Appeal from the Superior Court of the District of Columbia. (F3301-98) (Hon. Judith E. Retchin, Trial Judge).
Before Steadman, Schwelb and Washington, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge
On May 6, 1999, following the dismissal of a juror during jury deliberations (and over a defense objection to the dismissal), James R. Braxton was convicted by an eleven-member jury of carrying a dangerous weapon outside his home or place of business, possession of a prohibited weapon (sawed-off shotgun), possession*fn1 *fn2 of an unregistered firearm, and unlawful possession of ammunition for an unregistered*fn3 firearm. On appeal, Braxton contends that the trial judge erred in dismissing the twelfth*fn4 juror. We affirm.
I. THE TRIAL COURT PROCEEDINGS
A. Voir Dire and the Trial Judge's Initial Instruction
At Braxton's trial, which began on May 3, 1999, and ended on May 6, the prosecution presented evidence consisting primarily of testimony by police officers, which, if credited by the jury, established that during the early morning hours of May 6, 1998, Braxton was in possession of a loaded sawed-off shotgun which he discarded on a window ledge while being pursued by the officers. Braxton presented no evidence.*fn5
On the first day of the trial, during the jury selection process, and before any evidence was presented, the trial judge posed a number of questions to the venire in order to elicit any potential juror bias. One of the judge's inquiries was whether there is "any juror who believes that he would be inclined to give either more or less weight to the testimony of a witness just because that witness is a police officer." No member of the venire responded in the affirmative, and later on the same day, a jury was duly seated.
On May 4, 1999, the second day of the trial, after both parties had rested, the trial judge delivered her charge to the jury. Her instructions included the following:
A police officer's testimony should be considered by you just as any other evidence in the case. In evaluating the officer's credibility you should use the same guidelines which you apply to the testimony of any witness. In no event should you give either greater or lesser weight to the testimony of any witness merely because that witness is a police officer.*fn6
The jury began its deliberations at 11:20 a.m. on the following day, May 5, 1999.
B. The First Jury Note and Its Aftermath
At 3:58 p.m. on May 5, the judge received a note from Juror No. 11 which read as follows:
We have a juror who has made a statement about the police overall (most police are liars) and their credibility that is inconsistent with your questions you asked the group of 60.
The juror's reference to a question directed to the group of 60 was evidently to the inquiry relating to the weight to be given the testimony of a police officer, quoted above, which was posed by the trial judge as a part of the voir dire. Juror No. 11 was thus apparently alleging that a fellow juror had not been accurate in responding to the court's inquiries during the jury selection process.
Upon receiving the note, the judge commented that "if this jury ends up being a hung jury . . . this will be the ninth hung jury that I have had on my calendar since January." The judge apprised counsel of some research that she had done on measures that could be taken to alleviate this problem, and she referred counsel to United States v. Thomas, 116 F.3d 606 (2d Cir. 1997). The judge explained that in Thomas, the court had concluded that a "juror's purposeful unwillingness to apply the law, including stated intentions to in effect nullify, . . . constitutes just cause for the dismissal of the juror from a deliberating jury under Rule 23 [(b) of the Federal Rules of Criminal Procedure]." The judge asked counsel for suggestions . . . as to how to proceed and address this situation. But it's clear to me that the jury is asking for help in dealing with a juror who they say, at least one juror says[,] is not following the instructions.
Braxton's attorney responded that "saying that most police officers are liars" is not the same thing as "saying I would never believe or disbelieve or always believe . . . a police officer." Counsel argued that the note did not mean that any juror was refusing to follow instructions. Counsel suggested "that the court reinstruct them on the jury instruction for a police officer's testimony, the jury instruction for evaluation of testimony . . . or in the alternative I would ask for a mistrial." The prosecutor agreed that the jury should be reinstructed regarding the appropriate evaluation of a police officer's testimony, and she also asked the judge to remind the jurors that, during voir dire, they had all represented that they could evaluate a police officer's testimony fairly.
The judge then gave the jury a lengthy reinstruction in which she focused on the jurors' duty to follow the law and on their obligation to abide by the court's instructions regarding the law. Specifically, the judge instructed the jurors that they must give neither more weight nor less weight to the testimony of a witness simply because that witness is a ...