Appeal from the Superior Court of the District of Columbia (F-549-01) (Hon. Zoe Bush, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before REID, GLICKMAN, and THOMPSON, Associate Judges.
Appellant Novel Hinton was tried and convicted on one count of possession of a controlled substance (phencyclidine, or "PCP") with intent to distribute in a drug-free zone, and one count of possession of marijuana. Appellant challenges his convictions on several grounds, one of which merits more than cursory discussion -- his claim that the judge abused her discretion and violated his rights under Criminal Rule 24 (c)*fn1 by replacing one of his jurors with an alternate in the middle of trial. Because the replaced juror was neither shown nor found to be "unable or disqualified to perform" his duties, we agree that Rule 24 (c) was violated. Nonetheless, in the absence of an affirmative showing that appellant was prejudiced by the juror substitution, we are constrained by precedent to withhold a remedy for the error. As appellant's other claims also do not entitle him to relief, we affirm his convictions.
According to the government's evidence, police officers with the Sixth District Vice Enforcement Unit were patrolling near the Fort Davis Recreation Center, in an area known to them for open-air drug trafficking, when their attention was drawn to three men in a car parked across the street from the center. The men seemed to be trying to conceal themselves by reclining their seats and ducking down; "the car appeared to be filled with smoke;" and when the officers approached on foot, they detected the aroma of marijuana from ten feet away. An investigative stop ensued, and after the men exited the vehicle, the officers found a small, hand-rolled cigar burning on the back seat. The contents of this "blunt" field-tested positive for tetrahydrocannabinol, the primary active ingredient in marijuana. Appellant, the only person who had been sitting in the back seat, was placed under arrest.
The officers testified that, as they proceeded to search appellant following his arrest, they smelled the pungent odor of PCP and noticed a suspicious lump in the sleeve of the black jacket he was wearing. The lump turned out to be a ziplock bag containing a large number of small plastic packages of a green weed substance redolent of PCP. Although photographs of appellant taken on the scene and presented at trial did not show him wearing a jacket, the officers explained that it was not visible in the photographs because it had been pulled down, and was hanging around appellant's handcuffed wrists, so that the officers could retrieve the drugs hidden in the sleeve. This testimony was contradicted, however, by that of another government witness -- Kareem Jackson, the driver of the car. Jackson denied appellant was wearing any jacket on the night of his arrest and said he did not see the police remove the suspected PCP from him. The driver also claimed he had not smelled any PCP in his vehicle.
Pursuant to former D.C. Code § 33-556 (1998),*fn2 and without objection from appellant, a Drug Enforcement Agency ("DEA") laboratory analysis report was admitted in evidence. The analysis found that the forty-six plastic bags retrieved from appellant's jacket sleeve contained 11.6 grams of PCP, and that the "blunt" contained 76 milligrams of marijuana. A police narcotics expert testified that appellant's possession of forty-six bags of PCP, each with a street value of $10 to $20, was indicative of an intent to distribute rather than possession for personal use. The expert also confirmed that PCP has a distinctive chemical odor, which he recognized from the materials seized from appellant.
The defense presented three witnesses. Kevin Davis, the other person in the car with appellant on the night of his arrest, denied that appellant smelled of PCP and claimed it was Kareem Jackson, not appellant, who was wearing a black jacket. According to Davis, appellant was not wearing any jacket at all. Davis said he saw the police recover cash from appellant, but not drugs.
A second witness, who had happened to be walking by and watched the arrest, likewise testified he did not see the police take anything from appellant except cash. Finally, appellant testified that he was not wearing a jacket or carrying any PCP. He said the police took $555 in cash from his pants pocket, but no drugs. In addition, appellant admitted having smoked marijuana "blunts" with Jackson and Davis earlier in the evening, but disclaimed knowledge of the "blunt" found by the police on the back seat of their car.
Appellant's most substantial claim is that the trial judge replaced "Juror 8" with an alternate in the middle of trial for insufficient or improper reasons. Our review is for abuse of discretion,*fn3 recognizing the trial judge's "superior ability to observe the demeanor of the juror and [her] familiarity with the proceedings."*fn4 But a judge's discretion is not unfettered. A juror may not be removed for improper purposes, such as to avoid a deadlock or because of the juror's views of the evidence or the merits of the case.*fn5 Similarly, it is obviously impermissible to jettison or demote a juror on account of personal characteristics unrelated, or not shown to be related, to his qualifications to serve; or for unsupported reasons or no sound reason at all. The governing standard, set forth in Criminal Rule 24 (c)(1), is a rigorous one: the judge may replace a juror with an alternate only when the juror "becomes or is found to be unable or disqualified to perform juror duties."*fn6
In spite of the "substantial deference" we accord the trial judge's on-the-spot evaluation,*fn7 we are persuaded that the standard of Rule 24 has not been met with respect to the mid-trial replacement of Juror 8 in this case. The judge did not explicitly find Juror 8 "unable or disqualified to perform" his duties as a juror, and the undeveloped record does not support such a finding. Nevertheless, that is not the end of the inquiry. On the issue of remedy, we are constrained by ...