Roberts v. United States

• Decision Date: 08 August 2019
• Docket Number: No. 15-CF-307,15-CF-307
• Citation: 213 A.3d 593
• Parties: Orlando ROBERTS, Appellant v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

213 A.3d 593

Orlando ROBERTS, Appellant

v.UNITED STATES, Appellee.

No. 15-CF-307

District of Columbia Court of Appeals.

Argued April 6, 2017

Decided August 8, 2019

Daniel Gonen, Public Defender Service, with whom Samia Fam and Alice Wang, Public Defender Service, were on the brief, for Mr. Roberts.

Danielle M. Kudla, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time, Elizabeth Trosman, Andrea Hertzfeld, and Jason Park, Assistant United States Attorneys, were on the brief, for the United States.

Before Beckwith and Easterly, Associate Judges, and Steadman, Senior Judge.

Easterly, Associate Judge:

After a jury trial, Orlando Roberts was convicted of six counts of First Degree Child Sexual Abuse.¹ He raises two challenges to his convictions on appeal. First, Mr. Roberts argues that the trial court committed numerous errors in its handling of the notes sent by the jury during deliberations, including the court's failure to permit the defense to read one of the notes. Second, Mr. Roberts argues his constitutional right to a public trial was violated by the court's voir dire procedure. We need not address all of the subparts of the first argument, nor any of the second,² because we agree with Mr. Roberts that the trial court violated his constitutional rights by precluding the defense from reading one of the jury notes and that this error was not harmless beyond a reasonable doubt. Accordingly, we vacate his convictions.

I. Facts and Procedural History

We focus on the facts and procedural history pertinent to the issue on appeal. The government's theory of the case was that Mr. Roberts had sex and engaged in other sexual acts with the then-fourteen-year-old complainant while she was at his house on her first date with his nineteen-year-old son.³ Although the government called a number of other witnesses, the case turned entirely on the complainant's and Mr. Roberts's son's testimony, which there was reason to question. The complainant and Mr. Roberts's son had connected on Instagram, seemingly with the purpose of initiating a sexual relationship;⁴ had both lied to each other about their ages (the complainant said she was older and the son said he was younger); and ultimately had given inconsistent accounts of the incident, both independently over time and as compared with each other. Indeed, the defense theory was that their story was a fabrication, invented after others learned that the two had had sex, to get them out of trouble—the complainant with her then-foster mother, and Mr. Roberts' son with the law since the complainant was a minor.

The case was submitted to the jury on November 25, 2014, the day before the Thanksgiving holiday. Jury deliberations did not resume until December 1, 2014. At the end of that second day of deliberations, the foreperson sent out a note to the judge on behalf of the jury, which asked, in relevant part, "What happens if there is a hu[n]g jury?" Because of the timing, the trial court and the parties did not address the note until the following morning, December 2, 2014. In the midst of their discussion of the first jury note, they received a second note—this time from a single juror. It read: "Because I take Jury Duties so serious, I seem to be one of three stand outs. I don't see how I can have a change of heart because the only information I have to rely on is my notes and the testimonies."⁵

The trial court read "the first line" of the note,⁶ but, realizing that it contained a numerical breakdown of how the jury was voting, then stopped out of concern that the juror "might have been talking about [the jury's] deliberations." The trial court immediately asked the courtroom clerk to take the note to another Superior Court judge to screen it to determine if it was appropriate for the trial court to read. The defense objected to this procedure, arguing that Mr. Roberts "has a right to know [what the note says] and have counsel review it," particularly "if there is some indication that there's an impasse or that the jury's at a deadlock." The trial court disagreed, explaining that neither the court nor the parties were "entitled to see that note because we're not supposed to know anything about the[ ] [jury's] deliberations."

Proceedings, which had been briefly suspended, resumed after the trial court heard back from the screening judge. The trial court informed counsel that the screening judge had notified the court that "the note d[id] reflect a numerical breakdown." The trial court then proposed that it would (1) instruct the jury that it had not read the note and that it did not know "what is in the note," and (2) remind the jury not to disclose "the subject matter of your deliberations," and "reread the instruction on contact with the [c]ourt."⁷

Defense counsel again objected, arguing that "if" the jury was revealing a deadlock, the court and counsel needed to know. The court disagreed, reiterating that it had not read the entire note; that "we're not entitled to get into their deliberations"; and that "we don't know what's in the note." Counsel responded, "we need to know," and further that "[i]f there's a deadlock, the [c]ourt needs to know and has a duty to address that."

Defense counsel proposed a number of methods to obtain further information about a possible deadlock without exposing the court to information about a numerical split, including redacting the note, asking the screening judge to provide more information about the note's contents, and instructing the jury that if it was seeking to report a deadlock, it needed to do so without revealing a numerical split.⁸ But the trial court was unpersuaded. The court appeared to take the position that, unless it knew there was a deadlock (which it could not because it had blinded itself to the note and had withheld it from counsel), it should not be concerned about a deadlock or engage in further inquiry to discern if the jury was deadlocked. The court first declared that "we haven't gotten ... a note that said [the jury is] deadlocked" and then repeatedly stressed that "from our perspective, ... we don't know what the note says."

The trial court ultimately informed the jury that neither it nor counsel had "actually read the note," and that it had been screened by another judge who had advised them not to read it. The court then instructed the jury:

I want to remind you of an instruction that I gave you at the beginning of deliberations. You should bear in mind that you're never, under any circumstances, to ... reveal to any person, not the clerk, the marshal[,] or myself, how jurors are voting. This means that you should never tell me in writing or in open court how the jury is divided on any matters; for example, six to six, seven to five or eleven to one or in any other fashion, whether the vote is for conviction or acquittal or on any other issue on the case.

So that note will be set aside. No one will read that. And with that in mind, you can redraft that note if you wish.

Later that day, defense counsel renewed his objection to the trial court's handling of the second jury note. Counsel asked the court to provide the jurors with additional instruction specifying that the court did not know the numerical split; they should not feel pressured "in one way or the other"; they should deliberate "freely and fairly"; and, if they were unable to reach a unanimous verdict, they should inform the court without revealing a numerical split. The court declined to give this instruction, again relying on the fact that "[w]e don't even know what the note is about." The court further reasoned that defense counsel was "extrapolating from a note that you have not read that you don't know the contents [of and] which we're not entitled to[.] [Y]ou're extrapolating a whole host of things."

The jury deliberated for the rest of the day, and then, because of scheduling complications, did not resume until December 8, pushing deliberations into a third week. A little more than an hour after they recommenced deliberations, the jury informed the court that they had reached a verdict. The jury found Mr. Roberts guilty on six counts of First Degree Child Sexual Abuse.

II. Withholding the Jury Note from the Defense

Mr. Roberts argues that his constitutional rights were violated when the trial court refused to allow the defense to review the jury note divulging their numerical division. He further asserts that his conviction must be reversed because the government cannot carry its burden, set forth in Chapman v. California , 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), to establish that this constitutional error was harmless beyond a reasonable doubt. We agree.

As the government concedes, the trial court erred in withholding the jury's second note from defense counsel. "A defendant and his counsel have a right to be informed of all communications from the jury and to offer their reactions before the trial judge undertakes to respond." Smith v. United States , 542 A.2d 823, 826 (D.C. 1988) (brackets omitted). In Smith , we identified Super. Ct. Crim. R. 43 as the "source of this right."⁹ Id. ; accord Coley v. United States , 196 A.3d 414, 424–25 (D.C. 2018). But we have since clarified that withholding a substantive jury note from the defense implicates a criminal defendant's constitutional rights to be present at every stage of his trial and to be represented by counsel. Euceda v. United States , 66 A.3d 994, 1005–06 (D.C. 2013) (explaining "the ‘right to presence’ is rooted in the Sixth Amendment's Confrontation Clause, as well as the Fifth Amendment's guarantee of due process, both of which require the defendant's presence, and the presence of counsel, to protect the defendant's rights at stages of the trial where ‘a fair and just hearing would be thwarted by his absence’ "); Fortune v. United States , 59 A.3d 949, 959 (D.C. 2013) (explaining that Rule 43(a) "incorporates the protections afforded by the ...