Appeal from the Superior Court of the District of Columbia; (Hon. Colleen Kollar-Kotelly, Trial Judge)
Before Steadman and King, Associate Judges, and Belson, Senior Judge.
The opinion of the court was delivered by: Belson
BELSON, Senior Judge: A jury convicted appellant Dennis P. Sobin of keeping a disorderly house, in violation of D.C. Code § 22-2722 (1989). The trial court sentenced him to 180 days in prison and fined him $500.00. Sobin challenges his conviction on the grounds that (1) the trial court erred in refusing to grant his motion for mistrial based on a juror's bizarre behavior prior to deliberations; and (2) he was deprived of his Sixth Amendment right to a public trial by the exclusion of his two young children from the courtroom during sentencing. We find both contentions meritless, and affirm the conviction.
The managers of an office building at 1518 K Street, N.W. complained to Morals Division officers of the Metropolitan Police Department after having received reports from several building tenants about the high volume of traffic to and from a second floor suite at night. Cleaning crews and other building tenants frequently found used condoms strewn about the floors and stairwells of the building. Surveillance conducted by MPD Morals Division officers confirmed suspicions that prostitutes were using the suite as a "trick pad." *fn1 Typically, a scantily clad woman entered the suite accompanied by a man. The couples spent fifteen to thirty minutes together, during which time they undressed, engaged in sexual acts, dressed, and departed.
On August 25, 1988, one Holly Thompson beckoned to and approached an undercover officer, Bernard Emert, who was driving a private vehicle on Fifteenth Street, N.W., just before midnight. Emert testified that Ms. Thompson asked if he was "dating." He responded affirmatively. Their subsequent conversation established that Emert would exchange $50.00 for two sexual acts. Ms. Thompson led Emert to the second floor suite at 1518 K Street, N.W. Sobin was seated behind the desk when the couple entered. Ms. Thompson directed Emert to pay Sobin $10.00 for the use of a room. Sobin accepted the money. Emert and Ms. Thompson entered a room containing only a mattress on the floor, and a table. When Ms. Thompson began to undress, Emert announced that he was a police officer. Ms. Thompson then yelled, "Dennis, Dennis, Dennis, this man says he's the police!" Emert and Sobin conversed briefly. Emert then left the building and gave a prearranged signal to waiting police officers, who arrested appellant and Ms. Thompson.
On the second day of the trial, the Judge called counsel to the bench and expressed her concern about the strange behavior of the juror seated in the fourteenth seat. Other jurors had complained to the court clerk of that juror's bizarre actions in the jury room. At the request of defense counsel, the trial court conducted a voir dire of the entire jury, including Juror No. 14. *fn2 Each of the other jurors stated that Juror No. 14's behavior would not affect his or her ability to remain impartial and decide the case. According to the jurors questioned, at no time had Juror No. 14 discussed the case with other jurors. Ultimately, Juror No. 14 was excused and replaced with an alternate.
The trial court denied Sobin's motion for mistrial, rejecting his argument that the jury was tainted by Juror No. 14's unusual behavior and alleged threats. *fn3 In the alternative, but inconsistently, Sobin then asked that Juror No. 14 remain on the jury, based on his belief that Juror No. 14 is representative of the community, and perhaps sympathetic to Sobin's lifestyle. Sobin does not pursue this alternative argument on appeal. The trial court eventually granted the government's motion to strike Juror No. 14 from the jury panel over Sobin's objection. Because the issue of Juror No. 14's competence arose before the jury began its deliberations, and either of two alternate jurors was available to replace her, the trial court likened this situation to that brought about when a juror becomes incapacitated during trial.
The trial court has broad discretion to grant or deny a motion for mistrial, and on appeal the trial court's decision to deny a mistrial will be reversed only where an extreme situation threatened a miscarriage of Justice. Beale v. United States, 465 A.2d 796, 799 (D.C. 1983), cert. denied, 465 U.S. 1030, 79 L. Ed. 2d 694 , 104 S. Ct. 1293 (1984); Catlett v. United States, 545 A.2d 1202, 1213 (D.C. 1988), cert. denied, 488 U.S. 1017 (1989). The trial court also has broad discretion to conduct a voir dire of a jury, subject to the demands of fairness. See, e.g., Khaalis v. United States, 408 A.2d 313, 335 (D.C. 1979), cert. denied, 444 U.S. 1092 (1980). In assessing the jurors' responses, the trial Judge was in a position to consider their demeanor, and the tone and pattern of their speech. See Johnson v. United States, 470 A.2d 756, 760 (D.C. 1983). The trial Judge in this case had ample opportunity to observe both Juror No. 14 and all other jurors during a voir dire the trial Judge conducted immediately upon hearing reports of Juror No. 14's conduct. Sobin failed to articulate a reasonable basis for concluding that he was prejudiced by the behavior in question. See Lee v. United States, 454 A.2d 770 (D.C. 1982), cert. denied, 464 U.S. 972, 104 S.Ct. 409, 78 L.Ed.2d 349 (1983). We perceive no basis for holding that the trial Judge abused her discretion in denying a mistrial. *fn4
Two of Sobin's children, ages four and six, were present in the courtroom for the sentencing phase of the proceeding. During Sobin's allocution before the imposition of the sentence, he referred to his family members. The following exchange took place:
: I want to thank the other part of my family, my two young ones . . . because they have been very supportive even though they are just four and six. Your honor, they are extremely intelligent people --
[THE COURT]: May I indicate that I don't think it is appropriate for a four-year-old and six-year-old to be here for sentencing. I would ask that ...