Appeals from the Superior Court of the District of Columbia; (Hon. Truman A. Morrison, III, Trial Judge)
Rehearing Denied December 1, 1992. Rehearing En Banc Granted December 1, 1992, Vacated December 1, 1992.
Before Rogers, Chief Judge, and Ferren and Terry, Associate Judges.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge: This case arises from a murder for hire committed in the course of appellants' cocaine-selling operation. Following a three-week trial, the jury found Lyons guilty of first-degree murder while armed, *fn1 assault with a dangerous weapon (ADW), *fn2 and conspiracy to distribute cocaine; *fn3 Cooper was found guilty of second-degree murder while armed, *fn4 ADW, conspiracy, and carrying a pistol without a license. *fn5 On appeal they raise several claims of error, of which we reject all but one. We reverse the convictions of both appellants and remand for a new trial because, in the somewhat unusual circumstances of this case, the government's failure to identify one of its witnesses during jury selection violated their Sixth Amendment right to an impartial jury.
Appellants operated a cocaine-selling business in the area of North Capitol and O Streets, Northwest. Lyons would cut, package, and supply cocaine to other persons known as "runners," who would then sell the drug on the street. Cooper was one of Lyons' intermediate distributors as well as a runner. Sometime in the summer of 1985, Stephen Royster, also known as "Rex," began to cause trouble for appellants by stealing cocaine from them and their runners. Finally, in early February 1986, Lyons approached Daniel Roy and offered him money and cocaine to kill Royster. After initially hesitating, Roy accepted the offer. *fn6
On February 26 Roy was selling cocaine for Lyons on North Capitol Street when Royster approached him and asked where Lyons was. Roy replied that Lyons was around the corner, and Royster went to talk with him. Roy then told another runner, Derrick Wimple, to "go get the pistol" because, Roy testified, he "figured that was the time" to kill Royster. Wimple went to Cooper's house, which was a short distance away on North Capitol Street, and there Cooper gave him a .38 caliber revolver. He brought the gun back to Roy, who then walked up to Royster on the street and shot him several times. After the shooting, Roy walked "nine steps" down the street to Cooper's house, handed her the gun, and left the area. According to Roy's testimony, Cooper was standing outside in front of her house and saw the shooting take place. Royster died two weeks later of his wounds. *fn7
Less than an hour after the jury began its deliberations, a Metropolitan Police detective, James McCoy, informed the prosecutor that he had recognized one of the female jurors when he had testified two days earlier. The prosecutor immediately reported this fact to the trial Judge, who halted jury deliberations and conducted a voir dire of the juror and Detective McCoy. The Judge noted that the juror in question had been chosen on the first of two days of jury selection, *fn8 and that on that day the prosecutor had introduced the government's potential witnesses, but did not mention McCoy, nor were the prospective jurors asked whether any of them had any relatives or close friends in law enforcement. On the second day of jury selection, however, the prosecutor had read a list of government witnesses which included Detective McCoy.
Testimony during the voir dire revealed that five years earlier Detective McCoy had had a partner with whom the juror had been romantically involved, and that McCoy had seen the juror "on occasion" when his partner picked her up after work. The former partner had been married at the time of his relationship with the juror. McCoy said that he had not seen the juror and his former partner together for two years. He also explained that during his testimony he did not see the juror sitting in the jury box until he was leaving the witness stand, at which time she "just smiled" at him. Finally, McCoy said that on the day after his testimony, the juror had called his office and asked for his former partner. When McCoy responded by asking if the jury was still deliberating, she hung up.
Following the voir dire, counsel for both appellants moved for a mistrial. The court denied their motions.
The prosecutor's failure to name Detective McCoy as a potential government witness on the first day of voir dire, when the juror who knew Detective McCoy was chosen, prejudiced appellants by preventing them from exposing possible juror bias and selecting an impartial jury by the use of peremptory challenges. The trial court's failure to grant appellants' mistrial motion because of this prejudice was an error that requires reversal of both appellants' convictions.
The Supreme Court said nearly one hundred years ago that the right to strike jurors without cause is "one of the most important rights secured to the accused. . . . Any system for the empanelling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of that right, must be condemned." Pointer v. United States, 151 U.S. 396, 408, 38 L. Ed. 208 , 14 S. Ct. 410 (1894). Although the right to peremptory challenges is not specifically guaranteed by the Constitution, it has long been "regarded as necessary to a fair and impartial trial." Wells v. United States, 515 A.2d 1108, 1110 n.1 (D.C. 1986). *fn9 That this right has special significance is reflected in our holding in Wells that if the right is denied or impaired in a criminal case, "the defendant need not demonstrate prejudice to obtain reversal of a conviction." Id. at 1111 (citations omitted); accord, Williams v. United States, 552 A.2d 510, 512 (D.C. 1988). The omission of Detective McCoy's name from the list of witnesses that the prosecutor recited on the first day of jury selection made it impossible for appellants to exercise their right of peremptory challenge against the juror who knew McCoy. *fn10 Appellants make no claim that the prosecutor deliberately, or in bad faith, failed to mention McCoy's name at the critical time during the voir dire, nor is there any basis in the record for believing that his failure was anything other than inadvertent. Nevertheless, the omission was his, and thus the government must suffer the consequences on appeal.
The preferable cure for this violation of appellants' peremptory challenge right would have been to exclude the tainted juror from the panel before the start of jury deliberations. Unfortunately, since the Judge did not learn of the connection between the juror and McCoy until after deliberations had begun, his only option at that point was to grant the defense motion for a mistrial. The denial of that motion now requires us to reverse the convictions and remand for a new trial. Swain v. Alabama, 380 U.S. 202, 219, 13 L. Ed. 2d 759 , 85 S. Ct. 824 (1965) ("The denial or impairment of the right [to peremptory challenge] is ...