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Kelly v. United States

Court of Appeals of Columbia District

March 31, 2016


         Argued March 10, 2015.

          Appeal from the Superior Court of the District of Columbia. (CF1-10235-11). (Hon. Herbert B. Dixon, Jr., Trial Judge).

         Jessica Brand, Public Defender Service, with whom James Klein and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.

         David 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.

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


         Glickman, Associate Judge:

         Appellant 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 appellant's convictions.


         Appellant's 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.

         The 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.

         The 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." [1] Her co-counsel added that she too understood Juror 211 had been late every day of trial.

         Appellant's 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.

         Observing 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.

         Court 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 proceed.[2]

         As the 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 [the] courtroom."

         Appellant's 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." [3] 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."

         The 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.

         At 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.[4]

         Juror 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 ...

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