Appeal from the Superior Court of the District of Columbia Criminal Division (CF1-28275-06) (Hon. Herbert B. Dixon, Trial Judge)
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge:
(Amended September 20, 2012)
Before WASHINGTON, Chief Judge, BLACKBURNE-RIGSBY, Associate Judge, and FERREN, Senior Judge.
Following a jury trial, appellant Frank Leon Johnson*fn1 was convicted of first-degree premeditated murder while armed, second-degree burglary while armed, first-degree felony murder while armed, carrying a pistol without a license, and three counts of possession of a firearm during a crime of violence.*fn2
Following closing arguments and prior to jury deliberations, the trial judge granted the government's motion to replace a regular juror with an alternate juror, over appellant's objection. Appellant now challenges his convictions on the basis that replacement of the regular juror, without finding her "unable or disqualified to perform juror duties," was a violation of Super. Ct. Crim. R. 24 (c), and therefore an abuse of discretion by the trial judge warranting reversal. We agree, reversing appellant's convictions and remanding this case for new trial.
On April 7, 2003, Reginald Brighthart was murdered in Apartment 201 of 2837 Robinson Place Southeast, Washington, D.C. ("Apartment"). Support for the government's case came chiefly from the testimony of James Roberston,*fn3 the sole eyewitness to decedent's shooting, who testified that he brought the decedent into the bathroom and restrained him, while appellant entered the Apartment through a bedroom window and proceeded to shoot decedent in the head several times.*fn4 Appellant presented no witnesses and chose not to testify at trial, instead relying on the theory that Roberston, as opposed to appellant, was responsible for decedent's murder. Further, defense counsel contended that Roberston, a prior perjurer and drug dealer testifying pursuant to multiple plea agreements, had manipulated other witnesses into blaming appellant for decedent's murder.*fn5
At trial, the court invited jurors to submit written questions, which the judge would pose to the respective witness if he found the question to be appropriate.*fn6 Juror 223, who asked more questions than any of her peers, directed forty-one questions to Roberston focusing predominantly on his veracity and motivation for testifying against appellant, many of which were asked by the trial judge during the trial.*fn7 Juror 223 also submitted four notes to the trial judge and counsel, requesting clarification on several logistical issues. On one notable occasion, Juror 223's note requested an opportunity to "speak w[ith] a med[ical] prof[essional]" as she was finding it hard to "deal with the strong emotional reactions to evidence being presented."*fn8 After a brief colloquy between the judge, the parties and the juror about her concerns, the prosecutor expressed concern regarding the juror's ability to serve, highlighting that during earlier witness testimony, Juror 223 had been sitting with "her feet on the chair . . . hugging her feet and rocking," and during the prior conference, she had been sitting on the floor, hugging her knees to her chest. The judge permitted the prosecutor to keep a record "every time [she] noticed something" that concerned her regarding Juror 223, but declined to determine that the juror was unfit to serve. The following morning, the prosecutor again raised concern regarding Juror 223's ability to serve, highlighting that the juror had mentioned that she may have missed some testimony. The trial judge declined to take action at that time, and stated that he was, instead, trying to determine "whether or not this is very natural on the part of the juror or whether or not this is an effort to make sure she's an alternate."
Following closing arguments, and over defense counsel's objection, the government again moved to have Juror 223 replaced by an alternate juror, on grounds that: (1) Juror 223 was similar to a sleeping juror, who had "admittedly missed portions of testimony because . . . things were going about in her head and she wasn't able to process this information;" and (2) Juror 223 "had trouble following [the court's] instructions," as she had taken her notebook with her outside the courtroom several times despite receiving instruction not to do so. Defense counsel objected, claiming that no "egregious, willful flaunting of the [court's] directives" had occurred. Though the trial judge disagreed with the basis behind the government's motion, he nonetheless granted the motion and replaced Juror 223 with Alternate Juror 619, stating:
We have alternates for a reason. And in this case, I have to admit that [Juror 223] was unique, unique in terms of some of the issues raised that I have not encountered in all the years that I've been allowing jurors to take notes and all the years that I've been allowing jurors to ask questions. I don't see that there's any, quote, misconduct. But I believe that I have the discretionary authority to make [Juror 223] the second alternate at this point, and so that's what I'm going to do over the defense objection. (Emphasis added). Immediately following this statement, defense counsel restated his objection and asked that the court voir dire the replaced juror to "make the record clear." The court denied this request, finding voir dire unnecessary, and excused, but did not discharge, Jurors 841and 223 as first and second alternates, respectively.*fn9 The jury found appellant guilty of all charges, and this appeal followed.
Appellant contends that the trial court abused its discretion in replacing Juror 223, without finding that Juror 223 was either "unable" or "disqualified" from performing juror duties, as required under Rule 24 (c).*fn10 Appellant further argues that such error was not harmless and requires reversal, pursuant to Hinton v. United States, 979 A.2d 663, 690 (D.C. 2009) (en banc). "We review the trial court's decision to replace a juror with an alternate for an abuse of discretion[,]" Hobbs v. United States, 18 A.3d 796, 800 (D.C. 2011), first asking whether the trial court's replacement of a juror violated the requirements of Rule 24 (c). Hinton, supra, 979 A.2d at 691. If so, we reverse only in accordance with the harmless error standard established in Kotteakos v. United States, 328 U.S. 750, 765 (1946), requiring that we reverse appellant's conviction unless we can conclude, "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." Hinton, supra, 979 A.2d at 691 (quoting Kotteakos, supra, 328 U.S. at 765). The government carries the burden of proving that any error was harmless, and succeeds where it can show overwhelming evidence of guilt and "no reason apparent in the record to think the erroneously removed juror would have dissented[.]" Hinton, supra, 979 A.2d at 691-92. However, "when the evidence is not overwhelming, we would be more cautious about finding harmlessness merely because the record offers no insight into the replaced juror's views of the evidence,'" Hobbs, supra, 18 A.3d at 801 (citation omitted), instead presuming that the erroneous action affected the verdict where the court "is in virtual equipoise as to the harmlessness of the error[.]" Hinton, supra, 979 A.2d at 691 (citation omitted).
In this case, the replacement of Juror 223 was erroneous.*fn11
The trial judge explicitly found that Juror 223 was not
replaced for misconduct, instead replacing her on the erroneous
principle that he had the "discretionary authority" to replace her
without specific justification, over defense counsel's clear
objection. Though the government suggests that the record supports the
juror's removal based on the alternative Rule 24 (c) grounds of
inability to serve, and suggests that this might have been an implicit
basis behind the trial judge's replacement of Juror 223, this argument
is unpersuasive where the trial judge previously found such grounds
insufficient for earlier removal of the juror. Moreover, though Juror
223's questions may have "seemed unusual or immaterial, they were not
indicative of [her] incapacity to follow and understand the evidence
or to communicate and deliberate rationally and fairly with the other
jurors." Hinton, supra, 979 A.2d at 684. Finally, when defense counsel
requested voir dire of Juror 223 to "make the record clear" prior to
her replacement, the trial judge rejected the option, instead
determining that such questioning would be unnecessary, despite ...