Appeal from the Superior Court of the District of Columbia Criminal Division (F-1177-03) (Hon. Lynn Leibovitz, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before FARRELL, RUIZ and REID, Associate Judges.
This appeal arises out of appellant's conviction of heroin distribution within one thousand feet of a school, in violation of D.C. Code §§ 48-904.01 (a)(1), -904.07a (2001). The question before us is whether the trial court erred in refusing to grant a mistrial after it was alerted to the presence of a piece of paper found in the jury room containing information about the times the sun set around the date of the crime, which occurred at 5:45 p.m. on February 25, 2003. Appellant argues that the trial court failed to conduct an adequate inquiry into potential juror bias resulting from their contact with the extraneous information and that a mistrial should have been granted because the information -- which was not admitted or tested at trial -- prejudiced him. We conclude that the trial court conducted a sufficient inquiry and did not abuse its discretion in denying appellant's request for a mistrial. We affirm.
On February 25, 2003, at approximately 5:45 p.m., three officers of the Metropolitan Police Department (MPD) were at the 3800 block of 9th Street, Southeast, Washington D.C., as part of a planned undercover drug operation. Officer Alfred Myers was driving an unmarked police car, while the other two, Investigators Anthony Greene and Anthony Commodore, were walking in the neighborhood dressed in civilian clothing and attempting to buy illegal drugs as a part of the "buy-bust" operation.
On that evening, Investigator Greene testified, he approached a person, whom he later identified as appellant, and asked him for heroin using the street term "blow." Investigator Greene paid $30.00 in pre-recorded bills and in exchange received three small bags containing heroin,*fn1 which he testified came from the seller's front, right coat pocket. According to Investigator Greene, the purchase took approximately two minutes and he stood "face-to-face" with the seller at a distance of approximately three feet during the transaction.*fn2
After he purchased the drugs, Investigator Greene walked away and gave a pre-arranged signal to Officer Myers, who had been monitoring the transaction from an unmarked police car, to convey that the purchase had been completed. Officer Myers then broadcast over an unrecorded police channel a "lookout" for the seller, providing a description of his clothes and other defining features to the arresting officers. Officer Leroy Rollins and other members of the arrest team in the neighborhood spotted a man matching the description provided by Officer Myers and apprehended appellant within minutes on the same block.*fn3
Officer Myers met up with Investigator Greene approximately one minute after the transaction. After learning that the arresting officers had apprehended a suspect, Officer Myers drove his vehicle past the police car where appellant was being detained. Investigator Greene identified appellant as the seller,*fn4 and he was placed under arrest. In a search incident to arrest, Officer Rollins recovered $32.00 from appellant's front, right pocket, $30.00 of which were found to be the MPD pre-recorded bills used by Investigator Greene to purchase the drugs.
Contradicting the officers, appellant testified that on February 25, 2003, upon leaving his friend Tasha's house between 4:30 and 5:00 p.m. to pick up his children, the police stopped and arrested him. Appellant testified that the police searched him and took between $30 and $40 from him, which he had earned working. Appellant denied possessing or selling heroin that day.
B. Discovery of Extraneous Information in Jury Room
At trial, shortly after the alternates were dismissed and approximately five minutes after the jury had retired to deliberate, the trial court received a note from the jury foreperson about a piece of paper that had been found in the jury room. In the note, which enclosed the piece of paper,*fn5 the foreperson asserted that no juror had read what was on the paper, but that one juror "saw [it]."*fn6 The trial court convened the parties to alert them to the situation.*fn7 The trial court examined the piece of paper and informed the parties that the piece of paper "is . . . essentially a list of the times of sunset -- the rise and set for the sun for 2003. And one time is circled . . . it is the time of sunset for February 23, 2003." Judge Leibovitz also described the print on the paper as "minute." The court then began a hearing process to discern where the piece of paper had come from and what, if anything, each juror had heard about or seen directly from the piece of paper.
Judge Leibovitz first questioned, separately, the foreperson and Juror 367 (who found the piece of paper) in the presence of counsel and permitted counsel to question them directly. The foreperson testified that "two to three minutes" after the jurors had returned to the jury room to begin their deliberations, Juror 367 brought to everyone's attention the existence of a piece of paper that she described to the other jurors as "an astrologer's table." See note 10, infra. The foreperson explained that she did not look at the contents of the piece of paper herself. Rather, after Juror 367 suggested that it was likely they should not be in ...