Lyons v. United States

683 A.2d 1066, 1996 D.C. App. LEXIS 197, 1996 WL 561974

Opinions

TERRY, Associate Judge.

This case arises from a murder for hire committed in the course of appellants’ cocaine-selling operation. After a three-week trial, a jury found appellant Lyons guilty of first-degree murder while armed,¹ assault with a dangerous weapon (ADW),² and conspiracy to distribute cocaine;³ appellant Cooper was found guilty of second-degree murder while armed,⁴ ADW, conspiracy to distribute cocaine, and carrying a pistol without a license.⁵ Both Lyons and Cooper appealed, and in Lyons v. United States, 606 A.2d 1354 (D.C.1992), a division of this court reversed their convictions and ordered a new trial. Although the division rejected most of their claims of error, it held that the government’s inadvertent failure to identify one of its witnesses during jury selection had violated appellants’ Sixth Amendment right to an impartial jury, and that appellants’ motion for a mistrial, made after this violation had come to light, should have been granted.

After the government filed a petition for rehearing or rehearing en bane, the division vacated its original opinion, granted the petition for rehearing, and instructed the parties in an order to file supplemental briefs “addressing the issue of whether the trial court’s denial of the motion for mistrial, based on the association between a juror and a government witness, was or could be harmless error. See, e.g., Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).” After considering the supplemental briefs and hearing further argument, the division concluded on rehearing that this error was not harmless; accordingly, it once again reversed and remanded for a new trial. Lyons v. United States, 645 A.2d 574 (D.C.1994).

The government once again sought rehearing en banc, which was granted. Lyons v. United States, 650 A.2d 183 (D.C.1994). Now, after additional briefing and argument on the peremptory challenge issue, the court en banc holds that errors adversely affecting the exercise of peremptory challenges are not structural errors within the meaning of Fulminante and, absent a showing of actual juror bias, do not require reversal per se. To the extent that this holding is inconsistent with language in prior opinions of this court, those decisions are hereby overruled. See, e.g., Wilson v. United States, 606 A.2d 1017, 1025 (D.C.1992); Cash v. United States, 553 A.2d 215, 217 & n. 3 (D.C.1989); Williams v. United States, 552 A.2d 510, 512 & n. 5 (D.C.1988); Wells v. United States, 515 A.2d 1108, 1111 (D.C.1986). We further conclude, on the facts of this case, that the trial court’s denial of appellants’ motion for mistrial was not reversible error.

I

Appellants operated a cocaine-selling business in the area of North Capitol and O Streets, Northwest. Lyons would cut, package, and supply cocaine to other persons known as “runners,” who would then sell the drug on the street. Cooper was one of Lyons’ intermediate distributors as well as a runner. Sometime in the summer of 1985, Stephen Royster, also known as Rex, began to cause problems for appellants by stealing cocaine from them and their runners. Finally, in early February 1986, Lyons ap proached Daniel Roy and offered him money and cocaine to kill Royster. After initially hesitating, Roy accepted the offer.⁶

On February 26 Roy was selling cocaine for Lyons on North Capitol Street when Royster approached him and asked where Lyons was. Roy replied that Lyons was around the corner, and Royster went to talk with him. Roy then told another runner, Derrick Wimple, to “go get the pistol” because, Roy testified, he “figured that was the time” to kill Royster. Wimple went to Cooper’s house, which was a short distance away on North Capitol Street, and there Cooper gave him a .38 caliber revolver. He brought the gun back to Roy, who then walked up to Royster on the street and shot him several times. After the shooting, Roy walked “nine steps” down the street to Cooper’s house, handed her the gun, and left the area. According to Roy’s testimony, Cooper was standing outside in front of her house and saw the shooting take place. Royster died two weeks later of his wounds.⁷

Jury selection in this case extended over two days. At the end of the first day, after nine jurors had been chosen, there were no more venire members left. Consequently, a new venire had to be summoned on the second day so that the remaining three jurors and three alternates could be chosen. A full voir dire of the second venire was conducted on the second day. Each day, as part of the voir dire of both venires, counsel for the parties identified, in person or by name, the witnesses who might be called during the course of the trial. On the second day of jury selection, however, the prosecutor named four additional witnesses whom he had not mentioned the previous day, one of whom was Detective James McCoy of the Metropolitan Police.

Very late in the trial, the court and all counsel learned for the first time that a juror selected on the first day of voir dire knew Detective McCoy, one of the government witnesses whose name had been inadvertently omitted by the prosecutor in his identification of the witnesses that day. About a half-hour after the jury began its deliberations, McCoy informed the prosecutor that he had recognized one of the female jurors when he had testified two days earlier.⁸ The prosecutor immediately reported this fact to the trial judge, who halted jury deliberations and held a hearing at which both the juror and Detective McCoy testified.

At that hearing the judge noted that the juror in question had been chosen on the first day of voir dire, and that on that day the prosecutor had not mentioned McCoy as a prospective witness, nor were the prospective jurors asked whether any of them had any relatives or close friends in law enforcement. The testimony established that five years earlier Detective McCoy had had a partner with whom the juror had been romantically involved, and that McCoy had seen the juror “on occasion” when his partner picked her up after work. The former partner had been married at the time of his relationship with the juror. McCoy said that he had not seen the juror and his former partner together for two years. He also explained that during his brief trial testimony he did not see the juror sitting in the jury box until he was leaving the witness stand, at which time she “just smiled” at him. The next day, McCoy testified, the juror had called his office and asked for his former partner. When McCoy responded by asking if the jury had reached a verdict, she said they had not, and the conversation ended. The juror testified similarly about the circumstances under which she and McCoy were acquainted and about the phone call.⁹

After the hearing, the juror was permitted to return to the jury room, and the jury resumed its deliberations. Counsel for both appellants moved for a mistrial on the ground that the juror was prejudiced, but they made no claim that they had been denied the opportunity to exercise a peremptory challenge. The court denied their motions.

II

Initially, we conclude that the prosecutor’s inadvertent failure¹⁰ to name Detective McCoy as a potential government witness on the first day of voir dire — when the juror who knew McCoy was chosen — prevented appellants from exploring possible juror bias and from excluding the juror by the use of a peremptory challenge.¹¹ The preferable cure for this abridgment of appellants’ right of peremptory challenge would have been to exclude the juror from the panel before the start of jury deliberations. If defense counsel, at the time Detective McCoy was sworn as a witness, had brought to the court’s attention the fact that McCoy had not been introduced to some of the jurors, the challenged juror could still have been replaced with an alternate.¹² Unfortunately, since neither the judge nor the prosecutor learned of the connection between the juror and Detective McCoy until after deliberations had begun, the only curative option available to the judge at that point was to grant the defense motion for a mistrial.¹³ Assuming solely for thé sake of argument, and without deciding, that the denial of that motion would have been error if appellants had claimed that they had been denied their right of peremptory challenge, we turn to the questions that prompted us to rehear this case en banc: Must we reverse appellants’ convictions regardless of their failure to show any prejudice, as our own precedents dictate? Or may we determine, in light of recent case law from the Supreme Court, that the (assumed) error was not plain error, and affirm the convictions?

More than a century ago, the Supreme Court said that the right to strike jurors without cause is “one of the most important of the rights secured to the accused.... Any system for the empanelling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of that right, must be condemned.” Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894). Following Pointer and other cases, this court has repeatedly held that although the right of peremptory challenge is not specifically guaranteed by the Constitution, it must be “regarded as necessary to a fair and impartial trial.” Wells v. United States, supra, 515 A.2d at 1110 n. 1 (citations omitted).¹⁴ Given the importance of this right, we held in Wells that if it is denied or impaired in a criminal case, “the defendant need not demonstrate prejudice to obtain reversal of a conviction.” Id. at 1111; accord, e.g., Williams v. United States, supra, 552 A.2d at 512. In light of recent Supreme Court case law, however, we are persuaded that this rule should be reconsidered.

In Arizona v. Fulminante, supra, the Supreme Court was called upon to decide whether the admission of a coerced confession might be harmless error. The Court concluded that it was, after reviewing its past decisions on the availability Of a harmless error analysis with respect to other types of error. In reaching its conclusion, the Court drew a clear distinction between mere “trial errors” and errors which amounted to “structural defects” in the trial itself. Discussing several cases in which it had found particular errors to be harmless, even harmless beyond a reasonable doubt,¹⁵ the Court said:

The common thread connecting these cases is that each involved “trial error”— error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.

Id. at 307-308, 111 S.Ct. at 1264 (Rehnquist, C.J.).¹⁶ In contrast, the Court observed that the relatively few cases in which it had ruled that certain errors were not harmless had involved “structural defects in the constitution of the trial mechanism,” e.g., deprivation of the right to counsel, trial before a biased judge, exclusion of members of the defendant’s race from the grand jury, the right to self-representation, and the right to a public trial. Id. at 309-310, 111 S.Ct. at 1264-1265 (citing cases). Such an error can never be harmless, the Court explained, because in each instance “[t]he entire conduct of the trial from beginning to end is obviously affected” by the error. Id. at 309-310, 111 S.Ct. at 1265. These latter “structural” defects are not amenable to the usual harmless error analysis because they “affect the framework within which the trial proceeds,”' unlike mere trial errors which affect only “the trial process itself.” Id. Without basic structural protections, the trial “ ‘cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’” Id. (quoting Rose v. Clark, 478 U.S. 570, 577-578, 106 S.Ct. 3101, 3105-3106, 92 L.Ed.2d 460 (1986)). Thus drawing the line between “trial errors” and “structural defects,” the Court concluded that the admission of a coerced confession was a “classic ‘trial error,’” Fulminante, 499 U.S. at 309, 111 S.Ct. at 1264, so that even the admission of a coerced confession might be harmless.

Critical to the Court’s distinction between these two types of errors is that the category of “structural defect” discussed in Fulmi-nante is limited to fundamental constitutional errors. The Court repeatedly referred to those defects it deemed “structural” as “constitutional errors,” “constitutional deprivations,” or “constitutional violations.” See, e.g., id. at 310, 111 S.Ct. at 1265. Subsequent decisions have made clear that Fulmi-nante ’s discussion of “structural defects” applied only to certain constitutional errors that were too fundamental to be harmless. See, e.g., United States v. Olano, 507 U.S. 725, 734-736, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993) (citing Fulminante as holding that constitutional error cannot be found harmless if it deprives defendant of “basic protections”); Brecht v. Abrahamson, 507 U.S. 619, 629-630, 113 S.Ct. 1710, 1717, 123 L.Ed.2d 353 (1993) (defining one end of “the spectrum of constitutional errors” as containing “structural defects” which require “automatic reversal ... because they infect the entire trial process,” whereas mere “trial errors” at the other end of the spectrum are “amenable to harmless-error analysis”). Other federal courts have followed the Supreme Court’s lead. See, e.g., Duest v. Singletary, 997 F.2d 1336, 1338 n. 3 (11th Cir.1993) (“Structural defects ... involve deprivations of constitutional protections so basic that in their absence no criminal trial can be deemed reliable”), cert. denied, 510 U.S. 1133, 114 S.Ct. 1107, 127 L.Ed.2d 418 (1994).

Since it has been settled for decades that the right of peremptory challenge is not a constitutional right at all, let alone a “basic” or “fundamental” constitutional right, see Stilson v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 29-30, 63 L.Ed. 1154 (1919), it follows from Fulminante that any error relating to the use of peremptory challenges cannot be regarded as a “structural defect.” Thus in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), the Court held that a trial court’s refusal to excuse a juror for cause (thereby forcing the defendant to use one of his remaining peremptory challenges), though erroneous, did not require reversal because the jury that actually heard the case was impartial. Despite the special importance historically attached to the right of peremptory challenge, the Court reiterated that “peremptory challenges are not of constitutional dimension,” but are simply “a means to achieve the end of an impartial jury.... [T]he fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.” Id. at 88, 108 S.Ct. at 2278. See also State v. Di Frisco, 137 N.J. 434, 470 & n. 1, 645 A.2d 734, 753 & n. 1 (1994) (holding that in order to win reversal, defendant must show that “a juror who was partial” sat as a result of loss of a peremptory challenge, and noting that several federal circuits and twenty-two states have held “that a peremptory challenge is not a fundamental constitutional right”). We therefore conclude that the abridgment of appellants’ right of peremptory challenge in this case does not warrant automatic reversal as a “structural” error.¹⁷

We turn next to the government’s argument that appellants must demonstrate plain error because their motion for a mistrial did not claim that their right of peremptory challenge was infringed by the continued presence of this particular juror on the jury. We agree with the government on this point. Appellants’ mistrial motion was based solely on their assertion that the juror was biased; the court found no basis for a mistrial and denied the motion. Whether appellants would have exercised one of their peremptory challenges against the juror had they known about her contact with Detective McCoy was an issue left entirely unexplored, notwithstanding their present assertion (see note 11, supra) that they would have struck the juror if they had known at the time that she was “acquainted with a government witness.” Moreover, this court has held that the belated discovery of information about a juror which would have caused the defendant to use a peremptory challenge against her is an insufficient basis for reversing the denial of a motion for a mistrial. Harris v. United States, 606 A.2d 763, 765-767 (D.C.1992). “The possible deprivation of the exercise of a peremptory challenge does not mandate reversal because the relevant issue is whether the juror was actually biased against the defendant.” Id. at 766 n. 5 (citations omitted). In this case the trial judge, although he did not expressly find that the juror was not biased, said at the end of the hearing that he was “not persuaded within a million miles that there is grounds for a mistrial.” Since the mistrial motion had been based solely on the assertion that the juror was or might be “influenced” by her contact with Detective McCoy, we read this statement as an implicit finding that she was not so “influenced” — i.e., that she was not biased.¹⁸

The plain error rule, Super. Ct.Crim. R. 52(b),¹⁹ has two components. First, in order to be “noticed” under the rule, an error must be “plain” — that is, “obvious or readily apparent.” United States v. Young, 470 U.S. 1, 16 n. 14, 105 S.Ct. 1038, 1047 n. 14, 84 L.Ed.2d 1 (1985); see United States v. Olano, supra, 507 U.S. at 734, 113 S.Ct. at 1777 (error must, at a minimum, be “clear under current law”)- Second, the rule states that the error must “affect[ ] substantial rights”— that is, it must be “so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.” Watts v. United States, 362 A.2d 706, 709 (D.C.1976) (en banc) (citations omitted); see Olano, supra, 507 U.S. at 734, 113 S.Ct. at 1778 (error “must have affected the outcome of the [trial court] proceedings”). Neither requirement is met here. As to the first, we need only observe that, in light of such cases as Ross v. Oklahoma and Harris v. United States, the supposed infringement of appellants’ right of peremptory challenge was neither “obvious” nor “clear under current law.” As to the second, we are satisfied that the fairness and integrity of the trial were not jeopardized. Not only was there no actual bias, but Detective McCoy’s testimony had no bearing on appellants’ guilt or innocence. McCoy testified only that on the date of the shooting he went to the 1400 block of O Street, N.W., and that after he arrived, he met Lyons. He testified further that he spoke to Lyons later in the Homicide Squad office at the police station, and that during this conversation Lyons told him he was employed. These matters were undisputed and of little or no significance. McCoy’s testimony consumed only a few minutes in a three-week trial. On this record we can find no basis for concluding that the trial court committed plain error.

In sum, we conclude that the circumstances surrounding the prosecutor’s inadvertent failure to identify Detective McCoy as a witness resulted in an abridgment of appellants’ right of peremptory challenge. We hold, however, that because the right of peremptory challenge is not a constitutional right, its violation must be viewed as a “trial error” and not a “structural defect” under Arizona v. Fulminante. We further hold that because the peremptory challenge issue was not raised below, it must be considered on appeal under the plain error rule. We find no prejudice affecting substantial rights, and hence no plain error.

The remaining issues on appeal are referred back to the division, whose opinion is issued simultaneously with this en banc opinion.

It is so ordered.

Footnotes

1

. D.C.Code §§ 22-2401 and 22-3202 (1989).

2

. D.C.Code § 22-502 (1989).

3

. D.C.Code § 33-549 (1993).

4

. D.C.Code §§ 22-2403 and 22-3202 (1989).

5

. D.C.Code § 22-3204 (1989).

6

. In accordance with a plea bargain, the government agreed to let Roy plead guilty to second-degree murder in return for his full cooperation in the investigation and prosecution of all the other persons involved in the shooting of Stephen Royster.

7

. Roy left town for several days after the shooting. After he returned to the North Capitol Street neighborhood, he ran into Lyons on the street one day. Lyons gave him $1500, but neither of them said anything to the other.

8

. Detective McCoy had testified very briefly at trial about a conversation he had had with Lyons in which Lyons had told him that he was employed.

9

. The juror's testimony was slightly inconsistent. At first she said that when McCoy asked her if the jury was still deliberating, "I asked him why, and then I hung the telephone up.” A moment later, however, she said, “He asked me ... had they voted, and I asked him why, then he hung the telephone up.... Hung up when I asked him why.” McCoy did not specifically say whether he or the juror terminated the conversation by hanging up the phone, but for the purposes of this appeal it does not matter.

10

. Appellants make no claim that the prosecutor deliberately, or in bad faith, failed to mention McCoy's name at the critical time during the voir dire. Nor is there any basis in the record for believing that his failure was anything other than inadvertent, as he said it was. We note that it was the prosecutor himself who first brought his own lapse to the court’s attention after McCoy told him that he had recognized the juror as he was leaving the witness stand; neither defense counsel nor the court had been aware of the omission until then.

11

. It is worth noting that appellants did not use all of their peremptory challenges, so that either of them could have struck the juror if the information about her prior acquaintance with Detective McCoy had been revealed during the voir dire. Indeed, appellant Lyons asserts in his brief, in an argument adopted by appellant Cooper;

From the pattern of peremptory challenges exercised, it appears certain that the defense would have stricken [the juror] had they known she was acquainted with a potential government witness. On the [first day of voir dire ], three jurors said they recognized police officers from the group of potential government witnesses; all three were stricken — one for cause and two through peremptory challenges.

Given the record before us and this specific claim by both appellants, we cannot conclude that the defense “would not have exercised its ... peremptory challenge if this juror's recognition of [McCoy] had been disclosed during voir dire.” Shannon & Lucks Management Co. v. Roberts, 447 A.2d 37, 44 (D.C.1982).

12

. In his separate opinion, Judge Ferren states that the prosecutor was "duty-bound” to introduce Detective McCoy to all prospective jurors before trial, that "everyone agrees” with this proposition, and that the prosecutor’s omission denied appellants "a basic protection inherent in the framework of a fair trial.” Post at 1075. The Superior Court’s Rules of Criminal Procedure, however, do not require the introduction of prospective witnesses, in person or by name, to prospective jurors. To the extent, if any, that the sound practice of introducing witnesses to the jury panel during voir dire may be viewed as mandatory, see, e.g., United States v. Brown, 799 F.2d 134, 136-137 (4th Cir.1986), such an obligation applies equally to the prosecution and to the defense.

13

. As Judge Ferren points out, however, post at 1078 n. 8, a 1995 statute now provides an alternative remedy. Under D.C.Code § 16-705(c) (1996 Supp.), "if, due to extraordinary circumstances, the court finds it necessary to excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of the court, a valid verdict may be returned by the remaining eleven jurors.” We need not decide whether the situation here gave rise to "extraordinary cir cumstances,” but note only that this statute was not in effect at the time of appellants’ trial.

14

.The right of peremptory challenge is protected by statute in the District of Columbia. See D.C.Code § 11-1908(b)(2) (1995) ("An individual summoned for jury service may be ... excluded upon peremptory challenge as provided by law”). See also Super. Ct.Crim. R. 24(b) (prescribing procedures for the exercise of peremptory challenges); Taylor v. United States, 471 A.2d 999, 1004 (D.C.1983) (rule "secures the right to challenge jurors without cause").

15

. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).

16

. In this portion of his opinion, Chief Justice Rehnquist was writing for a majority of the Court.

17

. We need not decide whether an error that would otherwise be reversible -per se is subject to a less stringent test when it is not objected to in the trial court. See United States v. Merlos, 303 U.S.App. D.C. 395, 8 F.3d 48 (1993), cert. denied, — U.S. -, 114 S.Ct. 1635, 128 L.Ed.2d 358 (1994).

18

. We are satisfied that the hearing which the judge held was sufficient to enable him to determine whether the telephone conversation between the juror and Detective McCoy showed that the juror was biased or whether the conversation itself might have engendered bias.

19

. Rule 52(b) states in its entirety:

Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.