LYONS v. U.S.

• Decision Date: 28 July 1994
• Docket Number: No. 89-CF-299,No. 89-CF-250,89-CF-250,89-CF-299
• Citation: 645 A.2d 574
• Parties: Richard L. LYONS, a/k/a Walter Lyons, Appellant, v. UNITED STATES, Appellee. Pamela K. COOPER, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

645 A.2d 574

Richard L. LYONS, a/k/a Walter Lyons, Appellant, v. UNITED STATES,Appellee.Pamela K. COOPER, Appellant, v. UNITED STATES, Appellee.

Nos. 89-CF-250, 89-CF-299.

District of Columbia Court of Appeals.

Reargued June 3, 1993.

Decided July 28, 1994.

APPEAL FROM THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, TRUMAN A. MORRISON, III, J.

W. Gary Kohlman, Washington, DC, for appellant Lyons. Brenda Grantland, MillValley, CA, was on the brief for appellant Lyons.

Daniel M. Schember, Washington, DC, appointed by this court, for appellant Cooper.

Roy W. McLeese, III, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher, Terence J. Keeney, and Peter R. Zeidenberg, Asst. U.S. Attys., Washington, DC, were on the brief, for appellee.

Before FERREN and TERRY, Associate Judges, and KERN, Senior Judge.

Opinion for the court by Associate Judge TERRY.

Concurring opinion by Senior Judge KERN at p. 20. ^*.

Former Chief Judge Rogers was a member of the division that heard oral argument and reargument in this case. After her departure from the court, Judge Kern was selected by lot to replace her.

TERRY, Associate Judge:

This case arises from a murder for hire committed in the course of appellants' cocaine-selling operation. Following a three-week trial, a jury found appellant Lyons guilty of first-degree murder while armed,¹ assault with a dangerous weapon (ADW),² and conspiracy to distribute cocaine;³ appellant Cooper was found guilty of second-degree murder while armed,⁴ ADW, conspiracy to distribute cocaine, and carrying a pistol without a license.⁵ Both Lyons and Cooper appealed, and in Lyons v. United States, 606 A.2d 1354 (D.C. 1992), we reversed their convictions and ordered a new trial. Although we rejected most of their claims of error, we held that the government's inadvertent failure to identify one of its witnesses during jury selection had violated appellants' Sixth Amendment right to an impartial jury.

The government filed a petition for rehearing, and in orders entered December 1 and 17, 1992, we vacated our original opinion, granted the petition for rehearing, and instructed the parties to file "supplemental briefs addressing the issue of whether the trial court's denial of the motion for mistrial, based on the association between a juror and a government witness, was or could be harmless error. See, e.g., Arizona v. Fulminante, 499 U.S. 279 [111 S.Ct. 1246, 113 L.Ed.2d 302] (1991)." Now, having considered the supplemental briefs and heard further argument, we conclude that this error was not harmless; accordingly, we once again reverse and remand for a new trial.

In the opinion that follows, parts I and II are expanded versions of the corresponding sections of our original opinion in this case. In part II we make explicit what was only implicit in our previous opinion (and in several others in the past): that any infringement of a defendant's right of peremptory challenge is reversible error per se, and that such error can never be harmless. The remainder of this opinion, parts III through VII, is substantially the same as before, with only a few minor changes.

I

Appellants operated a cocaine-selling business in the area of North Capitol and O Streets, Northwest. Lyons would cut, package, and supply cocaine to other persons known as "runners," who would then sell the drug on the street. Cooper was one of Lyons' intermediate distributors as well as a runner. Sometime in the summer of 1985, Stephen Royster, also known as "Rex," began to cause trouble for appellants by stealing cocaine from them and their runners. Finally, in early February 1986, Lyons approached Daniel Roy and offered him money and cocaine to kill Royster. After initially hesitating, Roy accepted the offer.⁶

On February 26 Roy was selling cocaine for Lyons on North Capitol Street when Royster approached him and asked where Lyons was. Roy replied that Lyons was around the corner, and Royster went to talk with him. Roy then told another runner, Derrick Wimple, to "go get the pistol" because, Roy testified, he "figured that was the time" to kill Royster. Wimple went to Cooper's house, which was a short distance away on North Capitol Street, and there Cooper gave him a .38 caliber revolver. He brought the gun back to Roy, who then walked up to Royster on the street and shot him several times. After the shooting, Roy walked "nine steps" down the street to Cooper's house, handed her the gun, and left the area. According to Roy's testimony, Cooper was standing outside in front of her house and saw the shooting take place. Royster died two weeks later of his wounds.⁷

Jury selection in this case extended over two days. At the end of the first day, after nine jurors had been chosen, there were no more venire members left. Consequently, a new venire had to be summoned on the second day so that the remaining three jurors and three alternates could be chosen. A full voir dire of the second venire was conducted on the second day. Each day, as part of the voir dire of both venires, counsel for the parties identified, in person or by name, the witnesses who might be called during the course of the trial. On the second day of jury selection, however, the prosecutor named four additional witnesses whom he had not mentioned the previous day, one of whom was Detective James McCoy of the Metropolitan Police.

Very late in the trial, the court and all counsel learned for the first time that a juror selected on the first day of voir dire knew Detective McCoy, one of the government witnesses whose name had been inadvertently omitted by the prosecutor in his naming of the witnesses that day. About a half-hour after the jury began its deliberations, McCoy informed the prosecutor that he had recognized one of the female jurors when he had testified two days earlier.⁸ The prosecutor immediately reported this fact to the trial judge, who halted jury deliberations and held a hearing at which both the juror and Detective McCoy testified.

At that hearing the judge noted that the juror in question had been chosen on the first day of voir dire, and that on that day the prosecutor had not mentioned McCoy as a prospective witness, nor were the prospective jurors asked whether any of them had any relatives or close friends in law enforcement. The testimony established that five years earlier Detective McCoy had had a partner with whom the juror had been romantically involved, and that McCoy had seen the juror "on occasion" when his partner picked her up after work. The former partner had been married at the time of his relationship with the juror. McCoy said that he had not seen the juror and his former partner together for two years. He also explained that during his brief trial testimony he did not see the juror sitting in the jury box until he was leaving the witness stand, at which time she "just smiled" at him. The next day, McCoy testified, the juror had called his office and asked for his former partner. When McCoy responded by asking if the jury was still deliberating, she hung up. The juror testified similarly about the circumstances under which she and McCoy were acquainted and about the phone call.

After the hearing, the juror was permitted to return to the jury room, and the jury resumed its deliberations. Counsel for both appellants moved for a mistrial, but the court denied their motions.

II

The prosecutor's failure to name Detective McCoy as a potential government witness on the first day of voir dire, when the juror who knew McCoy was chosen, prejudiced appellants by preventing the free exerciseof their right of peremptory challenge. The trial court's failure to grant appellants' mistrial motion on account of this prejudice was error, and because the error was not harmless, we must reverse both appellants' convictions.

The Supreme Court said a century ago that the right to strike jurors without cause is "one of the most important rights secured to the accused. . . . Any system for the empanelling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of that right, must be condemned." Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894). Although the right of peremptory challenge is not specifically guaranteed by the Constitution,⁹ it is protected in the District of Columbia by statute¹⁰ and has long been "regarded as necessary to a fair and impartial trial." Wells v. United States, 515 A.2d 1108, 1110 n. 1 (D.C. 1986) (citations omitted).¹¹ For this reason, we have repeatedly held that "[i]nterference with a defendant's exercise of peremptory challenges is per se grounds for reversal." Wilson v. United States, 606 A.2d 1017, 1025 (D.C. 1992); accord, e.g., Wells v. United States, supra, 515 A.2d at 1111 ("the defendant need not demonstrate prejudice to obtain reversal of a conviction" (citations omitted)); Williams v. United States, 552 A.2d 510, 512 (D.C. 1988) (same).

For example, in Wilson, supra, decided three days before our original opinion in this case, we found reversible error when the prosecutor had represented to the court before trial that he would not impeach the defendant with his prior convictions if the defendant testified, and then did so over defense objections. We concluded that, in these circumstances, the defendant had "missed the opportunity to use his peremptory challenges with an eye toward excluding jurors who might be particularly incensed by the nature of appellant's prior convictions. . . ." 606 A.2d at 1026.¹² We said that the trial judge's decision to allow this impeachment "had the effect of interfering with 'the full, unrestricted exercise by the accused of that right,'" id. at 1025 (citing Pointer, supra), "because defense counsel reasonably relied on the prosecutor's pretrial assurances that appellant would not be impeached with his prior convictions if he testified at trial to the...