Gause v. U.S., No. 06-CF-20.

• Docket Nº: No. 06-CF-47.
• Citation: 959 A.2d 671
• Case Date: October 30, 2008
• Court: Court of Appeals of Columbia District

959 A.2d 671 Larry A. GAUSE, Karlepa Wilkey, Appellants,
v.
UNITED STATES, Appellee. No. 06-CF-20. No. 06-CF-47. District of Columbia Court of Appeals. Argued June 17, 2008. Decided October 30, 2008.

[959 A.2d 673]

Mikel-Meredith Weidman, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant Gause.

Peter H. Meyers, Washington, appointed by the court, for appellant Wilkey.

Mary B. McCord, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III and Valinda Jones, Assistant United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.

SCHWELB, Senior Judge:

Following a jury trial, Larry A. Gause and Karlepa Wilkey were convicted of armed robbery of a senior citizen and of several related weapons offenses. On appeal, appellants contend, as they did in the trial court, that the trial judge erred by denying Gause's request for discovery, joined by Wilkey, relating to jury-selection records and certain other jury information. The judge denied Gause's motion (the Jury Motion), as well as Gause's request for discovery, upon the ground that Gause had failed to present a prima facie case in support of his claim that the Superior Court's system for the selection of jurors violates the Fifth and Sixth Amendments and the District of Columbia Jury System Act (DCJSA), D.C.Code §§ 11-1901 et seq. (2001). In its brief to this court and at oral argument, the government, while urging affirmance on other grounds, has expressly agreed with appellants' position that no showing of a prima facie case was required.

Given the posture of the case as it has been presented to us, we agree that the Jury Motion was erroneously denied, at least on the grounds stated by the judge.¹

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We remand the case to the trial court for reconsideration of appellants' request for discovery in conformity with the legal principles set forth in this opinion.

In his brief on appeal, Wilkey has presented several other claims. Gause has not joined in any of Wilkey's separate contentions, and none of them warrants reversal of Wilkey's conviction. See footnote 17, infra.

I. THE EVIDENCE

The government's evidence showed that on July 1, 2005, two men, who were later identified as Wilkey and Gause, robbed John Jeffers, then sixty-three years of age, at an ATM machine in southeast Washington, D.C. They took Jeffers' wallet, as well as the twenty dollar bill that he had withdrawn from the ATM. One of the robbers—apparently Wilkey—was armed with a sawed-off shotgun, which was wrapped in a newspaper. The robbers fled, and Jeffers called 911 from a nearby convenience store. An officer responded, and Jeffers provided a description of the robbers. The officer promptly relayed that description over a police radio channel.

A short time later, a second officer observed two men, who roughly fit the description provided by Jeffers, at a location approximately four blocks from the scene of the robbery. The officer, who was wearing a police badge, made eye contact with the men, and he began to alight from his unmarked police vehicle. The two men "took off running." The officer gave chase, but he lost sight of them as they were nearing a creek bed.

Several other officers established a perimeter around the creek bed, and they began to search for the robbers. The officers soon found Wilkey and Gause, who were attempting to hide and were lying side-by-side under some bushes. On or near the two men, the officers found a variety of articles of clothing which matched the clothing description provided by Jeffers. Although neither robber was wearing a certain distinctive T-shirt described by Jeffers, that T-shirt was recovered by the police in the immediate area. The officers also found Jeffers' wallet, the contents of which—including a credit card,

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a social security card, and other identification—were scattered on the ground nearby. The officers further recovered a sawed-off shotgun. Finally, in Gause's pocket, the police found the victim's "lucky" two dollar bill. At a show-up shortly after the robbers' apprehension, Jeffers positively identified Wilkey as "the guy in my face" at the time of the robbery, and he said that Gause "looked like" the other robber, although he was wearing different clothes. Jeffers then stated: "But you know, I'm pretty sure he [Gause] is the guy . . . that picked up my money."²

A few days after the robbery, while both Wilkey and Gause were being detained in jail pending trial, Jeffers called the police and reported that, while he was in his car and stopped at a traffic light, he saw the two men who had robbed him walk in front of his vehicle. He said that one of the men pointed at him and that he (Jeffers) felt threatened. A defense investigator testified that he visited Jeffers at his home for 2 ½ hours, and that Jeffers signed a statement in which he expressed certainty that the two men who walked in front of his car were the robbers. Although this denouement put the government in the unusual position of arguing that a complainant's identification at a supposed second (or really third) sighting was un reliable, the jury found both defendants guilty of all charges. Each man was sentenced to serve a substantial prison term. These consolidated appeals followed.

II. LEGAL ANALYSIS

A. Standard of review.

The principal question presented in these appeals is whether the trial judge correctly denied appellants' Jury Motion and their request for discovery because, in the judge's view, Gause had failed to present, in support of his motion, a prima facie case of a violation of the Constitution or of the DCJSA. Although many discovery issues are confided to the trial court's sound discretion, see, e.g., Beaner v. United States, 845 A.2d 525, 536 (D.C.2004); Gibson v. United States, 566 A.2d 473, 478 (D.C.1989) (citations omitted), the dispositive question here-the standard under which that court should determine whether the appellants were entitled to discovery of the requested jury materials—is one of law, and we review the trial judge's decision de novo.

B. The Jury Motion.

In his Jury Motion, Gause (subsequently joined by Wilkey) claimed that the Superior Court system for selecting juries "produces jury venires that do not reflect a fair cross-section of the community and systematically excludes African Americans," in violation of the Fifth and Sixth Amendments and the DCJSA. In support of his motion, Gause filed, inter alia, an affidavit by Richard Seltzer, a Professor of Political Science at Howard University who specializes in statistical analysis of jury composition. Based on the data available to him, including information regarding venires in several other cases, Dr. Seltzer stated that the average percentage of black jurors in the Superior Court venires observed by him and his investigators on Mondays was 52.2%, and that in one Monday case³ the percentage of black jurors was only 22.8%. According to Dr. Seltzer, the general population

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of the District was 60% black,⁴ and the disparities that he found on Mondays—7.8% and 37.2%—were statistically significant. Based on his preliminary study, Dr. Seltzer concluded that some jury venires are not representative either of the community or of the jury wheel. He explained that he needed access to the jury records to determine whether these disparities were representative of Superior Court venires generally and to identify the source or sources of any disparities.

In further support of the Jury Motion, Gause presented observations made by Honorable Henry F. Greene, the presiding judge in the Gooden case. Judge Greene stated that he had been advised by two court officials familiar with jury selection procedures that it was the practice of the Juror Office to "let any juror who is summoned for jury service and for whom [the initially scheduled] date is inconvenient to reschedule at least once, without even having to get the approval of a judge. . . . [I]t has become the overwhelming choice of jurors who wish to reschedule to reschedule for Mondays." The judge was also informed that some socio-economic groups, apparently including professionals, a high percentage of whom were white, "have a higher rate of rescheduling than other jurors," which may have resulted in a racial disparity among the jurors reporting on Mondays.

In his motion, filed (as we have noted) six days before trial, with a weekend in between, see footnote 1, supra, Gause focused primarily on the alleged underrepresentation of black jurors on Mondays. He asked the trial judge to stay the trial, to set a hearing for the substantive jury motion, and to order the Clerk of the Superior Court to provide to his counsel, for the preceding five years, or for whatever shorter period as to which the requested materials were available,

(a) "all documents and computer tapes" relating to the master jury wheel,

(b) "all documents and computer tapes" containing personal information about all persons summoned for jury service, and

(c) "all documents relating to the development of the current jury system and plan"

Gause also requested the court to order the Clerk to make available for interview by his counsel

all jury office officials and staff and the staff of any agency designated by the Jury Plan to provide names to the jury office for inclusion in the master jury wheel.

When the case was called for trial, the judge orally denied the Jury Motion without hearing from the government. Without objection, the judge treated the motion as having raised solely a claim concerning the racial makeup of jury panels on Mondays. Gause claimed that these panels were disproportionately white because "professionals, who tend to be white, ask to be deferred," and that they are then given Mondays to come back to court. The judge...