Kingsbury v. U.S.

• Decision Date: 21 January 1987
• Docket Number: No. 84-1731.,84-1731.
• Citation: 520 A.2d 686
• Parties: William I. KINGSBURY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

520 A.2d 686

William I. KINGSBURY, Appellant, v. UNITED STATES, Appellee.

No. 84-1731.

District of Columbia Court of Appeals.

Submitted November 21, 1986.

Decided January 21, 1987.

Joan F. Gauche, Washington, D.C., for appellant.

Joseph E. diGenova, U.S. Atty., Michael W. Farrell, and Jerry D. Massie, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before TERRY and ROGERS, Associate Judges, and REILLY, Senior Judge.

ROGERS, Associate Judge:

Appellant appeals his conviction of burglary in the second degree, D.C.Code § 22-1801(b) (1981), and theft in the first degree, D.C.Code §§ 22-3811, 3812(a) (1986 Supp.), on the ground he was denied his sixth amendment right to a jury trial because a juror in his trial was not a resident of the District of Columbia and therefore was unqualified to sit. Specifically, he argues that the applicable representative cross section provision, contained in 28 U.S.C. § 1861 (1982), is a critical aspect of the right to a jury trial and that any deviation from the statutory requirement is a violation of his sixth amendment right to a jury trial. We disagree and affirm.

I

The jury began its deliberations on October 25, 1984. Before it retired for the evening it sent a note to the trial judge asking whether it could find appellant Kingsbury guilty if it had a reasonable doubt about whether he had been inside the complainant's house. The next day, after the jury had begun deliberations, the trial judge and counsel began to discuss the jury note. Before a decision had been reached on the instruction to be given the jury, a representative from the Jury Commissioner's office appeared and stated in open court that juror number 4, who was presently deliberating with the entire jury, was a resident of Maryland and therefore not a qualified juror.¹ Defense counsel requested a voir dire of the juror. The trial judge instead instructed the jury in response to its note of the previous day and ordered the jury to continue deliberating. The judge then ordered a short recess to allow the parties to research the juror qualification issue on the assumption that juror number 4 was a Maryland resident, and to determine whether there could be agreement to proceed with an eleven member jury.

After the recess, defense counsel again requested that juror number 4 be made available for voir dire. The trial judge denied the request, and defense counsel stated that juror number 4 was not a qualified juror. As this discussion was proceeding, the judge received a note indicating that the jury had reached a verdict. Defense counsel restated his position that juror number 4 was not qualified, and moved for mistrial. The trial judge, who had previously indicated he thought juror number 4 would have to be excluded from the jury, denied the motion. The jury returned its verdict and was polled; all jurors expressed agreement with the verdict. Afterward the trial judge permitted a brief voir dire of juror number 4, who stated that he had lived in Maryland the preceding two years, had previously lived in the District of Columbia, and that his mother continued to live in the District of Columbia. Defense counsel again moved for a mistrial, which the court denied.

II

Appellant Kingsbury contends that the inclusion of a juror from Maryland violates the fair cross section requirement of 28 U.S.C. § 1861 (1986 Supp.), which provides that "[i]t is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes."² 28 U.S.C. § 1865(b)(1) (1986 Supp.) also provides that a person shall be qualified to serve on a grand or petit jury in the District Court unless he or she "is not a citizen of the United States eighteen years old who has resided for a period of one year within the judicial district." These sections are made applicable to the District of Columbia by D.C.Code § 11-1901 (1981), which provides that "[j]urors serving within the District of Columbia shall have the same qualifications as provided for jurors in the Federal courts." Because juror number 4 was a resident of Maryland, Kingsbury undeniably did not receive a trial before a jury drawn from the "district or division wherein the court convenes."

The relevant procedures for challenging jury composition or selection methods under the federal statute are set forth in 28 U.S.C. § 1867(a) (1986 Supp.). These procedures are made applicable to the District of Columbia by virtue of D.C.Code § 11-1902, which provides for

a single system in the District of Columbia for the selection of jurors for both Federal and District of Columbia courts. The selection system shall be that prescribed by Federal law and executed in accordance therewith as provided by the United States District Court for the District of Columbia.

Arguably, this incorporation is limited to the actual selection methods and standards, and does not extend to the procedures for challenging statutory noncompliance. This interpretation is unsupportable, however, in light of the clearly evidenced preference for uniformity of jury rights in the District of Columbia. CI Sweet v. United States, 449 A.2d 315, 325 (D.C. 1982) (applying 28 U.S.C. § 1863(b)(5), which excludes attorneys, teachers, clergy, physicians, dentists and nurses from jury duty); Obregon v. United States, 423 A.2d 200, 207-09 and n. 19 (D.C. 1980), cert. denied, 452 U.S. 918, 101 S.Ct. 3054, 69 L.Ed.2d 422 (1981). The lack of any specific District of Columbia Code provisions for challenging noncompliance also supports this conclusion. Finally, it would be anomalous to allow the defendant to raise a challenge based on specific statutory guarantees without requiring compliance with the express procedural requirements contained within that statute.

In any event, the terms of 28 U.S.C. § 1867(a) represent sound and persuasive authority for this court to adopt. This section states that:

In criminal cases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury. [Emphasis supplied.]

Defendants have little basis to complain that a new trial should be granted because of a juror disqualification³ when they had every opportunity to discover facts they consider important before the trial began.⁴ See Super.Ct.Crim.R. 24(a).

We hold that Kingsbury has failed to make a timely challenge to this noncompliance and has therefore waived his rights under the statute. Specifically, Kingsbury was required under 28 U.S.C. § 1867(a) to challenge the qualification of juror number 4 at the voir dire even though he did not learn of the Maryland residency until the jury had begun its deliberations. United States v. Silverman, 449 F.2d 1341, 1344 (2d Cir. 1971) (inability to read English), cert. denied, 405 U.S. 918, 92 S.Ct. 943, 30 L.Ed.2d 788 (1972); United States v. Young, 570 F.2d 152, 153 (6th Cir. 1978) (procedural requirements strictly enforced); United States v. Webster, 639 F.2d 174 (4th Cir.), cert. denied, 454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981). Compare United States v. Price, 573 F.2d 356, 361 (5th Cir. 1978) (nonwaiver of challenge for cause on ground of prejudice due to jury service between voir dire and commencement of trial; statute not applicable). The seven day period in the statute applies only when the defendant knew, or should have known through the exercise of diligence, of the objectionable facts more than seven days prior to the voir dire.⁵

III

Although Kingsbury has waived his right to challenge the substantial failure to comply with the statute, he can nonetheless rely on these same facts to challenge on constitutional grounds the failure of the trial judge to grant a mistrial. Silverman, supra, 449 F.2d at 1344; United States v. Northside Realty Associates, 510 F.Supp. 668, 678 (N.D.Ga.), rev'd on other grounds, 659 F.2d 590 (5th Cir. 1981), cert. denied, 456 U.S. 936, 102 S.Ct. 1993, 72 L.Ed.23d 456 (1982). The applicable constitutional standards, however, are far less favorable to his position.

Under the sixth amendment it is well-settled that the "inclusion in the panel of a disqualified juror does not require reversal of a conviction unless there is a showing of actual prejudice." Silverman, supra, 449 F.2d at 1344; see also United States v. Crockett, 514 F.2d 64, 69 (5th Cir. 1975) ("statutory disqualification of one of the jurors"). The "actual prejudice" standard refers not to the question whether there was sufficient evidence to make a different outcome likely,⁶ but rather to the issue whether the defendant has effectively been denied his or her right to a jury trial. Because a residential disqualification does not create "fundamental incompetence," the government reasons, this rule should be applied even when the disqualification comes to light during the jury's deliberations rather than after the verdict. In either circumstance, the government continues, the disqualification could not reasonably "have adversely affected the challenged juror's ability to decide a case intelligently." Silverman, supra, 449 F.2d at 1344; compare Khaalis v. United States, 408 A.2d 313 (D.C. 1979) (alleged mental incompetence), cert. denied, 444 U.S. 1092, 100 S.Ct. 1059, 62 L.Ed.2d 781 (1980). Thus, the government concludes, only a sterile formalism would require the court to undo an entire trial and declare a mistrial. See United States v. Benedetti, 587 F.2d 728, 729 (5th Cir. 1979) (nondisclosure of juror relationship; some possibility of prejudice must nonetheless be shown).⁷ We ...