Before Reid and Glickman, Associate Judges, and Ferren, Senior
The opinion of the court was delivered by: Reid, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Harold L. Cushenberry, Jr., Trial Judge)
After a 1997 jury trial, appellant Gilbert Doret, also known as Anthony Wayne Grant, was convicted of conspiracy to distribute cocaine between July 1, 1990 and July 13, 1990, in violation of D.C. Code §§ 22-105 (a) (1996), and 33-541 (a)(1) (1998); first- degree murder (premeditated) while armed of Marcus Lee, in violation of §§ 22-2401, -3202; possession of a firearm during the commission of a crime of violence ("PFCV") (the murder of Lee), in violation of § 22- 3204 (b); possession with intent to distribute cocaine ("PWID"), on July 13, 1990, in violation of § 33-541 (a)(1); and unlawful possession of ammunition, in violation of D.C. Code § 6-2361 (3) (1995). *fn1 He challenges his convictions mainly on the grounds that the trial judge: (1) "improperly impaired [his] right to exercise peremptory challenges when he precluded any follow-up questioning of jurors who indicated that they, their family, or close friends had ties to law enforcement"; and (2) committed reversible error in admitting into evidence statements, through the testimony of a police sergeant, as declarations against the penal interest of a deceased associate, Derrick Feaster, which provided a motive for the murder of Lee. First, we conclude that the trial judge erred by precluding defense counsel from directing follow-up law enforcement questions to seven jurors, since the testimony of police officers and government experts played a substantial role in the case against Doret; but that the error was harmless. In addition, we hold that where potential jurors remain silent during the voir dire examination, in response to a general question regarding their ability to be fair and impartial jurors despite their family or close relationships with persons in the law enforcement field, the trial court has an obligation to probe further, and to elicit more than a nod of the head or a simple "yes" or "no" response, to ensure their impartiality and fairness as jurors. Second, we conclude that the trial court erred in admitting statements attributed to Feaster as declarations against his penal interest; and that the error was not harmless. Therefore, we reverse the convictions of Doret for first-degree murder (premeditated) while armed and PFCV, and order a new trial on those charges. However, we sustain Doret's convictions for conspiracy to distribute cocaine; possession with intent to distribute cocaine; and unlawful possession of ammunition.
The government's evidence presented at trial showed that Marcus Lee was killed on July 11, 1990, around 3:00 a.m. while he was speaking with his mother, who lived in California, from a pay telephone at Brown and Newton Streets, N.W. in the District of Columbia. As he talked with his mother, Lee described an approaching black rental car and, in a frightened voice, said: "[I]t's Gil,[ *fn2 ] Ma, it's Gil, Ma." These words were followed by a "loud penetrating noise," and then the "clok, clok, clok of the phone beating back and forth." On cross-examination Lee's mother was asked about two prior statements during which she said she was not certain she heard a gunshot. In addition to Lee's mother, two persons who lived in the Brown/Newton Street area testified. One had walked near the pay phone around 2:30 or 3:00 a.m. on July 11, 1990, and saw a man walking toward the pay telephones, as well as a car slowly moving down Newton Street as one of the passengers looked toward the person approaching the pay phones. Another neighbor heard a noise that resembled gunfire around 3:00 a.m. the same morning, ran to the window, and saw a dark sedan "zooming up Brown Street," and a body near the pay phones. He called 911.
As a motive for Doret's alleged shooting of Lee, the government presented testimony at trial, primarily from one Metropolitan Police Department ("MPD") police officer, Sergeant ("Sgt.") Daniel Wagner, who had questioned Feaster, *fn3 another member of the drug operation. *fn4 Feaster had recounted an argument between Lee and Doret in which Lee maintained that Doret owed him money. As payment to himself, Lee retained approximately fourteen hundred dollars from drug sales that would have gone to Doret. When police officers went to the apartment that served as the alleged crack or stash house for the drug operation, they found latent fingerprints, one of which matched those of Doret. In addition, they discovered ammunition, ziplock bags containing traces of a substance that tested positive for cocaine, a triple beam scale, and a safe containing four brown envelopes. The jury heard testimony from other members of the drug operation, specifically Eugene Frazier and Darren Hargrove, who described its structure and activities, including the use of the crack house, and from three female witnesses who were friends of Lee, one of whom had visited the crack house with Lee. Frazier and Hargrove stated that they routinely "sold drugs together" with Doret, and that he was the "leader" of the group. Moreover, the crack house apartment had been rented in 1990 by Doret's girlfriend, Anita Fortune, who later became his wife.
We begin with the factual background for Doret's argument regarding the impairment of his right to exercise peremptory challenges. Approximately five months prior to trial, counsel for Doret submitted "requested voir dire questions and procedures" and a memorandum of points and authorities in support of his request. He asked for an opportunity to pose follow-up questions to potential jurors "[i]n order to more accurately detect bias and to allow counsel to meaningfully exercise his peremptory challenges." Among the follow-up questions counsel included in his request were those designed for jurors, their family members or close friends, having "a connection to law enforcement or the criminal justice system." Specifically, counsel proposed to ask:
(a) If the individual is a close friend, how long the juror has known the individual and what is the nature of the relationship?
(b) What relevant organizations the individual works or has worked for?
(c) How many years has or did the individual spend with each organization?
(d) What was the individual's job with each organization and whether those duties directly involved the apprehension of criminals?
(e) To what extent did or does the individual discuss his work with the juror?
(f) Whether the juror has a particular concern for the individual which could be affected by a decision to convict or acquit the defendant?
(g) Whether the fact of the individual's employment would cause the juror to be swayed for or against either side?
Instead of the specific questions requested by Doret, the trial judge posed the following question to the jury panel:
Ladies and gentlemen, let me ask whether or not any of you, any members of your immediate family, or very close personal friends, are employed by law enforcement agencies or by any defense attorneys or as defense investigators. Any of you or members of your family employed by law enforcement agencies, by any defense attorneys or defense investigators. I would include within the ambit of law enforcement even security guards. Anyone who would have arrest powers; and I would include also prosecutor officers of any sort.
Seventeen potential jurors responded to the inquiry, five of whom were excluded for cause; an additional four were not reached during the selection process; and the government used one of its peremptory strikes against yet another. Doret focuses on the remaining seven jurors in crafting his argument.
The seven remaining jurors were numbers 876, a Drug Enforcement Agency employee; 920, a District police officer whose husband and brother also were police officers; 076, whose closest friend and business partner was a former District police officer; 121, whose business partners were defense attorneys; 772, a Secret Service employee with several federal agents as close friends; 817, who worked with Secret Service agents and whose cousin was an FBI agent; and 824, a research manager for a health care organization who stated: "I have two close friends of mine that work for the Department of Justice and the Parole Commission."
After the seventeen persons responded affirmatively to the general law enforcement question, the trial court asked:
Ladies and gentlemen, just because of the occupation of those individuals, do you think that would have any impact upon your ability to listen to the evidence in this case and be fair to both sides just because you know someone who may have some law enforcement background?
When none of the potential jurors replied, the trial judge said: "I take it from your silence that the answer is no." The record reflects no audible response from the jurors. As a "follow-up" or "precursor" question to the entire jury panel, the judge inquired, in part, "whether or not because of any publicity, general publicity about Washington, D.C. or general publicity about the crime problem in Washington, D.C. . . . any of you feel you could not listen to the evidence in this case and judge the guilt or innocence of the defendant based upon the evidence." None of the jurors answered affirmatively. The trial judge raised a few additional questions, including potential jurors' personal feelings about firearms, firearm-related offenses, and drug crimes; and whether the potential jurors or family members or their close personal friends had been a victim of or witness to a homicide, weapons, or assaultive offense.
When the trial court had concluded most of its questions to the jury panel, defense counsel reminded the court that he had submitted requested voir dire questions and asked for the opportunity to pose follow-up questions to jurors who had close friends or family members in the law enforcement field, so that he "might intelligently exercise [his] peremptory challenges." The trial judge replied: "I think I have adequately covered the area and I think I will not allow any other follow-up [except in two other areas, the occupation of each juror; and in the event a juror knew another juror, the nature of the relationship]." Therefore, counsel for Doret was not permitted to make further inquiry of the seventeen jurors who responded affirmatively to the law enforcement inquiry.
When it came time to exercise peremptory challenges, counsel for Doret used his ten as follows: one (his second) on a juror (number 112) who apparently manifested "non-verbal clues" of bias; six to strike six of seventeen jurors who responded affirmatively to the law enforcement question; two to eliminate two attorneys who asserted that they would experience hardship if selected for service; and one on a juror whose brother was killed in the same year as the decedent in Doret's case. Juror No. 824, one of the seventeen who replied affirmatively to the law enforcement question, was not struck.
Doret contends that the trial judge "improperly impaired [his] right to exercise peremptory challenges when he precluded any follow-up questioning of jurors who indicated that they, their family, or close friends had ties to law enforcement." The government argues that the trial court did not abuse its discretion by declining to ask follow-up questions regarding the law enforcement inquiry, and maintains that there was no substantial prejudice to Doret because the court posed other questions designed to weed out bias. In addition, the government contends that Doret could have used a peremptory challenge to strike Juror No. 824 instead of the juror who was struck on the ground of "non- verbal clues" of bias.
The Sixth Amendment to the Constitution of the United States specifies that: "In all criminal prosecutions, the accused shall enjoy the right to a . . . public trial, by an impartial jury. . . ." The process of obtaining an impartial jury, in part by disqualifying biased jurors, unfolds during the fundamentally important voir dire examination of potential jurors, conducted by the trial judge. Thus, "the impaneling of a fair and impartial jury is 'the task of the trial judge.'" Dingle v. State, No. 87 (Md. September 15, 2000), 2000 Md. LEXIS 599 at 19 (quoting Boyd v. State, 671 A.2d 33, 35 (Md. 1996)). In that regard, "'the trial court [has] broad discretion in conducting voir dire examination; absent an abuse of discretion and substantial prejudice to the accused, the trial court will be upheld." Murray v. United States, 532 A.2d 120, 122 (D.C. 1987) (citations omitted).
The empaneling of a fair and impartial jury depends in large measure on how the voir dire examination is conducted. A potential juror's bias may be obvious when he or she admits actual bias; or implied or presumed as a matter of law, as in the case of a potential juror who is related to a party in the case; or inferred "when a juror discloses a fact that bespeaks a risk of partiality sufficiently significant [such as a relationship with a prosecutor] to warrant granting the trial judge discretion to excuse the juror for cause, but not so great as to make mandatory a presumption of bias." United States v. Torres, 128 F.3d 38, 47 (2d Cir. 1997). "[T]he court is allowed to dismiss a juror on the ground of inferable bias only after having received responses from the juror that permit an inference that the juror in question would not be able to decide the matter objectively. In other words, the judge's determination must be grounded in facts developed at voir dire." Id. at 47. If, after proper questioning of a potential juror for bias, the trial judge, in his or her discretion, decides that there is an insufficient basis to disqualify that juror for cause, counsel for one of the parties still has an opportunity to strike that juror by using a peremptory challenge.
We reiterated the significance of peremptory challenges in Lyons v. United States, 683 A.2d 1066 (1996) (en banc):
More than a century ago, the Supreme Court said that the right to strike jurors without cause is "one of the most important of the 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." Id. at 1070 (quoting Pointer v. United States, 151 U.S. 396, 408 (1894)). Nonetheless, the relationship between the exercise of peremptory challenges and a fair and impartial trial is not a direct ...