dissatisfied with the verdict that they had already given three times. Furthermore, we considered it inappropriate to delve into the mental processes of juror No. 4, or try to impeach her verdict, especially since she had already unequivocally clarified her verdict on all counts. We were satisfied that the verdict was unanimous and we accepted and recorded the jury's verdict of guilty on all three counts.
Maddox now moves for an acquittal or new trial in light of the events occurring during the jury poll. He contends that the Court erred in questioning the jurors when the initial jury poll indicated some lack of unanimity. More specifically, he argues that in seeing the hesitancy of juror No. 2, and upon hearing juror No. 4 respond "not sure," we should have been warned that there probably was not unanimity in the verdict, and that we should not have held an in-court colloquy with the various jurors, but instead should have granted defense counsel's motion for a mistrial or should have returned the jury to the jury room for further deliberations. Finally, Maddox argues that in light of the demeanor and manner of jurors Nos. 2 and 4, the Court and the parties could not ascertain to a certainty that each of the jurors approved of the guilty verdict on all three counts.
In approaching defendant's contentions, we must make a critical distinction at the outset between count 1 of the indictment and the congeries of counts 2 and 3. Count 1 charged Maddox with knowingly and intentionally distributing about 1.4 grams of heroin on or about October 28, 1971, in violation of 21 U.S.C. § 841(a)(1). Count 2 dealt with a separate violation of the same statute, this time involving the distribution of about 19 grams of heroin on or about November 2, 1971. Count 3 charged Maddox and the co-defendant, Sylvester Lockhart, with conspiring on or about November 2, 1971, in the unlawful distribution of heroin set forth in count 2. The distinction between the violation in count 1 and those covered by counts 2 and 3 is important because no problems arose during the poll with regard to count 1. Mrs. Garro's "not sure" came after she unequivocally had declared defendant to be guilty on count 1. Mr. Eby's "may I explain" also came on count 2, after he unhesitatingly had declared defendant to be guilty on count 1. We were then and still are satisfied that none of the jurors had any doubt as to the guilty verdict on count 1. That confidence and our belief as to the divisibility of count 1 from counts 2 and 3 is underscored by the fact that the evidence on count 1 related to an entirely separate transaction. While there were some minor discrepancies in the government's case with respect to count 3 (which the jury resolved in the government's favor), there were none with respect to count 1. And the thrust of the defense (such as it was, for defendant did not take the stand) was directed to the second transaction (counts 2 and 3), not count 1. Since we will sentence Maddox for less than the maximum allowed under count one alone, and give only concurrent sentences on counts 2 and 3, any difficulties raised by the jury's verdict on counts 2 and 3 will not lead to an injustice.
However, our denial of defendant's motions does not rest solely upon the divisibility of count 1 from counts 2 and 3. For in our view, neither the statements of juror No. 4 nor those of juror No. 2 give rise to grounds for judgment of acquittal or a new trial. Our conclusion is supported by the casale on the polling of jurors.
Certain principles emerge from the relevant cases. The object of giving a defendant the right to have the jury polled is to give each juror an opportunity before a verdict is recorded to declare in open court his or her assent to the verdict and thus to ascertain with certainty that a unanimous verdict was reached and that no juror was coerced or improperly induced to agree to it. United States v. Grosso, 358 F.2d 154 (3d Cir. 1966), rev'd on other grounds, 390 U.S. 62, 88 S. Ct. 709, 19 L. Ed. 2d 906 (1968). A trial judge has discretion in assessing the impact of a dissenting vote during a jury poll; reasonable exercise of this discretion is accorded proper deference by a reviewing court. United States v. Brooks, 137 U.S.App.D.C. 147, 420 F.2d 1350 (1969). The fact that there is some uncertainty in the first instance concerning a verdict does not require setting aside the trial and verdict if polling the jury can clear up apparent confusion. Williams v. United States, 136 U.S.App.D.C. 158, 419 F.2d 740 (1969).
Maddox cites several cases in support of his position. In United States v. Edwards, 469 F.2d 1362 (5th Cir. 1972), a juror said, "It's my verdict, but I am still in doubt." The trial court then asserted, "All right, it's your verdict . . ." and proceeded with the poll of other jurors. When the defendant in Edwards moved for a mistrial or that the jurors be directed to retire for further deliberations, the court responded by saying to the doubting juror: "The juror stated that this is her verdict. Is that what you said?" The Fifth Circuit found this type of questioning coercive and noted:
The government next contends that the questions from the bench clarified juror Vallejo's response so that further deliberation was unnecessary. To the contrary, at no time did Vallejo state unequivocally that she concurred in the verdict. Both questions from the bench were limited to whether or not she had spoken the words "it's my verdict." The trial judge refused to inquire into the meaning of the crucial phrase "but I am still in doubt."
Id. at 1367. Defendant relies on Edwards for the proposition that a judge must refrain from attempting to extract unanimity by questioning from the bench and must either order the jury to retire for further deliberations or dismiss them. Edwards is distinguishable from the facts here since the trial judge there reformed the juror's statement into a verdict, and when this action was challenged, the judge put a leading question to the juror whose response was all but inevitable.
Defendant also relies on United States v. Sexton, 456 F.2d 961 (5th Cir. 1972). In Sexton, one juror responded to the poll by stating that "I didn't vote either way." The trial court then inquired, "Well, is it your verdict?", to which the juror replied, "Yes, sir." Upon request of defense counsel, the trial court ordered the jury to retire for further deliberation, after which another poll showed a unanimous verdict. Nevertheless, the Fifth Circuit reversed the conviction on the ground that forcing a doubtful juror to reach and state his verdict for the first time in the presence of the court and without first having further deliberations with other jurors amounts to coercion and denies a defendant due process. Again in Sexton, as in Edwards, coercion was the underlying reason for reversing the trial court.
Defendant notes one other case that is also distinguishable. In United States v. McCoy, 139 U.S.App.D.C. 60, 429 F.2d 739 (1970), one juror answered the poll by saying "Yes, with a question mark." The trial judge then instructed the juror to answer "yes or no." When the juror responded "Yes," the court accepted the verdict without any further inquiry. The Court of Appeals reversed because the juror was forced to respond to the court's directive to say yes or no, and since she did not have sufficient opportunity to return for deliberations or clarify her verdict as unequivocal.
In the instant case, on the other hand, we find no evidence either on the cold record, or in our recollection of the subjective quality of the colloquy, that any juror was coerced or improperly influenced to return a guilty verdict. Our initial reaction to juror No. 4's (Mrs. Garro's) "not sure" was a spontaneous, indeed, a veritable reflex query where we asked: "As to count 2, you say you are not sure?" We in no way intended to nor coerced or even influenced the juror into a particular answer; we believe that our intonation conveyed surprise rather than any pressure. Mrs. Garro's response to our query was a firm and spontaneous vote for a guilty verdict on all three counts. We gave her repeated opportunities, without any effort to influence her, to clarify if she was sure beyond a reasonable doubt or wanted to reject the guilty verdict or return for more deliberations. She unhesitatingly rejected further deliberations and unequivocally reasserted her guilty verdict. Mrs. Garro's demeanor and repeated assent to the guilty verdict on all three counts convinced us that she did not have a "reasonable doubt" when she gave her verdict, in spite of her isolated statement of "not sure."
Moreover, it would have been improper for us to delve into her reasoning by pressing her to explain why she once said "not sure."
In exercising our discretion and judgment, we found that Mrs. Garro meant to assent to the unanimous jury verdict of guilty on all three counts.
We probably should not have repolled juror No. 2 (Mr. Eby) or allowed him to explain his verdict on count 2, since he had already said "guilty" once before. (See note 4, supra.) Nevertheless, in our effort to clarify any confusion and hesitation over the verdict, we permitted him to explain his verdict. Mr. Eby's statement raises two issues: (1) whether he had an essentially accurate understanding of our charge on reasonable doubt; and (2) whether his reference to "collective wisdom" reflected a fundamental misunderstanding of our charge, especially the unanimity instruction. We find no problem with Mr. Eby's understanding of reasonable doubt. He properly interpreted our charge to mean that he did not need to be sure to a mathematical certainty, as long as he was sure beyond a reasonable doubt.
The unanimity question arises from our reference, at an early stage of our charge, to the Anglo-American system of jurisprudence and the jury system. In impressing upon the jurors the nature and importance of their role, we observe that "the collective wisdom and the collective judgment of twelve jurors is superior to that of a single judge in determining the truth of facts." However, at the end of our charge, we gave our usual instruction on unanimity that emphasized the obligation of each individual juror to reach his or her own judgment.
Accordingly, we believe that there could be no question but that the jurors understood that the verdict had to express the considered judgment of each juror as well as being unanimous. In retrospect, our concern over Mr. Eby's reference to "collective wisdom" diminishes. First, as we read Eby's response, it appears that his reference to collective wisdom refers simply to the process of dialogue within the jury insofar as the views of one juror affect another.
Second, we believe that our original charge on unanimity prevented any possible misunderstanding of the "collective wisdom" comment. Third, and to dispel any problem, we reiterated our instruction on unanimity during the jury poll process, following which we asked the jurors individually and collectively whether they would like to return for further deliberations. Mr. Eby replied negatively, as did all the other jurors.
There is one final point which should be mentioned -- whether Mr. Eby's response reflects a form of acquiescence that taints his verdict.
That problem is disposed of by note 4, supra and by Grace Lines v. Motley, supra, which upheld a verdict that the juror gave without "surrendering a conscientious conviction" (J. Anderson) or "violating his individual judgment or conscience" (J. Lumbard). As Judge Lumbard explained:
Moreover, a reasonable juror knows that even though he might prefer to have the jury reach a different result, it is also important that it reach some result. . . .
Indeed, it [i.e., reaching a result] is certainly a proper reason for concurring with the majority. . . . Were the court permitted to examine jurors to elicit whether they had surrendered their views, there would be few verdicts which could withstand such examination.