VICTOR COLEY, APPELLANT, v. UNITED STATES, APPELLEE.
No. 15-CF-512
DISTRICT OF COLUMBIA COURT OF APPEALS
Decided November 15, 2018
Argued March 16, 2017
Appeal from the Superior Court of the District of Columbia (CF3-19633-13)
(Hon. Michael Ryan, Trial Judge)
Deborah A. Persico for appellant.
Patricia A. Heffernan, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, David Misler, and Jeffrey Nestler, Assistant United States Attorneys, were on the brief, for appellee.
Daniel Gonen, with whom Samia Fam and Stefanie Schneider were on the brief, for the Public Defender Service, amicus curiae, in support of appellant.
Before GLICKMAN, FISHER, and THOMPSON, Associate Judges.
GLICKMAN, Associate Judge: After a jury trial, Victor Coley was convicted on multiple counts of assault with intent to kill while armed, aggravated assault
I.
The charges against appellant arose from an incident on November 6, 2013, in which a lone gunman fired shots into а crowd of people gathered outside a Payless store in the 3900 block of Minnesota Avenue, N.E. At trial, the government presented evidence that the gunman was appellant. Appellant‘s defense was misidentification; he presented evidence that the shooter was someone else. Because the issue we address in this appeal arose out of the jury‘s deliberations, it is unnecessary to recite the evidence in detail.
In his charge to the jury at the conclusion of the trial, the judge informed the jury that if it needed to communicate with the court, it could send a note, signed by the foreperson or one or more jurors, through the court clerk or the marshal. The judge cautioned thе jury not to reveal its numerical division with regard to
The jurors began their deliberations on Friday afternoon, February 20, 2015. At 12:05 p.m. on Tuesday, the court received a note, signed by the foreperson, stating the jury had “reached a decision on all counts.” In the courtroom, the foreperson announced that the jury unanimously found appellant guilty of all the charges against him.
The judge proceeded to poll the jury, asking each juror individually, “Do you agree with the verdicts as stated by your foreperson?” The first two jurors answered “yes.” But when the third, Juror 668, was asked whether she agreed with the verdicts, she responded, “I can‘t” (or, possibly, “I can‘t agree“).1 The judge
In the jury‘s absence, the judge discussed with counsel how to proceed. Appellant moved for a mistrial, which the judge denied. Defense counsel argued that requiring further deliberations would create a high likelihood that Juror 668 wоuld be coerced into changing her vote because her response to the poll indicated she almost certainly was the sole dissenter from the verdict announced by the foreperson. The judge disagreed. He found that Juror 668‘s “I can‘t” was ambiguous and did not necessarily mean she dissented from the declared verdict; rather, the judge observed, the juror simply may have been “confused,” or she may have felt unable to “say that he‘s guilty even though the evidence supports it.”2 In addition, the judge deemed it “speculation” to conclude that Juror 668 was the only juror not joining in the announced verdict, inasmuch as she was only the third juror polled and the “exact numerical division” of the entire jury with respect to thе verdict was unknown; this was not, the judge said, “the sort of situation where it‘s the 12th person who is polled, who‘s the only person that says no.” Moreover, the
For these reasons, the judge concluded that the “evidence” did not show “a particularly high likelihood of juror coercion” if he recalled the jury to the courtroom and instructed it to continue its deliberations. For the language of that instruction, the judge looked to Instruction 2.603 (“Return of the Jury After Polling“) in the “Redbook.”3 In accordance with the first paragraph of that instruction, the judge instructed the recalled jurors as follows:
[I]n the poll of the jury, it‘s become apparent that you may not have reached a unanimous verdict. Now, for this reason I‘m going to ask you to return to the jury room for further consideration of your verdict. If you are unanimous your foreperson should send me a note indicating that, and I will poll you again. If you are not unanimous please resume deliberations and see if you can reach [a] unanimous verdict.
Instruction 2.603 contains two additional, bracketed paragraphs cautioning jurors that, while they should be willing to reexamine their views, they should “not surrender [their] honest conviction[s] as to the weight or effect of evidence solely
The judge excused the jury at 1:00 p.m., asking it to deliberate until 1:30 p.m. before taking a lunch break. At 1:25 p.m., the judge called the parties back to the courtroom to advise them of a new development - the clerk had informеd him of a jury note. The judge explained that he had not seen the note and did not know what it said because the clerk had taken it directly to another judge (Judge Canan) for review, “which is her responsibility when a note might evidence . . . a split or something like that in the jury.” At Judge Canan‘s suggestion, the judge excused the jurors for lunch until 2:30 and instructed them not to discuss the case. The prosecutor inquired, “what do we do with that note or do we speak with Judge Canan, what‘s the next move?” The judge answered that he needed to talk to Judge Canan to “figure out . . . the outline of the situation before I can tell you all what to do.”
After a recess, the court reconvened at 2:30 p.m. The judge reported to the parties that he had conferred with Judge Canan. Their discussion was off the
The judge acknowledged that defense counsel‘s concern might be justified if the facts were known. Nevertheless, the judge did not offer to let the parties inspect the note to ascertain what it disclosed, nor did he disabuse defense counsel
We received a note from you all before I sent you to lunch. I haven‘t seen that note, I don‘t know what it said, or who wrote the note, and that‘s for the following reason. Madam Clerk knows that if a note is given by the jury that in some way might demonstrate a split amongst members of the jury; 6/6, 7/5 or 11/1 or anything like that, or whether people are going towards acquittal or conviction, Madam Clerk knows that I‘m not supposed to see that, and so her procedure is or our procedure is that she‘s to take that to a different trial judge than myself. That‘s what happened. I don‘t know what the note said or who wrote it, so that‘s why I‘m not responding to whatever it was that you all said. That having been said, if I could ask you all to please resume your deliberations. I just didn‘t want you to think that I was ignoring you. Thanks so much.
Approximately an hour later, the court reсeived a note stating that the jury had reached a unanimous decision. In the courtroom, the foreperson announced
Subsequently, the note that the trial judge had not read and that the parties had not seen was made available to them and included in the trial record. The note, which the courtroom clerk had received within fifteen minutes after the jury returned to deliberate following the breakdown in the jury poll, was from Juror 668 alone. “I don‘t feel he did it,” the note stated.
In light of this revelation, appellant moved prior to sentencing for a new trial, arguing that the trial court‘s failure to grant a mistrial or give a Crowder instruction following the receipt of Juror 668‘s note had resulted in a verdict that likely was “tainted by coercion.” The trial judge denied the motion in a written order. He reasoned that the poll breakdown did not indicate a high risk of juror coercion in continued deliberations, and that his response to Juror 668‘s note - informing the jury that he did not know what it said or who wrote it - ensured that the risk of coercion did not increase. The judge added that, although the note “certainly” evinced Juror 668‘s disagreement with verdicts of guilt, “any such apparent disagreement was resolved by the subsequent unanimous verdicts confirmed by the second poll.” Accordingly, the judge ruled that appellant had
After denying the new trial motion, the court imposed sentence and appellant took this appeal.
II.
Appellant, with the support of amicus curiae, challenges the manner in which the trial court responded to the breakdown in the jury poll and the subsequent communication from Juror 668. Taken together, appellant contends, the poll breakdown and the juror‘s note demonstrated a substantial likelihood of a coerced verdict. The trial court was obligated to take appropriate remedial action to dispel that likelihood, appellant argues, at a minimum by granting his request for a Crowder instruсtion to reassure Juror 668 that she would not be compelled to give up her honest convictions for the sake of achieving a unanimous verdict. Instead of fulfilling that obligation, appellant claims, the court erred by following a procedure that, though it was well-intentioned, was flawed in two basic respects: First, by withholding the juror‘s note from the parties and affording them no opportunity to be heard by the judge who read and evaluated the note and advised how to respond, the procedure denied appellant his right to be present at a critical
Trial courts are vested with discretion in determining how best to respond to poll breakdowns and communications from dissenting jurors, but a defendant is entitled as a matter of law to reversal of his conviction on appeal if the record reveals “a substantial risk of a coerced verdict.”9 We evaluate the possibility of juror coercion “from the perspective of the jurors” themselves, considering both “the inherent coercive potential of the situation before the court” and “the actions
Any claim of coercion “must be evaluated in context and with regard to all of the сircumstances.”12 We appreciate that “the on-the-spot perception of the trial court as to the existence of coercion can provide significant input.”13 Factors that have been held to be particularly pertinent to determining the inherent coercive potential of the situation confronting the trial court in cases arising out of poll breakdowns include: (1) the degree of isolation of the dissenting juror; (2) whether the dissenting juror‘s identity is revealed in open court; (3) whether the jury‘s numerical division is revealed; and (4) whether the judge knows the dissenting juror‘s identity and, if so, whether the dissenting juror is aware of the judge‘s knowledge.14 Whether the juror actually disagrees with the announced verdict or is
“When dissent is revealed in open court and the jury is simply instructed to continue deliberations, ‘[t]he most obvious danger’ is that the dissenting jurors
Second, the note tended to dispel some of the ambiguity of the abortive jury poll in another important respect: When the jury was polled, Juror 668 was exposed in open court as likely being the only dissenter from the announced verdict of guilty, but the poll breakdown by itself left the precise numerical division of the jury unrevealed. Because the follow-up note was from Juror 668 alone and spoke only of her belief in appellant‘s innocence, it was a strong indication of her isolation in a jury that was firmly 11 to 1 for conviction. It is unlikely that Juror 668 would have sent such a note after the judge instructed her аnd the rest of the jury to continue deliberating if any other jurors had been in agreement with her, or if she had not perceived the jury to be at an impasse and herself to be under pressure to cave in and conform to the will of the super-
Thus, Juror 668‘s note to the judge distinguishes this case from the ordinary case in which the judge aborts jury polling after the third juror indicates disagreement with the verdict because the information in the note all but confirmed that the juror was alone in her convictions and provided evidence that the juror felt pressured to surrender those convictions by the instruction to continue deliberations. Although our case law presumes that the risk of coercion is not substantial in the former situation, we cannot indulge that presumption here in the face of a juror‘s repeated statement (both during the polling and in the note) to the court regarding her stance on the verdict. Because these facts are comparable to if not worse than the state of affairs when a jury poll conclusively singles out a solitary dissenter in open court, the “inherent coercive potential” in the situation confronting Juror 668 was especially high. Therefore, under our cases, the risk of
After receiving Juror 668‘s note, however, the trial judge informed the jury only that he did not know who wrote it or what it said, and that he was not going to respond to it, because the courtroom clerk had withheld the note from him so that he would not learn how the jury was split. The limited purpose of this non-response to the note was to avoid inadvertently pressuring jurors in the minority to change their votes; for “[i]f the jury reasonably believes that the judge knows how it is divided, regardless of the judge‘s actual knowledge, any pressure by the judge to reach a verdict . . . will be understood by all jurors to be directed at the minority.”24 But while the instruction may have avoided that pitfall, it did not go far enough because it did nothing to reduce the pressure Juror 668 likely felt as the lone holdout to surrender her conscientious scruples to reach a unanimous verdict. Instead, it appears likely that Juror 668 would have understood the judge‘s non-
Of course, the judge did not give a Crowder instruction because he was kept from acquiring actual knowledge of the facts that gave rise to the need for it. Ironically, the very procedure the trial judge followed to avoid learning what he should not have learned - how the jury was divided (or any juror‘s views on the issues) - prevented the court from learning what it needed to learn - that it was confronted with a situation with high inherent coercive potential and a substantial likelihood of a coerced verdict. It was not inappropriate for the trial judge to
First, “[a]lthough the trial judge may have chosen to insulate himself from knowledge of the jury‘s numerical division, it was error to insulate defense counsel as well.”27 The trial court plainly erred by withholding Juror 668‘s note from appellant; that was a clear violation of our cases interpreting a criminal defendant‘s right to be present at every stage of his trial.28 The error affected appellant‘s substantial rights and the fairness of his trial because his ignorance of the note‘s content and author impaired his ability to argue effectively for a Crowder instruction to alleviate the coercive pressure on Juror 668 to surrender her honest
Second, in large part as a result of the parties’ ignorance of the note‘s content and their lack of an opportunity to address the judge who read the note, neither judge was aware of the material facts showing that a heightened risk of coercion was present. The trial judge, as he essentially admitted to counsel, could not evaluate the inherent coercive potential of the situation or fashion an appropriate response without knowing what the note said or even who wrote it. The judge who read the note also was at a disadvantage; he lacked the contextual information needed to apprеciate the note‘s significance and render apt advice on how the trial judge should respond to it, as he had not been present during the poll breakdown and could not know (the trial judge could not have told him) that the juror who wrote the note had dissented in the poll. As far as the record indicates,
The upshot is this: the flaws in the procedure led to a decision denying appellant‘s request for a Crowder instruction that was made in derogation of appellant‘s rights and in ignorance of the material facts. The trial court exercised its discretion erroneously by failing to make “[a]n informed choice among the alternatives . . . based upon and drawn from a firm factual foundation.”30 In view of the substantial risk of juror coercion that confronted the court, and that was not effectively addressed, we cannot find the errors to have been harmless. Appellant is entitled to a new trial.
Reversed and remanded.
Notes
It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself but do so only after an impartial consideration of the evidence with your fellow jurors.
In the course of your deliberations do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.
(continued...) (...continued) Id. at 705.Did the judge make affirmative efforts to dispel any coercive potential? Did the judge take a middle course and act (оr refrain from acting) in a reasonable and neutral way? Did the judge perhaps compound the problem by actions effectively adding to juror pressure?
Did the judge independently create a situation of coercive potential?