Appeal from the Superior Court of the District of Columbia (CF3-10803-07) (Hon. Harold L. Cushenberry, Jr., Trial Judge)
Before RUIZ and OBERLY, Associate Judges, and KRAMER,
Associate Judge, Retired.*fn1
Robert Garrett appeals his convictions for assault with a dangerous weapon (ADW), possession of a firearm during a crime of violence (PFCV), carrying a pistol without a license (CPWL), unlawful possession of a firearm (UF), unlawful possession of ammunition (UA) and unlawful possession of a pistol by a convicted felon (UP). He argues that the trial court erred in permitting the jury, in response to a question it posed during deliberations, to consider as evidence an utterance by a witness while on the stand that had not been in response to a question. Because the court conducted no inquiry of the jury to attempt to determine what remark of a witness it had in mind, and because this left open the real likelihood that the jury gave weight to a witness's utterance not tested by the adversarial process, we hold that the trial court abused its discretion and we must reverse.
This appeal arises from events that occurred during jury deliberations. During the second day of deliberations, the jury sent a note to the court asking, "[If] something is muttered [by a] witness while on the stand that was not in response to a question, can we consider that utterance?" The trial court expressed its concern that asking the jury what statement they were referring to would violate the jury's deliberative process and offered to answer the note with a simple "yes." The defense objected, concerned that the statement could have been something that neither the parties nor the court had heard and to which, therefore, the defense had not had an opportunity to object. The court rejected this interpretation of the circumstances giving rise to the note, stating, "It may be they heard and you don't [sic] pay attention to something which the jury hears and they consider it. That's within their province." The court decided to answer the jury simply by writing "yes" in response, based on its opinion that "if they heard something and it came from a witness, . . . then they certainly can consider it if they choose to." It answered the jury's question accordingly.
The next day the defense filed a motion for reconsideration asking the trial court to inquire as to the nature of the utterance referenced in the note. The trial court denied the motion, stating, "I still think that asking anything in more detail would violate the deliberative functions of the jury, and I can't assume that it's anything that . . . would be impermissible or otherwise inadmissible, and that would be speculating on my part." The parties agree in this appeal that the nature and substance of the witness's remark is unknowable on this record.
A. Did the Trial Court Abuse its Discretion?
The primary issue is whether the trial court abused its discretion by failing to inquire further into the jury's note to establish whether or not the utterance referenced in the note was actually extrinsic evidence. See Evans v. United States, 883 A.2d 146, 151 n.4 (D.C. 2005); Davis v. United States, 510 A.2d 1051, 1052 (D.C. 1986).
"The right to a trial by an impartial jury is 'fundamental and deeply embedded in American jurisprudence.'" Medrano-Quiroz v. United States, 705 A.2d 642, 649 (D.C. 1997) (quotation marks and citations omitted).
The impartiality of the jury in a criminal trial is a primary safeguard of our criminal justice system. Two essential ways of preserving the jury's impartiality are exclusion of jurors who have a personal bias against or in favor of a party and shielding of the empaneled jurors from evidence or information about the matter at issue that has not been presented pursuant to evidentiary and other rules that govern a criminal proceeding. When jurors are exposed to "extra judicial information," the trial court must address whether the jury's deliberations have been tainted by evidence not presented during the course of the trial.
Ransom v. United States, 932 A.2d 510, 515-16 (D.C. 2007) (citations omitted).
Just as the trial court has an obligation to investigate a plausible claim of juror bias, see Medrano-Quiroz, supra, 705 A.2d at 649 (citing Leeper v. United States, 579 A.2d 695, 698 (D.C. 1990)), it has an obligation to investigate a plausible claim that the jury has been exposed to extrinsic evidence. Thus, when it is alleged that a jury has been exposed to extrinsic evidence, the trial court should inquire as to the nature of the evidence and how the jury came to be exposed to it. See Ransom, supra, 932 A.2d at 514; Wilson v. United States, 380 A.2d 1001, 1004 (D.C. 1977) (holding that ...