Taylor v. District of Columbia

BECKWITH, Associate Judge,

concurring in part and dissenting in part:

There can hardly be a more crucial moment in a trial than when deliberating jurors who are confused about a matter central to a defendant’s guilt or innocence turn to the court for help in understanding their instructions. In this case, the delib*1272erating jury asked a series of questions about the degree of impairment required for the two charges against appellant— Driving Under the Influence (DUI) and Operating a Vehicle While Intoxicated (OWI). Each subsequent question revealed that the court’s responses and instructional modifications had failed to clarify things. While in such circumstances the trial court must clear away the jury’s confusion “with concrete accuracy,” Bollenbach v. United States, 326 U.S. 607, 612-18, 66 S.Ct. 402, 90 L.Ed. 350 (1946), the court’s efforts to do so here misstated the law on the matter causing all the confusion and set the stage for a conviction of OWI based on less than the requisite level of impairment.

I agree with my colleagues that the trial court erred in instructing the jury regarding the level of impairment the government was required to prove for DUI and OWI. But I cannot agree that the court’s erroneous instructions on an essential element of the offense of which appellant was convicted were harmless beyond a reasonable doubt, or harmless under any standard. Where the jurors in this case expressed increasing confusion about the element of impairment even as the trial court tried to clarify things, where they deadlocked on a DUI count that the court repeatedly (and accurately) told them required an “appreciable” level of impairment or its equivalent, where the OWI count required the same “appreciable” level of impairment as the count on which the jury deadlocked, and where the trial court straightforwardly (but inaccurately) told the jury that OWI did not require an “appreciable” or “noticeable” degree of impairment, there is every reason to fear that the jury may have convicted appellant of OWI without finding the required level of impairment.

The majority opinion concludes that the error in this ease was harmless beyond a reasonable doubt based primarily on two lines of reasoning.1 At the outset, it determines that the instructional error in this case had to be harmless because the government’s evidence in this case was not susceptible of a finding of anything less than appreciable impairment. Ante at 1267-69. It then explains why the jury’s deadlock on DUI does not undercut that conclusion, even though the two offenses require the same degree of impairment. Specifically, the deadlock raises no red flags with respect to the jury’s conviction on OWI because the court’s use of the purportedly more stringent term “considerable” in its DUI instruction caused the jury to deadlock on DUI when it would otherwise have found “appreciable” impairment beyond a reasonable doubt. Thus, in the majority’s view, Mr. Taylor appears to have benefited from, not been *1273harmed by, the trial court’s instructions. Ante at 1268-70.

The majority opinion first explains why the nature of the government’s evidence, which consisted primarily of Detective Diliberto’s description of events surrounding the traffic stop, ensured that the jury did not resort to the erroneous burden-diluting language to find appellant guilty of OWI under “a lesser standard” than an appreciable degree of impairment. That is, the jury must have found some level of impairment because the court instructed the jury that Mr. Taylor had only “to be impaired in any way or at some level” — phrasing the majority opinion states is “[a]t least arguably ... synonymous” with the correct standard of “appreciably,” ante at 1267— and because “the only evidence the jury heard that supported the charge of impairment was testimony about conduct that demonstrated impairment that was appreciable as a matter of law.” Ante at 1271 (emphasis in original); see also ante at 1268 (referring to Mr. Taylor’s “driving on the wrong side of the street, his difficulty balancing himself while standing, his difficulty focusing, his incoherent communication, his urinating on himself’). Thus, the evidence showed either an appreciable degree of impairment if the jurors believed Detective Diliberto, or no level of impairment if they did not believe him, but it could not reasonably be construed as demonstrating a level of impairment that was less than noticeable or appreciable. Ante at 1268-69.

The court’s conception of what “the jury necessarily found” as “a matter of law”— namely, “that appellant’s impairment was perceptible or noticeable in at least one of the ways Detective Diliberto described,” ante at 1268 — disregards the possibility, perhaps the likelihood, that the jurors undertook a more complex evaluation of the evidence that readily could have yielded a finding of less-than-appreciable impairment.2 In the words of Learned Hand, “[i]t is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all.” N.L.R.B. v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir.1950), vacated on other grounds, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). A finder of fact is free to pick and choose among the proofs at trial, crediting some, discrediting some, or deciding the truth lies somewhere in between. See, e.g., Harris v. United States, 834 A.2d 106, 128 (D.C.2003) (observing that the jury found a witness “credible in part but not wholly credible” and noting that the exclusion of corroborative evidence “rarely will be harmless error” where a jury “has rejected part of a witness’s uncorroborated story and accepted other parts”); Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916 (1946) (stating that “where ... there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion”).

*1274In this case, the jury’s sifting and sorting of the evidence could have led it to conclude, consistent with the defense theory in this case, that the police officer was exaggerating when he described Mr. Taylor’s behavior on the night of February 25, 2009. That is, the jury could have concluded that Detective Diliberto’s characterization of events had the hallmarks of after-the-fact justification, a portrayal defense counsel worked hard to bolster in closing argument. It could have found it difficult to reconcile Detective Diliberto’s description of a thoroughly intoxicated man who could barely speak or stand up with the evidence that Mr. Taylor was driving within the speed limit without weaving or drifting and that he pulled over promptly when signaled to do so. This evidence, combined with other anomalies in the government’s case,3 could have led the jurors to harbor doubts about whether Mr. Taylor was as impaired as the officer said he was while still concluding that Mr. Taylor may well have been drinking that night and that the police had some grounds for pulling him over. This scenario, where the only degree of impairment upon which the jury agreed was something less than an appreciable degree, seems even more likely given the affirmative evidence that the jury had some qualms about the government’s evidence— namely, the jury’s deadlock on the DUI count and its many questions about the required level of impairment. Any analysis of the harm caused by the erroneous jury instruction in this case must contemplate the very real possibility that the jurors followed this logical path, or one like it, to conviction on the OWI count.4

Turning to the assertion that the jury deadlocked instead of convicting Mr. Taylor of DUI because it must have understood the term “considerable” to mean something greater than “appreciable,” this conclusion on the part of the majority turns out to be vital to a finding of harmlessness in this case. It is vital because if this reading of the jury’s deadlock on DUI is wrong — that is, if there is a reasonable chance the jury deadlocked on DUI based upon an understanding of “appreciable” that was not ratcheted up by the inclusion of the term “considerable” — it would be hard to fairly conclude that the jury convicted appellant of OWI without resorting to the diluted standard of impairment contained in the court’s final response to the jury’s questions.5 In other words, if the jury deadlocked on DUI simply because some jurors believed the government failed to prove an “appreciable” as opposed to a “considerable” degree of impairment, it is reasonable to conclude that a properly instructed jury also would have deadlocked on OWI, which requires the same degree of impairment. That it did not deadlock on OWI is then a strong indication that it was lured by the trial court’s description of OWI as “a lesser standard” than “appreciable.”

*1275The assumption that the deadlock on DUI stemmed from the court’s use of the term “considerable” in its attempt to define an “appreciable” degree of impairment is unjustified for several reasons. First, in a case in which the jury’s confusion was palpable and persistent, the notion that the subtle difference between the words “considerable” and “appreciable” caused a jury to deadlock rather than convict on DUI is an unduly speculative basis for deeming a burden-lowering jury instruction to be harmless, not to mention harmless beyond a reasonable doubt. Cf. Yeager v. United States, 557 U.S. 110, 121-22, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009) (stating, in a case about issue preclusion, that “it is guesswork” to “ascribe meaning to a hung count” and that “[a] host of reasons— sharp disagreement, confusion about the issues, exhaustion after a long trial, to name but a few — could work alone or in tandem to cause a jury to hang”); Odemns v. United States, 901 A.2d 770, 784 (D.C. 2006) (stating that whether a jury would have convicted absent an erroneously admitted piece of evidence “is speculation which we are neither prepared nor willing to undertake”) (quoting Fox v. United States, 421 A.2d 9, 14 (D.C.1980)); In re Ty.B., 878 A.2d 1255, 1266 (D.C.2005). Second, the record contains additional clues that undermine the supposition that the jury would have construed “considerably” to mean something greater than “appreciable.” These include the extent to which the trial court made clear that “appreciable” was the baseline term that all of the other synonyms, which the court said were “pretty much interchangeable,” were meant to help define, and the court’s attendant use of three other synonymous words or phrases — “enough to be perceived,” “enough to be ... estimated,” and “noticeable” — that arguably offset any ratcheting-up effect of “considerable.” And third, the jury indicated in its third note, before the court ever uttered the word “considerable,” that it was already struggling with the DUI count when it asked whether it must convict of DUI if it convicts of OWI. If that was the case, it is difficult to say with any confidence that the subsequent addition of the word “considerable” to the mix was the thing that caused the jury to deadlock.

If what really happened in this case was that the jury deadlocked on DUI based on an understanding of “appreciable” that equated with “noticeable” and “perceptible,” and that it convicted on OWI because the court’s instructions said it required something less than an “appreciable” or “noticeable” degree of impairment, then the prejudice caused by the erroneous instruction was demonstrable. This scenario seems equally likely — indeed more likely — given the entirety of the court’s instructions to the jury and the many indications that the jury had some doubts about the government’s case.6

This is not, in my view, the kind of case in which the evidence is so clear that it admits of no other interpretation, and where we can therefore know, as a matter of law, what kind of impairment the jury necessarily found.7 It is in many ways the opposite of such a case. Nothing in this *1276record gives me the confidence that my colleagues share that the OWI conviction must have been founded upon the required degree of impairment and that we can therefore say, beyond a reasonable doubt, that it was unaffected by the erroneous instruction. As I cannot find the error harmless, I would reverse the judgment of conviction and remand for a new trial.

. Because the trial court’s instruction on OWI lowered the government's burden of proof on a critical element of the offense, I agree with my colleagues that we should deem the instructional error to be reversible unless we conclude that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (stating harmless error standard for constitutional error); see also Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (applying Chapman standard where jury instructions omitted an element of the offense); Wilson-Bey v. United States, 903 A.2d 818, 843-44 (D.C.2006) (applying Chapman standard where instruction omitted essential mens rea elements). Even were we to apply the standard for nonconsti-tutional error, it is not possible to say, given the jury's confusion, the deadlock on the other count, and the nature of the erroneous instruction, that the error was "sufficiently insignificant to give us fair assurance that the judgment was not substantially swayed by it.” Brooks v. United States, 599 A.2d 1094, 1102 (D.C.1991) (citing Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).

. It is worth noting, as an initial matter, that while the "impaired in any way or at some level” phrasing may be the functional equivalent of the "appreciably impaired” standard, it is hard to say what meaning the jurors would have assigned to the phrase in a case in which the trial court specifically instructed them, in response to their fourth question seeking guidance on the matter, that the two are not the same and that "impaired in any way or at some level” does not require a finding of impairment to "an appreciable degree or a considerable degree or a noticeable degree.” See Hunt v. United States, 729 A.2d 322, 325 (D.C. 1999) ("In reviewing jury instructions, we must look at the instructions as a whole in assessing whether they constituted prejudicial error.”) (citation and internal quotations omitted).

. These include, for example, the officer’s statement in his police report, contrary to his trial testimony, that Mr. Taylor had a passenger in his vehicle. See also ante at 1268 n. 15.

. It is also possible, of course, that the jurors could not agree in their interpretation of the evidence and that their verdicts were compromise verdicts that were facilitated by the erroneous instruction permitting conviction of OWI on a finding of less than appreciable impairment. See Harris v. United States, 834 A.2d 106, 127-28 (D.C.2003) (recognizing possibility of compromise verdict in analysis of harmless error) (citing Williamson v. State, 692 P.2d 965, 971 n. 6 (Alaska Ct.App.1984)).

.In its final instruction to the jury, this one in response to the jury’s fourth note (inquiring, "does 'appreciable degree’ mean merely noticeable or must it be something more than that?’’), the court stated that there is "a lesser standard” for OWI and that "it doesn’t have to be an appreciable degree or a considerable degree or a noticeable degree.”

. Given that it was the trial court’s error that injected the word “considerable” into the jury’s deliberations, there is also something unsettling about relying on the perceived effect of that word to defeat a finding of harm in this case.

. The court relies upon Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), in holding that “because the evidence that the jury must have credited (as indicated by their guilty verdict) could not 'rationally lead to a contrary finding with respect to the omitted [instructional] element,’ the trial court’s error in failing to tell the jury that OWI requires appreciable impairment was harmless.” Ante at 1268 (quoting Neder, 527 U.S. at 19, 119 S.Ct. 1827). In Neder, the finding at issue was the materiality of Mr. *1276Neder’s alleged false statements, an issue that, in light of Mr. Neder's failure to report more than $5 million in income, was "incontrovertibly established] ” by the evidence at trial and was wholly undisputed at trial and on appeal. Id. at 1266. Here, by contrast, Mr. Taylor vehemently contested the evidence of impairment and this issue was both the focus of the jury’s attention and at the heart of guilt or innocence.

Relatedly, while the majority concludes that the jury's third question to the trial court — "If we find the Defendant operated a motor vehicle in the District of Columbia while he was impaired by alcohol, must we find that he was guilty of driving under the influence of alcohol?” — shows the jury was prepared to convict Mr. Taylor of OWI from the outset, ante at 1271, the question also appears to be the jury's — or perhaps just one juror's- — rearticu-lation of the question the jury had just posed about how the two crimes are different. What is more clear from the record are the stark indications that the jurors were confused and in disagreement about whether the government proved an "appreciable” degree of impairment in this case, as evidenced by their deadlock on the DUI count. This fact alone should strongly undermine any confidence that the jury unanimously agreed Mr. Taylor was impaired to an appreciable degree.