Appeal from the Superior Court of the District of Columbia (F-2111-01) (Hon. Evelyn E. Crawford Queen, Trial Judge)
Before Schwelb, Farrell, and Reid, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Appellant was found guilty of distribution of cocaine and simple possession of cocaine (a conviction the government agrees must be vacated as a lesser included offense). The convictions arose from appellant's sale in April 2001, of two bags of crack cocaine to an undercover police officer for twenty dollars, after which appellant was arrested and found to have the twenty dollars -- in marked police currency -- in his possession.
The only issue necessitating publication is appellant's argument that the trial judge erred in substituting an alternate juror for a juror who had become incapacitated after the jury began its deliberations. Appellant relies chiefly on Bulls v. United States, 490 A.2d 197 (D.C. 1985), in which this court held that substitution of an alternate juror once deliberations had begun violated then Super. Ct. Crim. R. 24 (c), and was reversible error.
Bulls, however, was effectively overruled by a 2000 amendment to Rule 24 (c). See Super. Ct. Crim. R. 24 (c)(3) (2002). Bulls rested expressly on a violation of the rule as it then existed, see id. at 199-200, 202, *fn1 which provided that alternate jurors could replace jurors "who, prior to the time the jury retires to consider the verdict, become or are found to be unable or disqualified to perform their duties." Id. at 200 (quoting then Super. Ct. Crim. R. 24 (c)) (emphasis by Bulls). In August 2000, however, following the lead of the Federal Rules of Criminal Procedure, Super. Ct. Crim. R. 24 (c) was amended to provide:
(3) Retention of Alternate Jurors. When the jury retires to consider the verdict, the Court in its discretion may retain the alternate juror during deliberations. If the Court decides to retain the alternate jurors, it shall ensure that they do not discuss the case with any other person unless and until they replace a regular juror during deliberations. If an alternate replaces a juror after deliberations have begun, the Court shall instruct the jury to begin its deliberations anew. See also Fed. R. Crim. P. 24 (c)(3).
In this case, Judge Queen followed Rule 24 (c)(3) to the letter. Before deliberations began, she addressed the two alternate jurors (numbers 4 and 13) as follows:
You have been the alternates in this matter. Give your notebooks to the clerk so she can secure them. Now, although we are starting deliberations today, I would ask you not to discuss the case with each other or with anyone else. If something happens to one of our deliberating jurors before there is a verdict, we may bring you back, hand you your notes and start the deliberations all over again with your participation. If you want to, you can check back Monday or Tuesday and see whether there is a verdict, and then you can talk about it as much as you would like, but for now, please don't.
The judge therefore "retain[ed] the alternate jurors" and instructed them so as to "ensure that they [did] not discuss the case with any other person." Rule 24 (c)(3). Later, when a juror became incapacitated during deliberation, *fn2 the judge summoned alternate juror no. 13 and confirmed by questioning that the juror had indeed not spoken to anyone about the case nor "reached any decisions about it." The judge thereupon replaced the incapacitated juror and instructed the jury in accordance with the rule:
As you know, yesterday Juror 8 became ill during deliberations and had to leave. We suspended jury deliberations at that time.
At this time you will note that Juror 13 is here and prepared to join you. Juror 8 is no longer available to us.
At this time I instruct you that all prior deliberations are void and not controlling in these cases. I will take your verdict forms that you have used at this point. They will be sealed and no longer available to you. All decisions made by you as a jury [are] held for naught. It means nothing. You're starting all over again.
Juror 13 will now join you and your jury deliberations will commence again as if the prior ...