Show me the note! Defendants have a right to see all jury notes; judges cannot respond blindly to jury notes in the name of shielding themselves from the jury’s numerical split

Coley v. United States (decided November 15, 2018)

Players: Associate Judges Glickman, Fisher, and Thompson. Opinion for the Court by Judge Glickman. Deborah A. Persico for Coley.  PDS as amicus curiae. Trial Judge: Michael Ryan.

Facts: Appellant was tried for assault with intent to kill and related offenses.  The defense was misidentification. On the third day of deliberations, the jury sent a note that it had reached a unanimous verdict. However, when the third juror was polled about whether she agreed with the verdict, she responded, “I can’t.” Judge Ryan stopped the poll and instructed the jury to continue deliberating. Twenty-five minutes later, Judge Ryan informed the parties that the jury had sent a note.  However, he had not read the note because his clerk had taken the note to Judge Canan so that Judge Ryan would not learn improper information such as a numerical split. The parties were not shown the note. 

Judge Canan reviewed the note, determined that it contained information Judge Ryan should not see, and advised Judge Ryan to remind the jury not to reveal its voting split. Judge Ryan proposed also telling the jury that he had not read the note, did not want to know who sent it, and that the jury should resume deliberations. Defense counsel moved for a mistrial. In the alternative, he requested the bracketed portion of Instruction 2.603, known as a Crowder instruction, to reduce the risk of coercion by instructing the jurors that they are not required to surrender their honest convictions. Defense counsel maintained that the note likely revealed an 11:1 split and that the dissenter was likely the juror who dissented in the poll. He argued that in the absence of a Crowder instruction, the court’s directive would signal to the lone holdout that she was required agree everyone else. Judge Ryan denied the request for a Crowder instruction on the ground that there was insufficient evidence of a likelihood of coercion and that defense counsel’s suggestion was speculative.

One hour later, the jury returned a unanimous verdict. The parties subsequently learned that the note was written by the poll dissenter and read, “I don’t feel that he did it.” Defense counsel moved for a new trial on the ground that the verdict was likely tainted by coercion. Judge Ryan denied to motion. 

Issue 1: Did the trial judge err in failing to disclose to defense counsel the contents of a jury note which it believed contained the numerical divide of the jury?

Holding: Yes.  The trial court “plainly erred” by withholding the juror’s note from appellant.  This was a “clear violation” of the court’s prior cases interpreting a defendant’s right to be present at every stage of the trial. The court explained that even if the trial judge needed to be shielded from who wrote the note and what it said, appellant should have been allowed to argue the significance of the note to the consulting judge, who was in effect a second decision maker in the case.

Issue 2: Did the trial judge abuse his discretion when he denied the defense request for a Crowder instruction, where he was ignorant of the jury note’s content and author, and the consulting judge was ignorant of context such as the prior poll breakdown? 

Holding: Yes. The court held that the trial judge lacked a firm factual foundation for his ruling because he was ignorant of material facts necessary to evaluate the likelihood of juror coercion. The two-judge procedure, while well-intentioned, was “flawed” because neither judge had sufficient information to evaluate the coercive potential of the situation or fashion an appropriate response. Judge Ryan did not know what the note said, and Judge Canan lacked contextual information, such as knowledge of the poll breakdown, necessary to advise Judge Ryan on how to respond. The court suggested that this problem could have been remedied if the parties had seen the note and been allowed to argue its significance to Judge Canan.     

Issue 3: Was there a substantial likelihood of a coerced verdict requiring a new trial?

Holding:  Yes.  The juror’s note both clarified that she had intended to publicly dissent from the verdict during the poll and revealed the settled nature of her belief. Because the follow-up note was from the poll dissenter alone and spoke only of her belief in innocence, it was a strong indication of her isolation in a jury that was 11:1 for conviction.  Unlike the typical poll breakdown where the split is unknown, after the note, the risk of coercion was sufficiently great to require an affirmative effort by the judge, such as a Crowder instruction, to dispel the risk that an instruction to continue deliberating would culminate in a coerced verdict.       

Of Note: 
• The Court’s opinion suggests that trial courts may continue to utilize a two-judge procedure to insulate the trial judge from knowledge of the jury’s division. However, counsel must be allowed to see the note, address the reviewing judge, and argue the note’s significance to the reviewing judge so that he or she can make an informed recommendation.  SS

Read the full opinion here.

Multiple Shootings, Mutliple Defendants, Multiple Issues Leads to Affirmance in South Capitol Street Case

Bost et al. v. United States (decided February 15, 2018)

Players: Chief Judge Blackburne-Rigsby, Associate Judge Fisher, and Senior Judge Ferren. Opinion by Chief Judge Blackburne-Rigsby. Kristina A. Crooks for Mr. Bost. E. Benton Keatley, Jeffrey T. Green, Lowell J. Schiller, Karen S. Smith, and Blair J. Greenwald for Mr. Best. Thomas T. Heslep for Mr. Williams. PDS for Mr. S. Carter. R. Trent McCotter, Jessie K. Liu, and Michael W. Khoo for Mr. O. Carter. Trial Judge: Ronna Lee Beck.

Facts: The Carter brothers (Sanquan and Orlando), along with Best, shot and killed Jordan Howe on Alabama Avenue in retaliation for the suspected theft of Sanquan’s bracelet. Sanquan was arrested shortly after that shooting and played no role in subsequent events. The following day, a group of Howe’s associates shot and wounded Orlando. In retaliation for that, Bost, Orlando, Best, and Williams planned to attack Howe’s funeral. The group first planned to rob Tavon Nelson for his gun. Best and Bost carried out the robbery, which turned into a shootout that left Nelson dead. The group then did a drive-by shooting of a house on South Capitol Street where Howe’s friends had gathered after the funeral, leaving three dead and several wounded.

Issue 1: Should Sanquan’s case have been tried separately from the others on the ground that he was charged in connection with only the Alabama Avenue shooting? Same as to Bost, who was charged in only the South Capitol Street shooting?

Holding 1: No. Although the issue was not “an easy one,” the charges from the Alabama Avenue and South Capitol Street shootings were properly joined under Super. Ct. Crim. R. 8(b) as part of “the same series of acts or transactions.” Although there was an intervening event — the shooting of Orlando — between the Alabama Avenue and South Capitol Street shootings, there was still a causal connection between them, which is sufficient to make the latter a “sequel” to the first crime. The DCCA rejected the government’s alternative argument that the two shootings were part of a “common scheme or plan.”

Severance was not required to prevent prejudice from the presentation of evidence as to the shootings in which Sanquan and Bost were not involved. Because both were “active participants in conspiracies to commit first-degree murder,” their complicity in the overall venture is not “de minimis.” The evidence was not “so complex or confusing that the jury could not make individual determinations about the guilt or innocence of each defendant.” And “the trial court made efforts to ensure that the jury was not confused about the charges,” by reminding the jury that Sanquan and Bost were not charged with certain offenses, instructing the jury that certain statements could not be used against one or the other, and giving a “strongly worded curative instruction,” in response to the prosecutor’s rebuttal argument, that Sanquan had no responsibility for the South Capitol Street shooting.

Issue 2: Was there a risk of a coerced verdict because a juror reported “pressure from many members of the group to change my mind regarding my vote on particular counts on which we disagree”?

Holding 2: No. The potential of coercion from the note was low, because the juror did not report pressure from the entire group, or that they disagreed on all counts. The identity of the juror was not revealed in open court, “making it less likely that the juror felt undue pressure from the rest of the jury.” The exact division of the jury was (theoretically) unknown. No verdict had been announced, and the court did not give an anti-deadlock instruction. The note did not report any improper behavior during deliberations, only that they were “spirited.” Because the coercive potential was low, the trial court appropriately gave a “neutral, even ‘bland,’ instruction” in response, asking them to resume deliberations and remain civil. An anti-deadlock instruction would have been premature “as there was no indication that the jury was deadlocked at the time of the note.”

Issue 3: Was Best’s trial counsel ineffective for failing to move to suppress Best’s videotaped interrogation on Miranda grounds?

Holding 3: No. Best’s attorney reasonably believed that the factual allegations supporting the motion suppress “were not true.” In addition, the motion to suppress would have been futile because the incriminating portions of the video came in response to questioning by Best’s mother, not police.

Issue 4: Was a mistrial required due to the prosecutor’s conduct during opening — referencing the “Equal Justice Under Law” inscription on the Supreme Court building; asserting that the government’s role was to “fairly enforc[e] the criminal laws”; and decrying “vigilante justice” — and closing — characterizing certain government witnesses as “heroes,” one of whom was doing “God’s work”; asserting that the jury should be “proud” of the police investigation; presenting a blown-up photo of a murder victim that elicited an emotional response in the courtroom; and pleading that the victims’ families were asking for “justice” rather than vengeance?

Holding 4: No. The prosecutor’s comments during opening statement “did not appear to cross the line of permissible opening statements, as the comments were not argumentative.” Even if they were improper, they were “not so grave as to warrant a mistrial.” The trial court’s curative instruction after the openings to base their verdicts on evidence rather than emotion was an appropriate response.

The prosecutor’s statements in closing that the jury should be proud of the police and characterizing certain witnesses as heroes were “not improper when considered in context.” These statements did not “urge the jurors to place themselves ‘in the position of the victim,’ nor did the statements rise to the level of an appeal ‘to the jury’s emotions.’” The prosecutor’s comment about the families asking for justice rather than vengeance “may have appealed to the sympathy of the jurors,” but did not rise to the level of improperly “asking the jurors to ‘send a message to the defendant[s]’ or to the community with their verdicts.” The use of the photograph was not improper because it was admitted into evidence.

Issue 5: Should the trial court have instructed the jury on withdrawal from a conspiracy because Williams left the vehicle before the South Capitol Street shooting, saying, “Y’all about to go commence. Y’all can let me out right here”?

Holding 5: No. To withdraw from a conspiracy, one must act to “disavow” or “defeat the purpose” of the conspiracy. Simply leaving the scene is insufficient to establish withdrawal.

Of Note:

• The DCCA rejected an argument based on a malfunctioning courtroom “husher,” reasoning that there was no evidence any of the jurors actually overheard any of the bench conferences.

• The DCCA also rejected an argument for a change of venue due to adverse pretrial publicity because a change of venue is generally unavailable in Superior Court, and the jurors empanelled had not been influenced by media reports on the case. 

• The DCCA held that Best’s non-verbal “confession” to his mother, and a verbal confession to a friend, were properly admitted as statements against penal interest. 

• The DCCA rejected a number of other issues summarily. Although the court “question[ed] whether the government needed to present testimony from four mothers of the victims,” it ruled that this did not show that the jury decided the case based on emotion. The court held the trial judge did not improperly curtail cross-examination of a cooperating witness. And the court held that the trial court did not err in precluding evidence that the cooperator fired a gun in 2007. DG

Read the full opinion here.