Excerpt from:  Jones v. U.S. 620 A2d 249, 251-254

    The Jones court reasoned as follows:

    "In (Nathan) Jones v. United States, 544 A.2d 1250, 1254 (D.C.1988), we held that "when the jury reports a deadlock between the greater and the lesser offense, the 'acquittal first' instruction should not be given because it is impermissibly coercive." See also Parker v. United States, 601 A.2d 45, 47-48 (D.C.1991). In both (Nathan) Jones and Parker, however, defense counsel had specifically asked the trial court to allow the jury to consider the lesser-included offense. In this case, by contrast, defense counsel made no such request, nor did he otherwise object to the repetition of the "acquittal first" instruction, although he did move for a mistrial. We must therefore consider whether, under the circumstances of this case, the trial judge's "acquittal first" reinstruction in the face of the jury note amounted to plain error. See Watts v. United States, 362 A.2d 706, 709 (D.C.1976) (en banc) ("errors not objected to at trial are unreachable on review unless they fall within the purview of the plain error rule"). We conclude that it did not.

    The alternative to the "acquittal first" instruction is the "reasonable efforts" instruction, in which the court tells the jury that it may consider the lesser included offense if it is unable to reach a verdict on the greater offense after making all reasonable efforts to do so. See Cosby v. United States, 614 A.2d 1291, 1294 n. 4 (D.C.1992); (Lorenzo) Wright v. United States, 588 A.2d 260, 261-62 (D.C.1991). In (Lorenzo) Wright, we held that the "reasonable efforts" instruction must be given where it is timely requested by defense counsel. 588 A.2d at 262. But we have never said that the court is obliged to give the "reasonable efforts" instruction absent a request by defense counsel. Indeed, we have concluded that neither the "acquittal first" nor the "reasonable efforts" instruction is wrong as a matter of law. Id. Both the "acquittal first" and the "reasonable efforts" instructions present tactical advantages and disadvantages from the defendant's point of view. The advantage of the "acquittal first" instruction, for the defendant, is that where the jury fails to agree on conviction or acquittal of the greater offense, it cannot adopt the easy compromise of convicting on the lesser offense. Thus, the defendant may escape any conviction at all, even where the evidence with regard to the lesser charge is fairly strong, and the government will have to decide whether the case merits the time and expense of mounting a new trial. The disadvantage of the "acquittal first" instruction is that, faced with a choice between a conviction on the greater offense and no conviction at all, jurors who might have preferred to convict only on a lesser offense may go along with others who are willing to convict on the greater offense, especially where there is a majority in favor of conviction on the greater charge. The "reasonable efforts" instruction presents similar advantages and disadvantages in reverse. It may lessen the probability that the jury will convict on the greater offense, but it may also increase the probability that the jury will convict on the lesser charge. See id. at 261-62; United States v. Tsanas, 572 F.2d 340, 346 (2d Cir.), cert. denied, 435 U.S. 995, 98 S.Ct. 1647, 56 L.Ed.2d 84 (1978). Determinations as to which instruction is better for the defendant will vary from case to case, depending upon the strength of the government's evidence and the defendant's own desires.

    For these reasons, we believe that the decision as to which instruction is preferable must be left to the defendant. Were we to hold that a miscarriage of justice results whenever the trial court gives an "acquittal first" instruction to a deadlocked jury, even when the defense does not object, we would, in effect, be taking this tactical decision out of the defendant's hands. Just as we have held that the trial court is obliged to instruct the jury in the form timely selected by the defendant, see (Lorenzo) Wright, 588 A.2d at 262, so we think it is not for this court to coerce the defendant's choice in this matter by ordaining in advance which instruction must be given to a deadlocked jury. Accordingly, bearing in mind both the relative strength of the government's evidence in this case and the tactical discretion involved in the choice between the "acquittal first" and the "reasonable efforts" instructions, we conclude that the trial court's instruction did not result in plain error. [Footnote 1] As we observed in Allen v. United States, 495 A.2d 1145 (D.C.1985) (en banc), instructional errors not raised at trial will not be dist[ur]bed on appeal if ... counsel's failure to object can be viewed as a tactical choice. For in such cases, it can hardly be maintained that the alleged error effected a "miscarriage of justice."  Id. at 1152 (citing (James) Jones v. United States, 477 A.2d 231, 242 (D.C.1984); Bennett v. United States, 375 A.2d 499, 504 (D.C.1977); quoting Adams v. United States, 302 A.2d 232, 234 (D.C.1973)).

Footnote 1:  We also must be mindful of the risk that "a shrewd attorney who has a weak defense [may] conclude that his [or her] best strategic response to trial court errors is to remain silent, hoping thereby to 'sow error in the record.' " Johnson v. United States, 387 A.2d 1084, 1086 (D.C.1978) (en banc).