United States v. Sexton, 71-2407.

• Decision Date: 20 March 1972
• Docket Number: No. 71-2407.,71-2407.
• Citation: 456 F.2d 961
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles W. SEXTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

456 F.2d 961 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Charles W. SEXTON, Defendant-Appellant.

No. 71-2407.

United States Court of Appeals, Fifth Circuit.

March 20, 1972.

B. M. Waller, Montgomery, Ala., for defendant-appellant.

Ira DeMent, U.S. Atty., D. Broward Segrest, Asst. U.S. Atty., David B. Byrne, Jr., Montgomery, Ala., for plaintiff-appellee.

Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.

COLEMAN, Circuit Judge:

Charles W. Sexton has been convicted of violating various sections of the Internal Revenue Code relating to the unlawful possession, transportation, sale, and transfer of non-tax-paid distilled spirits, 26 U.S.C., §§ 5205(a)(2) and 5604(a)(1)¹ He appeals. Because of an occurrence which took place while the jury was attempting to report a verdict in open court we are compelled to reverse and remand for a new trial.

The evidence offered by the Government reflected the violations charged in the indictment, assuming that a jury should choose to accept it. The sum of the proof was that on July 26, 1970, Sexton assisted one Clarence Putt in the delivery and sale of fifty-one gallons of "good whiskey" to Preston Jackson, an undercover agent, witnessed by other agents. The transaction took place on a field road near Prattville, Alabama.

We find no merit in the assignments of error as to jury instructions, the refusal to allow the defendant to call the undercover agent as an adverse witness, and the denial of a judgment of acquittal.

We reach a different result as to what happened during the first attempt of the jury to report a verdict.

Seven minutes after the jury had retired to consider its verdict, the foreman notified the Court that a verdict had been reached. The jury returned to the courtroom and the Clerk of the Court read the guilty verdict. The defendant requested a poll. The following ensued:

"THE COURT: Mr. Bricken (foreman of the jury), was this the verdict of each member of the jury?

"JUROR: That is correct, sir.

"THE COURT: And it was your verdict—or was it your verdict?

"JUROR: Yes, sir.

"THE COURT: And would each of you now answer the question. I will go down the line. Was it your verdict?

"JUROR: Yes, sir.

"THE COURT: All right, next? Was it your verdict?

"JUROR: Yes, sir.

"THE COURT: Was it your verdict?

"JUROR: Yes, sir.

"THE COURT: Was it your verdict?

"JUROR: I didn\'t vote either way.

"THE COURT: Well, is it your verdict?

"JUROR: Yes, sir. Emphasis supplied.

"THE COURT: Do you want to ask that juror any questions, Mr. Waller?

"MR. WALLER: Judge, I think it is not a verdict.

"THE COURT: I am going to send the jury back to reconsider their verdict, and be sure that it is the verdict of each of you. It must be a unanimous verdict and you must vote on it.

"And, Mr. Bricken, if you will, take the verdict back, both verdicts back and consider it and the Court will hear you when you are ready to report.

"Thank you.

"If you will, take them back to the jury room.

(The jury left the courtroom).

"MR. WALLER: Judge, I would like to make a motion for a mistrial in that the jury has supposedly reported back and that it has been made known to the Court that one of the jurors did not participate in the verdict, did not vote for the verdict, and that being sent now back after having made such a statement and identified herself in open court that she would not be intimidated or restrained from making a proper and impartial verdict, and that such verdict would be hard for her to deliver, and the defendant should be granted a mistrial based on such procedure."

Soon thereafter, the jury returned from the second consideration of its verdict and the Clerk announced a unanimous verdict of guilty. Another poll showed that the verdict was then unanimous. The Court accepted the verdict. Counsel for appellant was allowed to question the foreman, who reported that the second verdict had resulted from a secret ballot of the jurors.

Relying mainly on Matthews v. United States, D.C.App., 1969, 252 A.2d 505, and on United States v. McCoy, 1970, 139 U.S.App.D.C. 60, 429 F.2d 739, appellant contends that his conviction should be reversed because the District Court's inquiry of the dissenting juror during the polling of the jury had a coercive effect towards a unanimous verdict.

In Matthews v. United States, supra, the appellant had been convicted by a jury of petit larceny and had been found not guilty of simple assault. After the foreman announced the jury's verdict, appellant's trial counsel requested that the jury be polled as to the petit larceny. When their names were called, eleven of the jurors simply answered "guilty". However, when the ninth juror was polled, the following colloquy took place.

"DEPUTY CLERK: Sarah I. Stackhouse.

"STACKHOUSE: Guilty. Your honor, can I ask about the pettit (sic) larceny?

"COURT: That is all, either guilty or not guilty.

"STACKHOUSE: I can\'t express myself any further.

"COURT: No, you can only—

"STACKHOUSE: It is conditional.

"COURT: You have to answer either guilty or not guilty. (Emphasis supplied).

"STACKHOUSE: Guilty."

Finding no assurance that the jury freely and fairly arrived at a unanimous verdict, the District of Columbia Court of Appeals reversed the appellant's conviction. The Court reasoned:

"In the instant case, when the juror stated that her verdict was conditional, the trial judge should have been alerted to the probability that there might not be unanimity in the verdict. Therefore, he should not have required the juror to answer `either guilty or not guilty\', but should have returned the jury to the jury room for further deliberation.

"The juror\'s subsequent statement of `Guilty\' did not serve to remove the uncertainty of her verdict since she was responding to the court\'s directive that `you have to answer either guilty or not guilty\'." 252 A.2d at 506. (Emphasis in original; footnote omitted).

It must be emphasized that in this case the juror, in effect, voted in the courtroom and not in the jury room and she voted under the compulsion of the Court.

In United States v. McCoy, supra, when the District Court's poll of the jury reached the eleventh juror, she responded to the clerk's request to "state yes or no whether or not your verdict is the same as that given by your foreman" with the answer: "Yes, with a question mark". Whereupon, the District Court instructed the juror to answer yes or no. She then answered "Yes". The trial court accepted the verdict without further inquiry or other action, over the objection of appellant's counsel. Distinguishing its decision in Williams and Coleman v. United States, 1969, 136 U.S.App.D.C. 158, 419 F.2d 740 (en banc) and following the reasoning of the Court in Matthews v. United States, supra, the District of Columbia Circuit Court of Appeals reversed the conviction.

Again, the juror was, in effect, required to vote in open court and without further deliberation with the other jurors.

The Government, in seeking our affirmance of Sexton's conviction, relies upon Jackson v. United States, 1967, 128 U.S.App.D.C. 214, 386 F.2d 641; Williams and Coleman v. United States, supra, and United States v. Brooks, D.C. Cir., 1969, 137 U.S.App.D.C. 147, 420 F.2d 1350. The Government contends that the District Court properly exercised its discretion under Rule 31(d) of the Federal Rules of Criminal Procedure and that the facts indicate no coercion or prejudice to the appellant as a result of the trial judge's action.

The Court in Jackson v. United States, supra, considered the following colloquy between the Court and a juror during the polling of the jury:

"THE DEPUTY CLERK: Mrs. Aminta R. Knight, what say you as to the defendant on count one (Robbery) of the indictment?

"MRS. KNIGHT: I went along with the majority—guilty.

"THE COURT: What did you say?

"MRS. KNIGHT: I went along with the majority.

"THE COURT: Guilty?

"MRS. KNIGHT: Yes.

"THE DEPUTY CLERK: On count two of the indictment?

"MRS. KNIGHT: Guilty."

During the poll, Jackson's counsel remained silent. Only after the jurors had been dismissed and dispersed did he object to the verdict on the ground that Mrs. Knight's answers to the poll showed the robbery verdict not to be unanimous. The Court filed a written memorandum describing the circumstances of the jury poll, declaring itself "satisfied that the procedures followed were non-coercive, and that the verdict rendered was the free and considered decision of each individual member of the jury." In upholding Jackson's conviction on appeal, the appellate court said:

"In oral argument appellant\'s counsel referred to circumstances visible in the courtroom at the time of the poll which indicated the verdict to be less than unanimous. But if these circumstances were so plainly evident, it seems to us that they would, as they should, have been immediately called to the court\'s attention upon the record. Had that been done, any doubts whatever about the state of the jurors\' minds could have been cleared up and appropriate action taken before the jury was dismissed. A principal office of the making of objections by counsel in adversary proceedings is not only to assure justice but also to achieve efficiency and expedition in its administration.

"Absent such a response by counsel to the alleged stress of the moment, we are not persuaded that, in the light of what is before us, we must disregard the Court\'s own characterization of the scene. * * *. Although the Court\'s inquiry did not perhaps exhaust the solicitude appropriate to a situation of this kind, particularly when the circumstances actually obtaining are difficult to communicate to an appellate court in a cold record, we are not prepared to say that the court erred in its appraisal at the time of the genuineness of Mrs. Knight\'s verdict."

Williams and Coleman v. United States, supra, represents a jury poll case in which the juror upon being asked "What say you as to the defendant Gerald Coleman on Count 1?" answere...