Salmon v. United States

719 A.2d 949, 1997 D.C. App. LEXIS 262, 1997 WL 703058
CourtDistrict of Columbia Court of Appeals
DecidedNovember 13, 1997
Docket96-CM-1131
StatusPublished
Cited by33 cases

This text of 719 A.2d 949 (Salmon v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salmon v. United States, 719 A.2d 949, 1997 D.C. App. LEXIS 262, 1997 WL 703058 (D.C. 1997).

Opinions

SCHWELB, Associate Judge:

Edward Salmon was convicted by an eleven-member jury of one misdemeanor count of threats to do bodily harm to his wife, Charlene Wilson, in violation of D.C.Code § 22-507 (1996). On appeal, Salmon contends that the trial judge abused her discretion by excusing a juror after deliberations had commenced and by permitting the trial to proceed with a jury of eleven. We affirm.

I.

THE EVIDENCE

The trial in this case began on the morning of July 1, 1996. The prosecution presented evidence showing that on the evening of September 23, 1995, the young couple1 were entertaining friends at a dinner party celebrating Ms. Wilson’s birthday. The festivities did not go smoothly. One of the guests at the party turned out to be the father of one of Ms. Wilson’s three children by men other than Salmon; the man’s presence apparently displeased the defendant. Later, Salmon handed a female guest a plate, prompting Ms. Wilson to inquire rhetorically whether he was a “fucking waiter.” The evening thus ended with the principal protagonists on less than cordial terms.

On the following morning, Cynthia Gates, a friend of Ms. Wilson, arrived at the apartment to accompany Ms. Wilson on a shopping expedition. Salmon asked his wife where she was going. Ms. Wilson responded, in effect, that Salmon should not worry about it. Ms. Wilson testified that her husband, who had caught “an attitude,” grabbed her by the collar, pushed her against some loudspeakers,- and stepped on her toes. Ms. Wilson pushed him away; Salmon claimed that she brandished an iron.

Displeased by this turn of events, Salmon left the apartment, picked up a large cinder block, and threw it at or towards the apartment door. Ms. Wilson called 911, complaining of an “unwanted guest,” but not identifying the man as her husband. Meanwhile, according to the testimony of Cynthia Gates and of Lakesha Hines, a neighbor of Ms. Wilson, Salmon, who had briefly left the area of the building but had then returned, threatened that he would shoot Ms. Wilson and yelled that he was going to “blow that motherfucker up.” Ms. Gates testified that Salmon moved his hand into his jacket, leading her to fear that he might be reaching for a pistol. Ms. Gates passed on this information to Ms. Wilson, who called 911 again and reported that the man about whom she had complained now had a gun. Shortly thereafter, officers arrested Salmon and found him to be unarmed.

Salmon’s defense was “provocation.” He testified in his own behalf. He admitted that he had threatened to kill his wife, but claimed that he had done so only in response [951]*951to her threats to kill him.2 He explained that “[e]motion speaks my head” and that “anybody [will] say anything when they [are] mad.”

At the conclusion of the prosecution case, and again after both sides had rested, Salmon moved the court for judgment of acquittal; both motions were denied. Counsel presented their closing arguments3 and, at 4:20 p.m., the judge excused the jurors, explaining that she would deliver her final instructions at 10:30 a.m. on the following day, Tuesday, July 2,1996.

On the Tuesday morning, the judge charged the jury as promised. She excused the alternates, and the jurors began their deliberations at 10:55 a.m.

II.

THE DECISION TO EXCUSE JUROR NO. 2

At 12:45 p.m., less than two hours after deliberations began, the judge received a note from one of the jurors. The note read as follows:

It is not[4] clear that we are near the end of our deliberations. I have a 5:15 flight from Dulles and need to leave here not late[r] than 3:00. What to do?
Juror No. 2

The judge immediately called in the attorneys to discuss the juror’s note. She directed counsel’s attention to the then-recent enactment of the Jury Trial Amendment Act of 1994 (JTAA), D.C. Law 10-232, which provides in pertinent part that

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.

D.C.Code § 16-705(c) (1997).5 During a brief preliminary discussion of the situation, the prosecutor raised the possibility that further deliberations might be deferred until Monday, July 8, if the juror would be back by then. The prosecutor acknowledged, however, that the jurors might forget some of the testimony if the court were to proceed in this manner. The judge agreed with this concern, and added that there was also the danger “that one of [the jurors] might not come back.”

The judge then called in Juror No. 2 to obtain some elaboration of his circumstances. The juror disclosed that his aunt, who had raised him when he was a child, had died in California the previous night. He explained that he would have to leave that evening (Tuesday, July 2) in order to attend the funeral, which was to be held at 11 a.m. on July 3 in a small town “a flight out of L.A.” [952]*952In response to a question from the judge, Juror No. 2 stated that he expected to return to Washington on Thursday, July 4, so that he would be available on Friday, July 5. After a further telephone inquiry with the airline to determine if he could defer his departure, the juror stated that the last flight to California that he could take that evening left Dulles Airport at 5:14 p.m.

The judge asked the attorneys if they wished to pose any questions to Juror No. 2, but both declined. After ordering the juror to return to the jury room, the judge directed counsel to state their positions as to what action she should take. Salmon’s attorney reported that he had discussed the issue with his client, and he said that the defense would “insist” that Juror No. 2 remain on the jury. Claiming that the phrase “extraordinary circumstances” in the JTAA was ambiguous, defense counsel argued:

I would think that it would mean death of the juror, illness, bad health and extreme circumstances of [the] juror — him, not some other circumstance which is related to the death of — however sympathetic — of a close relative.

(Emphasis added.) Counsel also asserted that “despite the rule change, I think that he’s entitled to have a twelve-person jury under the Constitution, and he’s entitled to [a] unanimous verdict.” He contended that this right could not be waived through a “Rule amendment.”

The prosecutor’s position was to the contrary: “I think that this juror has to be released and that we should go forward with eleven jurors.” He argued that “[t]his is the exact ease that the amendment had in mind when it was passed,” because “what’s more extraordinary than a death?” Noting that the Supreme Court had held a six-member jury to be sufficient for constitutional purposes,6 the prosecutor asked the court to invoke the JTAA and to permit the remaining jurors to proceed to verdict.

The judge agreed with the prosecutor.

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Cite This Page — Counsel Stack

Bluebook (online)
719 A.2d 949, 1997 D.C. App. LEXIS 262, 1997 WL 703058, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salmon-v-united-states-dc-1997.