EUGENE A. KELLY, APPELLANT,
UNITED STATES, APPELLEE
March 10, 2015.
from the Superior Court of the District of Columbia.
(CF1-10235-11). (Hon. Herbert B. Dixon, Jr., Trial Judge).
Brand, Public Defender Service, with whom James Klein and
Jaclyn Frankfurt, Public Defender Service, were on the brief,
B. Goodhand, Assistant United States Attorney, with whom
Ronald C. Machen Jr., United States Attorney at the time the
brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt,
and Jennifer Kerkoff, Assistant United States Attorneys, were
on the brief, for appellee.
GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and
STEADMAN, Senior Judge.
Eugene A. Kelly was convicted after a jury trial of first
degree murder while armed, assault with intent to kill while
armed, and related firearms offenses. On appeal, his sole
claim is that the trial judge committed reversible error
under Superior Court Rule of Criminal Procedure 24 (c) by
discharging an empaneled juror for tardiness. We conclude
that the judge did not abuse his discretion and affirm
jury trial commenced on April 17, 2013. The government gave
its closing argument at the end of the day on Wednesday April
24, and the judge instructed the jury to return the following
morning for the defense closing. Initially the judge told the
jury to be back at 9:30 a.m. He then corrected himself and
explained to the jurors that they would have a " slight
reprieve" and should return at 10:00 a.m. because some
of the lawyers had to appear before another judge at 9:30
a.m. The judge repeated the 10:00 a.m. start time three times
before excusing the jury.
next morning, Juror 211 failed to appear on time. At 10:11
a.m., the judge took a short recess to wait for him. The
juror was still missing when court resumed at 10:38 a.m. The
judge informed the parties that his courtroom clerk told him
that Juror 211 had been " persistently late"
throughout the trial. An effort to reach the juror by
telephone was unsuccessful. The judge asked the clerk to try
to contact Juror 211 by email and inquired how the parties
wished to proceed.
government, expressing concern about " timeliness and
deliberations," asked the judge to replace Juror 211
with an alternate. One of the prosecutors said this juror had
been " significantly late" the previous day, when
she personally saw him arrive in the hallway outside the
courtroom " after 10:30, 10:40."  Her
co-counsel added that she too understood Juror 211 had been
late every day of trial.
counsel, emphasizing that he was " ready to go" and
not seeking to delay, asked for the juror to be given "
a little more time" to arrive and stated that "
[i]f he's not here by 11:00, I say you just start."
Government counsel pointed out that Juror 211 was already 40
minutes late, and she expressed the concern that waiting
until 11:00 a.m. would cause her to miss a scheduled meeting
in her office that afternoon.
that he did not " think that this delay is helpful to
anyone," the judge asked appellant's counsel to
discuss it with appellant. After doing so, appellant's
counsel told the judge that " as much as I really want
to start now and get it over with, I would ask you [to] give
[Juror 211] a few more minutes." The judge agreed to do
so and took another recess at 10:44 a.m.
reconvened at 10:57 a.m. Juror 211 still had not arrived and
had not called or answered the email sent by the courtroom
clerk. The judge reiterated his understanding that "
this juror has been late quite often." He considered it
unlikely that Juror 211 could have been confused about the
start time and concluded that his " absence is seriously
interfering with the progress of this trial." With the
parties' agreement, the judge ordered the trial to
jury was lined up and about to enter the courtroom, however,
the judge called counsel to the bench to inform them that
Juror 211 " is on the phone now." Stating that he
did not yet know the juror's location or " what the
issue is," the judge told counsel he would " find
out something in just a moment." After a pause, during
which the courtroom clerk evidently spoke with Juror 211 by
phone, the judge told counsel he still did not know how long
it would take the juror to arrive, and that he intended
" to just tell this juror to report to the outside of
counsel objected. Saying he thought the juror was "
close by somewhere parking" and that there was no "
indication he is unable to serve as a juror," counsel
asked the judge to " give him time to get here."
In response to this request, the judge asked the clerk to
find out where Juror 211 was parking. The answer to this
question does not appear in the transcript. Counsel for the
government asked the judge to proceed with the trial because
" [t]his is causing further delay [and] the other jurors
have been waiting for an hour."
judge agreed with the government's position and decided
to proceed without Juror 211. Observing that the juror "
could have called in much earlier than this," the judge
decided not to " tolerate the additional disruption of
this trial [that would be] likely to occur" if he did
not replace him with an alternate.
11:09 a.m., the fourteen present members of the jury (which
included three alternates) filed into the courtroom and the
trial resumed with the defense's closing argument.
Following the government's rebuttal, the judge released
two of the three alternates, leaving the third to substitute
for Juror 211. The judge then excused the reconstituted jury
at 12:19 p.m. to begin its deliberations.
211 arrived sometime between 11:00 a.m. and noon and waited
outside the courtroom until the closing arguments were
concluded. At 12:22 p.m., the judge reconvened the
proceedings to address him. The judge informed Juror 211 that
he intended to schedule a hearing to determine whether he
should be held in contempt for his " persistent lateness
and [his] excessive lateness today." As this would be a
criminal matter, the judge advised Juror 211 to wait until
the hearing date before offering an explanation for ...