Rease v. United States

• Decision Date: 20 June 1979
• Docket Number: No. 13476.,13476.
• Parties: James N. REASE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 322

403 A.2d 322

James N. REASE, Appellant, v. UNITED STATES, Appellee.

No. 13476.

District of Columbia Court of Appeals.

Argued May 15, 1979.

Decided June 20, 1979.

Rehearing and Rehearing En Banc Denied August 22, 1979.

COPYRIGHT MATERIAL OMITTED

Martin S. Echter, Washington, D. C., appointed by the court, for appellant.

Norman M. Monhait, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Michael W. Farrell, and Richard H. Saltzman, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and MACK and FERREN, Associate Judges.

PER CURIAM:

Appellant challenges his conviction for armed robbery, D.C.Code 1973, §§ 22-2901, -3202,¹ on several grounds. He asserts that the trial judge erred when she (1) failed to strike for cause a juror who, before being sworn, stated that appellant was "high off narcotics" at the time of voir dire; (2) refused to require the prosecutor to turn over notes which appellant claimed were discoverable under the Jencks Act, 18 U.S.C. § 3500 (1976), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (3) denied him the opportunity to rehabilitate his testimony with prior consistent statements; and (4) refused to give a lesser-included offense instruction on larceny.² We affirm.

I.

On February 6, 1977, appellant James Rease met two companions, Michael Lee and Carl McAlister. McAlister suggested that they try to get some money to satisfy their needs for narcotics. In response, appellant proposed that the three drive in his car to the home of the complainant, Gerald Barnes, with whom appellant had been acquainted a few years earlier. When McAlister asked how visiting Barnes would help them get money, appellant withdrew from under the seat of his car a gas-propelled pellet pistol that McAlister had given him for safekeeping. McAlister took the pistol and placed it in his pants; the three men proceeded to Barnes' apartment.

At approximately 4:00 p. m., the three arrived at Barnes' home and were admitted by Dr. Richard DeCarlo, who shared the apartment with Barnes. Barnes and DeCarlo already had two female guests; Barnes invited appellant and his companions to join them for some wine. The women left half an hour later, and, shortly thereafter, DeCarlo also left.

Barnes testified that McAlister then entered the kitchen, where Barnes was washing dishes, and demanded money at gunpoint. When Barnes replied that he had no money, McAlister ordered him into the living room. While McAlister kept the gun on Barnes, McAlister and his companions began collecting various items in the apartment. At one point, appellant cut a venetian blind cord, instructed Barnes to sit on the sofa, and tied his hands behind his back. Later, Lee bound Barnes' feet with a telephone cord. The three then gathered up the property they had collected and left.³ McAlister, Lee, and appellant placed the stolen property in appellant's car and drove to the home of appellant's girlfriend. From there, they sold the goods over the next few days.

A few days after the robbery but before his arrest, appellant called Barnes and told him that he had been forced to participate in the robbery. According to Barnes, appellant stated that he would try to return some of the property if Barnes would drop any charges. Barnes replied that he could do nothing. Appellant was arrested a few days later.

At a jury trial beginning March 29, 1978, McAlister — who had pleaded guilty to the armed robbery charge — was a prosecution witness. Appellant was the only witness to testify in his defense. He asserted that he had opposed McAlister's plan to rob Barnes because Barnes was a friend. He contended, too, that McAlister had forced him to participate in the robbery. After the second day of trial, the jury convicted appellant of armed robbery. Thereafter, the court sentenced appellant to prison for a period of two to ten years.

II.

Appellant's first argument concerns an incident which occurred after the jury panel had been chosen but before the jurors were sworn. A juror, Lucille Shorts, remarked to a United States Marshal that appellant was "high off narcotics" during the voir dire. Upon learning this, the court conducted an inquiry into whether Ms. Shorts should be stricken from the jury. Defense counsel, as well as the prosecutor, asked questions. Ms. Shorts explained that she had based her opinion on her experience and training as a corrections officer. When the prosecutor asked whether she would be affected by her observation, Ms. Shorts replied:

No, I have to hear the evidence to form an opinion, not because of his nodding, or on drugs. I would have to hear the whole case before I form an opinion.

Despite this representation, defense counsel demanded that Ms. Shorts be stricken from the jury. The court refused.⁴

Appellant now maintains that he was denied the right to a trial before an impartial jury because the court refused to excuse Ms. Shorts for cause. He claims that his trial was tainted from the beginning because "at least one juror . . . had already concluded that Mr. Rease was a narcotics user — conceivably a person who would steal to `feed' his habit," and that juror could have tainted the deliberations of the jury.

We consider first our standard of review. "[T]he `determination of [a potential juror's] impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge.'" Ristaino v. Ross, 424 U.S. 589, 595, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976) (quoting Rideau v. Louisiana, 373 U.S. 723, 733, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (Clark, J., dissenting)). A trial judge, therefore, has broad discretion in deciding whether to excuse a juror for cause. Wilburn v. United States, D.C.App., 340 A.2d 810, 812 (1975). The test which the trial court must apply is

"whether the nature and strength of the opinion formed are such as in law necessarily * * * raise the presumption of partiality. . . . The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside." [Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961) (quoting Reynolds v. United States, 98 U.S. 145, 156-57, 25 L.Ed. 244 (1878)).]

Accordingly, this court may not reverse the trial court's finding on the force of a potential juror's opinion unless the juror's partiality is manifest. See Irvin, supra, 366 U.S. at 723, 81 S.Ct. 1639; Wilburn, supra at 812.

The Supreme Court has declared that the mere existence of a preconceived notion as to the guilt or innocence of the accused is, without more, insufficient to rebut the presumption of a prospective juror's impartiality. Irvin, supra at 723, 81 S.Ct. 1639; see Reynolds, supra at 155-56. "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin, supra, 366 U.S. at 723, 81 S.Ct. at 1643; accord, Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). A juror's assurance that he or she can be fair is not dispositive, however. The trial court is required to assure itself that the juror's assertion can be accepted. See Murphy, supra at 802-03, 95 S.Ct. 2031; Wilburn, supra at 812; United States v. Haldeman, 181 U.S.App.D.C. 254, 290 n. 51, 559 F.2d 31, 67 n. 51 (1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977).

In this case, the record reveals that Ms. Shorts had not formed an opinion about the appellant's guilt or innocence. She had expressed only her belief that appellant was on narcotics at the time of the voir dire. The court properly conducted an inquiry into whether this observation had affected her impartiality. The juror repeatedly asserted that her observation would not affect her judgment — that she would base her judgment only on the evidence presented at trial. After evaluation of her response and demeanor, the court concluded that Ms. Short would be impartial. On this record, we cannot conclude that partiality was so manifest that we must find the trial court abused its discretion by refusing to strike Ms. Short from the jury for bias.⁵

III.

Appellant next maintains that the trial court erred when it failed to order the prosecutor to produce the portion of his notes which appellant alleged were discoverable under both the Jencks Act, 18 U.S.C. § 3500 (1976), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, appellant sought that portion of the prosecutor's notes of his interview with Gerald Barnes which related to appellant's post-robbery phone call to Barnes. The record indicates that the prosecutor had informed appellant of most of what he had learned from Barnes. Appellant argues only that the government improperly withheld a portion of the notes dealing with appellant's promise to Barnes that he would try to return the stolen goods if Barnes would drop the charges. After viewing the notes in camera, the trial court held that the prosecutor need not release them to appellant.⁶

We deal first with the Jencks issue. It is clear that a prosecutor's notes of an interview with a government witness may be subject to production under the Jencks Act. See Goldberg v. United States, 425 U.S. 94, 98, 96 S.Ct. 1338, 47 L.Ed.2d 603 (1976); Matthews v. United States, D.C. App., 322 A.2d 908, 909-10 (1974); Saunders v. United States, 114 U.S.App.D.C. 345 348-49, 316 F.2d 346, 349-50 (1963). The prosecutor need not release his notes, however, unless the recorded information constitutes a "statement" within the meaning of the Act. See 18 U.S.C. § 3500(e) (1976).

Appellant suggests that the prosecutor's notes could constitute a "statement" under either subsection (e)(1) or (e)(2) of the Act. Having reviewed those...