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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 11-CM-1134

                        CHARLES A. GRANT, APPELLANT,

                                       V.

                           UNITED STATES, APPELLEE.

                     Appeal from the Superior Court of the
                             District of Columbia
                               (CMD-4942-11)

                    (Hon. Herbert B. Dixon, Jr., Trial Judge)

(Argued May 14, 2013                                Decided February 20, 2014)

      Anna B. Scanlon for appellant.

        Nebiyu Feleke, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney, Elizabeth Trosman, Assistant United States
Attorney, and Chrisellen R. Kolb, Assistant United States Attorney, were on the
brief, for appellee.

      Before BLACKBURNE-RIGSBY and EASTERLY, Associate Judges, and KING,
Senior Judge.
                                         2

      KING, Senior Judge: On July 12, 2011, appellant Charles A. Grant was

convicted by a jury of bias-related threats,1 and acquitted of bias-related assault

(with a bottle),2 and two counts of possession of a prohibited weapon (a bottle and

a knife).3 On appeal, he contends that his conviction should be reversed because

there was a substantial risk that the jury verdict was coerced by the trial court‟s

response to a jury note regarding a “difficult” environment in the jury room, and

the trial court violated Superior Court Criminal Procedure Rule 36-I4 by reading a

juror‟s note to the jury without the court reporter‟s presence. We affirm.



                                         I.



      On March 18, 2011, at approximately 3:50 a.m., Ryan Barrett was walking

home on Georgia Avenue, Northwest, with his two friends, Christopher Fenwick-

Williams and Rufus Lofty. The streets were empty, except for Grant, who walked

      1
           D.C. Code §§ 22-407 (2012 Repl.), -3701 (2012 Repl.), -3703 (2012
Repl.).
      2
          D.C. Code §§ 22-404 (2012 Repl.), -3701, -3703.
      3
          D.C. Code § 22-4514 (b) (2012 Repl.).
      4
         Superior Court Rule of Criminal Procedure 36-I (a) states: “All
proceedings shall be simultaneously recorded verbatim by a reporter engaged by
the court by shorthand or mechanical means or, when permitted by rule of court,
by an electronic sound recording device.”
                                         3

ahead of the group. Grant stopped walking, and as Barrett and his friends walked

by, he said “Shut the fuck up, you faggots.” Barrett noticed that Grant “smelled of

alcohol, . . . was staggering, and his voice was breaking.” Barrett and Grant

engaged in a verbal altercation, and as Barrett and his friends continued to walk

down the street, Grant yelled “Fuck you, faggot, I‟ll kill a faggot out here. Y‟all

faggots don‟t mean nothing to me.”



      The three men continued to walk away, at which point Barrett was hit in the

right elbow with a glass bottle. Barrett did not see Grant throw the bottle, but

when he turned around there was no one else in the area. Barrett told Grant that he

“would fuck [him] up” and Grant continued to “briskly” follow Barrett and his

friends saying, “What? What? You‟ll do what?”, until they entered a nearby

McDonald‟s to call the police. Barrett described Grant to the 911 operator as “a

light-skinned black male, standing about 5‟9,” with a thick build and full facial

hair, wearing a black leather jacket and some dark jeans.”



      Barrett said that Fenwick-Williams told him that Grant had a knife, which

Barrett himself did not see. Fenwick-Williams testified that he saw Grant holding

something black in his hand, and that he ran toward them saying “he was going to

stab [them].” Metropolitan Police Department (MPD) Detective Kristal Boyd,
                                           4

who responded to the 911 call, testified that when interviewed after the incident,

Barrett and his friends mentioned that Grant “appeared to have . . . reached in his

pocket as if he had something or was trying to pull something out,” but they never

mentioned a weapon, or a knife.



      MPD officers responded to the area, and about five minutes after the call

spotted Grant, who matched the lookout description. MPD Officer Von Galery

testified that when they made a U-turn to stop and question Grant, he “made a

gesture, throwing a hard object to the ground that made a clinging sound of steel,

hitting a steel trashcan.” Once out of the police vehicle, Officer Galery “noticed

that there was a knife that was on the ground.” The officers conducted a show-up

procedure and both Barrett and Fenwick-Williams separately identified Grant,

stating that he was the individual that threw a bottle at Barrett.



                                          II.



      The jury began deliberations at approximately noon on Friday, July 8, 2011.

At 3:45 p.m. the jury sent the court a note that read: “We, the jury, can‟t come to

agreement of the identity of the assailant beyond a reasonable doubt. We need

further instructions.”   Grant requested that the court re-read the identification
                                          5

instruction to the jury and give an anti-deadlock instruction, and the government

suggested that it was premature for an anti-deadlock instruction.            The court

responded as follows:



             Members of the jury, thank you for your note regarding
             the status of the jury‟s discussions. I‟m directing that
             you deliberate further in the 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
             continue with your deliberations.


      After being dismissed for the weekend, the jury resumed deliberations on

Monday, July 11, and sent a note at 12:30 p.m. reading: “We as a jury are hung.”

Both parties requested that the court read the Winters anti-deadlock instruction,

Winters v. United States, 317 A.2d 530, 534 (D.C. 1974) (en banc), but the court

proposed its own anti-deadlock instruction. Grant‟s counsel objected to the first

sentence of the proposed instruction, but the judge included that sentence in its

instruction. The court then read the following (the “anti-deadlock” instruction) to

the jury, after which the jurors were dismissed to continue deliberations:



             In many cases, absolute certainty cannot be attained or
             expected. Although the verdict must be the verdict of
             each juror and not a mere acquiescence in the conclusion
             of the other jurors, you should examine the questions
                                        6

            submitted to you with candor and with proper regard and
            deference to the opinions of each other.

            You should consider that it is desirable that the case be
            decided, that you are selected in the same manner and
            from the same source from which any future jury must be
            selected, and there is no reason to suppose that the case
            will ever be submitted to twelve persons more intelligent,
            more impartial or more competent to decide it, or that
            more or clearer evidence will be produced on one side or
            the other.

            And with this view, it is your duty to decide the case, if
            you can conscientiously do so. You should listen to each
            other‟s arguments with a disposition to be convinced.
            Thus, where there is disagreement, jurors for acquittal
            should consider whether their doubt is a reasonable one,
            which makes no impression upon the minds of others
            equally honest, equally intelligent with themselves, and
            who have heard the same evidence with the same
            attention and with an equal desire to arrive at a fair
            verdict and under the sanction of the same oath.

            And on the other hand, jurors for conviction ought
            seriously to ask themselves whether they might not
            reasonably doubt the correctness of a judgment which is
            not concurred in by others with whom they are associated
            and whether they should distress[5] the weight or
            sufficiency of that evidence which fails to carry a
            conviction in the minds of their fellow jurors.

            The verdict must represent the considered judgment of
            each juror. In order to return a verdict, each juror must

      5
          So in original, and in the quotation of this instruction in our recent
decision concerning it. See (Myrone) Williams v. United States, 52 A.3d 25, 45
(D.C. 2012). The original Winters instruction, from which this paragraph of the
trial judge‟s instruction is drawn, uses “distrust” here. See Criminal Jury
Instructions for the District of Columbia, No. 2-91 (4th ed. rev. 1996).
                                         7

             agree to that verdict. Your verdict, with respect to any
             charge that you‟re considering, must in and of itself be a
             unanimous verdict. So 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
             sacrificing your individual judgment. Each of you must
             decide the case for yourself, but you 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 the reasons for your views
             and to change your opinion if you‟re convinced it is
             wrong. But do not surrender your honest conviction as to
             the weight or effect of evidence solely because of the
             opinion of your fellow jurors only for the purpose of
             returning a verdict. Remember, you are not partisans or
             advocates for either side; you are judges, neutral judges
             of the facts.


      At 3:50 p.m., the court received a note from a juror other than the foreman,

which read: “The environment in our jury room has become very difficult. Our

ability to incorporate your most recent directions into our deliberations has become

almost impossible. Please advise us of our options.” In different handwriting, the

note also read: “Jury members have been personally „targeted‟ by juror members

as doing „a piss poor job.‟” As the trial judge was in the middle of selecting a jury

for another trial, he proposed to the parties that he and the parties‟ lawyers enter

the jury room, in order to excuse the jury until the following morning. Neither

party objected to the procedure.
                                           8

      Before addressing the jury the trial judge indicated he would read the note to

the jury, to which counsel for Grant objected arguing that because of the

underlying “hostility” it may “offend” a group of the jurors. The government

argued that the court should read the note to the jury because “it would be better if

they [knew] what it said and they had time in the evening to digest it . . . [and]

have a cooling-off period.” The court determined that it would read the note and

tell them it would “look into and talk to them about” it the next day.



      The following morning, the judge stated that he had taken “both counsel

with me to the door of the jury room and read the note.” The government proposed

“allowing the jurors to continue their deliberations . . . to see if they‟ve had time to

calm down, and can work together to reach some sort of verdict in this case.”

Counsel for Grant argued that a mistrial was appropriate because “the individual

who was the foreman looked clearly upset” and it was unclear if “what [had] been

said in the note can be undone.” Counsel also argued that it would be prejudicial

“to require the jurors after such a note to continue to deliberate when they have

expressed that their disagreement is such that it‟s reaching a hostile point.” The

court denied the motion for a mistrial. When the jurors returned to the courtroom,

the judge read the note to the jury again, without revealing the identity or the
                                           9

number of the jurors who signed the note. Then the court instructed the jury as

follows to continue deliberations civilly (the “civility” instruction):



             As you know, I have not spoken to any of you about this
             note. The note concerned me because it‟s important
             whether the note represents the opinion of one juror, or
             whether the note represents the opinion of a majority of
             jurors – it doesn‟t matter – it‟s an important note.
             Whether it‟s just one person‟s opinion or whether it‟s a
             majority‟s opinion on the jury it‟s very important because
             it affects the ability of the jury to proceed with its
             deliberations.

             One of the instructions that I gave to you originally
             concerned the selection of a foreperson. But it‟s not the
             selection of the foreperson that I‟m referring to, it‟s the
             other aspects of that particular instruction.

             The instruction talked about the need for discussions to
             be civil. The instruction talked about the need for jurors
             to be able to express their views.

             And whether a juror agrees with what has been said, or
             whether a juror disagrees with what has been said, that
             juror has the right to express their views, and they have
             the right to express those views without being the subject
             of a personal attack by any other juror, or to feel that they
             are the subject of a personal attack.

             Jurors disagree in jury deliberations all the time – that‟s a
             part of the process. But you can disagree and have
             discussions about your different views without being
             disagreeable.

             It is important for everyone to speak up regarding their
             own views with respect to the evidence in the case. It is
             important for everyone to act civilly on the jury towards
                                          10

             the other, and it is important that each juror feel that –
             should feel that they have the right to speak up regarding
             their individual views, whether those views are in
             agreement with the majority or whether or not those
             juror‟s views are different from the majority – it is
             extremely, extremely important.

             Now, once again, I repeat where I started. I don‟t know
             whether this note represents the opinion of one juror, or
             whether this note represents the opinion of a majority of
             the jurors – even more or less than that – but it‟s an
             important note because it affects the ability of a jury to
             have full, fair, frank discussions in a civil manner, to
             discuss their disagreements, to attempt to persuade the
             other, to listen to the other, all with the purpose in mind
             of resulting in a fair and impartial, and justified verdict in
             the case.

             So once again, I repeat, I‟ve not spoken to any of you
             about why this note was written, I have no idea if it‟s just
             one person‟s feelings or if it‟s a majority – more or less –
             but it‟s important because it affects the atmosphere in the
             jury room to have those full, frank, civil discussions
             without being disagreeable.


Defense counsel objected to the fact that the court never mentioned that “one

person, or a group of people are being sensitive,” and again moved for a mistrial,

which the court denied. Although Grant now offers specific objections to other

aspects of the language of the civility instruction, he presented no other objections

to the phrasing of the instruction at trial. The jury continued deliberating and at

12:00 p.m. the jury submitted a note reading, “We are done. We have made a
                                           11

decision on all counts.” After the foreperson read the verdict, the court polled the

jury and all jurors expressed their agreement.



                                           III.



      On appeal, Grant argues that the violation of Superior Court Criminal Rule

of Procedure 36-I, which requires all proceedings to be recorded verbatim, makes

it impossible to determine whether the trial court‟s actions in the jury room further

exacerbated the inherently coercive situation. He also argues that the verdict must

be reversed because there is a substantial risk that it was coerced. He contends that

there were several coercive factors present in the court‟s “civility” instruction that

it read to the jury in response to the third note, including that the note was sent

after the court gave a strong anti-deadlock instruction. He also argues that the trial

judge exacerbated the inherently coercive situation and created a substantial risk of

a coerced verdict by reading the note in the jury room. In addition, Grant argues,

for the first time, that the specific language of the trial judge‟s “civility” instruction

was coercive.     In that regard Grant emphasizes both the trial court‟s explicit

statement that the “purpose” of continued deliberations was to reach a verdict, and

its failure to remind jurors that they should not “abandon their honest convictions

in continued deliberations.”
                                          12

      The government responds that Grant forfeited any objection to the trial

judge‟s responding to the jury note without the presence of a court reporter. In the

alternative, the government argues that Grant was not prejudiced by any error.

Additionally, the government responds that at the time of Grant‟s motion for a

mistrial, the jury faced a “difficult” environment, but it did not rise to the level of

inherently coercive.    Furthermore, the government argues that the trial court

properly denied the motion for a mistrial because the court took actions to

“effectively temper the potential for coercion.” In conclusion, the government

argues that the jury reached its verdict “freely and fairly” as demonstrated by the

jury poll which revealed no dissent, and the fact that the jury acquitted Grant of

three of the charges, including the two most serious charges,6 while convicting him

of only one charge.




      6
         Grant was found guilty of bias-related threats to do bodily harm under
D.C. Code §§ 22-407, -3701 & -3703, which carries a maximum sentence of nine
months. Grant was acquitted of bias-related assault under D.C. Code §§ 22-404,
-3701 & -3703, which carries a maximum sentence of 270 days. Grant was also
acquitted of two counts of possession of a prohibited weapon (knife and bottle)
under D.C. Code § 22-4514 (b), which each carry a maximum sentence of one
year.
                                         13

                                        IV.



      We first address whether the court erred by entering the jury room with

counsel for both parties, but without a court reporter, reading the note to the jury,

and dismissing them for the evening. This court has held “that the reporting

requirements of Rule 36-I (a) are mandatory, and exceptions will be narrowly

construed.” (Robert) Williams v. United States, 927 A.2d 1064, 1067 (D.C. 2007)

(quoting Lucas v. United States, 476 A.2d 1140, 1142 (D.C. 1984)) (internal

quotation marks omitted). However, “[t]he absence of a complete transcript of the

trial does not automatically mandate reversal . . . even if it makes appellate review

more difficult.” Egbuka v. United States, 968 A.2d 511, 516 (D.C. 2009) (citations

omitted). Instead, “we ask whether the particular omission from the transcript

prejudices the defendant‟s right to appeal, either (1) by making it impossible for

this court to determine whether a specific error raised by the appellant occurred, or

(2) by preventing new appellate counsel from searching the record to determine

whether error occurred.” Euceda v. United States, 66 A.3d 994, 1002-03 (D.C.

2013) (internal quotation marks and citations omitted) (emphasis in original).



      Grant argues that because of the omission from the transcript, the record

does not indicate whether the identities of the jurors who wrote the note were
                                          14

revealed to the jury in its entirety, and does not reflect how the court introduced the

note, or what was said after reading the note. “Appellant does not allege that a

specific error occurred during the part of the proceeding that was not recorded . . . .

Appellant argues instead that he is precluded from mounting an effective appeal

because there might have been some error that would have been captured” had the

court reporter been present in the jury room. David v. United States, 957 A.2d 4, 7

(D.C. 2008). From the court‟s discussion with counsel before entering the jury

room, and from the court‟s summary the following morning regarding what had

happened in the jury room, “we think that is highly improbable,” id., that any

specific error was not recorded.



      Before entering the jury room, the judge held a discussion with both counsel

as to what he would say to the jury, in which the judge never expressed the intent

to name the individual jurors who wrote the note, or to state how many jurors

signed the note. The judge told counsel that: “I‟m just reading the note that I

received and telling them it‟s something I‟ve got to look into and talk to them

about, and I don‟t have time right now.”         The following morning, the court

summarized its discussion with the jury and stated that it “took both counsel with

me to the door of the jury room and read the note.” Neither counsel objected to the
                                            15

summation or the procedure, other than defense counsel objecting to reading the

note at all.



       After the court summarized its discussion in the jury room, Grant moved for

a mistrial, arguing that “it‟s prejudicial . . . to require the jurors after such a note to

continue to deliberate when they have expressed that their disagreement is such

that it‟s reaching a hostile point.” Defense counsel was unsure if “what has been

said in the note can be undone.” However, counsel did not further object to the

court‟s proceedings in the jury room, nor did he argue that the judge made

statements in the jury room that exacerbated the situation. Grant filed a post-trial

motion to include a statement summarizing the interaction in the jury room. The

court denied the motion because it “merely recasts information already provided in

the transcript of the proceedings without offering any new or additional

information about the underlying proceedings.” For these reasons, we hold that the

court‟s violation of Rule 36-I (a) is non-prejudicial.



                                            V.



       Grant also argues that the trial court improperly coerced a verdict by giving

the “civility” instruction after the jury had returned two notes reflecting their
                                          16

inability to make a decision, and one note reflecting a difficult environment in the

jury room. He contends that any re-instruction at that point was coercive, and the

court should have declared a mistrial. We conclude that a mistrial was not required

under the circumstances, because the court has discretion to determine how to

instruct a jury that is having a difficult time deliberating. See (Jerome) Jones v.

United States, 999 A.2d 917, 929 (D.C. 2010).



       The standard for determining whether there is a substantial risk of juror

coercion is well-settled:



             We assess that risk by weighing the „inherent coercive
             potential‟ of the entire situation before the trial court and
             the ameliorative or exacerbating impact of the judge‟s
             actions in response to that situation. We examine the
             question of coercion from the jurors‟ perspective.
             Coercion of a verdict „does not mean simple pressure to
             agree.‟ Rather, pressure to agree is impermissibly
             coercive when it is likely to force a juror „to abandon his
             [or her] honest conviction as a pure accommodation to
             the majority of jurors or the court.‟ The question is one
             of „probabilities, not certainties‟; from our review of the
             record, we must be able to „say with assurance‟ that the
             jury has arrived at its verdict „freely and fairly.‟


Hankins v. United States, 3 A.3d 356, 361-62 (D.C. 2010) (citations omitted).

Thus we first consider the inherent coercive potential of the situation from the

jurors‟ perspective, and then we ask how the court responded to that situation. Id.;
                                           17

see also Harris v. United States, 622 A.2d 697, 701 (D.C. 1993). Generally, we

consider several factors enumerated in Harris.



                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?
                Did the judge independently create a situation of coercive
                potential?


Harris, 622 A.2d at 705.



       But in this case we determine there is no need to consider these questions at

great length because the crux of Grant‟s coercion argument is one that was not

made at trial and Grant cannot show the requisite prejudice to satisfy our test for

plain error.7




       7
         We note that any objective assessment of the evidence being considered
by the jury would indicate that the jury convicted on the strongest count and
acquitted on the three weakest counts. On this evidentiary record, it would not be
beyond reason to conclude that the “holdouts” were in the minority – in favor of
conviction – on the three weakest counts, but eventually came around and joined
the other jurors in voting to acquit on those counts.
                                         18

      A jury in these circumstances is particularly vulnerable to pressure to reach a

verdict. This is the reason a trial judge may not give a second anti-deadlock

instruction. (Jerome) Jones, 999 A.2d at 927. The trial judge may re-instruct the

jury in other ways, but any subsequent instruction must be carefully drawn to

ensure that it does not contain the key components of an anti-deadlock instruction.

We agree with Grant‟s position on appeal that certain aspects of the language in

the “civility” instruction were problematic. As these objections raise new concerns

about how the exact wording would affect the jury, they are unpreserved.8 See

Green v. United States, 718 A.2d 1042, 1056 (D.C. 1998) (“[O]bjections to jury

instructions must be specific enough to direct the judge‟s attention to the correct

rule of law; a party‟s request for jury instructions must be made with sufficient

precision to indicate distinctly the party‟s thesis.” (quoting Russell v. United

      8
          Grant did object at the outset to some of the judge‟s language in the
instruction regarding the final note. Grant stated that “some parties may feel like
they are being chastised for behavior that they have not even had an opportunity to
defend.” Grant also requested that the judge “reaffirm that people still have an
amendment [sic] to express their views,” to which the court responded, “Oh,
absolutely. Yes. Yes. Yes.” The judge then stated in the instruction that
“whether a juror agrees with what has been said, or whether a juror disagrees with
what has been said, that juror has the right to express their views, and they have the
right to express those views without being the subject of a personal attack by any
other juror, or to feel that they are the subject of a personal attack.” After the
instruction was given, Grant requested that the court “indicate that it‟s also equally
possible that one person, or a group of people are being sensitive.” The trial judge
noted that he did not see the need to “go back to that” as he had said during the
instruction “I don‟t know whether this is one person‟s view or a majority view.”
This specific objection was not renewed on appeal.
                                         19

States, 698 A.2d 1007, 1012 (D.C. 1997) (internal quotation marks omitted))). We

therefore review them for plain error. United States v. Olano, 507 U.S. 725, 732

(1993); (Marcus) Jones v. United States, 946 A.2d 970, 975 (D.C. 2008).



      First, Grant objects to the court‟s statement that the jury should continue

deliberations with the “purpose in mind” of reaching a “fair and impartial, and

justified verdict in this case.” Second, Grant objects that the instruction did not

remind the jurors that they must not surrender their honest convictions simply to

reach an agreement. He urges that these were errors of commission and omission

because they jointly presented a serious risk of verdict coercion. That risk was

particularly strong here, he contends, because the jury had just announced, for the

third time, that it was having a hard time reaching agreement.



       Under plain error review, we reverse only if (1) the trial court erred in

including (and omitting) this language from the “civility” instruction, (2) the error

was plain, (3) it affected Grant‟s “substantial rights,” and (4) it caused a

“miscarriage of justice or seriously affected the fairness, integrity, or public

reputation of judicial proceedings.” (Marcus) Jones, 946 A.2d at 975 (citing

Olano, 507 U.S. at 732). We conclude that both the omission and the commission
                                          20

were error, but we do not decide whether they were plain, as we conclude that the

errors in any event did not prejudice Grant.



      There is much to admire in the court‟s third instruction, particularly its

central message that deliberations must be civil. The instruction was a reasonable

attempt to avoid declaring a mistrial where the jury‟s inability to reach agreement

may have been due to a difficult environment in the jury room rather than an

intractable conflict in jurors‟ honest convictions.



      However, the court erred in telling the jury its “purpose” was to reach a “fair

and impartial, and a justified verdict.” Defendants are “entitled to the benefit of a

disagreement by the jury,” so judges should avoid telling jurors that consensus is

preferred over agreement.       Winters, 317 A.2d at 539 n.10 (Gallagher, J.,

concurring); see also Epperson v. United States, 495 A.2d 1170, 1174 (D.C. 1985).

Trial courts err when they instruct jurors, even in predeliberation, that their

purpose is to reach a verdict.      (Marcus) Jones, 946 A.2d at 974.       Here, the

instruction came after the jury had announced, for the third time, that it was having

a hard time reaching a verdict, and after the court had already given an anti-
                                         21

deadlock instruction.9 This makes the instruction, because of the “purpose to reach

a verdict” language, perilously close to a second anti-deadlock instruction, which

we have repeatedly held to be error. Fortune v. United States, 65 A.3d 75, 86

(D.C. 2013); Epperson, 495 A.2d at 1176. When a jury has announced that it is

having a hard time reaching agreement, whatever the reason, the court may not

instruct them that their purpose is to reach a verdict. That specific language

remains error even when couched in an instruction whose core message is that

discussions must be civil, that each juror has a right to express his or her views,

and that disagreements between jurors are “part of the process.”



      The court also erred when it omitted language reminding jurors that they

should not surrender their honest convictions to secure agreement.         (Marcus)

Jones, 946 A.2d at 974 (“Equally problematical . . . is what the instruction did not

      9
          Had the third jury note effectively announced a deadlock, as Grant claims,
the court‟s instruction that the jury‟s purpose was to reach a verdict would have
been error. But whether a note announces a true deadlock is left to the discretion
of the trial court. Here, the note merely informed the court that there were personal
issues in the jury room. See Downing v. United States, 929 A.2d 848, 861 (D.C.
2007) (“[T]he jury note indicating that one of the jurors disagreed with the
majority view did not necessarily mean that the trial court was faced with a
deadlocked jury.”); Green v. United States, 740 A.2d 21, 29-30 (D.C. 1999) (“The
jury note did not state that it was „hopelessly deadlocked,‟ but simply, „We are
unable to reach an agreement. Please advise.‟”). Additionally, the first note,
which stated that the jury could not “come to agreement of the identity of the
assailant beyond a reasonable doubt” and “need[ed] further instructions,” did not
announce a deadlock. Green, supra, 740 A.2d at 30.
                                        22

include, which was language balanced against the desirability of agreement that

reminded jurors not to surrender their honestly held convictions, even if that

prevented agreement.”). Any instruction to an admittedly divided jury to keep

deliberating risks coercing some jurors to “abandon [their] honest conviction[s] as

a pure accommodation to a majority of jurors on the court.” Hankins, 3 A.3d at

361-62 (quoting Winters, 317 A.2d at 532). The court should not tell the jury that

agreement is desirable or that its job is to reach a verdict, and it must temper any

such message it does convey to that effect with a clear indication that any verdict

they reach must not come at the expense of any juror‟s honest convictions.



      We need not decide, however, if these errors were plain. Even if they had

been, we are not persuaded that Grant can show that the court‟s civility instruction

prejudiced him. For example, we disagree with Grant that “the verdict itself

evidences coercion.” As previously discussed, supra note 7, the jurors ultimately

returned verdicts of not guilty on the assault and weapons charges, where the

evidence was weak, but guilty on the threats charge. Grant argues that “[i]t is

highly likely that such a compromise verdict was achieved so that the jurors could

leave the room after being sent back to deliberate even after the final alarming

note.” We agree with the government‟s response to that argument, however, and

think that it is likely that the jury unanimously concluded, without coercion, that
                                        23

the “government proved only the threats charge beyond a reasonable doubt,” for

which there was strong evidence in support. Both government witnesses identified

appellant as the man who threatened them, but neither actually saw Grant throw

the bottle at Mr. Barrett.   Also, Detective Boyd testified that neither witness

mentioned seeing appellant with a knife when she interviewed them.



      Grant has not shown a “reasonable probability that, but for [the unobjected-

to instruction], the result of the proceeding would have been different.” (Marcus)

Jones, 946 A.2d at 976 (quoting United States v. Dominguez Benitez, 542 U.S. 74,

82 (2004)). For the foregoing reasons we are satisfied that Grant has failed to

show he was prejudiced by the “civility” instruction.



      Accordingly, the trial court‟s judgment is



                                                   Affirmed.
