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Roberts v. United States

Court of Appeals of The District of Columbia

August 8, 2019

Orlando Roberts, Appellant
United States, Appellee.

          Argued April 6, 2017

          Appeal from the Superior Court of the District of Columbia CF1-12916-14 Hon. Jennifer M. Anderson, Trial Judge

          Daniel Gonen, Public Defender Service, with whom Samia Fam and Alice Wang, Public Defender Service, were on the brief, for Mr. Roberts.

          Danielle M. Kudla, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time, Elizabeth Trosman, Andrea Hertzfeld, and Jason Park, Assistant United States Attorneys, were on the brief, for the United States.

          Before Beckwith and Easterly, Associate Judges, and Steadman, Senior Judge.

          Easterly, Associate Judge

         After a jury trial, Orlando Roberts was convicted of six counts of First Degree Child Sexual Abuse.[1] He raises two challenges to his convictions on appeal. First, Mr. Roberts argues that the trial court committed numerous errors in its handling of the notes sent by the jury during deliberations, including the court's failure to permit the defense to read one of the notes. Second, Mr. Roberts argues his constitutional right to a public trial was violated by the court's voir dire procedure. We need not address all of the subparts of the first argument, nor any of the second, [2] because we agree with Mr. Roberts that the trial court violated his constitutional rights by precluding the defense from reading one of the jury notes and that this error was not harmless beyond a reasonable doubt. Accordingly, we vacate his convictions.

         I. Facts and Procedural History

         We focus on the facts and procedural history pertinent to the issue on appeal. The government's theory of the case was that Mr. Roberts had sex and engaged in other sexual acts with the then-fourteen-year-old complainant while she was at his house on her first date with his nineteen-year-old son.[3] Although the government called a number of other witnesses, the case turned entirely on the complainant's and Mr. Roberts's son's testimony, which there was reason to question. The complainant and Mr. Roberts's son had connected on Instagram, seemingly with the purpose of initiating a sexual relationship;[4] had both lied to each other about their ages (the complainant said she was older and the son said he was younger); and ultimately had given inconsistent accounts of the incident, both independently over time and as compared with each other. Indeed, the defense theory was that their story was a fabrication, invented after others learned that the two had had sex, to get them out of trouble-the complainant with her then-foster mother, and Mr. Roberts' son with the law since the complainant was a minor.

         The case was submitted to the jury on November 25, 2014, the day before the Thanksgiving holiday. Jury deliberations did not resume until December 1, 2014. At the end of that second day of deliberations, the foreperson sent out a note to the judge on behalf of the jury, which asked, in relevant part, "What happens if there is a hu[n]g jury?" Because of the timing, the trial court and the parties did not address the note until the following morning, December 2, 2014. In the midst of their discussion of the first jury note, they received a second note-this time from a single juror. It read: "Because I take Jury Duties so serious, I seem to be one of three stand outs. I don't see how I can have a change of heart because the only information I have to rely on is my notes and the testimonies."[5]

         The trial court read "the first line" of the note, [6] but, realizing that it contained a numerical breakdown of how the jury was voting, then stopped out of concern that the juror "might have been talking about [the jury's] deliberations." The trial court immediately asked the courtroom clerk to take the note to another Superior Court judge to screen it to determine if it was appropriate for the trial court to read. The defense objected to this procedure, arguing that Mr. Roberts "has a right to know [what the note says] and have counsel review it," particularly "if there is some indication that there's an impasse or that the jury's at a deadlock." The trial court disagreed, explaining that neither the court nor the parties were "entitled to see that note because we're not supposed to know anything about the[] [jury's] deliberations."

         Proceedings, which had been briefly suspended, resumed after the trial court heard back from the screening judge. The trial court informed counsel that the screening judge had notified the court that "the note d[id] reflect a numerical breakdown." The trial court then proposed that it would (1) instruct the jury that it had not read the note and that it did not know "what is in the note," and (2) remind the jury not to disclose "the subject matter of your deliberations," and "reread the instruction on contact with the [c]ourt."[7]

         Defense counsel again objected, arguing that "if" the jury was revealing a deadlock, the court and counsel needed to know. The court disagreed, reiterating that it had not read the entire note; that "we're not entitled to get into their deliberations"; and that "we don't know what's in the note." Counsel responded, "we need to know," and further that "[i]f there's a deadlock, the [c]ourt needs to know and has a duty to address that."

         Defense counsel proposed a number of methods to obtain further information about a possible deadlock without exposing the court to information about a numerical split, including redacting the note, asking the screening judge to provide more information about the note's contents, and instructing the jury that if it was seeking to report a deadlock, it needed to do so without revealing a numerical split.[8] But the trial court was unpersuaded. The court appeared to take the position that, unless it knew there was a deadlock (which it could not because it had blinded itself to the note and had withheld it from counsel), it should not be concerned about a deadlock or engage in further inquiry to discern if the jury was deadlocked. The court first ...

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