November 10, 2016
from the Superior Court of the District of Columbia Criminal
Division (CF1-7029-12) (Hon. Russell F. Canan, Associate
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,
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
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.
Corinne Beckwith Associate Judge.
jury acquitted appellant Michael Poth of second-degree murder
while armed for the stabbing death of Philip Bushong,
but found him guilty of the lesser included offense of
voluntary manslaughter while armed. 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.
trial, defense counsel conducted a "general Google
search" of all of the jurors' names 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.
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
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?
Q. Do you have any questions about any of my ...