Thomas v. US

• Decision Date: 22 May 2003
• Docket Number: No. 00-CF-344.,00-CF-344.
• Citation: 824 A.2d 26
• Parties: Nathaniel THOMAS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

824 A.2d 26

Nathaniel THOMAS, Appellant, v. UNITED STATES, Appellee.

No. 00-CF-344.

District of Columbia Court of Appeals.

Argued December 12, 2002.

Decided May 22, 2003.

John Tan, Public Defender Service, with whom James Klein, Samia Fam, and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellant.

Chrisellen R. Kolb, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher, Assistant United States Attorney, were on the brief, for appellee.

Before SCHWELB, FARRELL, and RUIZ, Associate Judges.

PER CURIAM:

The judgment is affirmed for the reasons stated in Judge Schwelb's lead concurring opinion, except with respect to the issue discussed in Judge Farrell's concurring opinion and in Part I of Judge Ruiz' dissenting opinion. As to that issue, the judgment is affirmed for the reasons stated in Judge Farrell's opinion and in footnote 13 to Judge Schwelb's opinion.

Affirmed.

SCHWELB, Associate Judge, concurring:

Nathaniel Thomas was convicted by a jury of simple assault.¹ He was found not guilty of the more serious charges of aggravated assault,² attempted malicious disfigurement,³ and assault with a dangerous weapon,⁴ namely, a hot liquid. On appeal, Thomas presents several contentions, none of which warrants reversal of his conviction; any possible trial court errors, considered individually or cumulatively, were harmless. Accordingly, I concur in the affirmance of the judgment.

I. THE EVIDENCE

This case arose out of a quarrel between the defendant and Clarice Johnson, the mother of his four-year-old son, Tevin. According to Ms. Johnson, Thomas came to her home on May 25, 1999, ostensibly to give her some money in connection with Tevin's preschool graduation. Later in the evening, Thomas began to interrogate Ms. Johnson regarding whether she had been seeing another man. Thomas appeared to Ms. Johnson to be "tripping" on crack cocaine; she denied, however, that she used cocaine on the evening of the incident. Ms. Johnson testified that Thomas became angry, went to the kitchen, came back to the bedroom with a bowl in his hand, and threw some hot liquid at her, scalding her face, neck, and arms. Ms. Johnson sustained second degree burns on her face and arms.

Thomas' account of the incident was quite different. According to Thomas, Ms. Johnson had asked him to bring her some crack cocaine. Thomas purchased some crack and brought it to Ms. Johnson's home, together with a bottle of gin and, somewhat incongruously, some carrot juice. Thomas testified that the quarrel began while the two principals were smoking crack and drinking liquor together in the bedroom. According to Thomas, Ms. Johnson complained that "the shit wasn't no good" and demanded that Thomas give her more cash. Thomas refused and Ms. Johnson, who is bigger than Thomas, became angry, pulled him onto the bed, and began to berate him. Thomas retreated to the kitchen and began washing dishes at the sink. When Ms. Johnson continued to ask for money, Thomas told her she should "go out in the street and get it the way she has been," i.e., by "tricking." Ms. Johnson, apparently displeased by this suggestion, "reached at the stove, grabbed a pan, and swung at [him]." Thomas testified that he raised his arm to protect himself, and that the liquid in the pan "spilled back onto Clarice" and burned her. Thomas himself was burned by the lower part of the pan.

There were no other witnesses to the scalding incident. Ms. Johnson's eighteen-year-old daughter, Celeste, testified that two of Thomas' sisters subsequently telephoned her several times to urge that the charges against their brother be dropped. Ms. Johnson testified that Thomas told her that he was sorry for what he had done. He also wrote to her from jail, declaring his love and inquiring whether she would press charges. There was no claim that either Thomas or his sisters threatened Ms. Johnson to dissuade her from testifying.

Ms. Johnson was impeached with some arguably minor contradictions between her trial testimony and her grand jury testimony. After being given immunity, she admitted that she had threatened another woman for allegedly acting indecently around Thomas.⁵

II. LEGAL ANALYSIS

A. The replacement of Juror No. 1.

Thomas contends that the trial judge violated his "Fifth Amendment right to have his trial completed by a particular tribunal," as well as his rights under Super. Ct.Crim. R. 24(c), by replacing a juror with an alternate before deliberations began. Even if the judge erred in this regard—an arguable question which need not be decided to resolve this appeal—the error was harmless.

The challenged replacement in this case occurred before the jurors began deliberating, and before any juror had been advised whether he or she was an alternate. The judge observed that Juror No. 1 appeared "totally exasperated by the fact that [counsel] were both speaking and that she is here." She further stated that the juror was "speaking under her breath" while counsel were presenting their arguments and during the court's instructions. Sensing from Juror No. 1's apparently angry demeanor and odd behavior that she probably would not be an attentive or impartial juror, the judge replaced her with an alternate. Thomas' counsel vigorously objected to the juror's removal, but he proposed no alternative course of action (e.g., a hearing on the juror's qualifications).

Rule 24(c) directs the court to "replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties." "The trial court is accorded substantial deference on [the decision whether to replace a regular juror] as a result of its superior ability to observe the demeanor of the juror and its familiarity with the proceedings." Darab v. United States, 623 A.2d 127, 138 n. 26 (D.C. 1993). Rule 24(c) of the Federal Rules of Criminal Procedure, which is identical to the local rule, has been construed as authorizing the replacement of a juror with an alternate "when facts arise before the start of deliberations that cast doubt upon a juror's ability to perform her duties." United States v. Smith, 918 F.2d 1501, 1512 (11th Cir.1990),cert. denied, 502 U.S. 849, 112 S.Ct. 151, 116 L.Ed.2d 117 (1991), 502 U.S. 890, 112 S.Ct. 253, 116 L.Ed.2d 207 (1991).⁶ The trial judge evidently believed that the conduct of Juror No. 1 was sufficiently irregular to raise serious doubt as to this juror's ability to perform her duties. As appellate judges, my colleagues and I are limited to a paper record, and we are necessarily reluctant to second-guess the trial judge's on-the-scene personal assessment.

Nevertheless, Thomas' contention that the judge abused her discretion in replacing Juror No. 1 is not implausible. Read literally, Rule 24(c) authorizes the removal of a juror only if the juror is "unable or disqualified" to perform her duties. The trial judge never made such a finding, at least explicitly. To be sure, muttering under one's breath, both during closing argument and while the judge was charging the jury, may suggest inattention on the juror's part, and a juror may properly be disqualified for being inattentive. Shreeves v. United States, 395 A.2d 774, 787 (D.C.1978). The judge did not, however, explicitly state that Juror No. 1 was inattentive, nor did she contradict Thomas' attorney when he asserted that the opposite was true. Indeed, the record contains no reference on the part of the judge to Rule 24(c)'s demanding standard: "unable or disqualified."⁷ "Judicial discretion must ... be founded on correct legal principles, and a trial court abuses its discretion when it rests its conclusions on incorrect legal standards." In re J.D.C., 594 A.2d 70, 75 (D.C.1991). "A [trial] court by definition abuses its discretion when it makes an error of law." Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). If the judge in this case in fact applied the standard set forth in Rule 24(c) at all, she certainly did not do so explicitly. Accordingly, whether Thomas has demonstrated in this case that the trial judge abused her discretion in the Koon sense is not an easy call.

But even assuming, arguendo, that Juror No. 1 was not shown or found to be "unable ... to perform her duties" within the meaning of Rule 24(c), and that the judge therefore erred by replacing her, Thomas must nevertheless establish prejudice. See, e.g., United States v. Nelson, 102 F.3d 1344, 1349 (4th Cir.1996),

cert. denied, 520 U.S. 1203, 117 S.Ct. 1567, 137 L.Ed.2d 713 (1997).⁸ Specifically, Thomas must show that as a result of the removal of Juror No. 1, "an impaneled juror failed to conscientiously apply the law and find the facts." Tate v. United States, 610 A.2d 237, 239 (D.C.1992) (citations and internal quotation marks omitted). In this case, "[b]ecause the defendant[] make[s] no assertion that [he] suffered bias or prejudice [from the presence of the alternate on the jury], and do[es] not claim that the alternate juror was not impartial, [his] conviction[] would not be subject to reversal even were we to conclude that dismissal of [Juror No. 1] was an abuse of the [trial] court's discretion." United States v. Alexander, 48 F.3d 1477, 1485 (9th Cir.1995) (citation and internal quotation marks omitted).

Thomas has presented no evidence whatever of prejudice. Indeed, his attorney passed on five of defense's ten peremptory challenges to the jury proper, and he also declined the opportunity to strike the alternate who ultimately replaced Juror No. 1, thereby at least implicitly expressing satisfaction with that juror. See Darab, 623 A.2d at 139

. There is no suggestion that any of the twelve jurors who convicted Thomas was biased against him. "A party to a lawsuit has no vested right to any particular juror; the right of challenge is the right to exclude incompetent jurors, not to include...