Lyons v. US

• Citation: 683 A.2d 1066
• Decision Date: 03 October 1996
• Docket Number: No. 89-CF-250,89-CF-299.,89-CF-250
• Parties: Richard L. LYONS, a/k/a Walter Lyons, Appellant, v. UNITED STATES, Appellee. Pamela K. COOPER, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

683 A.2d 1066

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 En Banc January 19, 1995.

Decided October 3, 1996.

W. Gary Kohlman, Washington, DC, with whom Richard T. Brown was on the supplemental brief, for appellant Lyons. Brenda Grantland, Washington, DC, was on the original brief.

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

Roy W. McLeese, III, Assistant United States Attorney, with whom Jay B. Stephens, United States Attorney at the time the brief was filed, and John R. Fisher, Terence J. Keeney, and Peter R. Zeidenberg, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, C.J., FERREN, TERRY, STEADMAN, SCHWELB, KING and RUIZ, JJ., and KERN, Senior Judge.

TERRY, Associate Judge.

This case arises from a murder for hire committed in the course of appellants' cocaine-selling operation. After 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), a division of this court reversed their convictions and ordered a new trial. Although the division rejected most of their claims of error, it 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, and that appellants' motion for a mistrial, made after this violation had come to light, should have been granted.

After the government filed a petition for rehearing or rehearing en banc, the division vacated its original opinion, granted the petition for rehearing, and instructed the parties in an order 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)." After considering the supplemental briefs and hearing further argument, the division concluded on rehearing that this error was not harmless; accordingly, it once again reversed and remanded for a new trial. Lyons v. United States, 645 A.2d 574 (D.C. 1994).

The government once again sought rehearing en banc, which was granted. Lyons v. United States, 650 A.2d 183 (D.C.1994). Now, after additional briefing and argument on the peremptory challenge issue, the court en banc holds that errors adversely affecting the exercise of peremptory challenges are not structural errors within the meaning of Fulminante and, absent a showing of actual juror bias, do not require reversal per se. To the extent that this holding is inconsistent with language in prior opinions of this court, those decisions are hereby overruled. See, e.g., Wilson v. United States, 606 A.2d 1017, 1025 (D.C.1992); Cash v. United States, 553 A.2d 215, 217 & n. 3 (D.C.1989); Williams v. United States, 552 A.2d 510, 512 & n. 5 (D.C.1988); Wells v. United States, 515 A.2d 1108, 1111 (D.C.1986). We further conclude, on the facts of this case, that the trial court's denial of appellants' motion for mistrial was not reversible error.

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 problems 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 Capital 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 identification 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 had reached a verdict, she said they had not, and the conversation ended. The juror testified similarly about the circumstances under which she and McCoy were acquainted and about the phone call.⁹

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 on the ground that the juror was prejudiced, but they made no claim that they had been denied the opportunity to exercise a peremptory challenge. The court denied their motions.

II

Initially, we conclude that the prosecutor's inadvertent failure¹⁰ to name Detective McCoy as a potential government witness on the first day of voir dire — when the juror who knew McCoy was chosen — prevented appellants from exploring possible juror bias and from excluding the juror by the use of a peremptory challenge.¹¹ The preferable cure for this abridgment of appellants' right of peremptory challenge would have been to exclude the juror from the panel before the start of jury deliberations. If defense counsel, at the time Detective McCoy was sworn as a witness, had brought to the court's attention the fact that McCoy had not been introduced to some of the jurors, the challenged juror could still have been replaced with an alternate.¹² Unfortunately, since neither the judge nor the prosecutor learned of the connection between the juror and Detective McCoy until after deliberations had begun, the only curative option available to the judge at that point was to grant the defense motion for a mistrial.¹³ Assuming solely for the sake of argument, and without deciding, that the denial of that motion would have been error if appellants had claimed that they had been denied their right of peremptory challenge, we turn to the questions that prompted us to rehear this case en banc: Must we reverse appellants' convictions regardless of their failure to show any prejudice, as our own precedents dictate? Or may we determine, in light of recent case law from the Supreme Court, that the (assumed) error was not plain error, and affirm the convictions?

More than a century ago, the Supreme Court said that the right to strike jurors without cause is "one of the most important of the 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...