Appeal from the Superior Court of the District of Columbia; (Hon. Michael L. Rankin, Trial Judge)
Before Rogers, Chief Judge, Farrell, Associate Judge, and Kern, Senior Judge. Opinion for the court by Associate Judge Farrell. Dissenting opinion by Senior Judge Kern.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: It is a salutary and perhaps even common practice for trial Judges in criminal cases, when appropriate, to instruct jurors to suppress any temptation they may have to visit the location of the alleged crime on their own. The trial Judge regretted not having done so in this case, for, as it happened, a juror ventured out to the scene of the alleged drug sale the night before deliberations began to examine the lighting conditions. Appellant's defense was misidentification, and, as the trial Judge later acknowledged, the lighting was "important, even central" to at least one factor bearing on the reliability of the police officer's identification. Moreover, when the jury foreperson brought the matter to the Judge's attention soon after deliberations began, the juror in question confessed that as a result of the visit, "I kind of drew my own Conclusion as to what I felt the lighting condition was." Nonetheless, responding to a question by the Judge, the juror added that he would have "no problem" deciding the case solely upon the evidence heard in court.
The government argues that, under the deferential standard of review appropriate in these circumstances, we must sustain the trial Judge's acceptance of the juror's assurance and refusal to grant a mistrial. We conclude, to the contrary, that in the circumstances of this single-witness identification case, even conceding the trial Judge's superior vantage point from which to evaluate prejudice, the risk of a tainted verdict from the juror's conduct is too great to permit the judgment to stand. We therefore reverse.
The government's evidence showed that Officer Gary Curtis, dressed in plainclothes, approached Rhonda Tinch in the 1200 block of Wiley Street, N.E. at about 1:55 a.m., and asked her for a "twenty" of crack cocaine. Tinch told him to follow her to the middle of the block where she approached appellant, spoke with him, and received from him a plastic baggie which she gave to Officer Curtis in return for twenty dollars in pre-recorded police funds. The trio were about arm's length apart during the transaction. Tinch gave the money to appellant, who in turn gave it to a fourth individual, Adams. Curtis returned to his vehicle and radioed a description of the three sellers. *fn1 Appellant and the others were then arrested on the scene and identified by Curtis; the twenty dollars in police funds was found on Adams. *fn2 Curtis testified that the scene was illuminated by high intensity street lamps and that, in keeping with his experience, he had focused on the features of the sellers so he could later identify them. His encounter with appellant lasted "about 40 seconds." One defense witness, who claimed to be on the scene with appellant at the time but denied seeing him involved in a drug sale, confirmed that the area "was light." But a defense investigator who had inspected the scene testified in detail about shadows cast by the street lights on this particular block. Defense witnesses also testified that other black males matching the description by Curtis were on the scene at the time, though arrest team officers insisted there were only two such males and that neither matched Curtis's description of appellant.
Were we reviewing the legal sufficiency of the evidence, we would not hesitate in concluding that reasonable jurors could fairly credit Officer Curtis's identification of appellant. Nevertheless, issue was joined on the question of identity and specifically on Curtis's ability to identify appellant -- within the space of some 40 seconds -- given the lighting conditions on the scene, and it is in this context that appellant's claim of prejudicial misconduct by a juror comes before us. The issue arose shortly after the trial Judge instructed the jury and dismissed the alternate jurors, and the panel retired to deliberate. The Judge received a note from the foreperson stating that a juror had visited the crime scene, but that as soon as he revealed that fact, deliberations had stopped and he had said nothing further to the other jurors. Although appellant immediately requested a mistrial, the Judge instead -- quite correctly -- ordered the juror brought into the courtroom where he questioned him as follows:
We understand that you went to the scene last night for the purpose of making your own independent investigation; is that right?
THE COURT: What -- where is it that you went precisely?
JUROR NO. 737: I just drove through Wiley Street. I didn't stop anywhere in particular, I just drove through.
What was it that you were curious to see?
JUROR NO. 737: The lighting conditions.
THE COURT: Do you feel that having seen what you saw gives you a different perspective than you had at the close of the evidence yesterday ...