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August 16, 1990


Appeal from the Superior Court of the District of Columbia; Hon. Robert M. Scott, Trial Judge

Belson, Steadman and Schwelb, Associate Judges.

The opinion of the court was delivered by: Schwelb

As Orlando R. Leeper's trial was proceeding to its Conclusion, one of the jurors received the news that her mother had died. Unfortunately, though perhaps understandably given the tragic circumstances, the juror did not report the death, and her consequent unavailability, to the Judge until the two alternate jurors had been released. This case chronicles the Judge's attempt to save the trial by recalling one of the alternates and raises the question whether Leeper's substantial rights were violated when the former alternate was seated as a juror. Concluding that the Judge committed no reversible error and that there was no prejudice to Leeper, we affirm the conviction.


Leeper was found guilty by a jury of distribution of cocaine, in violation of D.C. Code 33-541 (a) (1988). He argued below, and now contends on appeal, that the trial court violated Rule 24 (c) of the Superior Court Rules of Criminal Procedure by seating the former alternate as a juror, in place of the juror whose mother had died, after the jury as originally constituted had retired to consider its verdict. He claims that the trial Judge compounded his error by holding that the alternate was eligible to serve in spite of the latter's acknowledgment that he had discussed the case with the second alternate, who had also been excused.

The series of events which led to the problem with which we are now confronted began when the trial Judge, having delivered his final instructions to the jury, excused the two alternates and directed the jurors to "retire and undertake your deliberations." After escorting the jury to the jury room, the deputy clerk returned to the courtroom and announced: "Your Honor, one of the jurors just got a message, just called her brother and found out her mother died last night." When Leeper's attorney stated that he was unwilling to proceed with a jury of eleven, the Judge instructed the deputy clerk to try to locate the two alternates who had just been excused. *fn1 At this point the prosecutor stated: "Your Honor, perhaps the jury should be told not to deliberate until --." The deputy clerk interrupted to advise the court that she had left the door to the jury room open and had told the jurors "not to do anything until I get back." *fn2

The court then summoned Juror 627, the individual who had learned earlier that day of her mother's death. Apparently, Juror 627 had received the news during the lunch break, but had not informed the Judge or his staff until the Conclusion of the trial. After conducting a brief voir dire, the Judge sent Juror 627 back to the jury room. Following a short bench conference, he recalled the jury and excused Juror 627. The Judge advised the remaining jurors of the situation, admonished them not to discuss the case with anyone or among themselves, and excused them until the next moving. The eleven jurors had been alone in the jury room for a total of twenty-five minutes.

The following morning, the previously excused alternates having been located, the Judge proceeded to voir dire each one separately. *fn3 Satisfied that the first alternate examined, Juror 722, could properly serve, the Judge substituted him for Juror 627. He then instructed the jurors to return to the jury room, elect a foreman or forewoman, and begin their deliberations. One hour and twelve minutes later, the jury, which had chosen Juror 722, the former alternate, as its foreman, returned with a verdict of guilty.

Rule 24 (c) provides in pertinent part:

Alternate jurors in the order in which they are called shall 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. . . . An alternate juror who does not replace a regular juror shall be discharged at the time that the jury retires to consider its verdict.

In Bulls v. United States, 490 A.2d 197 (D.C. 1985), this court held that "any juror substitution, once deliberations have begun," violates this Rule. Id. at 202. We further stated that "reversal will always be required when the court, over objection, substitutes an alternate for a juror, once the jury has retired to deliberate, unless the government proves beyond a reasonable doubt that the defendant has suffered no prejudice." Id. at 201. Leeper argues that the substitution that took place at his trial requires reversal in light of Bulls. We disagree.

As the court observed in Bulls, supra, 490 A.2d at 200 n.11, "ases interpreting the federal rule provide guidance because . . . our local rules are closely modeled on the structure and substance of the Federal Rules of Criminal Procedure." Two federal appellate decisions addressing situations similar to this one are instructive for the purpose of our review of the trial Judge's resolution of the problem. In Martin v. United States, 691 F.2d 1235 (8th Cir. 1982), cert. denied, 459 U.S. 1211, 103 S. Ct. 1207, 75 L. Ed. 2d 447 (1983), the Judge received a report of bizarre and irrational behavior on the part of one of the jurors. *fn4 The information came to the Judge's attention shortly after the alternate juror had been excused and the jury had retired. Id. at 1237. The Judge "immediately" sent his clerk to "direct the jury not to begin deliberating and to hold up on doing anything until further word was given." Id. He then substituted the alternate for the afflicted juror. Rejecting the contention that this substitution was in contravention of Rule 24 (c), id., the appellate court affirmed the defendant's conviction. The court held that "although the jury had left the courtroom, because the deliberations had not commenced, the jury had not retired to consider the verdict, and the substitution of the alternate juror was proper." Id. at 1237-38 (footnote omitted).

United States v. Cohen, 530 F.2d 43 (5th Cir.), cert. denied, 429 U.S. 855 97 S. Ct. 149, 50 L. Ed. 2d 130 (1976), stands for essentially the same proposition. After the district Judge in that case had completed his instructions and ordered the jury to retire, the appellant's co-defendant claimed that one of the jurors had slept during instructions. The codefendant's counsel requested that this juror] be disqualified and that an alternate be seated in his place. Id. at 48. The trial Judge recalled the jury, which had been waiting in the hallway outside the courtroom, and replaced the challenged juror with an alternate. Id. On appeal, the court affirmed the conviction, holding that there had been no violation of Rule 24 (c) because "lthough the jury had been ordered to retire, it had not yet done so because the jurors had never begun their deliberations." Id.

We are persuaded by the reasoning of the courts in Martin and Cohen, and conclude that the substitution of Juror 722 for Juror 627 likewise did not violate Rule 24 (c). That Rule states that substitutions must take place before the jury "retires to consider its verdict." Although Leeper's jury had "retired" after the Judge had delivered his instructions, in the sense that the jurors had gone to the jury room, it had not done so "to consider its verdict." This is evident from the undisputed fact that the deputy clerk left the door open and instructed the jurors "not to do anything." Nothing in the record suggests that the jury ignored this direction, nor was there any contemporaneous claim that this had occurred or that additional prophylactic measures ...

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