Appeal from the Superior Court of the District of Columbia (F-8780-94) (Hon. Ellen S. Huvelle, Trial Judge)
Before Terry, Ruiz, and Glickman, Associate Judges.
The opinion of the court was delivered by: Terry, Associate Judge
After a jury trial, appellant was convicted of assault with a dangerous weapon, possession of a firearm during a crime of violence (PFCV), and carrying a pistol without a license (CPWL). On appeal he contends that the trial court erred in (1) denying his motions to strike two jurors for cause, excusing three jurors for hardship, and granting both the defense and the prosecution two additional peremptory strikes during the voir dire of the jury, and (2) denying his motion for a new trial, in which he asserted that the court had erred in dealing with a jury note. We affirm.
This case arises out of a shooting on August 16, 1994, which left one person dead and another wounded. Because the facts of the offense have no bearing on the issues raised on appeal, we give only a brief summary here.
After an argument during a basketball game between appellant and the decedent, George Allen, both men went back to their respective homes and obtained guns. About an hour later, appellant and Allen ran into each other in the Clay Terrace neighborhood and engaged in a shootout. Allen was with a friend, Mario Burt. Appellant claimed that he shot at Allen and Burt in self-defense. Burt and Allen were both wounded; Allen died of his wounds.
Appellant was charged with first-degree premeditated murder of Allen while armed, assault on Burt with intent to kill while armed, and the two firearms offenses. The case went to trial in April 1996, but the jury was unable to agree on a verdict. A second trial began in July 1997 before a different judge. At its conclusion the jury found appellant guilty of assault on Burt with a dangerous weapon (a lesser included offense of assault with intent to kill while armed), PFCV, and CPWL, but it acquitted him of all charges (including lesser offenses) relating to Allen, thus apparently accepting appellant's claim of self-defense with respect to Allen.
Exactly one week after the verdict, appellant filed a motion for new trial, arguing that he had been prejudiced by the manner in which the courtroom clerk dealt with a jury note. Appellant asserted that he and his counsel had the right to see the note and to know its contents before any response was made to the jury. After the government filed an opposition to the motion, the court held a hearing at which the courtroom clerk testified. At the conclusion of the hearing, the court denied appellant's motion, concluding "that any possible error was not prejudicial." The court then imposed three concurrent sentences totaling seven years under the Youth Rehabilitation Act, D.C. Code § 24-803 (b) (1996).
Before the voir dire of the jury began, the trial judge said to both attorneys:
I always ask, when I get fourteen people in the box and you've finished all your strikes, if there is anyone with a hardship that they did not bring to our attention. I don't want jurors who are dropping off, and I inevitably have one or two. So when you do your strikes, you have to think one or two beyond what you would otherwise think in terms of your panel. Any questions about that?
Defense counsel made no objection at this point, raising only a question about seating.
As the voir dire progressed, the judge denied two of defense counsel's motions to strike jurors for cause. The first of the two, juror number 141, worked at the Department of Justice and knew both attorneys and the judge in the case. He said that he had been an Assistant United States Attorney for four years, from 1985 to 1989, and that he was currently a candidate for the position of United States Attorney. *fn1 When asked whether he would be willing to serve on a criminal jury and whether he could be fair and impartial, the juror replied that he "might not mind the break" and added, "I think I'd be a terrific juror." He also said he would be willing to find appellant not guilty "in a heartbeat" if the government did not prove its case. Defense counsel moved to strike ...