Appeals from the Superior Court of the District of Columbia (F-7791-98 & F-7792-98) (Hon. Melvin R. Wright, Trial Judge)
Before Wagner, Chief Judge, Schwelb, Associate Judge, and King, Senior Judge.
The opinion of the court was delivered by: King, Senior Judge
This matter is before the court on the appeal of Brown and Lay after conviction of distribution of controlled substance, heroin, in violation of D.C. Code § 33-541 (a)(1) (1981). *fn1 While Brown raises a number of issues, Lay only claims that the evidence was insufficient to support his conviction. With one exception, all of the issues presented can be resolved summarily as set forth in Part III, infra. Only Brown's challenge to the trial court's denial of his request to be present at the bench during the voir dire of the potential jurors requires a more extensive discussion. Finding all of Brown's and Lay's contentions unpersuasive, we affirm.
The only issue requiring this opinion is Brown's appeal of the trial court's denial of his request to be present during individual voir dire of prospective jurors, which was made well after the process began. The parties appeared before the trial court on April 27, 1999, for a jury trial and the trial judge began by explaining the voir dire process that was to be conducted the following day once the jury panel was seated in the courtroom in the order in which they appeared on the jury list. The judge informed the defendants and the attorneys that he would explain to the jury panel that he would be asking them a series of questions, with each question numbered, and the jurors were to write on a card that had been provided to them the number of any questions they answered affirmatively. While most of the questions would be uncontroversial, the "Ridley" question inquiring whether the potential jurors or persons close to them have been accused of, the victim of, or a witness to a crime was one of the questions that would be asked. See United States v. Ridley, 134 U.S. App. D.C. 79, 81, 412 F.2d 1126, 1128 (1969) (per curiam). At the conclusion of the reading of the questions by the trial judge, each juror would be brought to the bench to elaborate on their affirmative responses to the questions asked by the trial judge. Those responses would be made in the presence of the judge and the attorneys. *fn2
On April 28, 1999, once the sixty prospective jurors had been seated in the courtroom in the order in which they appeared on the jury list, the judge repeated his explanation of the process. He emphasized that "at the end of asking all of the questions, we will bring each juror up . . . [a]nd then we will have a discussion here at the bench regarding your answer." The judge then posed twenty-one questions to the jury. *fn3
After asking all the questions, the judge explained for the third time how the responses by individual jurors would be received. The judge stated: "When you come up, . . . the lawyers will be grouped around in like a little huddle together, all of us together. . . . [A]fter I've asked you some questions, I will permit the lawyers to ask some follow-up questions. . . . After we've done that, then you'll be asked to return back to your seat." When the judge called counsel to the bench neither requested that his or her client be present for the questioning of the jurors. The judge then began calling the jurors, one-by-one, to the bench to discuss the affirmative answers to the questions indicated on their cards. Seventeen jurors were questioned at the bench before the break for lunch.
Following the one hour lunch break, the trial judge resumed the questioning of the jurors. After two more jurors were questioned, Brown's counsel stated that her client wanted to exercise his right to participate in the voir dire bench conferences. Brown's counsel stated:
Just for the record. My client wanted me to tell the Court that he would like to be part of this and hear the responses.
I know this is probably problematic. I just wanted to get it on the record.
I don't foresee another way other than the jury room. I don't want him up here with marshals *fn4 behind him because I think that screams incarceration.
But I think I need to make my record on behalf of Mr. Brown.
Responding to the request, the court replied, "If we had considered that at the beginning, I would have taken [Lay's attorney's] suggestion that maybe we should do it in the jury room where they can be present and not [have] a problem." When Brown's counsel stated that she did not hear Lay's attorney make that suggestion, Lay's attorney responded, "It was just sort of a casual thing at the end of the morning session when my feet were getting tired." Lay's attorney made no further representation regarding the request by Brown's counsel that Brown be present. Nor did Lay's counsel request that Lay be present.
The trial judge then stated that he was unwilling to change the voir dire process in the middle of the examinations. The trial judge stated, "If you feel the need to consult with him during the voir dire, I'll give you leave to go talk to him about that." Brown's counsel replied, "Very well. I appreciate it." The voir dire bench conferences then continued outside of Brown's presence. Nine *fn5 of the twelve jurors who deliberated were questioned after counsel's request was denied.
Most of the questions the judge and defense attorneys discussed with the nine jurors were uncontroversial. Of the nine jurors: two (Nos. 984 and 315) knew other people on the panel who ultimately did not sit on the jury; three (Nos. 926, 948 and 136) explained their medication and health problems; five (Nos. 918, 948, 951, 136, and 315) knew or were related to people involved in law enforcement or the judicial system; and finally, two (Nos. 247 and 281) of the nine jurors who deliberated answered none of the questions affirmatively. None of the jurors who deliberated answered affirmatively to either question number 17 inquiring whether they could "sit fairly and impartially" or question number 19, relating to their attitude toward drugs.
Three (Nos. 951, 136, and 315) of the nine jurors responded affirmatively to the Ridley question. One of those jurors, No. 951, reported that a friend had been beaten and robbed the previous week, but regardless of the incident he could be a fair juror. In response to a questioned posed by Brown's attorney, the juror answered that the police treated his friend well.
Another juror, No. 136, stated that although his brother had gone before a judge for possession of marijuana, he could be a fair juror. When questioned by the prosecutor, he responded that his brother was treated fairly. Brown's counsel, as well as Lay's attorney, had no questions for this juror.
The third juror, No. 315, explained that she had witnessed a crime stating: "Cars parked in my alley was smoking. And apparently it was supposed to be highjacked but it wasn't. So the detectives said that the man was going to highjack - it was a drug killing and had someone stolen car and got rid of his own car." Neither the judge nor the attorneys questioned the juror further about the incident.
Five (Nos. 918, 948, 951, 136, and 315) of the nine jurors knew or were related to people involved in law enforcement or the judicial system. The first juror, No. 918, informed the court that her ex-husband had retired from the District of Columbia Metropolitan Police Department about six to eight months earlier. In response to the judge's statement, "In terms of believing a police officer just because he's a police officer doesn't mean that he's telling the truth nor does it mean he's lying. You would listen to each person's testimony whether it's a police officer or not and judge it based upon what you hear; is that correct?" The juror replied affirmatively and explained that the fact she was married to a police officer did not change that. None of the attorneys questioned the juror further.
The second juror, No. 948, explained that he knew people who were lawyers and that he did not converse with them about criminal law. None of the attorneys had questions for this juror.
Another juror, No. 951, indicated that he had one cousin who studied law and other cousins who were police officers. When asked by the prosecutor whether he would "believe police officers who testified more so than any other witness," the juror stated, "No, I think . . . that the victim or the defendant has just as much right to testify as the police officer." In response to a question posed by Brown's counsel concerning his cousin's practice of law, the juror began to explain, "I think it's criminal law. It's - first of all, children - I think it's a" when counsel interrupted him stating that she had no further questions. Lay's attorney did not pose any questions to this juror.
The fourth juror, No. 136, advised the court that he could be a fair juror even though his sister and three friends were attorneys and his cousin was a police officer. In response to the prosecutor's questions, the juror responded that although he did not know his sister's exact position, she was an attorney for "D.C. Justice," and that his cousin worked on the police force in Westchester County, New York. Neither defense attorney asked the juror any questions.
The final juror, No. 315, informed the court that her son, daughter and cousins all worked for the Metropolitan Police. Her son worked as a policeman and her daughter as a guard. In response to the prosecutor's question, the juror explained that her son worked as a rifle range instructor at the academy. The juror indicated to the prosecutor that she would not believe a police officer's testimony over someone else just because they were an officer. Brown's counsel asked the juror which districts of the Metropolitan Police Department her relatives worked in, and whether they were involved in vice or narcotics. At counsel's request, the juror re-emphasized that she would evaluate police officer "testimony on the same level as anybody else's testimony" and would do so without hesitation if the judge instructed her so. Lay's attorney posed no questions to this juror.
None of the remaining questions were answered affirmatively by any of the jurors who participated in deliberations. The voir dire process began at approximately 11 that morning ...