstances under which the jury was sent back for further deliberations after a poll revealed that two jurors had reservations about the verdict. Our review of the record reveals no reversible error, and thus we affirm.
After the jury had deliberated for more than seven hours, the forelady announced that they had reached a verdict of guilty on counts one, three, four, six, and seven. The following exchange then took place:
(Tr. 198-199.) At this point, the Court was confronted with a situation similar to that which we recently dealt with en banc in Williams & Coleman v. United States:1 the complexity of the case, and perhaps the inadequate acoustics of the courtroom, created confusion among the jurors, and this fact was not revealed until the jury poll was in progress.
All of the parties apparently realized the risk of mistrial inherent in this situation, and, at the instance of Government counsel, a conference was held at the bench. There the presiding judge suggested that "I can throw that count out if you want me to," and defense counsel replied, "I would say yes, but I would ask to have the rest of the jury polled" (Tr. 199, emphasis added). The Court granted this request. Further polling revealed that one other juror, Mrs. Taylor, had reservations about "the Ellis count" of the indictment. At this point counsel again approached the bench, and the Court suggested that he might accept a partial verdict on those counts not affected by the two jurors' indecision. Defense counsel made no objection to this proposed procedure, other than the suggestion that the Government might withdraw the charges, but further discussion at the bench raised the possibility that the confusion might affect other counts of the indictment. Therefore, the Court again queried the two dissenting jurors in an attempt to determine the extent of their confusion. After summarizing the first three counts of the indictment, the Court asked Mrs. Haltiwanger which portions of the verdict she disagreed with. She replied: (Tr. 203). The Court then asked her twice whether she was in accord with the guilty verdict announced on the first count, and she stated unequivocally that she was (Id.). The Court then addressed Mrs. Taylor, summarized the first three counts again, and asked: "Now, to what do you take exception?" The following dialog ensued:
(Tr. 204-205.) At this point, a third conference was held at the bench, and the Court again solicited counsel's reaction to his proposal to accept a partial verdict on counts three through seven; the only objection interposed by defense counsel was a suggestion that the third count also be resubmitted to the jury, and the Court agreed. The Government's request for an Allen charge2 was denied.
The Court then gave the jury a brief recapitulation of the instructions previously given on the first three counts. At the conclusion of this charge, Government counsel requested permission to approach the bench for a fourth conference. There he stated for the record his understanding that there was no question about the jury's verdict on the last four counts. Defense counsel agreed, and remarked: 3 (Tr. 209).
Following this exchange, the jury retired and deliberated for twenty minutes. Upon returning, they announced that they had found the defendant guilty on the first and third counts. Another poll was conducted at the request of defense counsel, with all jurors expressing their agreement to the verdict. The Court then attempted to insure the accuracy of the verdict by questioning the two previous dissenters at greater length:
(Tr. 212-213.) The Court then accepted the verdict.
Our evaluation of the procedures employed by the trial court must begin with Rule 31(d) of the Federal Rules of Criminal Procedure, which provides that "if upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged." Clearly, this provision invests the trial judge with a measure of discretion in assessing the impact of a dissenting vote during a jury poll, and the reasonable exercise of this discretion should be accorded proper deference by a reviewing court. As we noted in Jackson v. United States, 128 U.S.App.D.C. 214, 386 F.2d 641 (1967), the trial judge is in a much better position than an appellate tribunal to determine whether a recalcitrant juror's eventual acquiescence in a verdict was in fact freely given. The Jackson case also indicates that defense counsel plays a crucial role in interposing timely objections to potentially coercive procedures, both for the purpose of assisting the trial judge in choosing the best method of resolving an extremely delicate situation, and for the purpose of preserving in the record all relevant facts needed to support intelligent appellate review. In the instant case it is significant that appellant's able trial counsel, who was sufficiently familiar with the problems of jury coercion to be able to cite the Mull...
To continue reading
Request your trial-
Tough v. Ives
...assent to it. Neutral inquiry by the trial judge as to the meaning of a juror's response is not erroneous. See United States v. Brooks, 137 U.S.App.D.C. 147, 420 F.2d 1350, 1353; Smith v. S & F Construction Co., 62 Wash.2d 479, 383 P.2d 300; 5A Moore, Federal Practice (2d Ed.), p. 2239; not......
-
U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia
...and useful device for preserving a defendant's right to a unanimous verdict." Fiorilla, 850 F.2d at 176 (citing United States v. Brooks, 420 F.2d 1350, 1353 (D.C.Cir.1969)).34 We recognize that intervening changes of law are not always applied retroactively to cases on appeal. See Goodman v......
-
Lyell v. Renico
...United States v. Fiorilla, 850 F.2d 172 (3d Cir.1988); Amos v. United States, 496 F.2d 1269 (8th Cir.1974); United States v. Brooks, 420 F.2d 1350 (D.C.Cir.1969). One court of appeals did not. See United States v. Spitz, 696 F.2d 916 (11th Cir. 1983) (per The problem with Spitz, the decisio......
-
Lumpkin v. US, 88-536
...L.Ed.2d 280 (1979); Crowder, supra, 383 A.2d 336; Jackson, supra, 368 A.2d 1140; Kendall, supra, 349 A.2d 464; United States v. Brooks, 137 U.S.App.D.C. 147, 420 F.2d 1350 (1969); Williams v. United States, 136 U.S.App.D.C. 158, 419 F.2d 740 (1969). There may be communication problems which......