Callaham v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-CF-167

TIMOTHY D. CALLAHAM, APPELLANT

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court
of the District of Columbia
(CF3-8133-18)

(Hon. Kimberly S. Knowles, Trial Judge)

(Argued September 30, 2020 Decided February 3, 2022)

Vincent A. Jankoski for appellant.

David P. Saybolt, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney at the time the brief was filed, and Elizabeth Trosman,
Assistant United States Attorney, were on the brief, for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge, and THOMPSON * and EASTERLY,
Associate Judges.

*
Judge Thompson was an Associate Judge of the court at the time of
argument. Although her term expired on September 4, 2021, she will continue to
serve as an Associate Judge until her successor is confirmed. See D.C. Code §
11-1502 (2012 Repl.). She was qualified and appointed on October 4, 2021, to
 2

EASTERLY, Associate Judge: Timothy Callaham was convicted of robbery

after a jury found that he and a companion, who was carrying what appeared to be a

gun, approached a man in a striped shirt at the back of a market and walked out with

two items that the man in the striped shirt tossed onto the floor. Although the

putative complainant did not testify at trial, the incident was captured on surveillance

video. The government introduced the video footage as evidence and called as

witnesses two detectives who had reviewed the footage, but had not been present for

the actual incident. In his brief to this court, Mr. Callaham makes several arguments

related to the admission of the video footage and testimony about what the footage

showed; he also argues that the jury’s verdict was coerced.

Based on the particular facts of this case where (1) the body of evidence was

limited and the case boiled down to whether the government had proved that a

robbery occurred; (2) the jury struggled with that question and sent the court multiple

notes seeking guidance as well as two notes indicating deadlock, prompting a

Winters anti-deadlock instruction; (3) the Winterized jury announced a verdict which

broke down (i.e., was revealed to be non-unanimous) in polling; and (4) the court

gave the jury poll breakdown instruction which, although it contained the language

perform judicial duties as a Senior Judge and will begin her service as a Senior Judge
on a date to be determined after her successor is appointed and qualifies.
 3

endorsed by this court in Crowder v. United States, 383 A.2d 336, 342 n.11 (D.C.

1978) (recommending language intended to alleviate pressure on a jury to reach a

verdict), still echoed the more coercive elements of the Winters anti-deadlock

instruction, we conclude that there was a substantial risk that the jury’s verdict was

coerced. We reverse on this ground, but address to the extent necessary the other

issues raised by Mr. Callaham in the event of a retrial.

I. Facts and Procedural History

One early morning in May 2018, Metropolitan Police Department officers

responded to a call about a man with a gun at Mellon Market, on the corner of Mellon

Street and Martin Luther King Jr. Avenue, SE. Later that morning, the market’s

owner called MPD to report that someone had entered the store with a gun the night

before. MPD Detective 1 Taylor Volpe responded to Mellon Market to review the

footage captured by the market’s thirty-two surveillance cameras. After watching

the video, Detective Volpe identified and approached a man in a striped shirt outside

the store who appeared to be the same person who had been standing in the back of

1
At the time of the incident, Detective Volpe had not yet been promoted from
his position as an investigating officer. To avoid confusion, we refer to him as
Detective Volpe throughout.
 4

the market and had tossed items on to the floor. Detective Volpe testified that this

person, David Garvin, “didn’t have a whole lot to say” about the incident.

Later, MPD officers retrieved the surveillance footage from Mellon Market,

as well as closed-circuit television footage from an MPD camera located on the same

corner as the market. Another detective assigned to the case, Konrad Olszak,

identified Mr. Callaham from the Mellon Market footage. Mr. Callaham was

arrested for an unrelated offense at his girlfriend’s apartment. On the theory that the

Mellon Market surveillance video captured an armed robbery of Mr. Garvin, Mr.

Callaham was charged with both that offense, 2 and possession of a firearm during

the commission of a crime of violence. 3 Detective Olszak executed a search warrant

at the apartment where Mr. Callaham was arrested and seized three items of

evidence: “[a] pair of [white] jeans with multiple cuts on them”; “[a] pair of Nike

Air Max 95s”; and “[a] box . . . [for a] paint gun.” The government also recovered

a recording of a jail call made from Mr. Callaham’s account, in which he stated that

the police would “see . . . [him] getting [in and] out [of] the car [seen leaving the

scene on surveillance footage] . . . [and] say that’s aiding and abetting.”

2
D.C. Code §§ 22-2801, -4502 (2012 Repl. & 2021 Supp.).
3
D.C. Code § 22-4504(b) (2012 Repl. & 2021 Supp.).
 5

Because there were no eyewitnesses, 4 the government’s case hinged on the

Mellon Market and CCTV surveillance footage. Detective Volpe testified that he

reviewed surveillance video at Mellon Market the morning after the incident. He

told the jury it showed “a robbery” by two men, one holding what looked like an

assault rifle and another who he identified as Mr. Callaham, and detailed what he

had seen in the footage, over an objection from defense that Detective Volpe was

being “ask[ed] . . . to testify about his memory of something he has no personal

knowledge of.” Detective Volpe testified that the two men had approached a third

man, whom he identified as Mr. Garvin, in the store; that “Mr. Callaham” picked up

a bag and wallet that “Mr. Garvin” dropped; and that “Mr. Callaham” and his

companion then left. The government later introduced an approximately seven-and-

a-half-minute compilation of clips of the relevant portions of the surveillance

footage, again over Mr. Callaham’s objection, during Detective Olszak’s testimony.

The court tried to cabin the detective’s testimony somewhat, ruling that he could not

“give his own interpretation of things” he saw in the video, but could “point out

things to bring things to the jury’s attention.” Detective Olszak then testified about

what he saw in the footage (which had no audio), as it played to the jury.

4
The government called two Mellon Market employees to the stand, but both
stated that they left the immediate area before the alleged robbery occurred, one upon
seeing a man holding what he believed to be a gun, and the other upon hearing cries
that someone had a gun.
 6

The day after Detective Olszak’s testimony began, the court expressed its

concern about the government witnesses “testifying or narrating” what they saw in

the video. The court indicated that, based on its understanding of the law, these

witnesses “were not supposed to be” doing the latter, but that they could point “out

certain things on the video so that the jury could be oriented.” Even so, the court

wanted to make sure the jurors understood that they “decide[] if it’s Mr. Callaham

. . . if in fact he had a gun, if in fact he was walking at this pace . . . The detective is

pointing it out to them, but they have to see it and be convinced by it.” The court

thus proposed giving an instruction “explaining that to [the jury].”

The government opposed the instruction, noting that in questioning Detective

Olszak, the prosecutor had made clear that the detective was testifying about “his

opinion [of what] was in the video,” and that this was “really no different than

showing photographs or objects to any expert—or I shouldn’t even say ‘expert’—

any witness. The witness testifies about what they view the thing as, what it appears

to them.” The court noted, however, that “usually” when the government shows a

witness a photograph, they are a percipient witness: “they have seen the knife on

the ground, they have seen the gun, or they were there.” The court distinguished

identification testimony from other testimony and reiterated its concern that the

evidence was “just coming out in a very weird way”: in a way that might obscure
 7

for the jurors that it was “their decision about what actually happened.”

Defense counsel also objected to the court’s proposal to give an instruction to

the jury, but on the ground that it was too little, too late. Arguing that the government

had “chose[n] to present the video in the way in which they chose to present it” and

that “I don’t think that this [damage] can be undone,” counsel moved for a mistrial.

The court denied the motion for a mistrial, and instructed the jury that morning—

before the government resumed its direct examination of Detective Olszak—that the

detective’s testimony was to “assist you in the identification of suspects in the video

as well as to direct you to portions of the exhibits. It is for you to decide who is

depicted in the videos, what happened, and how to interpret the video. You are the

finders of the facts.”

After not quite three days of trial, the jury began deliberating the morning of

Tuesday, December 4, 2018.5 At 3:34 p.m., it sent a note containing three questions,

followed by another note with a fourth question at 4:34 p.m. All of these questions

related to whether the government had proved that a robbery had in fact occurred

5
The exact timing is unclear, but it was likely almost lunchtime, as the
government had given its rebuttal and the court had read the jury instructions that
same morning.
 8

under the legal framework the trial court had provided: (1) “[The] [i]nstructions

refer to the property of a ‘complainant’ being taken. (Page 14, after #8): If there is

no ‘complainant’ can there be an (‘armed’) robbery?”; (2) “What or who is a

‘complainant’[?]”; (3) “If some or all of the property taken belonged to one of

‘robbers’ is it robbery to take it from the ‘victim’[?]”; (4) “The ‘victim’ has not to

our knowledge ‘complained.’ Is there a robbery? Must the victim complain?” With

both parties’ approval, the court provided responses to these questions.

The jury returned on Monday, December 10, 2018 (the court had been closed

for various reasons the preceding Wednesday through Friday). At 10:00 a.m., the

jury sent a note indicating deadlock: “Your Honor: We are at an impasse. We have

extensively reviewed the instructions and evidence and remain deadlocked.” The

court denied defense counsel’s motion for mistrial, or alternatively for a Winters

anti-deadlock instruction, 6 and instead granted the government’s request to give the

“initial instruction to [a] jury that indicates it cannot agree” set forth in Criminal Jury

Instructions for the District of Columbia, No. 2.601(I) (5th ed. 2018). The court

instructed the jury, in part:

Winters v. United States, 317 A.2d 530, 534 (D.C. 1974) (en banc); see also
6

Criminal Jury Instructions for the District of Columbia, No. 2.601(III) (5th ed.
2018).
 9

[Y]our note indicates that you’ve been unable to reach a
unanimous decision at this time. My best judgment is that
you’ve been . . . deliberating for a total of approximately
five hours, which is not unusual in cases such as this. As a
result, I am going to ask you to deliberate further in this
case and that you keep an open mind about the case with a
view to listening to others and expressing your own point
of view to see whether you can reach a unanimous
decision. Please resume your deliberations at this time.

Subsequently, at 10:52 a.m., the jury sent a note asking three more questions,

again all related to whether the government had proved that a robbery had occurred

under the legal framework provided by the court. The jury asked: “What is [p]roof

of taking without right? How do we know [he] didn’t have a right to property? What

is the basis of knowing whether or not the defend[ant] had right to property or not?”

The court responded to the note and asked the jury to continue deliberating. An hour

later, at 11:55 a.m., the jury sent another note asking to see the parties’ “stipulations

of fact that we were told cannot be disputed.” With the parties’ agreement, the jury

was given the single stipulation in evidence (which addressed only the authenticity

of a jail call made from Mr. Callaham’s account).

An hour later, at 12:50 p.m. (just before lunch), the jury sent a second note

indicating a deadlock: “After re-watching and reviewing the evidence, and after

further intense discussions, we are still at an impasse. We carefully considered and
 10

re-considered each of the elements of the allegations [and] … [w]e are unable to

reach a unanimous verdict.” 7

The court denied defense counsel’s renewed motion for a mistrial, and granted

both parties’ requests to give a Winters instruction. When the jury returned from

lunch, the court instructed it, in part:

Although the verdict must be the verdict of each juror and
not merely giving in to the views of other jurors,
nevertheless, you should examine the questions submitted
to you honestly and with proper regard and respect for the
opinions of each other.

You should consider that it is desirable that the case be
decided. . . . With this in mind, it is your duty to decide the
case if you can conscientiously do so. You should listen to
each other’s arguments with a willingness to be convinced.
Thus, where there is disagreement, jurors who are for
acquittal should seriously consider whether their doubt is
a reasonable one if it makes no impression upon the minds
of other jurors who are equally honest and equally
intelligent as themselves and who have heard the same
evidence with the same attention with an equal desire to
evaluate the evidence and decide the case and under the
sanction of the same oath.

And, on the other hand, jurors who are for conviction
ought seriously ask themselves whether they might not
reasonably doubt the correctness of a judgment which is
not shared by other jurors on the jury and whether they
should trust the sufficiency of that evidence which fails to

The penultimate line of the note, crossed out but still legible, said “one or
7

more of us still have a reasonable doubt.”
 11

carry conviction in the minds of fellow jurors, who, again,
are equally honest and equally intelligent as themselves
and who have heard the same evidence with the same
attention and equal desire to evaluate the evidence and
decide the case and under the same sanction of the same
oath.

With those thoughts in mind, I am going to ask that you
resume your deliberations.

At 4:45 p.m., the jury sent a note indicating it had reached a verdict on count

one, robbery while armed. After the foreperson announced in open court that the

jury had found Mr. Callaham guilty of robbery while armed, the court began polling

the jury. When asked if they agreed with the announced verdict, the second juror

said “No.” The court immediately stopped the poll and dismissed the jury for the

day.

The parties returned to court the following morning, Tuesday, December 11.

Defense counsel, for the third time during deliberations, moved for a mistrial. After

discussion with the parties, and over defense counsel’s objection, the court gave the

jury the model Criminal Jury Instruction 2.603 from the Criminal Jury Instructions

for the District of Columbia (5th ed. 2018) including the optional language discussed
 12

by this court in Crowder v. United States, 383 A.2d 336, 342 n.11 (D.C. 1978). 8 The

court instructed the jury, in part:

. . . I can tell you in the polling of the jury it has become
apparent that you may not have reached a unanimous
verdict. For this reason, I’m asking 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.

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 re-
examine 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 follow [sic] jurors or
for the mere purpose of reaching a verdict.

With that, I’m going to send you back to the jury room,
ladies and gentlemen. Thank you.

8
The instruction is intended to address “a jury that, in polling, simply reveals
a split.” Green v. United States, 740 A.2d 21, 28 (D.C. 1999). The first paragraph
is the standard language. The second and third paragraphs, which appear in brackets
in the model instruction, “have been recommended [by this court in Crowder, 383
A.2d at 342 n.11] for use in cases where there is a particularly high likelihood of
juror coercion.” Comment to Criminal Jury Instructions for the District of
Columbia, No. 2.603 (5th ed. 2018). We refer to this entire instruction as the
Crowder instruction.
 13

It is not clear from the record when precisely on the morning of Tuesday,

December 11, the court delivered this instruction. However, the prior evening, the

court had instructed the parties to return to court at 9:15 a.m., and that morning, the

court had (1) discussed the Crowder instruction with the parties; (2) taken a recess

so the court could read relevant case law and so the government could consult with

the appellate division; and (3) continued to discuss the Crowder instruction after the

recess, before the court called the jury in to actually give that instruction. It thus

appears the jury deliberated for less than two hours—possibly substantially less—

before it sent a note to the court, at 11:42 a.m., stating that it had again reached a

verdict. It found Mr. Callaham not guilty on count one, robbery while armed, but

guilty of the lesser included robbery charge, and not guilty on count two, possession

of a firearm during the commission of a crime of violence. This timely appeal

followed.

II. Whether There is a Substantial Risk that the Jury’s Verdict was Coerced

When a defendant exercises their right to a jury trial, the jury’s verdict will

have legitimacy only if it is the product of unanimous decision making, devoid of

coercion. Green, 740 A.2d at 25. When a jury struggles to reach a verdict, the court

unquestionably “has a right and duty to urge [the] jury to work diligently to reach a

fair and freely arrived at verdict if possible.” Id. at 26. There comes a point,
 14

however, when a defendant is entitled to the benefit of a jury that deliberates

thoughtfully but does not reach a verdict; such an inconclusive outcome is itself an

assessment of the evidence that must be respected. See Winters, 317 A.2d at 539

n.10 (Gallagher, J., concurring) (“It is fundamental that a defendant is entitled to the

benefit of a disagreement by the jury.”); accord Smith v. United States, 542 A.2d

823, 825 (D.C. 1988) (“In our legal system, the minority in a jury deserves respect

and credence.”).

Mr. Callaham argues this point was reached in his case when the jury, having

already received a Winters anti-deadlock instruction, announced a guilty verdict that

broke down in polling. He asserts the subsequent delivery of a Crowder

instruction—including its reiteration of the “[jury’s] duty to deliberate and reach

agreement” language from the Winters instruction—coerced the jury’s verdict.

“[O]ur evaluation of jury coercion focuses on probabilities, not certainties.” Davis

v. United States, 669 A.2d 680, 685 (D.C. 1995). Thus our task is not to determine

whether the jury’s verdict finding Mr. Callaham guilty of robbery was in fact

coerced, but only whether the record “reveals a substantial risk of a coerced verdict.”

Coley v. United States, 196 A.3d 414, 420 (D.C. 2018) (internal quotation marks

omitted). We assess the risk of juror coercion “from the jurors’ perspective,”

inquiring into both “the inherent coercive potential of the entire situation before the
 15

trial court and the ameliorative or exacerbating impact of the judge’s actions in

response to that situation.” Hankins v. United States, 3 A.3d 356, 361 (D.C. 2010)

(internal quotation marks omitted). If we cannot “say with assurance that the jury

arrived at its verdict freely and fairly,” we must reverse. Id. at 362 (internal

quotation marks omitted). Here, we conclude there was a substantial risk that the

court’s delivery of the Crowder instruction coerced the jury’s verdict.

A. The Coercive Potential of the Circumstances

As our case law requires, we must first consider the coercive potential of the

circumstances at the time the court gave the challenged instruction. This necessitates

that we look beyond the jury poll breakdown that immediately preceded the

instruction (which is what the government focuses on in its brief) and examine the

totality of the jury’s deliberations. We begin by acknowledging the limited amount

of evidence in the case, and the jury’s evident difficulty in reaching any conclusions

based upon it. Because the putative complainant declined to testify, the case turned

on the jury’s interpretation of about seven-and-a-half minutes of silent surveillance

footage from in and around the Mellon Market convenience store—footage that was

ambiguous as to the relationship between the man identified as Mr. Callaham and

the two other men in the back of the Mellon Market, and as to why the man identified

as Mr. Garvin dropped some items on the floor before the man identified as Mr.
 16

Callaham picked them up. The central question (assuming the jury credited the

identification of Mr. Callaham as one of the men depicted) was whether this footage

showed his participation in a robbery. The jury immediately honed in on this

question and they struggled with it. In an effort to gain clarity, they sent two notes

containing multiple questions seeking guidance in answering it, then said that they

were deadlocked despite having “extensively reviewed the instructions and

evidence.” After being told to continue their deliberations, they sent two more notes

with questions revealing their efforts to make sense of the evidence, followed by

another deadlock note. Despite “re-watching and reviewing the evidence” and

“further intense discussions” they told the court they were “at an impasse” and

“unable to reach a unanimous verdict.” In short, well before the delivery of the jury

poll breakdown instruction, there were signs that this might be a case where the jury

justifiably would not be able to reach a verdict. See United States v. Thomas, 449

F.2d 1177, 1183 (D.C. Cir. 1971) (“Equivocal evidence can raise problems for

conscientious jurors, and increase their susceptibility to judicial prodding for a

verdict they seem otherwise unable to reach.”); see also Fortune v. United States, 65

A.3d 75, 86 (D.C. 2013) (“[Where] the jury had deliberated for more than eight hours

over the course of two days (with an intervening weekend) and sent the judge three

notes stating unequivocally, and with increasing emphasis, that it was at an impasse

. . . the prospect that any further pressure on this jury to reach a unanimous verdict
 17

would induce jurors to abandon their honest convictions in order to do so[ ]was

elevated.”).

Second, we consider the delivery of a Winters instruction to the jury in

response to the second deadlock note. A Winters instruction is one of three anti-

deadlock charges listed in the Criminal Jury Instructions for the District of Columbia

which a trial court may issue at its discretion “when jurors cannot agree,” Criminal

Jury Instructions for the District of Columbia, Comment to No. 2.601 (5th ed. 2018)

(internal quotation marks omitted), but the Winters instruction represents “the

highwater mark for an anti-deadlock charge.” 317 A.2d at 534. As Winters itself

acknowledged, the charge has a “sting”: it stresses the “desirab[ility]” that the case

be decided and the jury’s “duty” to reach a decision, and it directs the jurors to

reconsider their own views. Id. at 533–34; see also Hankins, 3 A.3d at 360 n.3

(acknowledging the “emphatic language” of the Winters instruction). Moreover, it

does not caution the jurors against “surrender[ing] [their] honest convictions as to

the weight of the evidence or effect of the evidence solely because of the opinion of

your fellow jurors, or only for the purpose of returning a verdict,” like the Gallagher

anti-deadlock instruction. Winters, 317 A.2d at Appendix to Concurring Opinion

(Gallagher, J., concurring); see also Hankins, 3 A.3d at 363 (explaining the

Gallagher instruction is less coercive than the Winters instruction for this reason).
 18

Mindful of its coercive potential, we have warned that the Winters instruction

“should not be given routinely, but only after careful consideration by the trial judge

of the nature of the case and the length of the deliberations.” 9 Smith, 542 A.2d at

825. Here, we have reason to be especially concerned about the coercive effect of a

Winters instruction because of what happened after the jury was so instructed: it

returned an ostensibly unanimous verdict that fell apart during polling. In other

words, the record suggests that the Winters instruction coerced a temporary verdict

and contributed to the coercion of the ultimate verdict.

Third, we consider the jury poll breakdown on its own terms. The object of

polling the jury after a guilty verdict is “to ascertain for a certainty that each of the

jurors approves of the verdict as returned; that no one has been coerced or induced

to sign a verdict to which [they] do[] not fully assent.” Green, 740 A.2d at 25; see

also id. (“The jury poll . . . has long been regarded as a useful and necessary device

for preserving the defendant’s right to a unanimous verdict.”). To be sure, not every

9
The government argues that the delivery of a Winters instruction in response
to the jury’s second deadlock note was not an abuse of discretion because it was
“either neutral or served to alleviate pressure on the jury.” Whether the court abused
its discretion in giving a Winters instruction is not the issue before us and we do not
so hold. But the fact that the court could have reasonably chosen to give the Winters
instruction does not mean that choice was a “neutral” action, nor does it preclude us
from concluding based on subsequent events that the instruction had a coercive
effect.
 19

jury poll breakdown signifies the presence of coercion, see id. at 26, but based on

the facts detailed above and the absence of any alternative explanation—e.g., there

is no indication that this jury, which sent the court multiple notes with sophisticated

questions, was confused or simply impatient with the collaborative process—the

inference of coercion is strong. Moreover, a jury poll breakdown creates an

additional risk of coercion as a result of revealing, in open court, one or more

dissenting jurors, which is heightened when their dissent follows an anti-deadlock

instruction. See Harris v. United States, 622 A.2d 697, 705 (D.C. 1993) (explaining

that when it becomes apparent that a jury is split, “factors that help to establish the

existence or degree of inherent coercive potential include (but are not limited to):

. . . whether the identity of a dissenting juror (or jurors) is revealed in open court, . . .

whether the judge knows the identity of a dissenting juror (or jurors) and whether

the juror is aware of the judge’s knowledge, . . . and whether an ‘anti-deadlock’

instruction has been given and, if so, whether this has occurred under circumstances

where the potential for coercion is high.”). 10 If the trial court thereafter instructs the

10
Because the trial court appropriately stopped the poll after the second juror
dissented from the announced guilty verdict, the court did not learn the precise
numerical split, nor is it clear that the second juror was the only dissenter. See
Harris, 622 A.2d at 705 (also identifying as factors to consider “the degree of
isolation of a dissenting juror (or jurors)” and “whether the exact numerical division
of the jury is revealed.”). But we evaluate the “risk [of coercion] on a continuum”
and all the factors listed in Harris need not be present for a court to conclude that a
 20

jury to keep deliberating, an “obvious danger” exists that the dissenting juror (and

any affiliated minority) will interpret the court’s instruction as “requiring further

deliberations in order to eliminate [their] dissent.” Crowder, 383 A.2d at 342 n.11.

Taking into account this “entire situation,” see Hankins, 3 A.3d at 361, we

conclude that the coercive potential was high at the time the trial court opted to

deliver a Crowder instruction. “Even in a situation with a high degree of inherent

coercive potential,” however, “we have said that coercion may be averted where a

court acts with appropriate precaution.” Id. at 363. Thus, we turn next to the actual

delivery of the Crowder instruction and consider whether it sufficiently mitigated—

or instead exacerbated—the coercive elements operating upon the jury.

B. The Impact of the Crowder Instruction in this Case

As noted above, the Crowder instruction is intended for situations where a

jury poll reveals a lack of unanimity. It is not meant to serve as an anti-deadlock

instruction. But given that our analysis must be “from the jurors’ perspective,”

Hankins, 3 A.3d at 361, the ostensible purpose of the instruction does not matter if

jury poll break down contributed to a substantial risk of coercion. Brown v. United
States, 59 A.3d 974, 975 (D.C. 2013).
 21

the message received by the jury is otherwise. We conclude that here the court’s

delivery of the Crowder instruction did not substantially reduce the risk of coercion

and instead operated like a second anti-deadlock instruction.

Looking to the text of the Crowder instruction, it is in substance quite similar

to a Winters instruction. Although the Crowder instruction reminds jurors not to

“surrender [their] honest conviction[s],” it also encourages them not to “hesitate to

reexamine [their] own views,” 383 A.2d at 343 n.11, much as Winters directs jurors

to “seriously” consider if their views are reasonable. 317 A.2d at 534. Moreover,

just as the Winters instruction emphasizes the desirability “that the case be decided,”

id., so too the Crowder charge emphasizes jurors’ “duty . . . to consult with one

another and to deliberate with a view to reaching an agreement.” 11 383 A.2d at 343

n.11. Indeed, because of the similarity between the two instructions, as well as our

11
Notably, the “coercion reducing elements” of the bracketed language in the
Crowder poll breakdown instruction are actually derived from an American Bar
Association charge which we have concluded “was fashioned to be, and is nationally
regarded by the courts and scholars, as being an anti-deadlock instruction.”
Epperson v. United States, 495 A.2d 1170, 1175 (D.C. 1985); see also Winters, 317
A.2d at 531 (quoting ABA Project on Minimum Standards for Criminal Justice, Trial
by Jury, Commentary, § 5.4(a) (Approved Draft, 1968)); Brown, 59 A.3d at 971–72.
What is more, the language in the bracketed portion of the Crowder instruction also
appears as an alternative anti-deadlock instruction to the Winters instruction in
Criminal Jury Instruction 2.601. See Criminal Jury Instructions for the District of
Columbia, No. 2.601(III.A) (5th ed. 2018) (“Thomas instruction”).
 22

concern that the coercive portions could be reinforced, we have held that a Winters

instruction should not follow a Crowder instruction. See Benlamine v. United States,

692 A.2d 1359, 1364–65 (D.C. 1997) (reversing where trial court gave Crowder

instruction and then Winters instruction after ninth juror dissented in jury poll); see

also Davis, 669 A.2d at 685 (reversing where trial court gave Winters instruction

after third juror dissented in jury poll).

Apart from these coercive elements, considered in context, the court’s

instruction was an unequivocal directive to the jury that it was not in fact done: it

would have to continue to try to reach a verdict. At this point, the jury had been

deliberating for nearly two days, focusing on one question—the meaning of the

seven-and-a-half-minute compilation of video footage—and had already received

both Criminal Jury Instruction 2.601 and the Winters instruction in response to two

jury notes reporting deadlock. Cf. Harris, 622 A.2d at 703 (“The factual context of

a case can give rise to a situation where an ‘anti-deadlock’ instruction becomes

coercive.”). Under the circumstances, there is a significant risk that the jurors

understood the Crowder charge to “resume deliberations and see if you can reach a

unanimous verdict” as a directive that the court would not let them go until they

reached a unanimous verdict. In other words, the Crowder instruction effectively

functioned as a second, impermissibly coercive, anti-deadlock instruction. Fortune,
 23

65 A.3d at 85 (“A jury instruction is impermissibly coercive if it would objectively

appear to force a juror to abandon his honest conviction as a pure accommodation to

the majority of jurors or the court.” (internal quotation marks omitted)). 12

Because a jury which reports that it has reached an impasse more than once

“is particularly vulnerable to pressure to reach a verdict,” see Grant v. United States,

85 A.3d 90, 98 (D.C. 2014), this court has “repeatedly held” that giving a second

12
Our assessment that the Crowder instruction did not ameliorate the situation
is reinforced by what happened next. The jury’s swift return of a unanimous verdict
after receiving this instruction is some evidence that the jurors settled their
disagreements about whether the surveillance footage showed a robbery simply so
they could put an end to the process of deliberation. Compare Carey v. United
States, 647 A.2d 56, 61 (D.C. 1994) (finding no substantial risk of a coerced verdict
where jury deliberated for several hours before returning a unanimous verdict after
receiving the Winters instruction), with United States v. Berroa, 46 F.3d 1195, 1198
(D.C. Cir. 1995) (observing that the jury’s ninety-minute deliberation before
returning a unanimous verdict after receiving an anti-deadlock instruction “tend[ed]
to show coercive effect” of the instruction). And the fact that the jury ultimately
acquitted Mr. Callaham of armed robbery—the charge it had earlier indicated Mr.
Callaham was guilty of—and possession of a firearm during the commission of a
crime of violence, and announced a verdict on the lesser included offense of robbery,
suggests a compromise verdict born of coercion not persuasion. The government’s
theory of the case was that Mr. Callaham had acted in concert with the man with the
gun to rob Mr. Garvin. The defense’s theory of the case was that the video did not
prove that a robbery, armed or otherwise, had in fact occurred. Finding that the
video depicted Mr. Callaham committing a robbery but not an armed robbery seems
less plausible than either theory. Cf. Fortune, 65 A.3d at 87–88 (where trial counsel
asserted a misidentification defense, reasoning that unanimous verdict acquitting
appellant of first-degree premeditated murder and convicting of lesser-included
offense of second-degree murder “may well have been a compromise,” and thus
“tend[ed] to substantiate appellant’s contention that the verdict was coerced”).
 24

anti-deadlock instruction is error. Id. at 100; see also id. at 98 (explaining that any

instruction following an anti-deadlock charge “must be carefully drawn to ensure

that it does not contain the key components of an anti-deadlock instruction”);

Epperson, 495 A.2d at 1175–76 (“[R]epeatedly giving “hung jury” instructions to a

“hung jury” risks affecting adversely the integrity of a verdict.”); Criminal Jury

Instructions for the District of Columbia, Comment to No. 2.601 (5th ed. 2018)

(“[A]n anti-deadlock charge generally should only be delivered to a hung jury

once.”).

* * *

The jurors in this case invested three days of their time to determine if a seven-

and-a-half-minute compilation of surveillance video could support a conviction for

robbery beyond a reasonable doubt. They “extensively reviewed” the law as

explained to them in the court’s instructions. They asked insightful follow-up

questions. They re-watched the video footage. They had “intense discussions.”

They were Winterized. And yet they could not reach a unanimous verdict. It was

only after their continued internal disagreement was laid bare in a jury poll

breakdown and the court gave them a Crowder instruction directing them to continue

deliberating that they announced they had found Mr. Callaham guilty of a lesser
 25

included offense. Because we conclude there was a substantial risk that one or more

jurors felt undue pressure “to abandon [their] honest conviction[s] as a pure

accommodation to the majority of jurors or the court,” Fortune, 65 A.3d at 85

(internal quotation marks omitted), we must reverse and remand for a new trial.

III. Admission of Video Footage and Related Testimony

Because we reverse and remand for a new trial, we address to the extent

necessary Mr. Callaham’s arguments related to the admission clips of video footage

introduced at trial and testimony about that footage. Specifically, Mr. Callaham

argues: (1) the government’s failure to call the prosecutor who compiled the clips

violated Mr. Callaham’s Sixth Amendment right to confront witnesses against him,

(2) Detective Volpe’s summary of the events depicted in the footage violated the

best evidence rule, and (3) the detectives, as non-percipient lay witnesses, should not

have been permitted to narrate the events captured on video.

A. Confrontation Clause

Mr. Callaham argues his Sixth Amendment Confrontation Clause right was

violated when he was not permitted to cross-examine the prosecutor who compiled
 26

the government’s video exhibits. We review this claim de novo. Carrington v.

District of Columbia, 77 A.3d 999, 1003 (D.C. 2013).

The Confrontation Clause protects against the introduction of a “testimonial”

statement of an absent witness, Young v. United States, 63 A.3d 1033, 1039 (D.C.

2013) (citing Crawford v. Washington, 541 U.S. 36, 53–54 (2004)), defined as one

“‘made for the purpose of establishing or proving some fact’ relevant to investigating

or prosecuting a crime.” Carrington, 77 A.3d at 1003–04 (quoting Crawford, 541

U.S. at 51). Mr. Callaham has not demonstrated that the prosecutor who compiled

the video exhibits made any such statement. Rather, the prosecutor simply took all

the clips from the relevant timeframe in the authenticated surveillance footage; 13

combined them sequentially without enhancing, rearranging, or editing them; and

repeatedly signaled that they had been stitched together by asking Detective Olszak

to explain the varying camera angles. 14 The prosecutor could have moved the non-

13
The surveillance videos were authenticated, over defense objection, by the
market owner and an MPD employee, and Detective Olszak testified that the
government’s exhibits consisted of the same surveillance videos he reviewed in his
investigation. Mr. Callaham has not renewed his objection, on appeal, to the
authentication of the videos.
14
While Mr. Callaham—who received the unedited videos in discovery—
argued in closing that the government pieced the videos together “to tell the story
they wanted to tell,” he did not contend that material portions of the videos were
missing or altered.
 27

compiled footage into evidence in the same sequence, as fifteen separate exhibits,

but that would have done little other than slow down the presentation of evidence. 15

United States v. Smith, 640 F.3d 358 (D.C. Cir. 2011), to which Mr. Callaham

cites, is not to the contrary. Id. at 362–64. Unlike the court clerk in Smith, who

wrote a letter certifying that the defendant had a felony conviction, the prosecutor

here did not “create a record” for trial. See id. at 363 (quoting Melendez-Diaz v.

Mass., 557 U.S. 305, 323 (2009)). Instead, as explained, the prosecutor simply

organized the preexisting footage so that all the clips showing the alleged crime (a

number of which showed the same time period from different vantage points) were

played in chronological order.

Accordingly, we conclude that the admission of the compiled videos did not

violate Mr. Callaham’s right to confrontation under the Sixth Amendment.

15
It also bears noting that Mr. Callaham did not ask for the full videos to be
admitted into evidence, for example under the rule of completeness. See, e.g., Evans
v. United States, 12 A.3d 1, 11 (D.C. 2011).
 28

B. Best Evidence Rule

We are no more persuaded by Mr. Callaham’s argument that Detective

Volpe’s testimony from memory about the surveillance video’s content violated the

best evidence rule because the government never introduced the “original”

surveillance footage. Even assuming this argument was preserved, it is meritless.

Pursuant to the best evidence rule, “[a]n original writing, recording, or photograph[16]

is [generally] required in order to prove its content.” Fed. R. Evid. 1002; see also

Gassaway v. Gassaway, 489 A.2d 1073, 1075, n.4 (D.C. 1985) (explaining that the

District’s practice aligns with the federal rule). But here, the government did

introduce the surveillance footage about which Detective Volpe testified, in the form

of several clips assembled in the manner described above. Mr. Callaham does not

allege that the compilations were inaccurate reproductions of the unedited footage

and has not shown that the government’s exhibits were insufficient duplicates under

Fed. R. Evid. 1003 (“A duplicate is admissible to the same extent as the original

unless a genuine question is raised about the original’s authenticity or the

circumstances make it unfair to admit the duplicate.”). See also Fed. R. Evid.

16
Fed. R. Evid. 1001(c) defines a photograph as “a photographic image or its
equivalent stored in any form.”
 29

1001(e) (defining duplicate). Mr. Callaham thus does not have a best evidence

argument vis-a-vis Detective Volpe’s testimony.

C. Non-Percipient Lay Witness Narration of Video Footage

Lastly, Mr. Callaham argues that Detectives Olszak and Volpe improperly

“narrated the contents of [the] video[-]recordings” despite not having “witnessed the

events depicted” in the videos in real time. We need not address the particulars of

their testimony because, while the government would doubtless seek to present the

video footage evidence at any retrial, whether and how it might seek to elicit

testimony about the videos could change, for example, if Mr. Garvin opted to

testify. 17 Accordingly, we address this issue only to make three points:

First, we reaffirm the requirement that lay witness testimony generally must

17
For this reason too, we need not address the government’s argument that
Mr. Callaham only partially preserved this claim.
 30

be based on personal knowledge, 18 whether it is proffered as fact 19 or opinion. 20

Second, we reject the government’s argument that the detectives “witnessed”

the events in question—and thereby obtained personal knowledge of them—solely

18
But see, e.g., Fed. R. Evid. 1006 (authorizing the use of summary witnesses
in cases where the evidence is voluminous).
19
Fed. R. Evid. 602 (“A witness may testify to a matter only if evidence is
introduced sufficient to support a finding that the witness has personal knowledge
of the matter.”); Smith v. United States, 583 A.2d 975, 983 (D.C. 1990) (endorsing
the personal knowledge requirement in Fed. R. Evid. 602 for lay witnesses); see also
Harrison v. United States, 76 A.3d 826, 841 (D.C. 2013) (“The testimony of
witnesses is admissible if predicated upon concrete facts within their own senses, as
distinguished from their opinions or conclusions drawn from such facts.” (internal
quotation marks omitted)).
20
Fed. R. Evid. 701 (“If a witness is not testifying as an expert, testimony in
the form of an opinion is limited to one that is: (a) rationally based on the witness’s
perception; (b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702 [governing testimony of expert
witnesses]”); Johnson v. United States, 116 A.3d 1246, 1249 (D.C. 2015) (endorsing
the personal knowledge requirement of Fed. R. Evid. 701 for lay opinion testimony);
Smith, 583 A.2d at 984 n.18 (quoting Fed. R. Evid. commentators’ admonition that
the rule permitting lay opinion testimony “is not designed to encourage speculation
on the part of the witnesses concerning events that they have not perceived”); see
also Sanders v. United States, 809 A.2d 584, 596 (D.C. 2002) (holding that lay
witness opinion testimony identifying the defendant as the person depicted in
surveillance footage may be admitted only if (1) the testimony is rationally based on
the perception of a witness who has sufficient familiarity with the defendant’s
appearance because of their “substantial contact with the defendant,” (2) the
testimony is “helpful to the factfinder in the determination of a fact in issue,” and
(3) the court is “reasonably satisfied that . . . the lay witness is more likely to
accurately identify the defendant than is the factfinder”).
 31

by watching recorded surveillance footage. 21

Third and finally, we endorse the trial court’s efforts to ensure that the jurors

in this case understood that they were the finders of fact and it was for them to decide

what the video footage showed.

IV. Conclusion

For the reasons set forth above, we reverse and remand.

So ordered.

21
See, e.g., Boyd v. Commonwealth, 439 S.W.3d 126, 131–32 (Ky. 2014)
(concluding witnesses lacked personal knowledge of events captured in video when
they “did not perceive [the events] in real time”); cf. United States v. Shabazz, 564
F.3d 280, 287 (3rd Cir. 2009) (affirming conviction where trial court expressly
limited witness’ narration of surveillance video to the portions showing events to
which he was an eyewitness).
Holmes v. United States, 92 A.3d 328 (D.C. 2014), cited by the government,
does not hold otherwise. The only issue before the court in Holmes was whether a
police officer’s testimony about his observation of a live feed from a surveillance
camera in a clothing store constituted hearsay. Id at 331. We concluded that a
surveillance system is “not a person” but “a tool,” and a tool cannot “make[] an
‘assertion to the [testifying] witness’”; thus the surveillance system did not generate
an out of court statement offered for the truth of the matter asserted. Id. Holmes did
not address, much less qualify, the requirement that a lay witness testify based on
their own personal knowledge.