Lee v. United States, 81-1300

• Decision Date: 29 December 1982
• Docket Number: No. 81-1379,No. 81-1390.,No. 81-1300,81-1300,81-1379,81-1390.
• Parties: Larry T. LEE, Appellant, v. UNITED STATES, Appellee. Alvin C. HINES, Appellant, v. UNITED STATES, Appellee. John P. McILWAIN, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 770

454 A.2d 770

Larry T. LEE, Appellant, v. UNITED STATES, Appellee.

Alvin C. HINES, Appellant, v. UNITED STATES, Appellee.

John P. McILWAIN, Jr., Appellant, v. UNITED STATES, Appellee.

No. 81-1300

No. 81-1379

No. 81-1390.

District of Columbia Court of Appeals.

Argued October 6, 1982.

Decided December 29, 1982.

Charles S. Carroccio, Jr., Washington, D.C., appointed by this court for appellant Hines.

Barbara R. Miller, Public Defender Service, with whom William J. Mertens, Public Defender Service, Washington, D.C., was on the brief, for appellant McIlwain.

Thomas P. Murphy, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., John A. Terry, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, and F. Joseph Warin, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Edward Gross, appointed by this court, Fairfax, Va., for appellant Lee.

Before NEWMAN, Chief Judge, and KERN and BELSON, Associate Judges.

KERN, Associate Judge:

Appellants challenge their convictions of second degree burglary while armed, D.C. Code 1981, §§ 22-1801, -8202, upon grounds, primarily, 1) that a mistrial should have been ordered when it appeared that one of the jurors was probably under the influence of alcohol during a part of the deliberations, and 2) that the trial judge erred in not making adequate inquiry into that juror's competence and the extent of the alleged insobriety. Finding no error, we affirm the convictions.

I

On December 18, 1980, the three appellants, armed with a gun, entered the offices of A.D.E., Inc., ("ADE"), a gold and silver jewelry business, and took $6000 cash and a large amount of jewelry from the operator, Allen Danneman, and an ADE employee, Lori Greenstein. Appellant Hines was arrested later that same day with $6000 cash, a collection of jewelry, and an imitation starter pistol in his coat and in a bag he had been carrying. Appellants Lee and Mcilwain were arrested later that day, after police officers had surrounded the house they were in and had conducted negotiations by telephone for their surrender.

At trial, the appellants conceded that they had entered the offices of ADE on the date in question and removed the property alleged to have been stolen. However, they asserted in defense that Danneman and Greenstein had consented to the "robbery" of ADE and had, in fact, hired the three of them (for $2000 apiece plus a quantity of jewelry) to stage the robbery as part of an insurance fraud scheme.

Trial had commenced in the Superior Court on July 22, 1981. On July 30, 1981, testimony was completed, closing arguments were heard, and the case was submitted to the jury late in the day. The jury deliberated for less than an hour that evening and were instructed to reassemble in the jury room by 9:15 the following morning. At approximately 10:20 the next day, Friday, the trial judge received a note from the jury stating that they "would like to change the foreperson of the jury due to the fact that the present foreperson seems somewhat unable to preside this morning." (Record at 1088.) The judge remarked at that point that his chambers had received a telephone call earlier that morning indicating that a juror (the foreperson) would be late. (Record at 1089.) Shortly thereafter, the judge stated that the marshal had indicated there might be a question as to whether or not that juror was intoxicated. (Record at 1091.)

The judge then held a separate voir dire of each member of the jury, beginning with the foreperson, who denied that she had been drinking, stated that she did not feel ill, and suggested that the note from the jury may have been prompted by her "a little bit too straightforward" personality. (Record at 1093-96.) Of the other jurors, nine stated their belief that the jury foreperson had been (variously) "a little intoxicated," "drinking," "under the influence of some kind," or "drunk." (Record at 1102-1117.) However, one juror stated that there was no indication that the jury foreperson had been drinking. (Record at 1100.) In response to questions concerning the foreperson's conduct in deliberations the day before and during the course of the trial, only two jurors stated a belief that the foreperson may have been drinking or intoxicated at any earlier time. Most of the jurors indicated that they had seen no evidence that the foreperson had been intoxicated the previous afternoon. However, several of the jurors stated their displeasure with the jury foreperson's overbearing personality during deliberations, suggesting that she had been "rude" and "unreasonable." (Record at 1088 and 1100.)

At the conclusion of the voir dire, the trial judge suggested that the appellants consider dismissing the foreperson and submitting the case to the remaining eleven jurors. Appellants decided against that course of action and instead moved for a mistrial. The court denied the motion, but ordered an immediate three-day recess for the weekend, stating a "hope" that the "offending juror [would be] perfectly sober and able to deliberate" on Monday morning. (Record at 1120.) The trial judge expressly asked the jury foreperson to "come back on Monday refreshed." (Record at 1127.) He said further that, when the jury reassembled on Monday morning, he would ask them to come into court, so that he could observe their demeanor to be assured that they were able to deliberate. (Record at 1124-25.) It is not disputed that the judge did look in on the jurors on Monday morning before they resumed deliberations and that he told counsel that he saw no disabilities. The jury then resumed deliberations with no further complaints or incidents.

Aside from the motion for a mistrial, which was denied, the appellants made no specific contemporaneous objections to the course of action taken by the trial court — the declaration of a recess, with the trial judge stating his intention to observe the jury's appearance prior to the resumption of deliberations. Nor had appellants objected to the scope of the court's inquiry into the problem of possible intoxication of the foreperson.

II

Appellants argue that the trial court erred in denying their motion for a mistrial on the basis of the apparent insobriety of the jury foreperson.¹ Appellants' argument amounts to a proposal for a per se rule that, whenever there are strong indications either of the use of intoxicating liquor by a juror, or of a juror's intoxication, during the course of jury deliberations, a mistrial is warranted.

However, in other cases involving similar allegations of misconduct this court has declined to adopt such a rule but has, instead, required a showing of some reasonable ground to suspect that the defendant was prejudiced by the behavior in question. E.g., Nelson v. United States, D.C.App., 378 A.2d 657 (1977). In the Nelson case, where it was argued that a juror's temporary absences from the deliberations had deprived the defendants of their right to a trial by jury, we noted that juror misconduct will not be tolerated if it has resulted in "substantial prejudice" to a defendant. Id. at 660 (emphasis added). We held in that case:

. . . not every irregularity in a juror's conduct compels reversal. The dereliction must be such as to deprive the defendant of the continued, objective, and disinterested judgment of the juror, thereby foreclosing the accused's right to a fair trial. "Id. (citations omitted).]

The showing of prejudice which we have required achieves a balance of the important competing interests at stake.² On the one hand is the right of the accused to have the charges against him or her fairly and competently considered; and the need to maintain public confidence in, and respect for, the integrity of the jury system. On the other hand are the interests of the parties in having the matter timely resolved; the need to avoid unnecessarily ordering new trials, at great expense of judicial resources, when there is no serious reason to believe that the accused has not had a fair and competent jury; and the dangers of the court's becoming excessively involved in, or exerting pressure upon, the jury's deliberative process. We will therefore adhere to the requirement of a showing of prejudice in the instant case.³

We conclude, further, that in the present case there is no serious reason to believe that the appellants were prejudiced by the jury foreperson's apparent inappropriate behavior. The jury deliberated for less than an hour on Thursday afternoon, during which time the evidence suggests that the foreperson was able to preside. There is insubstantial evidence that the jury foreperson was drinking earlier in the course of the trial or was more than simply overbearing prior to the second day of deliberations. On Friday morning, the foreperson was late arriving, but the jury was assembled for little more than an hour (from 9:15 until 10:20), during which time it appears they focused their attention on the selection of a new foreperson. It is thus doubtful that any significant deliberations occurred on Friday morning. As soon as the problem was brought to the court's attention, the voir dire was held and a recess was ordered; and on Monday morning, the trial judge concluded that the juror was sober and competent to consider the case before he permitted the jury to resume deliberations.

During this whole process, only one juror was involved, and only a short period of the deliberations was called into question. There is no evidence that any drinking actually occurred in the jury room or during the course of the trial, and the jury foreperson was not conclusively shown to have been intoxicated at the time of voir dire. The recess, coupled with the judge's checking in on the jury on Monday, both of which were done with the concurrence of appellants' counsel, foreclosed the possibility of prejudice. Under these circumstances, it cannot reasonably be said that the appellants were...