Waller v. United States

• Decision Date: 05 July 1978
• Docket Number: No. 10924.,No. 10964.,No. 10881.,10881.,10924.,10964.
• Citation: 389 A.2d 801
• Parties: Dewayne WALLER, Appellant, v. UNITED STATES, Appellee. Amerigo B. GASKINS, Appellant, v. UNITED STATES, Appellee. Jacob E. PATTERSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

389 A.2d 801

Dewayne WALLER, Appellant, v. UNITED STATES, Appellee.

Amerigo B. GASKINS, Appellant, v. UNITED STATES, Appellee.

Jacob E. PATTERSON, Appellant, v. UNITED STATES, Appellee.

No. 10881.

No. 10924.

No. 10964.

District of Columbia Court of Appeals.

Argued April 11, 1978.

Decided July 5, 1978.

Rehearing En Banc Denied August 17, 1978 in Nos. 10881 and 10964.

COPYRIGHT MATERIAL OMITTED

Wilhelmina Reuben Cooke, Washington, D. C., appointed by this court, with whom Arthur F. Mathews and Lynn Bregman, Washington, D. C., were on the briefs, for appellant Waller.

Frederick J. Sullivan, Bowie, Md., appointed by this court, for appellant Gaskins.

Peter Chatilovicz, Washington, D. C., appointed by this court for appellant Patterson, adopted the briefs of appellant Waller, but did not participate in argument.

E. Thomas Roberts, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee. Jonathan Lash, Asst. U. S. Atty., Washington, D. C., also entered an appearance for appellee.

Before KELLY, KERN and YEAGLEY, Associate Judges.

YEAGLEY, Associate Judge:

On March 25, 1976, following a two-week jury trial, appellants were each found guilty of felony murder, first-degree burglary while armed, attempted armed robbery, three counts of armed robbery, three counts of assault with intent to commit robbery while armed, and assault with a dangerous weapon. Appellant Waller alone was found guilty of carrying a pistol without a license.¹

The events which resulted in these convictions took place on February 18, 1975 in the vicinity of 14th and Girard Streets, N.W. At approximately 2 a. m., appellants and Channeta Patterson² encountered Robert Reid, with whom they were not acquainted, and asked him where they could purchase some drugs. Reid told appellant Patterson that he would make a purchase for them and instructed appellant Patterson and his companions to await his return in their car across the street. Instead, appellants waited until Reid had entered a nearby building, and then alighted from the car. Appellants armed themselves — appellant Patterson with a sawed-off shotgun, appellant Waller with a pistol, and appellant Gaskins with a knife. The men entered the building and forced their way into the apartment to which Reid had gone. When they announced a robbery, occupant James Granby started to run. Appellant Waller shot at him and missed as Granby locked himself in the bathroom. Appellant Patterson ordered Reid to bring Granby to him. Reid complied. Patterson demanded narcotics from Granby, and when the latter hesitated, hit him on the head with the butt end of his shotgun. As Granby lay on the floor, semiconscious, Patterson put the shotgun to his chest and killed him.

Appellants rounded up the remaining eight occupants of the apartment, took their money, and departed to the car in which Patterson's wife Channeta, was waiting.

Appellant Patterson was arrested five weeks later, following a photo identification of him. He and Channeta Patterson gave statements admitting their involvement in the offenses and identifying appellants Waller and Gaskins as their coparticipants. Channeta Patterson so testified at trial. Her testimony was corroborated by testimony of five of the victims, at least one of whom identified each appellant. Only appellant Gaskins denied his involvement; his denial is restated here and is addressed in section IV, infra.

I

Appellants Waller and Gaskins contend³ that the trial court committed reversible error in denying their motions for a mistrial because the government failed to rebut the presumption of prejudice arising from an unauthorized communication with a juror. They further contend that the voir dire examination of jurors conducted by the court in this connection was insufficient to ascertain the extent to which they were prejudiced by the unauthorized communication.

On March 15, 1976, following four days of trial, it became necessary to recess proceedings for one week. As the jurors were leaving the courthouse, a man approached alternate juror Annie Gordon and said, "you had better not find him guilty." Ms. Gordon told juror Julia Ferguson what had happened, and then immediately reported the incident to the trial court.

When trial reconvened the following Monday, the trial court segregated Ms. Gordon from the other jurors and informed all counsel of the incident. Ms. Ferguson was questioned and revealed that when Ms. Gordon had failed to appear in the jury room that morning, she told two other jurors that "somebody had said something to [Ms. Gordon]." Ms. Ferguson said that she had not disclosed to her cojurors the nature of the statement. It was confirmed that at least two other jurors had indeed become aware that Ms. Gordon had been approached. The trial court proceeded to voir dire the entire panel one at a time, and asked each juror three questions:

(1) Have you discussed this case with anyone, or has anyone discussed this case with you?

(2) Have you heard anyone else discuss it?

(3) Do you feel, at this time . . . that you may continue to serve as a fair and impartial juror in this case, without any prejudice or bias, or without any fear?

None of the jurors expressed doubt that they could continue serving impartially. The trial court excused Ms. Gordon because she had to be questioned as part of a police department investigation of the threat, and made the following findings:

Well, based on my voir dire of each and every member of this jury, it's my determination, at this time, that the extent of the problem is minor, and small, and of limited significance, if any. Neither the juror to whom this remark was addressed, nor anyone that she has come in contact with, has placed undue emphasis on the remark. Nor, has it substantially affected this juror, or anyone to whom she has spoken.

The nature of the problem, otherwise, is speculative, at best, in terms of what was said, by whom, under what circumstances, and when. I found no occasion on the part of any member of the jury, that they knew precisely, or had a distinct and definite understanding of what was done, or what was said, or by whom, or when, or under what circumstances.

Further, it's my finding, based upon each and every juror's answers to my questions, and my ability to see and view their demeanor, and I find, at this time, that each and every one of those jurors, including the lady to whom that remark was apparently addressed, is able and willing to continue in this case, as a fair and impartial juror. Without any prejudice or without any bias, and without any fear.

And so, on that basis, the motion for mistrial, with respect to each and every one of these defendants, will be denied, at this time.

It is well settled that

[i]n a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about a matter pending before the jury is . . . deemed presumptively prejudicial. . . . The . . . burden rests heavily upon the government to establish . . . that such contact with the juror was harmless to the defendant.

Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954); accord Mattox v. United States, 146 U.S. 140, 138 S.Ct. 50, 36 L.Ed. 917 (1892); United States v. Burke, 496 F.2d 373 (5th Cir.), cert. denied, 419 U.S. 966, 95 S.Ct. 229, 42 L.Ed. 182 (1974). Where an unauthorized communication with one or more members of the jury is brought to the trial court's attention during trial, and the presumption of prejudice to the defendant is not rebutted, the trial court must declare a mistrial. Mattox v. United States, supra; United States v. Evans, 542 F.2d 805 (10th Cir. 1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1124, 51 L.Ed.2d 550 (1977); United States v. Burke, supra; Ryan v. United States, 89 U.S.App.D.C. 328, 191 F.2d 779 (1951), cert. denied, 342 U.S. 928, 72 S.Ct. 368, 96 L.Ed. 691 (1952).

At the same time, appellate courts have long reviewed such trial court determinations by reference to whether discretion was abused, Hammond v. United States, D.C.App., 345 A.2d 140 (1975), and have recognized that "[t]he question of prejudice [is] one about which [the trial court is] especially competent to render a sound opinion." Ryan v. United States, supra, 89 U.S.App.D.C. at 331, 191 F.2d at 782. In examining the soundness of the trial court's opinion, appellate courts have considered particularly important the inquiry conducted by the trial court on the question of prejudice. That was our basis for affirming the trial court's denial of appellant's mistrial motion in Hammond v. United States, supra. There, appellant's father appeared in court inebriated, and was escorted by a marshal from the courthouse. Appellant then engaged the marshal in a shouting match, and was physically removed from the courtroom. The jury observed this. The trial court thereafter called the jurors to the bench individually to determine if they could reach a fair verdict, and, satisfied with their affirmative replies, permitted the trial to continue.

In United States v. Evans, supra, a series of bizarre incidents triggered the necessity for the trial court's inquiry of the jury. First, a juror received a letter signed in the name of appellant. Then, a bomb threat was received at the courthouse, of which the jury became aware. Finally, a defense witness assaulted a juror in tile jury box. Repeated motions for mistrial were denied; the denials were affirmed on appeal. "The jury was questioned extensively about the effect of the incidents. They repeatedly responded [it] would have no effect on their impartiality." Id. at 815.

Ryan v. United States, supra, involved a motion for a new trial raised because of conversations which had taken place between the prosecutor and several jurors during a recess. In affirming denial of a new trial motion, ...