Once jurors, given a “reasonable efforts” instruction, move on to decide a lesser included offense, the court may not order them back to deliberation on the greater offense unless it first concludes that they have not expended reasonable efforts to reach agreement on that greater offense.

Ronald O. Douglas v. United States, No. 11-CF-790 (decided August 21, 2014)

The Players:  Thompson, Beckwith, Farrell.  Opinion by Judge Beckwith.  R. Michael Labelle for Mr. Douglas.  Trial judge:  Florence Pan.

The Facts:  Mr. Douglas was tried on possession with intent to distribute (PWID) and the lesser included offense (LIO) of possession of a controlled substance after police found almost a pound of marijuana, worth $5,310, inside a car he was driving.  The jury was instructed to consider PWID first, moving on to the LIO only if it was unable to agree on a PWID verdict “after making all reasonable efforts” to do so.  Three hours into deliberations, the jury sent a note indicating it could not reach agreement on PWID.  The trial court expressed doubt that “they’ve made a reasonable effort yet,” and instructed the jury to break for the day and resume deliberations in the morning.  By mid-morning, the jury sent a second deadlock note and asked if it could now consider the LIO.  The court responded, “If you have exercised reasonable efforts and are unable to reach a unanimous verdict on possession with intent, you may consider the charge of possession.”  Within an hour, the jury reached a verdict on the LIO.  The court took the guilty verdict and then, over defense objection, delivered a Gallagher anti-deadlock instruction, see Criminal Jury Instructions for the District of Columbia, No. 2.601(III)(C) (5th ed. rev. 2013), and sent the jury back to continue deliberating the PWID charge.  Eventually, the jury found Mr. Douglas guilty of PWID.

Issue:  Did the trial court unduly coerce the jury by instructing it to reconsider PWID after the jury had twice stated it could not reach a unanimous verdict on that charge and followed the “reasonable efforts” instruction to find Mr. Douglas guilty of the LIO?

Holding: Yes.  “[B]efore a judge may make a jury continue deliberating on a greater charge where that jury has said or implied by its action that it cannot reach a verdict on the greater charge despite reasonable efforts to do so, the judge must be unpersuaded—and the record must make clear that she is unpersuaded—that the jury has, in fact, applied reasonable efforts to the decision.”  Slip Op. at 15 (emphasis added).  Here, the trial court appeared to assume the jurors did expend all reasonable efforts and to believe, wrongly, that it had authority to order them back to deliberations anyway.  In any event, the absence from the record of “the necessary signs that the trial court believed the jury had not exercised reasonable efforts” when it ordered them back to deliberations was dispositive that it had abused its discretion.  Slip. Op. at 14-15.

Of Note:  The DCCA distinguished Jackson v. United States, 683 A.2d 1379 (D.C. 1996), on which the trial court had relied, because in that case, the trial court had expressly asserted that it did not believe the jury expended reasonable efforts before it ordered them back to deliberating the greater offense.  FT.

Read the full opinion here.