State v. Brown

• Decision Date: 05 April 2013
• Docket Number: No. 2008–210–C.A.,2008–210–C.A.
• Citation: 62 A.3d 1099
• Parties: STATE v. Hiawatha BROWN.
• Court: Rhode Island Supreme Court

62 A.3d 1099

STATE

v.Hiawatha BROWN.

No. 2008–210–C.A.

Supreme Court of Rhode Island.

April 5, 2013.

Aaron L. Weisman, Department of Attorney General, for State.

William P. Devereaux, Esq., Providence, for Defendant.

Present: SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, and INDEGLIA, JJ.

OPINION

Justice INDEGLIA, for the Court.

Hiawatha Brown (Brown or defendant) appeals from a Superior Court judgment of conviction for simple assault and disorderly conduct. Brown contends that the trial justice committed reversible error in refusing to (1) hold a posttrial evidentiary hearing to determine if the jury was racially biased or if certain juror misconduct had occurred; (2) permit the entire fifteen-member jury panel to deliberate; and (3) instruct the jury that the aggressive actions of the police could constitute a defense to the charge of disorderly conduct. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

IFacts and Travel

On July 14, 2003, a confrontation between the Rhode Island State Police and several members of the Narragansett Indian Tribe (the Tribe) led to the arrest of seven tribal members, including Brown.¹ That day, Brown was charged with one count of simple assault in violation of G.L.1956 § 11–5–3 (count 1), one count of disorderly conduct in violation of G.L.1956 § 11–45–1 (count 2), and one count of resisting arrest in violation of G.L.1956 § 12–7–10 (count 3). The charges against Brown were based on behavior that allegedly included slamming a state trooper's arm in a door; pushing, choking, and being physically combative with other state troopers; and flailing his arms and legs as troopers attempted to place handcuffs on him.

Brown and his six codefendants were jointly tried in Superior Court over the course of several weeks in February and March of 2008.² In the remaining portion of Part I, we discuss only those facts relevant to the issues raised on appeal.

AJury Selection and Jury Instructions

Jury voir dire and selection began on February 25, 2008, and concluded two days later. Sixteen people were ultimately empaneled on the jury—the maximum number allowed under Rule 24(c) of the Superior Court Rules of Criminal Procedure. Out of the panel of sixteen, three jurors were minorities. One of the three became ill during the course of the trial and was discharged from jury service, leaving only two minorities on the fifteen-member panel.

Several weeks later, at the conclusion of the testimony, the trial justice delivered her instructions to the jury. She denied Brown's request for an instruction that “excessive force [on the state's part] would constitute an offense [ sic ]” to the charge of disorderly conduct.³

After the trial justice delivered her instructions, twelve of the fifteen jurors who heard the case were selected to deliberate. Before this process took place, Brown requested that all fifteen members of the jury be allowed to deliberate or, in the alternative, that the two individuals who were minorities be selected for the twelve-member panel. The state objected to both of these requests. Citing Rule 24(c), the trial justice ruled that she lacked the authority to either seat fifteen jurors without the state's acquiescence or to select those two individuals as members of the panel. Accordingly, she denied Brown's requests. Brown has indicated to this Court that “just one person of color” remained after the twelve-member panel was selected.

BJury Deliberations

The jury began its deliberations on April 1, 2008. On April 2, 2008, the second day of deliberations, the trial justice received three notes from the jury. The first note stated as follows:

“I'm concerned about the progress of deliberations. We have one juror who has proclaimed she will not find any [d]efendant guilty, regardless of the evidence, because of the conduct [of] the [s]tate [p]olice. We heard this early on and have tried to convince her with regard to the laws we need to address, but she is unmovable. We have at least five charges we cannot agree upon. Any advice?”

Hours after the trial justice received this first note (to which neither she nor the parties responded), she received a second note in which the jury requested clarification on the issue of self-defense. The note also stated that the jury was “deadlocked on about [eleven] of the [sixteen] charges. Many tears. Much frustration.”

After she received the second note, the trial justice called the jury back into the courtroom and gave them additional instructions concerning self-defense. Deliberations then resumed. Shortly thereafter, the jury sent the trial justice a third note. This note stated that the jury was “hung on all charges. Complete impasse. No compromise.” After giving the jury an Allen charge, the trial justice dismissed the jury for the day.⁴

The following day, on April 3, 2008, the trial justice met with counsel in chambers to read into the record the three notes she had received from the jury. She also explained that, on the previous day, one of the deputy sheriffs assigned to the jury had reported to her an incident that occurred as the jurors were leaving the jury room at the end of the day. That sheriff was brought into chambers, where he recounted the incident for the record. He “noticed three or four of the jurors lagg[ing] behind * * *. I observed them speaking. And the one I mainly observed was Juror 175. * * * [H]e was speaking about the case.” The sheriff felt that Juror 175 was “lobbying his opinion.” He told Juror 175 that jurors were not allowed to discuss the case outside of deliberations, when all twelve members were present. He said that Juror 175 “immediately threw up his hand and said, ‘I'm sorry. I'm sorry.’ ” In response to the trial justice's inquiries, the sheriff explained that he concluded the jurors had been talking about the case based on “[t]heir mannerisms” and the fact that Juror 175 “was speaking [in a] low [manner].”

Based on the sheriff's observations, the trial justice interviewed several of the jurors, speaking with each individually in chambers in the presence of counsel.⁵ Juror 245 denied that he and the other jurors whom the sheriff had observed were talkingabout the case; he said that they “were talking about motivations, about * * * where other people are coming from.” Next, the trial justice interviewed Juror 141. She reported that, although she had been “frustrated” and “upset” by the process of deliberation, she had not talked with other jurors about the case or about any jurors in particular. The trial justice then spoke with Juror 175. He described the encounter the deputy sheriff had observed as “a couple of [jurors] * * * just expressing frustration.” He also denied that they had been discussing the evidence or the substance of the case.

The trial justice then spoke separately with Jurors 171 and 112. Juror 171 said that some of the jurors were “very, very emotional, so [he kept] reassuring them that they have to go with their conscience, and have to do what they feel is right * * *.” He also said that they had not been discussing the case itself. This juror also offered the somewhat cryptic comment that there were “conflicts of personalities [on the jury], but it's more of a visual thing rather than a spoken thing.” Juror 112 had a hazy memory of the previous afternoon and said she did not remember discussing the case with anyone.

After defense counsel raised concerns about the remarks of Jurors 245 and 175, the trial justice then separately interviewed these two jurors a second time. Juror 175 stated that “when we sit down to deliberate and try to discuss and review the evidence, * * * right off the bat we have one or two people that [ sic ] come right out and said—.” The trial justice cut him off mid-sentence to prevent him from disclosing specifics. Juror 175 also said that, during the encounter the deputy sheriff had observed on the previous day, none of the jurors had spoken of any other juror in particular when expressing frustration.

Juror 245 explained that, when the deputy sheriff observed the small group of jurors talking among themselves, they had been “discussing why people might not be open to thinking, * * *, why people might be so adamant about the positions that they have.” Although none of them referred to a specific juror or jurors, he said that “we probably said ‘they’ and probably knew who the other two jurors were.”

Once the juror interviews had concluded, Brown moved for a mistrial, arguing that the deliberative process “ha[d] broken down.” Brown also moved, in the alternative, for the removal of Juror 175. The state objected, pointing out that the jurors' private remarks indicated that they had simply been consoling one another after a difficult day of deliberations and that none of them had discussed the case itself outside of deliberations.

The trial justice concluded that the jurors' remarks provided no basis for a mistrial. Although she described Juror 175 as “brusk [ sic ],” she felt that “[h]e didn't say anything that would cause me to think that he had tainted the jury or [that] he was tainted.” As for Juror 245, while the trial justice said she had some concerns about his remarks, she believed that he and the jurors with whom he had spoken had not been discussing the case. The trial justice pointed out that the sheriff had merely observed the jurors speaking with each other and had not heard what any of them said. She concluded by stating: “They seem[ed] to be venting some frustration and emotion on the way out the door. Is that enough to grant a mistrial? I don't think it is.” The trial justice also denied Brown's motion to excuse Juror 175 for cause.

Thereafter, the trial justice called the entire jury into the courtroom and gave them what she called a “pep talk.” She reiterated the elements of the charged offensesand the defenses that had been raised and encouraged the jury to reach a verdict. Deliberations resumed...