dissenting:
Although involving a Winters charge, this case could well be viewed as one of instructional deficiency. There seems to be general agreement that difficulty in this case could have been avoided if the trial judge had either “told the jury not to reveal its numerical split [or] let the jury know that he had not read its notes and was unaware of the lopsided majority favoring conviction.” [Majority opinion at p. 825.] It also appears that defense counsel knew of the definite probability that the notes from the jurors contained information as to the split.1
The failure of defense counsel to request such appropriate instructions to the jury here seems to me to lend itself to plain error analysis, along the general lines of Allen v. United States, 495 A.2d 1145 (D.C.1985) (en banc). I cannot so characterize the situation here in light of authority countenancing a deadlock instruction even where a jury split for conviction is specifically revealed to the trial court. See, e.g., United States v. Robinson, 560 F.2d 507 (2d Cir.1977) (en banc, 6-3), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed. 2d 496 (1978) (second deadlock instruction upheld after an 11-1 split for conviction, known to the trial court, continued and a signed note by the holdout juror delivered to the court).
. In the colloquy with the court when the first deadlock note was returned, appellant’s counsel asked the trial court whether the excised portion of the note referred to how the jury wets split. The court answered: "I imagine it did because that's the reason I didn’t look at the note.”