Victor Coley v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15-CF-512

VICTOR COLEY, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court
of the District of Columbia
(CF3-19633-13)

(Hon. Michael Ryan, Trial Judge)

(Argued March 16, 2017 Decided November 15, 2018)

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
 2

while armed, and related firearms offenses. His principal contention on appeal,

and the only one we find it necessary to address, is that the trial judge erred by

failing to respond appropriately when a breakdown in the jury poll and a

subsequent note from a juror revealed a substantial possibility that the juror felt

coerced into surrendering her honest convictions and rendering a guilty verdict.

We agree that Mr. Coley is entitled to a new trial on this ground.

I.

The charges against appellant arose from an incident on November 6, 2013,

in which a lone gunman fired shots into a 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 the jury not to reveal its numerical division with regard to
 3

conviction or acquittal. He explained that the jury’s “mission” was “to reach a fair

and just verdict based on the evidence”; that “[a] verdict must represent the

considered judgment of each juror”; and that “[i]n order to return a verdict, each

juror must agree on the verdict,” i.e., its verdict “must be unanimous.” There was

no instruction to the effect that a juror should not surrender honestly held

convictions to achieve unanimity.

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

1
The transcript states that Juror 668’s response was “inaudible” to the court
reporter. The judge initially stated that he heard “I can’t agree” but then accepted
the prosecutor’s corrective statement that “she just said ‘I can’t.’”
 4

immediately stopped the poll and sent the jurors back to the jury room with

instructions to refrain from discussing the case while he consulted with the parties.

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

would 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 the

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

2
The judge recognized that he had discretion to question the juror further in
an attempt to resolve the ambiguity but was reluctant to do so lest the questioning
become coercive.
 5

judge noted that the jury had been deliberating for only “about a day and a half on

about five full days of evidence,” which was “a short period of time” in the judge’s

estimation.

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

3
Criminal Jury Instructions for the District of Columbia (5th ed. 2015).
 6

because of the opinion of [their] fellow jurors or for the mere purpose of returning

a verdict.”4 In considering whether to include these bracketed paragraphs in his

directions to the jury, the judge noted that the comment to Instruction 2.603

explains that the paragraphs “are not ordinarily required” but had been

recommended by the Court of Appeals in Crowder v. United States5 “for use in

cases where there is a particularly high likelihood of juror coercion.”6 Because the

4
The two bracketed paragraphs read in their entirety as follows:

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.
5
383 A.2d 336, 342 n.11 (D.C. 1978) (explaining that such an instruction is
designed to “allay” the fear that a “lone recalcitrant juror will conclude that the
trial judge is requiring further deliberations in order to eliminate his dissent”).
6
Instruction 2.603 cmt.
 7

judge perceived no such likelihood, he chose not to give the bracketed Crowder

instruction.7

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 informed 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

7
Appellant did not request the Crowder instruction at this time. The
prosecutor agreed that it was unnecessary.
 8

record, but the judge advised the parties that Judge Canan had confirmed that the

note contained information he should not see and had suggested he remind the jury

not to reveal its voting split under any circumstances.8 The judge stated that he

intended to follow that suggestion and also tell the jury that he had not read the

note, that he did not know who sent it, and that the jury should resume its

deliberations. Appellant objected and asked for a mistrial or, if that was denied,

for the judge to include the bracketed paragraphs of Instruction 2.603 when he

directed the jury to resume deliberation. Noting that the parties apparently (“I

guess”) were “not going to see the note,” defense counsel expressed concern that it

likely revealed an 11 to 1 split; that the dissenter likely was the same juror who had

disagreed with the announced verdict in the poll; and that a Crowder instruction

would be necessary to reassure her that “she doesn’t have to surrender her

position” because, without it, the court’s directive would “signal to her” that she

would “have to agree with everyone else.”

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

8
In his subsequent order denying appellant’s motion for a new trial, see
infra, the judge clarified that this was all that Judge Canan had told him.
 9

of the notion that he was not allowed to see the note. Instead, the judge reasoned

that because he himself intentionally had remained ignorant of what the note said

or whether Juror 668 wrote it, he did not “have facts that support that she’s the

only one holding out” or that there was a “dramatic split.” Concluding that the

facts had not “changed radically,” that he still lacked “actual evidence” of a

likelihood of coercion, and that he would not “speculate” from “the paucity of

evidence that [he] ha[d] available,” the judge denied appellant’s motion for a

mistrial or a Crowder instruction. The judge then recalled the jurors to the

courtroom and instructed them as follows:

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 received a note stating that the jury

had reached a unanimous decision. In the courtroom, the foreperson announced
 10

that the jury found appellant guilty on all counts. The jury was polled, and all

twelve jurors, including Juror 668, agreed with the verdict.

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
 11

“not established an especially high risk of coercion, [or] that this court’s response

improperly failed to reduce any potential for coercion.”

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 instruction 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
 12

stage of his trial and impaired his ability to argue effectively for a proper response.

Second, by keeping both judges ignorant of material information, the procedure

prevented either judge from appreciating the substantial risk of juror coercion and

taking the steps necessary to alleviate that risk. In fact, appellant asserts, the

procedure led the trial judge not only to deny appellant’s request for the

appropriate relief of a Crowder instruction, but to instruct the jury in a fashion that

exacerbated the coercive pressures on Juror 668 instead of reducing them. This,

appellant contends, was reversible error. We are constrained to agree.

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

9
Morton v. United States, 415 A.2d 800, 802 (D.C. 1980); see also, e.g.,
Smith v. United States, 542 A.2d 823, 827 (D.C. 1988) (“Whenever a claim of jury
coercion is raised, we will nevertheless affirm if we can say with assurance that the
jury freely and fairly arrived at a unanimous verdict. In this case we can say no
such thing; coercion was probable, if not certain. Thus prejudice is presumed, and
reversal is mandatory.” (Internal quotation marks and citation omitted.)); Harris v.
United States, 622 A.2d 697, 701 (D.C. 1993) (“[I]f a juror is forced to abandon an
honest conviction, the resulting verdict cannot stand.”).
 13

of the trial judge in order to determine whether these actions exacerbated,

alleviated or were neutral with respect to coercive potential.”10 “[O]ur evaluation

of jury coercion focuses on probabilities, not certainties.”11

Any claim of coercion “must be evaluated in context and with regard to all

of the circumstances.”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

10
Id.; accord, Leake v. United States, 77 A.3d 971, 975 (D.C. 2013).
11
Brown v. United States, 59 A.3d 967, 976 (D.C. 2013) (quoting Davis v.
United States, 669 A.2d 680, 685 (D.C. 1995)).
12
Harris, 622 A.2d at 701.
13
Id. at 701 n.6.
14
See id. at 705; Leake, 77 A.3d at 976.
 14

“merely confused about some aspect of the verdict” is also significant since, in the

latter case, there is unanimity in fact and the juror would “not feel the pressure of

being a dissenter in the face of majority opposition.”15 The greater the inherent

coercive potential in the situation, the greater the need for the trial judge to take

effective measures to dispel the risk of coercion. Pertinent factors to consider in

evaluating the judge’s response to a poll breakdown or jury note include (in

addition to the degree of inherent coercive potential in the situation) whether the

judge targeted the dissenting juror in any way, and whether the judge gave an anti-

deadlock instruction urging the jury to reach agreement, a “neutral” instruction

simply directing the jury to continue deliberating, or a Crowder instruction to

counter the pressures on the dissenter to surrender honestly held convictions.16

15
Green v. United States, 740 A.2d 21, 29 n.22 (D.C. 1999); accord,
Crowder, 383 A.2d at 342.
16
See, e.g., Harris, 622 A.2d at 706-07 (holding that trial judge effectively
alleviated the high potential for coercion created when the twelfth juror dissented
in the jury poll, where the judge “did not give an ‘anti-deadlock’ instruction nor
did he single the dissenting juror out in any way,” and instead gave a coercion-
reducing Crowder instruction). More generally, Harris identified the following
questions as bearing on the evaluation of the judge’s reaction:

Did the judge make affirmative efforts to dispel any
coercive potential? Did the judge take a middle course
and act (or refrain from acting) in a reasonable and
neutral way? Did the judge perhaps compound the
problem by actions effectively adding to juror pressure?
(continued…)
 15

In the present case, the jury poll broke down when Juror 668, the third juror

polled, expressed unwillingness or inability to assent to the verdict announced by

the foreperson. As the trial judge noted, the juror’s statement was ambiguous and

not clearly a dissent from the announced verdict; she might have been merely

confused or momentarily reluctant to declare appellant guilty to his face. Because

the trial judge immediately halted the polling, the record does not reveal whether

eight of the jurors would have agreed with the verdict. To avoid pressuring Juror

668, the judge chose not to interrogate her about her answer, and he did nothing to

single her out. Finding no substantial danger of juror coercion at that point, the

judge neutrally instructed the jury to continue deliberating, without giving either a

Crowder instruction or an anti-deadlock instruction. Under the circumstances, the

judge handled the poll breakdown in a manner this court’s past decisions have

approved, and we see no abuse of discretion in his doing so.

“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

(…continued)
Did the judge independently create a situation of coercive
potential?

Id. at 705.
 16

‘will conclude that the trial judge is requiring further deliberations in order to

eliminate [their] dissent.’”17 Nonetheless, we have recognized that poll

breakdowns do not inevitably give rise to a heightened risk of coercion calling for

ameliorative action by the trial judge.18 The degree of coercive potential often

depends on when in the poll the breakdown occurs. When the dissenting juror is

not identified until the end of the poll, after all (or almost all) the other jurors have

agreed with the announced verdict, we generally consider the potential for coercion

in sending the jury back to deliberate further to be very high. This is because the

poll clearly identifies the juror in open court as the sole (or virtually the sole)

dissenter preventing a unanimous verdict.19 We have held that when this occurs,

17
Brown, 59 A.3d at 975 (quoting Crowder, 383 A.2d at 342 n.11).
18
See id. at 972-74; Green, 740 A.2d at 29 (announcing “a baseline
assumption that at least some, if not the majority, of poll breakdowns do not
indicate such a high potential for undue coercion that additional instruction is
required”).
19
See Brown, 59 A.3d at 975 (coercive potential “especially high” where
“the eleventh juror, who answered ‘no,’ was either completely isolated or one of
two dissenters from the announced verdict”); Harris, 622 A.2d at 705-06 (“The
situation itself had a great deal of inherent coercive potential in that there was a
twelfth juror that dissented to at least part of the verdict in open court.”); Crowder,
383 A.2d at 342 (“[W]hen a lack of unanimity is revealed in open court during the
poll by the last juror registering a dissent, the potentially coercive impact of
requiring the jury to retire for further deliberations is heightened since the
numerical split of the jury and the identity of the only dissenter have been revealed
in open court.”).
 17

the trial judge “must” endeavor to reduce the “atmosphere of coercion” by giving

an instruction along the lines suggested in Crowder – specifically, “an instruction

that reminds the jury that ‘(1) deliberations should aim toward agreement, but not

at the expense of individual judgment, (2) each juror must decide the case for

himself or herself, but only after impartial consideration of the views of others[,]

and (3) a juror should not surrender his or her honest conviction merely to return a

verdict.’”20 On the other hand, this court has reasoned that there is less danger of

coercion and a Crowder instruction is unnecessary when, as here, the breakdown

occurs “early in the polling” and “the positions of the remaining jurors are not

revealed” – for then, we have supposed, the dissenting juror (who, realistically

speaking, probably is the only dissenter21) is not isolated nor seemingly targeted as

the lone holdout standing in the way of a unanimous verdict.22

20
Brown, 59 A.3d at 977 (quoting Harris, 622 A.2d at 707 n.20). The
obligatory instruction quoted by Brown derives from Crowder, 383 A.2d at 342
n.11.
21
See Davis v. United States, 669 A.2d 680, 684 (D.C. 1995). In Davis, the
trial court stopped the jury poll when the third juror dissented from the verdict
announced by the foreperson. This court reasoned that “[a]lthough the court did
not know how the other nine jurors would have voted, we can safely infer that a
minority of the jurors (and likely only one juror) were (or was) initially not in favor
of the guilty verdict.” Id.
22
Leake, 77 A.3d at 976 (finding “minimal” risk of coercion requiring
Crowder instruction where the jury poll was aborted after the third juror dissented
from the announced verdict); see also Harris, 622 A.2d at 703. In Green, this
(continued…)
 18

The situation before the court in this case changed significantly, however,

when Juror 668 followed up her expressed unwillingness to assent to the

announced verdict by sending a note to the judge stating “I don’t feel he did it.”

First, the note clarified that Juror 668 actually did dissent from the verdict of guilty

and was not merely confused or uncomfortable with having to tell appellant he was

guilty to his face. Moreover, the fact that the note was evidently intended as a

reiteration of Juror 668’s publicly declared disagreement with the announced

verdict indicated the relative firmness and settled nature of her dissent. The

government questions this conclusion; it argues that the juror’s use of the word

“feel” suggests she merely found it emotionally distressing to convict appellant,

not that she was dissatisfied with the sufficiency of the proof of his guilt. We are

(…continued)
court deemed the coercive potential too minimal to call for a Crowder instruction
where it was the eighth polled juror who disagreed with the verdict. The court
explained that “[t]hough it appeared that the eighth juror represented at least a
minority position . . . , and perhaps was a lone holdout . . . , four other jurors had
not stated their votes aloud . . . [, so] [t]his was not a situation in which the court
knew the exact numerical division of the jury” or in which the dissenting juror was
identified as “the sole obstacle to unanimity.” 740 A.2d at 29. The Green court
noted, however, that while a neutral directive to resume deliberations may be
permissible in such circumstances, an anti-deadlock instruction would be too
coercive. See id. at 30 (citing Davis v. United States, 669 A.2d 680 (D.C. 1995),
and Benlamine v. United States, 692 A.2d 1359 (D.C. 1997), as cases in which
“we have reversed convictions where a trial court, after learning through a jury poll
of the existence of a minority for acquittal, subsequently gave the anti-deadlock
Winters charge”).
 19

not persuaded by this argument. As amicus points out, “I feel” is commonly used

and accepted in ordinary speech as a synonym for “I think” or “I believe,” and “I

don’t feel he did it” thus is readily understood as equivalent to “I don’t think [or

believe] he did it.” It strikes us as implausible on its face that Juror 668 wrote her

note to the judge only to express an emotional, or irrational, aversion to finding

appellant guilty in spite of the evidence. In our view, the natural and by far the

most likely interpretation of the note is that it stated the juror’s belief in appellant’s

innocence based on her assessment of the evidence.

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

and 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-
 20

majority. Rather, the note suggests Juror 668’s quandary and, perhaps, uncertainty

about her options in those circumstances.23

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

23
Cf. Brown, 59 A.3d at 975-76 (“[F]or the juror exposed in open court as a
dissenter from an announced unanimous verdict, the pressure to conform is real
when the judge requires further deliberations with virtually unanimous jurors of a
contrary mind – unless the judge assures the dissenter, indeed all jurors, that none
should surrender honest conviction and that each is free to change his or her
mind. . . . Without a clearer, more specific instruction, the other jurors, not just the
announced dissenter, may be unsure about what options are open to them if the
dissenter stands pat.”).
 21

juror coercion was great enough to necessitate more than a merely neutral response

from the trial judge instructing the jury to continue deliberating. It required an

affirmative effort by the judge, such as the Crowder instruction appellant

requested, to dispel the risk that such a directive would culminate in a coerced

verdict.

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-

24
Smith v. United States, 542 A.2d 823, 825 (D.C. 1988).
 22

response to her note as a refusal to address her difficulty and provide her with any

guidance at all – exacerbating rather than reducing the risk of a coerced verdict by

seeming to leave her no alternative to capitulation.25 To relieve the substantial risk

of coercion, the judge should have given the requested Crowder instruction as

well. Such an instruction, we note, would have been fully compatible with the rest

of the judge’s response to the note.26

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

25
The fact that the jury returned a unanimous guilty verdict within only an
hour after the judge’s statement that he did not intend to read the note may be
taken as tending to confirm the impression that the judge’s unresponsive directive
did nothing to alleviate and may well have increased the potential for coercion of
Juror 668.
26
The record does not make clear why the judge was averse to giving a
Crowder instruction even though he had acknowledged the possibility of juror
coercion under the circumstances.
 23

insulate himself from knowledge of the jury’s division by having a second judge

read the note and advise him as to the appropriate course of action. The procedure

utilized to accomplish that was flawed, however – not, perhaps, in its conception,

but in its execution.

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

27
Smith, 542 A.2d at 827.
28
See id. at 826 (“The trial judge in the case at bar committed an additional
error in refusing to allow defense counsel to read either note. . . . [This] kept from
counsel the critical knowledge that each note revealed a lopsided numerical split
favoring a guilty verdict. We have repeatedly held that a defendant and his counsel
have a right to be informed of all communications from the jury and to offer their
reactions before the trial judge undertakes to respond. The source of this right is
Super. Ct. Crim. R. 43, which entitles the defendant to be present at every stage of
the trial.” (Citations, punctuation, and footnote omitted.)); see also Foster v.
George Washington Univ. Med. Ctr., 738 A.2d 791, 796-97 (D.C. 1999).
 24

conviction of appellant’s innocence (or for the necessity of other relief, i.e., a

mistrial). Even if the trial judge needed to be shielded from knowing who wrote

the note and what it said, appellant could and should have been allowed to bring

that information and its significance to the attention of the judge who read and

evaluated the note and who advised the trial judge how to respond to it. That

consulting judge was, in effect, a second decision-maker in this case, and his

involvement in the decision therefore implicated appellant’s right to be present at

every stage of his trial.

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 appreciate 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,
 25

the judge may not even have known there had been a poll breakdown. There is no

indication that the judge even considered whether a Crowder instruction (or a

mistrial) would be necessary or appropriate.29

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.

29
Because the consultation between the two judges was off the record,
neither we nor the parties know exactly what information was exchanged in that
consultation.
30
Johnson v. United States, 398 A.2d 354, 364 (D.C. 1979).