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Poth v. United States

Court of Appeals of Columbia District

December 29, 2016

MICHAEL POTH, Appellant,
v.
UNITED STATES, Appellee.

          Argued November 10, 2016

         Appeal from the Superior Court of the District of Columbia Criminal Division (CF1-7029-12) (Hon. Russell F. Canan, Associate Judge)

          Enid Hinkes, for appellant.

          Valinda Jones, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, Elizabeth Trosman, Chrisellen R. Kolb, and Michael Liebman, Assistant United States Attorneys, were on the brief, for appellee.

          BEFORE: GLICKMAN and BECKWITH, Associate Judges; and FARRELL, Senior Judge.

         JUDGMENT

         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the matter is remanded to the trial court for further proceedings consistent with this opinion, as the trial court erred in denying appellant an evidentiary hearing on his juror-misconduct claim.

          OPINION

          Corinne Beckwith Associate Judge.

         A jury acquitted appellant Michael Poth of second-degree murder while armed[1] for the stabbing death of Philip Bushong, but found him guilty of the lesser included offense of voluntary manslaughter while armed.[2] After trial, defense counsel discovered that two of the jurors had omitted material information in their voir dire responses and filed a motion for new trial under Super. Ct. Crim. R. 33. The trial court denied the motion on the ground that Mr. Poth had forfeited the juror-misconduct claim by failing to exercise diligence in discovering the claim's factual basis and bringing it to the court's attention prior to the jury's verdict. We conclude that the trial court erred in rejecting Mr. Poth's juror-misconduct claim on lack-of-diligence grounds, and we remand to allow the trial court to decide the merits of Mr. Poth's claim.

         I.

         After trial, defense counsel conducted a "general Google search" of all of the jurors' names[3] and discovered that one of the jurors, Juror 061, was a registered sex offender with a felony record and that another juror, Juror 703A, had been a complainant in an assault case in 1999. The government subsequently discovered and disclosed that Juror 061 had several additional convictions and that Juror 703A had also been a complainant in a 2000 assault case.

         This information was significant because it was inconsistent with Juror 061's and Juror 703A's responses during jury selection. At voir dire, the prospective jurors had sworn an oath to tell the truth. They were given a form listing eighteen questions, which the court also read aloud to them. One of the questions was whether the juror, "a close family member or a close friend . . . ha[d] ever been a victim of a crime, a witness to a crime or charged, arrested, brought to court for a crime." Neither Juror 061 nor Juror 703A circled "yes" for this question or any other question on the form. The court also called the jurors individually to the bench for further questioning by the court and counsel. The court inquired of Juror 703A as follows:

Q. Yes, ma'am, I noticed that like many other panel members you didn't answer any questions. Were my questions clear enough for you?
A. Yes.
Q. Do you have any questions about any of my ...

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