Appeal from the Superior Court of the District of Columbia (No. F-459-01) (Hon. Zoe Bush, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge.
Argued En Banc April 29, 2009
Before WASHINGTON, Chief Judge, and RUIZ, REID, GLICKMAN, KRAMER, BLACKBURNERIGSBY, THOMPSON, and OBERLY, Associate Judges.*fn1
After a jury trial, appellant Novel Hinton was convicted of one count of possessing a controlled substance, phencyclidine (PCP), with the intent to distribute in a drug-free zone.*fn2 Midway through Hinton's trial, over his objection, the court invoked its power under Superior Court Rule of Criminal Procedure 24 (c) to remove a member of the jury, Juror 8, and replace him with an alternate. A three-judge panel of this Court concluded that the trial court erred by removing Juror 8 in violation of the standards set forth in Rule 24 (c).*fn3 Nevertheless, bound by precedent to conclude that the error was harmless, the panel upheld Hinton's felony conviction. Under an earlier panel's decision in (Nathaniel) Thomas v. United States,*fn4 Hinton was required to demonstrate "that as a result of the removal of the juror, 'an impaneled juror failed to conscientiously apply the law and find the facts,'" which he could not do.*fn5
We granted en banc review to consider whether Thomas, and thus the panel's opinion, took the correct approach in placing the burden on Hinton to show that he was prejudiced by the Rule 24 (c) violation. Concluding that the burden properly belongs to the government to show that the error was harmless, and that harmlessness has not been shown, we now reverse Hinton's felony conviction for possession of PCP with intent to distribute.*fn6 Before reaching that conclusion, though, we are obliged to consider the extent to which Rule 24 (c) operates as a constraint on the trial court's discretion, and whether the defendant has standing to complain of a violation of the Rule.
On January 23, 2001, police officers were on patrol near the Fort Davis Recreation Center when they noticed three men sitting in a car parked across the street from the Center. From a distance, the officers could see that the car was filled with smoke, and the men inside appeared to be trying to hide by reclining their seats and ducking. As the officers approached the vehicle on foot, they recognized the smell of marijuana. In the ensuing investigatory stop, the officers found a hand-rolled "blunt" cigar burning on the back seat of the car. The blunt field-tested positive for tetrahydrocannabinol, the active ingredient in marijuana. Hinton, the only occupant of the back seat, was placed under arrest.
According to the officers' testimony at trial, as they searched Hinton following his arrest, they smelled a pungent odor characteristic of PCP and felt a suspicious lump in the upper-arm area of the sleeve of the black jacket he was wearing. The officers rolled the jacket off of Hinton's shoulders and retrieved from the sleeve a ziplock bag. The bag contained many smaller packages of a green weed-like substance redolent of PCP. (Its identity was later confirmed by laboratory analysis.) The officers also testified to finding $555 in cash in the right front pocket of Hinton's jacket. Photographs of Hinton taken at the scene of the arrest and introduced at trial do not, however, show him wearing any jacket. The officers explained this apparent inconsistency by testifying that the photographs were taken after they had taken the jacket off of Hinton's shoulders and pulled it down to his handcuffed wrists.
Four civilian witnesses contradicted the officers' testimony. Kareem Jackson, the driver of the car and a government witness, stated that Hinton was not wearing any jacket at the time of his arrest. In addition, Jackson testified that he neither smelled PCP in his car nor saw the police remove the suspected drugs from Hinton. Kevin Davis, the other passenger in the car and a defense witness, testified similarly. Davis stated that Hinton was wearing a "black Hobo sweat shirt," not a jacket; that while he recognized the odor of PCP, he did not smell it that night; and that he did not see the police recover any PCP from Hinton. Michael Stoutamire, a passer-by who happened to see the arrest, testified that he watched the police search Hinton, recover cash from his pants pocket, and then place him in handcuffs. Stoutamire, too, did not see the police discover any drugs on Hinton. Finally, Hinton himself testified. He denied possessing any PCP and said that he was wearing a black sweatshirt, not a jacket. He testified that the officers found the cash (gambling winnings, he claimed) in his pants pocket when they patted him down before handcuffing him.*fn7
Thus, the key factual question for the jury to resolve at Hinton's trial was whether he in fact was wearing a jacket containing PCP at the time of his arrest, as the police witnesses claimed but the civilian witnesses denied and the arrest photographs failed to confirm.
B. The Replacement of Juror 8
The trial judge empaneled fourteen jurors -- twelve regular jurors and two alternate jurors.*fn8
The jurors in seats 5 and 12 were designated as the alternates, but the panel was not informed who the alternates would be. Before the trial began, the judge instructed the panel that its members would be permitted to propose additional questions to be put to the witnesses after counsel had finished with their examinations "if there's any information that you think you need to help you decide this case."*fn9 The panel members took advantage of this opportunity by propounding numerous questions throughout the trial. One member, the juror in seat 8, eventually would be removed as a regular juror because of the questions he asked.
Juror 8 initially drew attention to himself on the morning of the second day of trial. Upon arriving at court that morning, the judge looked into the jury room to check on the coffee, and a juror -- later identified by the judge as Juror 8 -- asked to speak with her about something unrelated to the case. He then asked the judge what would constitute a "split" and whether the jury would "have to agree in this case." The judge responded that she could not speak privately with the juror about those questions. The judge promptly informed the parties of this brief contact. No one attached particular significance to the incident. When the panel returned to the courtroom, the judge cautioned the jurors that she could not speak with them individually about the case. She promised to address the subject of juror agreement in her final instructions and reminded the jurors to refrain from discussing the case until they were instructed to deliberate. Following these instructions, Juror 8 did not attempt any further ex parte communication with the judge.
Subsequently, in the course of the trial, Juror 8 submitted nine questions to be put to the witnesses. Because the juror's handwriting was poor, the judge asked him to rewrite several of his questions so they would be legible. At one point the judge had to admonish Juror 8 not to address the witness directly. The juror's questions -- the spontaneous inquiries of a layperson, not a lawyer -- were not all models of clarity and precision. But the questions could be discerned, most of them were asked without objection, and the witnesses usually did not have trouble understanding them.
Six of Juror 8's questions focused on the primary issue in dispute -- the asserted linkage between Hinton and the black jacket in which the police said they had found PCP. He asked an arresting officer, "How do I know [the] jacket belongs to [the] defendant and was not borrowed?" The juror's other questions in this area zeroed in on the curious absence of the jacket from the photographs of Hinton taken on the scene. He pressed the officers on timing, asking one, for instance, "Where [sic] you present on scene when photo was taken? Or had photo already been taken before you arrived on scene?"*fn10 If Hinton's photo had been taken after the marijuana blunt was discovered but before the PCP was found, the jacket arguably should have been visible in the photographs -- if Hinton actually was wearing it. Other questions concerned the physical location of the jacket: "Were the sleeves taken down to wrists or elbows[?]" and "[w]as packet removed from pulled down jacket or from garment still [on] body of defendant?" These questions directly addressed the police explanation that the jacket could not be seen in the photos because it had been pulled down.
In addition to these questions, Juror 8 asked defense witness Davis (Hinton's fellow passenger) if he had touched Hinton on the shoulder when he got out of the car -- perhaps seeking to learn whether Davis had a particular reason to remember whether Hinton was wearing a jacket, or if Davis had felt the suspicious lump described by the police officer who searched Hinton. Finally, Juror 8 posed two questions about the drug-testing process: "What is the reason for two marijuana tests?" (i.e., the field test and the subsequent DEA lab test), and "The two tests are at the scene and the lab[?]"
On the fourth day of trial, the prosecutor told the judge that he had "increasing concerns" about Juror 8's ability "to communicate [and] effectively deliberate with other jurors." The judge commented that the juror had been asking "really off the wall questions that would indicate that person has difficulty following the evidence in this case." She noted that she had observed "pained" looks on other jurors' faces when Juror 8 submitted a question, and she expressed doubt about his "level of intelligence." Hinton's counsel voiced his disagreement, defended Juror 8's questions as relevant and "insightful," and objected to his removal from the jury. The judge took no action at that time.
The following day, however, the judge reopened the discussion about Juror 8. Hinton's counsel again objected to his removal, asserting that his questions had been "very insightful" and that "no showing" had been made that would justify excusing him. Counsel contended that "[j]ust because some of his questions are leaning toward favoring the defense doesn't necessarily mean the government has a right to excuse this particular juror," and that removing him "would be denying [Hinton] the right to have a fair trial by a jury of his peers." The judge responded that she had carefully reviewed Juror 8's questions and did not "read them as favoring the defense," but rather as being "strange and bizarre" and difficult to comprehend or answer. Reiterating that she had "observed at least three other jurors wince, put their hands over their faces and look exasperated with" Juror 8, the judge said her "concern is that he's a strange person and that he won't be able to deliberate fairly because of his strangeness." Hinton's counsel rejoined that "[j]ust because a person seems to be strange doesn't give the court . . . reason to strike [him]." The prosecutor interjected that Juror 8's "inability to communicate" would "affect his ability to deliberate." Hinton's counsel disputed this conclusion, insisting that the juror had "communicated quite well," and that merely "because he doesn't write well or he doesn't seem to express his opinion on the paper doesn't mean that he cannot express it verbally."
Overruling Hinton's objection, the judge concluded that Juror 8's questions revealed "the extent to which he would have difficulty serving in deliberation" and "demonstrate[d] that this is a hung jury waiting to happen because . . . he doesn't think along the wavelength of normal functioning people in my view."*fn11 Accordingly, and without further inquiry of the juror, the judge removed Juror 8 from the jury and replaced him with one of the alternate jurors.*fn12
Hinton argues that by removing Juror 8 and replacing him with an alternate, the trial court abused its discretion and violated his rights under Criminal Rule 24 (c), because the juror was neither shown nor found to be "unable or disqualified to perform juror duties."*fn13 Consequently, Hinton contends, his felony conviction must be reversed and he must be afforded a new trial. As we shall see, this is by no means a simple legal claim. To address it properly, we must proceed through several steps of analysis.
We begin by considering two antecedent questions regarding Criminal Rule 24 (c). First, does that Rule in fact set forth a limitation on the trial court's discretionary authority to replace a juror with an alternate? Second, if so, may the defendant complain of the Rule's violation? In Sections II.A and II.B, we address these questions in turn, answering each of them in the affirmative. We conclude that Criminal Rule 24 (c) is a narrow grant of power to the trial court; if the specified conditions are not met, the court is without legal authority to replace a juror with an alternate during trial. The limitations set forth in Rule 24 (c) serve to protect the defendant's rights to trial by jury and to a unanimous verdict, which would be imperiled if the court could replace a juror with an alternate arbitrarily or with insufficient justification. Therefore, we conclude, a defendant has standing to object to the trial court's removal of a juror in contravention of Rule 24 (c).
Accordingly, in Section II.C, we examine whether the trial court exercised its discretion erroneously by removing Juror 8. Here, too, there is a two-fold inquiry. First, did the removal violate the standard set forth in Rule 24 (c)? Second, must Hinton show that the violation caused him specific prejudice in order to establish error warranting relief? We conclude that Rule 24 (c) was violated in this case by Juror 8's removal, and that a particularized showing of prejudice is not a prerequisite to a determination that the court erred.
Lastly, having found error, we consider in Section III whether it was harmless. We cannot find harmlessness on the present record. We do not have the necessary assurance that, had Juror 8 not been replaced, all twelve ...