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June 13, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Evelyn E. C. Queen, Trial Judge.

Ferren, Schwelb, and Wagner, Associate Judges.

The opinion of the court was delivered by: Ferren

The trial court used an old fashioned decision-making tool to decide which of two jurors who may have been sleeping during the trial would be replaced by the only remaining alternate juror: the court-room clerk tossed a coin. When the coin landed tails, the court replaced juror 7 and left juror 4 to deliberate. The jury convicted appellant of possession, and possession with intent to distribute, PCP and marijuana, D.C. Code § 33-541 (a)(1)(1988). Not surprisingly, appellant claims the trial court abused its discretion by employing this method to decide which juror should be replaced by an alternate. We agree that the court erred in relying on a coin toss, rather than on the court's own judgment after voir dire of the ostensibly sleeping jurors, to decide a matter committed to judicial discretion. Under the circumstances, however, absent objection by counsel, we review for plain error and conclude there was no miscarriage of Justice requiring reversal.

Appellant also contends that certain comments of the prosecutor during closing argument constituted misconduct warranting reversal, and that the trial court erred in questioning a defense witness about his prior convictions. Neither contention has merit. *fn1 Accordingly, we affirm.


Metropolitan Police Officer Wayne Stancil, working undercover, was assigned to buy drugs at 203 N Street, S.W., a five-story public housing project known for drug sales. As he entered the breezeway to the complex, he noticed two men later identified as appellant and Michael Jenifer. Jenifer said, "Boat," and Stancil said, "Yes." As Stancil approached Jenifer, appellant said, "Roller," apparently a street term for "police." Stancil opened his jacket to show he did not have a gun. Jenifer then said, "No, he's okay. He's my customer." Jenifer, Stancil, and appellant went into a hallway where Jenifer took a plastic bag containing several tinfoil packets from a broken circuit box and gave two packets to Stancil. While Stancil examined the packets, appellant asked Stancil to purchase one from him. Appellant reached under his shirt and showed Stancil a plastic bag containing numerous tinfoils. Stancil examined a tinfoil that appellant gave him and noticed a greenish weed substance that smelled of PCP. Stancil began to laugh, amazed that appellant would sell drugs to a person appellant believed to be a policeman. Just as appellant retorted, "I told you he was police," Stancil identified himself as a police officer. Jenifer and appellant bumped into each other attempting to run away. Jenifer did get away (he was apprehended later), but appellant fell on the floor dropping the plastic bag. Appellant was arrested on the scene.


Appellant challenges the method the trial court used for replacing one of the two jurors excused before the jury deliberated. After closing arguments, appellant's counsel requested that juror 8 be excused for inattentiveness. The Judge postponed decision until after instructing the jury. At the Conclusion of its instructions, the court noted that jurors 4 and 7 had slept through the instructions. Counsel moved for a mistrial, which the trial court denied. Counsel then asked that, of the three questionable jurors, numbers 7 and 8 be replaced by the two alternates because number "4 appeared to be on top of the game, for most of the time." *fn2 The court agreed to replace juror 8 with an alternate. The court then asked the courtroom clerk to flip a coin to determine whether juror 4 or juror 7 would be replaced by the other alternate. When the coin landed tails, the trial court excused jurors 7 and 8. Appellant's counsel did not object to the coin toss, or to replacing jurors 7 and 8, or to juror number 4's remaining on the jury. We therefore review for plain error, i.e., error "so clearly prejudicial to [appellant's] substantial rights as to jeopardize the very fairness and integrity of the trial." Jones v. United States, 512 A.2d 253, 258 (D.C. 1986) (quoting Watts v. United States, 362 A.2d 706, 709 (D.C. 1976) (en banc)).

Here, the court itself noticed that jurors 4 and 7 were sleeping during its instructions; this is not a case of an unsubstantiated claim by defense counsel. See Brommer v. United States, 157 A.2d 292, 293 (D.C. 1960) (unsubstantiated defense accusation that juror was sleeping insufficient basis for concluding trial court abused discretion in refusing to grant mistrial). For reasons not clear of record, however, the trial court did not stop the proceedings to make sure that all jurors were attentive, or to provide a break for the jury, if appropriate, or even to reinstruct if the court believed that would be helpful. At the very least, the court should have stopped its instructions to determine whether the two jurors were "sleeping during trial and, if so, [to determine] whether the jurors['] being asleep prejudiced to the extent that he did not receive a fair trial." United States v. Barrett, 703 F.2d 1076, 1083 (9th Cir. 1983) (citing United States v. Hendrix, 549 F.2d 1225, 1229 (9th Cir.), cert. denied, 434 U.S. 818, 98 S. Ct. 58, 54 L. Ed. 2d 74 (1977)).

In general, the trial court has considerable discretion in determining whether to hold an evidentiary hearing on allegations of jury misconduct. See Hendrix, 549 F.2d at 1227. Accordingly, if a proffered allegation of juror inattentiveness is not substantiated in any way, the court may reject it summarily. See, e.g., Brommer, 157 A.2d at 293 (no error in denying mistrial when prosecutor and judge could not confirm defense allegation that juror was asleep). *fn3 On the other hand, if -- as in this case -- the court notices, or is informed, that a juror is asleep during trial, the court has a responsibility to inquire and to take further action if necessary to rectify the situation. See, e.g., Barrett, 703 F.2d at 1083 (abuse of discretion for Judge to do nothing after juror told Judge he was asleep during trial); People v. Evans, 710 P.2d 1167, 1168 (Colo. Ct. App. 1985) (trial court abused discretion by failing to grant mistrial when one juror slept during defense counsel's closing argument and court limited its response to post-trial contempt hearing on juror's misconduct). The trial court should begin, for example, with a hearing to determine whether the juror had been asleep and, if so, whether the juror had "missed essential portions of the trial." Barrett, 703 F.2d at 1083 n. 13. On the basis of its findings the court should then determine whether the juror's conduct had resulted in "substantial prejudice" to the accused, meaning deprivation "of the continued, objective, and disinterested judgment of the juror, thereby foreclosing the accused's right to a fair trial." Lee v. United States, 454 A.2d 770, 773 (D.C. 1982) (court voir dired jury upon allegations foreman was drinking or drunk and jury could not reach verdict), cert. denied, 464 U.S. 972 (1983) (quoting Nelson v. United States, 378 A.2d 657, 660 (D.C. 1977)); see Barrett, 703 F.2d at 1083 n.13; Hendrix, 549 F.2d at 1229.

The court, as a result of its findings, might decide to permit the juror to continue to participate. See Barrett, 703 F.2d at 1083 n.13. Or the court might excuse the juror for cause and replace the juror with an alternate. See Shreeves v. United States, 395 A.2d 774, 787 (D.C. 1978) (trial court acted within its authority in substituting alternates for two inattentive jurors at Conclusion of second phase of bifurcated trial), cert. denied, 441 U.S. 943, 99 S.Ct. 2161, 60 L. Ed. 2d 1045 (1979); Super. Ct. Crim. R. 24 (c) (alternate jurors "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"). Or, finally, the court might declare a mistrial. See Evans, 710 P.2d at 1168.

In this case, defense counsel proffered that one juror had been inattentive; the court itself volunteered that two other jurors had been sleeping during final instructions. In deciding to replace two of these jurors with alternates, the court was acting on a matter committed to trial court discretion, reviewable for abuse. See Barrett, 703 F.2d at 1083. The court accordingly was obliged to proceed rationally, not arbitrarily. As we have said:

Discretion signifies choice. . . .

The trial court nevertheless must choose wisely so that its judgment reflects 'a discretion exercised not arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the Judge to a just result.' . . . As in its other decision-making activity, the court's ...

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