Appeal from the Superior Court of the District of Columbia. (Hon. Joan Zeldon, Trial Judge).
Before Ferren, Schwelb, and Ruiz, Associate Judges.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge : Woodrow J. Wilson was convicted by a jury of unlawful distribution of cocaine, in violation of D.C. Code § 33-541 (a)(1) (1989). On appeal, he contends that the trial Judge abused her discretion by denying his motion for a new trial following the disclosure of improper conduct on the part of a juror. We affirm.
THE TRIAL COURT PROCEEDINGS
A. The Trial and Its Aftermath.
Wilson's trial began on Tuesday, October 19, 1993. Jury selection was completed on the following day. John R. Dugan, a practicing attorney who had previously been employed by the United States Attorney's office, was selected as a member of the jury. The Judge instructed the jurors, at the commencement of the trial, that "you must not discuss this case with anyone during the trial, not even with each other." She repeated the substance of this directive on several occasions as the trial proceeded.
The prosecution rested on Friday, October 22, 1993, and the Judge recessed the trial for the weekend. The defense case, the government's rebuttal, the closing arguments of counsel, and the Judge's charge to the jury were all completed on the morning of Monday, October 25. The Judge discharged the two alternates, and deliberations began at 12:50 p.m. on that day. The jury sent the Judge a note at 4:37 p.m. advising her that a verdict had been reached. In open court, the jury returned a verdict of guilty.
On the following day, October 26, 1993, the prosecutor called the Judge's chambers and reported that one of the jurors, specifically Dugan, had attempted to discuss the case with a member of her office, Assistant United States Attorney Patrick Rowan, during the course of the trial. The prosecutor stated that she had already passed on this information to Wilson's trial attorney. Shortly thereafter, defense counsel also contacted chambers and advised the Judge that she had additional facts that she wished to provide to the court.
The trial Judge convened a hearing on October 27, 1993. At that hearing, the prosecutor disclosed that Dugan had contacted Rowan over the weekend to inquire whether the government was required to call a chemist as a witness in order to prove that the substance allegedly distributed by Wilson was cocaine. The prosecutor stated that Rowan had declined to discuss the matter. Wilson's attorney then proffered the following additional information about Dugan, which she said that she had received from the discharged alternates while the jury was deliberating:
At the very beginning of the trial, began to explain to them that he had expertise in the matter of evidence, and that he demonstrated this by telling them that when I objected to the introduction evidence the copy . . . that my objection was unfounded, that it was frivolous, that it would be overruled because the . . . Court did not need to have the original.
And while the jury was waiting to continue with the trial, that he explained to them that their waiting was a complete waste of time . . . . The two alternates said that at that particular time his word was the Word of God.
Wilson's attorney made an oral motion for a new trial. Following some preliminary Discussion of the issues which had been raised, the Judge scheduled an evidentiary ...