Applying Plain Error, Conviction for Assault with Serious Bodily Injury Affirmed Despite Possible Jury Confusion

U.S. v. Poole, 2008 WL 4756164 (10/31/08) (Published) - The jury found the defendant guilty of both the charged offense of assault resulting in serious bodily injury and the lesser-included offense of simple assault, even though the jury was instructed not to consider the defendant's guilt of the lesser offense if it could unanimously find the defendant guilty of the greater offense. When the court received the verdict, it declared in front of the jury that the simple assault conviction was a "nullity." The court then polled each juror asking "Is this your verdict?" All the jurors answered yes to that question. When asked if the defendant wanted to argue anything before the jury was discharged, defense counsel said "no." After the jury was discharged, defense counsel moved for a mistrial on the grounds that the verdict was ambiguous. The district court denied the motion. The 10th reviewed for plain error because counsel had not objected before the jury's discharge, when any ambiguity could have been resolved.

The 10th found no error. First, there was no ambiguity so obvious as to trigger the court's duty to resolve it. The verdicts were actually completely consistent with each other. The possibility that the two verdicts were the result of an improper compromise was at best latent and so did not require district court action. Second, the district court did clear up any confusion by polling the jury about the greater charge after declaring the simple assault count a nullity. The 10th dismissed the defendant's claim the jurors might not have understood what the court meant by "nullity" based on the interesting notion that it is a "bedrock principle" of our system that we presume jurors understand what the trial court says, even if they actually don't. The 10th also rejected the defendant's claim that when the court asked the jury "is this your verdict" the jury might have thought the court was referring to both verdicts rather than just the greater offense one. The 10th believed, given the jurors' make-believe understanding of "nullity," they must have known the judge was referring only to the greater offense verdict. Furthermore, the judge was not obligated to sua sponte require the jurors to deliberate further because it was clear the jury unanimously found the defendant guilty of the greater offense.