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Pitt v. United States

Court of Appeals of The District of Columbia

December 5, 2019

Antwon D. Pitt, Appellant,
v.
United States, Appellee.

          Argued December 4, 2018

          Appeal from the Superior Court of the District of Columbia (CF1-17598-15) (Hon. Florence Y. Pan, Trial Judge)

          Stefanie Schneider, Public Defender Service, with whom Samia Fam and Alice Wang, Public Defender Service, were on the brief, for appellant.

          Daniel J. Lenerz, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney, Elizabeth Trosman, Nicholas P. Coleman, and Sarah D. McClellan, Assistant United States Attorneys, were on the brief, for appellee.

          Before Fisher and Easterly, Associate Judges, and Ferren, Senior Judge.

          OPINION

          FERREN SENIOR JUDGE

         Appellant Antwon Pitt was convicted of raping D.B. while burglarizing her home on October 13, 2015.[1] He argues on appeal that the trial court committed two reversible errors. First, appellant, who testified in his own behalf, challenges the trial court's ruling that permitted the government to cross-examine him about another untried burglary he committed a week earlier, on October 6, 2015 - allegedly impermissible evidence of propensity to burglarize.[2]Second, appellant challenges the trial court's dismissal of Juror 5 due to her observable illness after the court received a note that an unidentified juror had questioned whether a rape had occurred. Finding no abuse of discretion, we affirm appellant's convictions.

         I. Other Crimes Evidence

         "It is essential, . . . to the proper functioning of the adversary system that when a defendant takes the stand, the government be permitted proper and effective cross-examination in an attempt to elicit the truth."[3] Prosecutors may cross-examine as to both "the facts asserted by the defendant in testimony" and the "reasonably related . . . inferences . . . drawn from the direct testimony."[4]Moreover, "we recognize that the evaluation and weighing of evidence for relevance and potential prejudice is quintessentially a discretionary function of the trial court, and we owe a great degree of deference to its decision."[5] Thus, we review the trial court's determinations defining the extent and scope of the prosecution's cross-examination of appellant's testimony for abuse of discretion.[6]

         A. Testimony and Objections at Trial

         1. The Government's Evidence

         D.B. testified for the government that, on October 13, 2015, she was working from her apartment in Southeast Washington and "forgot to lock [the] door that day." Shortly after 2 p.m. she discovered a man in her front hallway, "6'3 to 6'5" tall, "black, maybe medium to dark skin tone," with "short natural hair," wearing a "light to medium gray" T-shirt "with a logo" or "geometric shapes" over another "short sleeve" shirt and "gray denim" pants.

         The man said that he was there looking for someone and asked if her husband was home or coming back soon. D.B. replied that her husband was not home, and the man then grabbed her by the "throat, very, very tightly and very, very hard," covered her mouth, and pushed her down the hallway to her bedroom. D.B. attempted to remove the man's fuzzy gloves, hooking her finger inside of one of the gloves before her attacker removed her hand. Overpowered and threatened with death for resisting, D.B. realized that the man was raping her, and she demanded that he put on a condom. He did so and resumed the rape. D.B.'s rapist left with her cell phone, checks belonging to her husband, and cash.

         D.B. immediately e-mailed her husband and then other family members, a neighbor, and finally her boss, who was first to respond and call the police. D.B. was taken to the hospital where she was examined and treated for rape, damage to her throat, broken facial bones, and other injuries.

         Around the time of the burglary and rape, a neighbor smoking in the alley behind D.B.'s building saw a man exit with a backpack and head toward Independence Avenue. Appellant was viewed by surveillance cameras on Independence Avenue and in the Metrorail System.

         Late that night, law enforcement personnel traced D.B.'s cellphone to a gas station in Maryland, where appellant was recognized by his description and an image from the surveillance cameras. After a struggle, flight, and continued resistance, appellant was arrested. D.B.'s cellphone was found in appellant's pants while the checks belonging to her husband, as well as fuzzy gloves, were recovered from his backpack, along with other items.

         An expert witness testified for the government that appellant's DNA was found in the gloves, and that D.B.'s DNA was found on three finger tips and the inside cuff of one of the gloves. On cross-examination, defense counsel elicited the expert's testimony about DNA "transference" from one surface to another.

         2. Appellant's Direct Examination

         Appellant elected to testify that his cousin, Delonte, had driven him into the District of Columbia from Bowie and dropped him off to visit a friend with plans to head back to Maryland to visit appellant's brother that afternoon. Meeting back up with Delonte an hour later, appellant discovered that his cousin had lent the car to a friend. According to appellant, they were walking to the Stadium Armory Metro when they came to D.B.'s building, and his cousin said, "I got a man that live in this building right here. Wait right here." Appellant claims that he waited by the adjacent alley smoking marijuana while his cousin entered the building. Appellant testified that twenty minutes later his cousin left the building, said something to someone appellant could not see, met appellant in the alley, handed appellant a cellphone and checks, told him to sell the items as he "had done [on] previous transactions with him before," then said something had come up and abruptly headed off in a different direction.

         Appellant admitted that he then exited the alley to Independence Avenue where he first appeared on the surveillance footage introduced in evidence putting on his jacket, took the Metro from Stadium Armory to Suitland, was unable to get in touch with his brother, and returned to Gallery Place to try (unsuccessfully) to sell "some of the stuff" he had received from his cousin before heading back toward Bowie. Appellant further testified that he had used his gloves to wipe his finger prints off D.B.'s cellphone after using it to call his brother so that it could not be traced back to him, as he was on probation for robbery and assaulting a police officer in 2013. He also acknowledged two misdemeanor convictions for weapon possession and failure-to-appear in 2013 as well as an earlier assault conviction in Georgia when he was seventeen. Finally, appellant stressed that he had used gloves to handle the stolen property and explained that his fight and flight reactions when law enforcement officers caught up with him were due, in part, to the fact that he "was currently on probation." (Appellant's pretrial report, not before the jury, states that he had most recently been released on probation from federal custody for his 2013 robbery and assault convictions on July 29, 2015.)

         3. Cross-Examination of Appellant

         The government then asked the trial court, outside the presence of the jury, for permission to present physical evidence of the October 6, 2015, burglary, found alongside D.B.'s husband's checks from the October 13 rape and burglary, as well as appellant's fuzzy gloves. The prosecutor argued that the defense had "completely opened the door" to cross-examination about the October 6 burglary and "the rest of the property that [appellant] had on him" to rebut "the suggestion that [appellant] acted as the middleman in these types of transactions." Thus began a lengthy midtrial discussion among the court, the prosecutor, and defense counsel that resulted in a full-day hearing (with the jury excused) about what legal theory supported admission of the October 6 burglary.

         Initially, defense counsel observed that, to demonstrate appellant was not a mere fence - that he also stole property - the government could cross-examine him about his admitted robbery conviction, whereas evidence of the October 6 burglary would be highly prejudicial and unnecessary. Focusing, next, on specific exceptions to the traditional bar against admission of other crimes evidence, defense counsel stressed that the October 6 burglary involved appellant's going into a woman's bedroom and taking her phone while she slept - a scenario showing that the October 6 burglary was too different from the October 13 rape and burglary to be admissible as identity evidence.[7] The court then turned the discussion to whether the October 6 burglary could be used, instead, to impeach appellant's testimony and how far the government "should be able to" go to "complete [that] impeachment." Defense counsel replied that any inquiry into that burglary should be limited to asking whether, on October 13, appellant had "other stolen property" on him. According to counsel, only if appellant answered "yes" but denied stealing the property should the issue of proving his alleged October 6 thefts "extrinsically" arise. The court agreed that this was an appropriate starting point, but asked for additional argument before ruling on what questions the government would be allowed to ask.

         Defense counsel responded that night with a written objection arguing that appellant had not "open[ed] himself to impeachment with propensity evidence simply by testifying." Nor, wrote counsel, was the October 6 burglary admissible as "identity" evidence, as there was "no shared distinctive signature" creating the required similarity of the October 6 and 13 crimes. The next morning, defense counsel renewed appellant's general objection to any question about the October 6 burglary, arguing that it is never "proper impeachment to use propensity evidence" or "to prove it up substantively" or "extrinsically."

         Disagreeing with defense counsel's "repeated characterization" of the issue as "propensity" rather than relying on October 6 evidence to contradict "the inference of [appellant's] testimony," the trial court took a short recess to review "all the cases" presented by the parties before ruling. When the proceeding resumed, the court began by rejecting "identity" and "intent" as grounds for its decision.[8] Next, as background for its ruling, the court observed that the government was "seek[ing] to introduce evidence that on October 6, 2015, about a week before the events in this case, [appellant] committed a burglary at approximately five or 6 a.m. in which he entered [a] woman['s] room while she was sleeping. She awoke. He took her cell phone and left."

         Relying on Havens, Kinard, Wesley, and Raper[9] for the proposition that cross-examination of a defendant's direct testimony may be very broad, the trial court ruled that, "to the extent" evidence of the October 6 burglary "refutes the implication that [appellant] was just a fence who sells items stolen by Delonte," and "only does small crimes now like smoke weed and receive stolen property," such evidence would come in "under [an] impeachment theory." The court added that appellant's testimony had "open[ed] the door to inquiry about all the items he had in his possession when he was arrested[, ] which included another burglary victim's cell phone." The court thus ruled that the government could use the October 6 burglary to impeach appellant's "carefully crafted" testimony (a) describing "his arrangement to fence or sell stolen items," (b) emphasizing the "age" of "his prior convictions," (c) using the fact that he was "in violation of his probation" to explain his actions, and, on that foundation, (d) denying "raping, beating[, ] and choking" D.B. on October 13.

         The court, however, did not approve admission of the October 6 burglary wholesale. While holding that the "probative value of the overall burglary [on October 6] substantially outweigh[ed] the prejudicial effect," the court announced that October 6 evidence would be considered for admission piece by piece in the court's "discretion." Recognizing the importance of sensitivity to the potential prejudice as well as the probative value of each aspect of the October 6 burglary, the court stressed: "I would be remiss [unless] I would withhold ruling on that [evidence] until I hear how the testimony goes."

         The court then offered defense counsel a final opportunity to request "any additional findings of fact or conclusions of law" before cross-examination of appellant began. In response, defense counsel posed one additional question about physical evidence: whether the government intended to ask about a knife and rope that were also found in appellant's backpack. The prosecutor's reply alleviated counsel's concern.

         At this point, appellant's general objection to admission of all the evidence from October 6 was no longer in play. Rather, the trial court established a regime of cross-examination in which the government would ask appellant questions derived from the October 6 burglary, each subject to objection and a corresponding ruling. The trial court thus proceeded from the premise that, for impeachment purposes, specified evidence from the October 6 burglary would be admissible if more probative than prejudicial.

         Thereafter, once the jury had returned to the courtroom and appellant had retaken the stand, the government proceeded to ask him about items retrieved from his backpack (but not yet connected to the October 6 burglary). Defense counsel eventually renewed specific objections to admission of that physical evidence, which the court denied.

         The court then permitted questions by the prosecutor about how appellant had portrayed himself as someone who did not "actually do the job of" stealing. Appellant, however, replied: "If you [are] asking me did [I] receive th[is] property from other people, I would tell you no." The government went on to reveal the October 6 burglary for the first time by asking - without further objection - whether the newly admitted exhibits were in fact "items that [appellant] went inside of [another woman's] home . . . and took from her bedroom while she was sleeping." Appellant responded that he had done so, at an unknown early morning hour, and, in response to the government's final question, confirmed his possession of those items from October 6 until his arrest on October 14.

         4. Redirect Examination of Appellant and Closing Argument for the Defense

         Defense counsel opened redirect-examination by eliciting appellant's testimony that he had left the October 6 burglary without assaulting the woman he had inadvertently found asleep in her bedroom. Relying on that testimony later, in closing argument, defense counsel urged the jury to find "reason to doubt that" appellant was "the man who committed the crimes charged here," because on October 6 appellant "got out of there. He didn't touch that woman. He didn't hit that woman. He certainly didn't rape that woman."

         5. Instructions and Closing Argument for the Government

         Earlier that afternoon the court addressed the government's request to respond to that closing by the defense. The court made clear that the October 6 burglary "was admitted to assess the credibility of [appellant's] testimony" and that the government could "argue it in a way that goes to the credibility of [his] story" without saying that "he committed the burglary the first time and therefore [the jury] can conclude he committed the burglary the second time."

         The trial court instructed the jury that evidence of the October 6 burglary "was admitted for the limited purpose of impeaching [appellant's] credibility" and that appellant could not be convicted "simply because [the jury] believe[d] [that] he may have done bad things not specifically charged as crimes in this case."[10]

         The government's closing argument adhered to this line, stressing that the jury should not confuse the October 6 and October 13 crimes; it should use the October 6 burglary only to assess the credibility of appellant's "story about being a middle man" and his explanations for some of the other physical evidence against him for the October 13 crimes.

         B. Discussion

         1. Law Applicable to Admission of Other Crimes Evidence

         "The jury's knowledge of a defendant's unrelated past [criminal or wrongful] behavior raises the obvious danger that the jury will infer a disposition on the part of the defendant toward criminal activity and thus find him guilty of the crime charged."[11] Accordingly, "evidence of other crimes, which are independent of the one charged, is inadmissible unless it comes under one or more well recognized exceptions."[12] This means that other crimes evidence "must be admissible for some legitimate purpose other than to prove the accused's propensity to commit the act in issue."[13] Moreover, "even when evidence of wrongful behavior is relevant" to a legitimate purpose, the trial court must exclude it "when the degree of prejudice exceeds the probative value of the evidence."[14]More specifically, exclusion is required when anticipated prejudice to the defendant from the jury's likely inference of criminal propensity exceeds the probative value for reaching the truth through impeachment of the defendant's testimony with evidence of another crime committed by that defendant.

         Appellant's October 6 burglary does not fit the usual permissible uses of other crimes evidence approved in Drew.[15] Rather, this case concerns a testifying defendant who, on direct examination, volunteered instances of his older serious crimes and more recent lesser criminal activities to build - as the trial court found - an overall impression that he was presently no more than a minor criminal who had been merely an innocent bystander to the burglary and rape for which he was on trial. The question presented on appeal, therefore, is whether the government could properly impeach the credibility of that defense on cross-examination with the inconvenient truths of appellant's most recent and more serious criminal activity a week earlier, which he omitted from the account to the jury of his prior crimes.

         Appellant emphatically answers "No," arguing that the October 6 burglary was "propensity evidence" introduced specifically to persuade the jury to infer his guilt of the October 13 burglary and rape a week later.[16] In response, the government justifies appellant's impeachment with the October 6 burglary for a reason "entirely unrelated" to a "propensity to commit burglaries," namely, impeachment of the "misleading impression"[17] central to appellant's "innocent bystander"[18] defense: that his involvement in the crimes charged was limited to fencing related items for his cousin.

         Appellant concedes in his brief, as he must, that there are exceptions to the required exclusion of "other-crimes evidence" as long as admissibility of the evidence does not "depend 'wholly or primarily' on the jury inferring" that the defendant was "predisposed or had a propensity to commit the charged crimes."[19]As elaborated below, we agree with the government, concluding that the trial court did not abuse its discretion in determining that the probative value of the October 6 burglary - legitimately used to impeach appellant on a highly relevant, material issue - outweighed the prejudicial tendency of the subject matter of that impeachment to lead the jury toward an impermissible propensity inference.

         2. Probative Value of October 6 Burglary to Rebut Innocent Bystander Defense

         Appellant testified that he had been caught up unwittingly in his cousin's unknown activities inside D.B.'s building when Delonte emerged to give him stolen property for resale, as they had done on several earlier occasions. Appellant then enhanced this innocent bystander defense in two ways. First, on direct examination, he acknowledged earlier convictions for which he was on probation (robbery, two assaults, weapon possession, and failure to appear), thereby trying (as the trial court perceived it) to convince the jury that he was presently a relatively minor criminal, not one who would commit burglary, kidnapping, or rape. Second, appellant claimed on direct that he had feared having the stolen property the police found in his pants and backpack traced back to him, threatening his probation for his robbery and assault convictions. For that reason, he said, he had taken actions to change his appearance when leaving the alleyway behind D.B.'s building, used his gloves to wipe D.B.'s cellphone (thereby transferring her DNA onto his gloves), and fled from law enforcement officers when they were pursuing him on October 14. In other words, appellant gave relatively innocent explanations for much of the strongest evidence identifying him as the burglar who raped D.B. on October 13.[20]

         Our law has long recognized, and appellant fails to directly dispute, that when a defendant "attempt[s], on direct examination, to portray himself as an innocent bystander who [has] stumbled upon something illicit[, ] the government can explore his sophistication with respect to [that illicit activity] and his general credibility, "[21] in order to correct any "misleading impression" created by that testimony.[22]

         Critical here, therefore, is the fact that, on direct examination, appellant acknowledged only prior criminal activity that might convince the jury he was merely a minor criminal who would not commit the major crimes for which he was on trial. He deliberately failed to mention his most recent criminal charge: the far-from-minor October 6 burglary. This omitted, recent criminal activity undermines the credibility of both (1) his claimed present inclination to commit only less serious crimes consistent with his innocent explanations for the evidence against him, and (2) his probation rationale (derived solely from older crimes) for having D.B.'s DNA on his gloves and his suspicious behaviors on October 13 and 14. Appellant's omission of the October 6 burglary, therefore, was a relevant and material basis for impeaching the intentionally "misleading impression" that he created around that omission.[23] In the trial court's words, he created an impression that he "was just a fence who sells items stolen by Delonte and he only does small crimes now like smoke weed and receive stolen property" (emphasis added).

         Appellant's omission, we conclude, "open[ed] the door to further inquiry"[24]on cross-examination into his relevant criminal activity on October 6.[25] Given this court's consistent case law, [26] we must say that he had "no right to set forth to the jury all the facts which tend[ed] in his favor without laying himself open to a cross- examination upon those facts"[27] - especially while expecting to be "shielded by the rule excluding other crimes evidence."[28]

         In suggesting otherwise, appellant misconstrues the record. Principally, he adopts an unreasonably narrow understanding of the proceedings to argue that he did not make "any claim" that was "directly refute[d]" by the October 6 burglary or "imply that he was 'just a fence'" who "had never personally taken property from another" or had "committed only 'petty offenses.'" The record fully supports the trial court's finding to the contrary, that appellant's direct testimony was "carefully crafted" to leave the misleading impression that he was just a fence (taking "precautions," as he later described them, to protect his probation) throughout the relevant time period - July 29 to October 14, 2015.[29]

         Nor can we accept appellant's underlying assumption that the trial court's statements during the full-day hearing, while court and counsel were verbally wrestling with the October 6 impeachment question, demonstrate that the trial court eventually relied exclusively on propensity reasoning to permit appellant's impeachment. Until the trial court made a final ruling that the government was "entitled to challenge [the] inference[s]" of appellant's "carefully crafted testimony" by using the October 6 burglary "to undermine the veracity of what [appellant was] saying" about the evidence against him for the October 13 crimes, all prior statements were tentative, exploratory.[30] Relatedly, the trial court's contemporaneous recognition of the inherent risk that the October 6 burglary might also be used to draw an impermissible propensity inference about appellant's guilt does not, on this record, undermine the ultimate discretionary determination that the October 6 burglary could be used to impeach the general credibility of appellant's relatively innocent explanations of the evidence.[31]

         Nonetheless, without directly addressing the controlling case law supporting the trial court's rationale, appellant argues that whatever rationale might justify his impeachment with the October 6 burglary, no "other crimes" evidence is admissible unless "supported by some propensity-free chain of reasoning, "[32]which, he claims, is not satisfied here. The evidence, he says, must be justified by "how it fits into a chain of inferences . . . that connects the evidence to a proper purpose, no link of which is forbidden propensity evidence."[33]

         We see no conflict between the legal principles that appellant pulls from federal circuit decisions and our own case law stating that other crimes evidence is precluded when its relevance "depend[s] wholly or primarily on the jury inferring" that the defendant was "predisposed or had a propensity to commit the charged crimes."[34] No case on which appellant substantially relies announces a rule that would preclude impeachment with the October 6 burglary.[35] In Gomez, for example, a small amount of cocaine found in the bedroom of a charged conspirator could not properly be used to refute a mistaken identity defense, without relying on a propensity inference, because that cocaine had no discernible connection with the cocaine separately seized from the distribution conspiracy;[36] and, in Davis, the accused's prior conviction for possession of cocaine was irrelevant because it had no link, other than a propensity inference, to the more serious charge for possession with intention to distribute then on trial.[37] Contrary to the impeachment here, these cases on which appellant principally relies found the taint of propensity because the other crimes at issue did not link up with the legitimate purposes for which they were proffered.

         In the present case, however, "even though it revealed appellant's prior bad act[], "[38] the October 6 burglary was not admitted as evidence intended to permit an inference that appellant had "committed the crime charged"[39] because he had committed a burglary a week earlier. That is to say, the link between the prior crime (October 6) and the crime charged (October 13) was not "wholly or primarily"[40] appellant's propensity to commit the latter simply because he previously committed the former. To the contrary, the chain of reasoning that links the October 6 burglary to the October 13 crime was, as a legal matter, sufficiently free of the propensity danger. Because appellant had materially misrepresented his complete criminal history - creating the impression that he most recently committed only lesser crimes such as fencing stolen items - the October 6 evidence was appropriate for impeachment of that misleading testimony; appellant's injection of his lesser crimes into the case on direct examination, in aid of explaining his story of what happened on October 13, justified the government's impeachment with a recent, more serious crime.

         In sum, the government used a relevant prior bad act to impeach appellant's broad claim that, given his criminal history, he would not commit crimes as serious as those on trial. As the trial court found, appellant made this claim implicitly by (1) giving a candid and detailed admission to receiving and selling stolen property with his cousin on multiple prior occasions, (2) emphasizing that his more serious criminal convictions were in his past, and (3) explaining that his inculpatory actions on October 13 were taken out of fear for his related parole. This impeachment was fundamentally different from using the prior bad act "wholly or primarily" as direct proof that appellant was guilty of the offense at trial.[41] The impeachment, rather, was directly "linked" to what the defense had started; it was a direct rebuttal of appellant's sophisticated invitation for the jury to credit his relatively innocent explanations for the government's evidence against him by drawing a false inference from the materially incomplete narrative he gave of his criminal history: that he was not guilty because he was presently a different type of criminal.

         The trial court thus properly concluded that the October 6 burglary was "legitimate impeachment" because it "tend[ed] to undermine the veracity of what [appellant was] saying" about the evidence against him, even though the October 6 burglary "might also be" separately misused to infer his guilt for the October 13 burglary and rape.[42] As we have explained, for purposes of impeaching and rebutting a testifying defendant's presentation of an innocent bystander defense, it is fair game for the government to use relevant other crimes evidence for the independent purpose of probing testimony bolstering a defendant's general declaration of innocence. And, on this record, we "have no difficulty concluding that the trial court [] reasonably [] concluded that the [October 6 crime] was not offered to prove [appellant's] predisposition to commit the" October 13 burglary and rape.[43]

         3. Probative Value v. Unfair Prejudice of October 6 Burglary

         The question remains: whether other crimes evidence (the October 6 burglary), otherwise properly before the jury by way of a propensity-free chain of reasoning (impeachment of misleading other crimes testimony supporting an innocent bystander defense), was admitted through an abuse of trial court discretion because any "probative value" was "substantially outweighed by the danger of unfair prejudice" to appellant's defense.[44] We perceive no such abuse.

         a. Probative Value

         Appellant's arguments that the probative value of the October 6 burglary "was minimal" because it was "unnecessary" in light of his admissions to an earlier robbery conviction, and of his obvious desire not to lose his probation, are unpersuasive. Again, he misconstrues on appeal the nature of his defense at trial and the trial court's ruling. During direct examination, appellant did much more than merely "pull the sting" from his prior convictions. Because he so effectively positioned his earlier convictions as ancient history to support his innocent account of the evidence against him, those crimes could not have effectively impeached his account of criminal activities from the time he got out of prison for those 2013 convictions through his apprehension on October 14, 2015. Having watched and heard every word of appellant's direct examination, the trial court was well-positioned to find that the October 6 burglary countered the strong impression appellant conveyed: that "he only does small crimes now like smoke weed and receive stolen property" that he then sold for Delonte (emphasis added).[45]

         b. Unfair Prejudice

         We address, next, appellant's claim that, whatever its probative value, impeachment with October 6 evidence was "extremely prejudicial." The "strikingly similar facts" of the two burglaries, he says, necessarily led to an "irresistible" and harmful propensity inference. In our view, appellant again asks for more than either the record or the law allows.

         After following the trial court's instruction to lodge individual objections when the prosecution was introducing the physical evidence of the October 6 burglary, appellant made no further objection when the prosecution referred to the underlying details of that crime.[46] Rather, counsel made a tactical choice to forego further objection and develop on redirect examination as many details of the October 6 burglary as possible, in order to forcefully argue that appellant did not commit the October 13 rape because he did not rape the woman he found asleep in her bed on October 6. Because appellant fully embraced the irrelevant details of the October 6 burglary for his own advantage at trial - including the sensational detail that he had entered the bedroom of a sleeping woman - we have no reason to consider whether disclosure of these details to the jury was overly prejudicial to appellant.[47]

         Finally, we have long endorsed instructions requiring the jury to consider prior convictions only for impeachment of a "defendant's credibility," not for assessment of "guilt or innocence of the charged offense."[48] And, we have observed that such instructions, "if not easily followed," are "at least readily understood" and thus on balance help reduce, if not entirely dissipate, the danger of unfair prejudice.[49]

         Here, the trial court gave the jury easily understood instructions that the October 6 burglary could be used only to judge the credibility of appellant's testimony and not when the jury was determining his guilt of the crimes on trial.[50]If not a complete erasure of the jury's natural predilection to draw propensity inferences when presented with other crimes, those instructions are a helpful and sufficient deterrence to that misuse of the other crime made legitimately probative by appellant's testimony.[51]

         In sum, we perceive no abuse of discretion in the trial court's ruling "that the probative value of the overall [October 6] burglary" to impeaching appellant's innocent bystander defense "substantially outweigh[ed] the prejudicial effect" of that other crime coming before the jury. Given the strength of the government's evidence and the clarity of the trial court's instructions to the jury, "[w]e think it unlikely that a reasonable jury would have inferred a criminal disposition to commit" the October 13 burglary and rape[52] "wholly or primarily"[53] on the basis of the fact that appellant committed another burglary without rape on October 6.[54]

         II. Juror Excusal

         We "review a trial court's decision to replace a juror with an alternate for abuse of discretion, "[55] affirming where the trial court provides us with a factually supported and legally sufficient reason for exercising that discretion.[56] In that exercise, the trial court must ensure that deliberating jurors are not removed "for dissenting from the majority view, "[57] but in doing so the court must avoid "inquiry into the juror's views on the merits of the case."[58]

         A. Jury Notes and the Trial Court's Inquiry

         During the course of appellant's trial, Juror 5 sent several notes to the trial court. In her first note, Juror 5 indicated that two other jurors had been asleep. The second note said that she was "not feeling well" but "would like to continue," which she did after speaking with the court. On May 31, 2016, the case was submitted to the jury for deliberations to begin the following day.

         Early in the afternoon of June 1, 2016, a note from the jury informed the trial court that "[t]he jury has one juror that is disputing that a rape occurred. Our ability to assess the facts of the case may be impeded by this. The jury requests . . . the official stipulations." The court was "quite puzzled by the note" because "the parties [had] stated all along that there was no dispute that a rape occurred." The defense agreed that it had not pursued a no-rape theory, but posited that perhaps the jury was confused because it had not yet received all the exhibits from the rape examination, and was indicating that it wanted to wait before stipulating that a rape had occurred, especially because the jury had not "been deliberating for very long." At the request of the defense, the court responded to the note by instructing the jury that it had "all of the stipulations that have been entered into evidence" and to send another note if that response did "not address [their] concerns."

         The following morning, June 2, 2016, Juror 5 asked, "May I be excused from this [deliberation] totally[, ] I'm not well at all." The court observed that this was the juror who had previously been sick "and gritted it out." Juror 5 came before the court and asked to be "[t]otally . . . excused" due to stomach and head pain. The court asked: "Is there anything that we can do to accommodate you so that you can deliberate or not?" Juror 5 responded: "No, but thank you so much for asking me." Juror 5 retired to the jury room with the court "not[ing] for the record that she didn't look" or "sound well." The court indicated an inclination to find "that [Juror 5 was] unable to deliberate . . . given her state and her demeanor and what she said."

         Defense counsel expressed concern that Juror 5 was "requesting to be removed because of pressure in deliberations as opposed to her physical well being." The court found this request speculative and asked defense counsel to identify a basis for it. Recognizing that the court did not know which juror disputed whether a rape had occurred, defense counsel noted that Juror 5 appeared to be agreeing with the defense during closing arguments. The court again stated that this concern was "speculative," added that Juror 5 "doesn't look well physically," and noted that it would be "really dangerous to start making inquiries into the state of deliberations." Defense counsel pressed the court to ask if there was any other reason for Juror 5's request, because it was not apparent why she had tears in her eyes. The court replied that the tears in Juror 5's eyes appeared "to be part of her illness"; she had "been vocal throughout the trial" and was "perfectly ca[pa]ble of telling" the court if something other than illness caused her request; and that "[t]his [was] a jury that [got] along from what [the court had] seen." The court thus found "no basis for believing" that Juror 5's request to be excused was "pretext for her feeling that she's being ganged up on." Defense ...


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