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Gregory R. Kittle v. United States

May 16, 2013


Appeal from the Superior Court of the District of Columbia (CF3-5705-07) (Hon. Ann O‟Regan Keary, Trial Judge)

The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge:

Argued September 27, 2012

Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and STEADMAN, Senior Judge.

Following a jury trial, appellant Gregory Kittle was convicted of one count of assault and two counts of felony threats.*fn1 On appeal, appellant, who is African American, argues that the trial judge erred by refusing to conduct an inquiry in response to a juror‟s post-verdict allegation that several of her fellow jurors made racist remarks during deliberations.

This appeal presents issues of first impression for this court regarding the interpretation and scope of the "no-impeachment" rule articulated in Sellars v. United States, 401 A.2d 974 (D.C. 1979), which provides that jurors may not challenge a verdict on the basis of matters that "inhere in the verdict itself."*fn2 In particular, appellant challenges the trial judge‟s response to the juror‟s allegation on two alternate grounds: (1) appellant argues that juror testimony regarding racist statements made by fellow jurors is not precluded by the no-impeachment rule because racial bias is an extraneous, not an internal, influence on the verdict; and (2) even if juror testimony regarding racial bias is inadmissible under the no-impeachment rule, the court must recognize an exception thereto because the trial court‟s failure to investigate the juror‟s allegations deprived appellant of his constitutional rights to trial by an impartial jury and due process.

We conclude that while the juror‟s allegation that some of her fellow jurors expressed racial bias during deliberations is a matter that "inheres in the verdict," it nevertheless implicates the fundamental importance of protecting the right to trial by an impartial jury. Therefore, under such circumstances, the trial judge does have discretion to inquire into a juror‟s post-verdict allegation of racial or ethnic bias expressed during deliberations and to determine whether there is a substantial likelihood that such comments made a difference in the outcome of the trial. However, given the particular circumstances of this case, the trial judge did not err in exercising her discretion by declining to hold a hearing to address the juror‟s post-verdict allegation of juror bias.

Appellant also alleges that the trial court‟s refusal to give the jury a self-defense instruction with respect to his assault charge was reversible error; we disagree. Finally, appellant argues and the government concedes that his two felony threat convictions merge; we agree and remand the case to the trial court to vacate one of appellant‟s felony threat convictions.

I.Alleged Juror Misconduct


Following a multi-day trial before Judge Ann O‟Regan Keary, the jury found appellant guilty of assaulting Gilbert Davis and of two counts of felony threats.*fn3 On June 23, 2009, the same day that the court discharged the jury, Juror 237, an African American woman, wrote a letter to the judge. Four of the letter‟s five paragraphs discussed why the juror enjoyed serving on the jury and expressed her appreciation for the trial judge‟s decision to exclude the jurors from the next jury summons cycle. In particular, the juror "love[d] the fact that the jurors were allowed to talk to the attorneys in the case and express their views on how the case was presented." However, the fourth paragraph stated, in its entirety:

I strongly feel that this case should not have taken as long as it did with the deliberations but some of us were faced with dealing with some jurors feeling that all "blacks" are guilty regardless. With feelings like those, I don‟t think people like that should be allowed to serve on jury duty. I would seriously hope that our society is way above entertaining that thought.

The court provided copies of this letter to both counsel during a status hearing a few weeks later and admonished them not to conduct an independent investigation.

In response to the letter, appellant filed a motion for the trial court to grant a mistrial, or in the alternative, allow an investigation and hold an evidentiary hearing in response to Juror 237‟s allegation that several fellow jurors felt that "all "blacks‟ are guilty regardless." The judge denied both requests on the record, emphasizing that as established by Sellars v. United States, 401 A.2d 974 (D.C. 1979), post-verdict challenges by jurors are generally not permitted. Implicitly recognizing that she had discretion to investigate the juror‟s allegation if necessary, the trial judge observed that "I make my ruling in this regard in part analyzing the very letter itself on its face, which prompts me to find no need to further interview or question Juror 237 or any other juror. There is nothing in this letter which actually impugns the verdict itself." In particular, the judge found that the letter did not indicate that the juror harbored any doubts about the verdict itself, nor did the letter urge the court to reconsider the verdict. The trial judge also noted that after reviewing the notes sent to the court by jurors before they reached a verdict, she found no other comments that gave reason for concern. The trial judge further commented that during the lengthy voir dire used to select the jury, the parties struck all jurors who showed any signs of bias. Finally, the trial judge agreed with the government that the jury‟s decision to acquit appellant of some counts and its inability to reach a verdict on the most serious counts rebutted any inference that racial bias influenced the verdict. Appellant filed a timely appeal of his convictions.


Appellant‟s argument that the trial judge erred by refusing to investigate Juror 237‟s allegation that her fellow jurors harbored racial bias warrants a mixed standard of review. The issue of whether the juror‟s testimony regarding statements made by her fellow jurors during deliberations is precluded by the no-impeachment rule is a matter of law, which we review de novo. See United States v. Villar, 586 F.3d 76, 82 (1st Cir. 2009) (applying de novo review to determine whether no-impeachment rule afforded the trial judge discretion to inquire into allegation of juror misconduct). We also consider de novo the corollary legal issue of whether the Constitution mandates an exception to the no-impeachment rule for allegations of racial or ethnic bias. Id. at 84.If we conclude that there is an exception to the no-impeachment rule, we accord trial judges "wide latitude with respect to the extent of the inquiry to be made" in cases addressing allegations of juror misconduct. Wilson v. United States, 663 A.2d 558, 562 (D.C. 1995) (citation and internal quotation marks omitted). Accordingly, we review the trial judge‟s decision to deny appellant‟s motion for a mistrial without conducting an evidentiary hearing for abuse of discretion. Id. at 562.


"Courts consistently have exercised great caution in allowing jurors to impeach their verdicts" for five significant reasons: "(1) discouraging harassment of jurors by losing parties eager to have the verdict set aside; (2) encouraging free and open discussion among jurors; (3) reducing incentives for jury tampering; (4) promoting verdict finality; [and] (5) maintaining the viability of the jury as a judicial decision-making body." Sellars, supra, 401 A.2d at 981 (citations omitted). Since deciding Sellars,we have underscored the importance of the no-impeachment rule, observing that "[i]f evidence obtained from jurors could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation - to the destruction of all frankness and freedom of discussion and conference." Boykins v. United States,702 A.2d 1242, 1248 (D.C. 1997) (citation and brackets omitted).

The well settled no-impeachment rule articulated in Sellars provides that jurors may not challenge a verdict on the basis of "matters which essentially inhere in the verdict itself, as opposed to extraneous influences." 401 A.2d at 981 (citations and internal quotation marks omitted). "The Rule thus draws a dividing line between inquiry into the thought processes of the jurors on one hand, and inquiry into the existence of conditions or the occurrence of events calculated to exert an improper influence on the verdict, on the other." Fortune, supra, No. 09-CF-780, slip op. at 16 (D.C. May 2, 2013) (internal citation and quotation marks omitted). "Under this non-impeachment rule, even when information about the jury‟s decisional processes is volunteered by a juror, it is incompetent to impeach a final verdict on such matters as mistake of law, misapprehension of the testimony, and unsound reasoning by the jurors." Boykins, supra,702 A.2d at 1247 (citations omitted). Thus, a "wide range of jury behavior . . . provides no valid basis for impeachment based upon the jurors‟ own evidence." Sellars, supra,402 A.2d at 981. An "extraneous influence" on ...

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