Thomas v. United States

SCHWELB, Associate Judge,

concurring:

Nathaniel Thomas was convicted by a jury of simple assault.1 He was found not guilty of the more serious charges of aggravated assault,2 attempted malicious disfigurement,3 and assault with a dangerous weapon,4 namely, a hot liquid. On appeal, Thomas presents several contentions, none of which warrants reversal of his conviction; any possible trial court errors, considered individually or cumulatively, were harmless. Accordingly, I concur in the affirmance of the judgment.

I.

THE EVIDENCE

This case arose out of a quarrel between the defendant and Clarice Johnson, the mother of his four-year-old son, Tevin. According to Ms. Johnson, Thomas came to her home on May 25, 1999, ostensibly to give her some money in connection with Tevin’s preschool graduation. Later in the evening, Thomas began to interrogate Ms. Johnson regarding whether she had been seeing another man. Thomas appeared to Ms. Johnson to be “tripping” on crack cocaine; she denied, however, that she used cocaine on the evening of the incident. Ms. Johnson testified that Thomas became angry, went to the kitchen, came back to the bedroom with a bowl in his hand, and threw some hot liquid at her, scalding her face, neck, and arms. Ms. Johnson sustained second degree burns on her face and arms.

Thomas’ account of the incident was quite different. According to Thomas, Ms. Johnson had asked him to bring her some crack cocaine. Thomas purchased some crack and brought it to Ms. Johnson’s home, together with a bottle of gin and, somewhat incongruously, some carrot juice. Thomas testified that the quarrel began while the two principals were smoking crack and drinking liquor together in the bedroom. According to Thomas, Ms. Johnson complained that “the shit wasn’t no good” and demanded that Thomas give her more cash. Thomas refused and Ms. Johnson, who is bigger than Thomas, became angry, pulled him onto the bed, and began to berate him. Thomas retreated to the kitchen and began washing dishes at *29the sink. When Ms. Johnson continued to ask for money, Thomas told her she should “go out in the street and get it the way she has been,” i.e., by “tricking.” Ms. Johnson, apparently displeased by this suggestion, “reached at the stove, grabbed a pan, and swung at [him].” Thomas testified that he raised his arm to protect himself, and that the liquid in the pan “spilled back onto Clarice” and burned her. Thomas himself was burned by the lower part of the pan.

There were no other witnesses to the scalding incident. Ms. Johnson’s eighteen-year-old daughter, Celeste, testified that two of Thomas’ sisters subsequently telephoned her several times to urge that the charges against their brother be dropped. Ms. Johnson testified that Thomas told her that he was sorry for what he had done. He also wrote to her from jail, declaring his love and inquiring whether she would press charges. There was no claim that either Thomas or his sisters threatened Ms. Johnson to dissuade her from testifying.

Ms. Johnson was impeached with some arguably minor contradictions between her trial testimony and her grand jury testimony. After being given immunity, she admitted that she had threatened another woman for allegedly acting indecently around Thomas.5

II.

LEGAL ANALYSIS

A. The replacement of Juror No. 1.

Thomas contends that the trial judge violated his “Fifth Amendment right to have his trial completed by a particular tribunal,” as well as his rights under Super. CtCrim. R. 24(c), by replacing a juror with an alternate before deliberations began. Even if the judge erred in this regard — an arguable question which need not be decided to resolve this appeal — the error was harmless.

The challenged replacement in this case occurred before the jurors began deliberating, and before any juror had been advised whether he or she was an alternate. The judge observed that Juror No. 1 appeared “totally exasperated by the fact that [counsel] were both speaking and that she is here.” She further stated that the juror was “speaking under her breath” while counsel were presenting their arguments and during the court’s instructions. Sensing from Juror No. l’s apparently angry demeanor and odd behavior that she probably would not be an attentive or impartial juror, the judge replaced her with an alternate. Thomas’ counsel vigorously objected to the juror’s removal, but he proposed no alternative course of action {e.g., a hearing on the juror’s qualifications).

Rule 24(c) directs the court to “replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties.” “The trial court is accorded substantial deference on [the decision whether to replace a regular juror] as a result of its superior ability to observe the demeanor of the juror and its familiarity with the proceedings.” Darab v. United States, 623 A.2d 127, 138 n. 26 (D.C.1993). Rule 24(c) of the Federal Rules of Criminal Procedure, which is identical to the local rule, has been construed as authorizing the replacement of a juror with an alternate “when facts arise before the start of deliberations that cast doubt upon *30a juror’s ability to perform her duties.” United States v. Smith, 918 F.2d 1501, 1512 (11th Cir.1990), cert. denied, 502 U.S. 849, 112 S.Ct. 151, 116 L.Ed.2d 117 (1991), 502 U.S. 890, 112 S.Ct. 253, 116 L.Ed.2d 207 (1991).6 The trial judge evidently believed that the conduct of Juror No. 1 was sufficiently irregular to raise serious doubt as to this juror’s ability to perform her duties. As appellate judges, my colleagues and I are limited to a paper record, and we are necessarily reluctant to second-guess the trial judge’s on-the-scene personal assessment.

Nevertheless, Thomas’ contention that the judge abused her discretion in replacing Juror No. 1 is not implausible. Read literally, Rule 24(c) authorizes the removal of a juror only if the juror is “unable or disqualified” to perform her duties. The trial judge never made such a finding, at least explicitly. To be sure, muttering under one’s breath, both during closing argument and while the judge was charging the jury, may suggest inattention on the juror’s part, and a juror may properly be disqualified for being inattentive. Shreeves v. United States, 395 A.2d 774, 787 (D.C.1978). The judge did not, however, explicitly state that Juror No. 1 was inattentive, nor did she contradict Thomas’ attorney when he asserted that the opposite was true. Indeed, the record contains no reference on the part of the judge to Rule 24(c)’s demanding standard: “unable or disqualified.”7 “Judicial discretion must ... be founded on correct legal principles, and a trial court abuses its discretion when it rests its conclusions on incorrect legal standards.” In re J.D.C., 594 A.2d 70, 75 (D.C.1991). “A [trial] court by definition abuses its discretion when it makes an error of law.” Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). If the judge in this case in fact applied the standard set forth in Rule 24(c) at all, she certainly did not do so explicitly. Accordingly, whether Thomas has demonstrated in this case that the trial judge abused her discretion in the Koon sense is not an easy call.

But even assuming, arguendo, that Juror No. 1 was not shown or found to be “unable ... to perform her duties” within the meaning of Rule 24(c), and that the judge therefore erred by replacing her, Thomas must nevertheless establish prejudice. See, e.g., United States v. Nelson, 102 F.3d 1344, 1349 (4th Cir.1996), cert. denied, 520 U.S. 1203, 117 S.Ct. 1567, 137 L.Ed.2d 713 (1997).8 Specifically, Thomas must show that as a result of the removal *31of Juror No. 1, “an impaneled juror failed to conscientiously apply the law and find the facts.” Tate v. United States, 610 A.2d 237, 239 (D.C.1992) (citations and internal quotation marks omitted). In this case, “[b]ecause the defendant ] make[s] no assertion that [he] suffered bias or prejudice [from the presence of the alternate on the jury], and do[es] not claim that the alternate juror was not impartial, [his] conviction[] would not be subject to reversal even were we to conclude that dismissal of [Juror No. 1] was an abuse of the [trial] court’s discretion.” United States v. Alexander, 48 F.3d 1477, 1485 (9th Cir.1995) (citation and internal quotation marks omitted).

Thomas has presented no evidence whatever of prejudice. Indeed, his attorney passed on five of defense’s ten peremptory challenges to the jury proper, and he also declined the opportunity to strike the alternate who ultimately replaced Juror No. 1, thereby at least implicitly expressing satisfaction with that juror. See Darab, 623 A.2d at 139. There is no suggestion that any of the twelve jurors who convicted Thomas was biased against him. “A party to a lawsuit has no vested right to any particular juror; the right of challenge is the right to exclude incompetent jurors, not to include particular persons who may be competent.” Id. at 139 (citation omitted). Thus, even assuming without deciding that the judge erred in substituting an alternate for Juror No. 1, the error was harmless.9

B. The restriction of the cross-examination of the complaining witness.

During her testimony, Ms. Johnson vehemently denied that she assaulted Thomas with the bowl of hot liquid; on the contrary, she testified that the defendant assaulted her. Ms. Johnson likewise denied that she was using crack cocaine at the time of the scalding incident. Thomas claims that the trial judge committed reversible error by precluding the defense from cross-examining Ms. Johnson regarding two alleged reasons for her to he: apprehension that she would go to prison if she admitted assaulting Thomas or using unlawful drugs,10 and fear of adverse con*32sequences with respect to her retention of custody of three of her children and the return to her of two other children if she made such an admission.11

“While exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination, Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Sixth Amendment does not prevent a judge from ‘imposing any limits on defense counsel’s inquiry into the prejudicial bias of a prosecution witness.’ ” Ray v. United States, 620 A.2d 860, 862 (D.C.1993) (internal quotation marks omitted) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). The trial court may restrict bias cross-examination “to avoid such problems as harassment, prejudice, confusion of the issues ... or interrogation that is repetitive or only marginally relevant.... [or] where the prejudicial effect of the proffered evidence outweighs its probative value.” Guzman v. United States, 769 A.2d 785, 790 (D.C.2001) (citations and internal quotation marks omitted). “The Confrontation Clause is violated ... only when the trial court precludes a meaningful degree of cross-examination to establish bias.” Grayton v. United States, 745 A.2d 274, 279 (D.C.2000) (citations and internal quotation marks omitted). “After sufficient cross-examination has been allowed to satisfy constitutional requirements, the trial court retains broad discretion to determine the scope and extent of cross-examination.” Velasquez v. United States, 801 A.2d 72, 79 (D.C.2002) (citation omitted). “The extent of cross-examination with respect to a witness’ motive to lie is confided to the trial judge’s sound discretion.” Brown v. United States, 683 A.2d 118, 126 (D.C.1996). Although some cross-examination with respect to a separate theory of bias must generally be permitted,12 the trial court may, in its discretion, preclude such cross-examination altogether if its probative value is slight, if it would be only marginally useful to show bias, and if the proposed line of questioning is substantially prejudicial or tends to divert the jury’s attention from the issue at hand. Coles v. United States, 808 A.2d 485, 490-91 (D.C.2002) (citations omitted).

In the present case, Ms. Johnson’s underlying motive to he was, in my opinion, surely obvious to any reasonably intelligent juror. If Ms. Johnson had acknowledged assaulting Thomas or using crack cocaine, or both, she would have admitted criminal conduct for which she could have been incarcerated. Indeed, the defense so argued to the jury without objection. Moreover, from prison, it would plainly have been difficult, if not impossible, for Ms. Johnson to maintain custody of the *33children who were living with her, or to regain custody of other children who may have been removed from her home. Indeed, incarceration would drastically alter all aspects of her life, including her relationship with her children. With the dominant motive so obvious, I perceive no abuse of discretion in the trial judge’s preclusion of further cross-examination regarding any incremental motivation that could have been provided by inquiring into the situation of Ms. Johnson’s children, especially since, as the judge reasonably concluded, the proposed cross-examination was likely to “further dirty [Ms. Johnson]” — as someone whose children the state had been forced to remove from her custody — and “make her less sympathetic.” See, e.g., Grayton, 745 A.2d at 279; Burgess v. United States, 608 A.2d 738, 736 (D.C.1992).13 In this regard, I disagree with my colleagues’ contrary conclusion, and the discussion in this paragraph is not a part of the opinion of the court.

C. The cross-examination of Thomas regarding alleged other “bad acts.

During Thomas’ cross-examination, the prosecutor inquired without objection whether crack cocaine affected Thomas’ demeanor. Thomas initially replied that “it makes me feel good” and that it “doesn’t affect my behavior where I’m going to become violent.” The prosecutor pressed on, and she asked Thomas, again without objection, whether there had ever been an occasion when crack did cause him to behave in a violent manner. Thomas admitted that there was one such occasion, but he again denied that crack cocaine made him violent. The prosecutor asked about the one occasion to which Thomas had referred, and, there still being no objection, Thomas said that he got “bust [sic] in the head” because he was in the wrong place at the wrong time.

The prosecutor then inquired whether the “bust in the head” incident occurred in 1998, when, according to the prosecutor, Thomas punched his sister Dorothea and his nephew. Thomas replied that the “bust in the head” incident was a different one from the encounter with his sister and nephew. The prosecutor then pressed Thomas about the 1998 incident, at which point the defense objected for the first time, claiming that the question was not relevant. The judge overruled the objection. Thomas then described the 1998 incident as one in which his sister was intoxicated: “[T]he bull just came out of Dorothea.” Thomas admitted grabbing his sister, but he did not acknowledge that he had punched either his sister or his nephew.

On appeal, Thomas argues that the prosecutor “baited” him into putting his character into evidence, and that she then elicited “other bad acts” evidence to destroy Thomas’ character. The “baiting” charge is not without substance, but there was nó objection to the “baiting” questions until after the claim of good character had been made.14 Moreover, the testimony about the 1998 encounter — as distinguished from *34the intimations in the prosecutor’s questions — established little more than the “grabbing” of a drunk and quarrelsome sister. No limiting instruction was requested or given. Under the circumstances, even assuming, arguendo, that the belated defense objection should have been sustained, my colleagues and I are satisfied that any incremental prejudice from Thomas’ description of the event was minimal, and that any error was harmless. Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239.15

In sum, the judgment should be affirmed.

. D.C.Code § 22-504. All references to the District of Columbia Code in this opinion are to the 1996 Supplement to the 1981 edition.

. D.C.Code § 22-504.1.

. D.C.Code §§ 22-506 and-103.

. D.C.Code § 22-502.

. At the trial, Ms. Johnson originally claimed that she could not recognize Thomas, her paramour for some eight years. It appears, however, that she did not bring her glasses to court, and she was able to recognize Thomas from close up.

. Where, as here, the local rule and the federal rule contain the same language, the construction of the federal rule by a United States Court of Appeals is persuasive authority as to the proper interpretation of the local rule. See, e.g., Peddlers Square, Inc. v. Scheuermann, 766 A.2d 551, 556 n. 4 (D.C.2001).

. In fairness to the trial judge, I note that counsel did not bring the language of Rule 24(c) to the court’s attention. Moreover, the rule is arguably somewhat counter-intuitive; where, as here, there were two persons available to serve on the jury (Juror No. 1 and an alternate whom no party had challenged), and where one of the two appeared to act in a peculiar and perhaps irrational manner, it would not be unreasonable to suppose that the judge was authorized to disqualify the individual who acted peculiarly, especially where, as in this case, the jurors had not been told who the alternates were. But be that as it may, Juror No. 1 could properly be removed only if the requirements of Rule 24(c) were satisfied.

. I recognize that, in most cases, it will be difficult to prove specific prejudice stemming from a Rule 24(c) violation. See United States v. Donato, 321 U.S.App. D.C. 287, 291, 99 F.3d 426, 430 (1996). Nevertheless, the harmless error standard of Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) still applies. Donato, supra.

. Thomas also contends on appeal (1) that the trial judge should have held a hearing to determine whether Juror No. 1 was "unable or disqualified/' and (2) that the judge's disqualification of Juror No. 1 in effect gave the prosecution an additional peremptory challenge. Neither of these claims was presented to the trial court, and Thomas has not shown that the judge committed plain error by failing to hold a hearing sua sponte or by providing the government with an extra strike. Contrary to Thomas’ position, "errors adversely affecting the exercise of peremptory challenges [are] not structural errors” (within the meaning of Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). Johnson v. United States, 804 A.2d 297, 304 (D.C.2002) (citing Lyons v. United States, 683 A.2d 1066, 1067 (D.C.1996) (en banc)).

. Thomas’ attorney asked Ms. Johnson several times whether she knew that she could get into trouble with the police if she admitted committing an assault or using crack cocaine. Ms. Johnson answered, somewhat unresponsively, that she had not done anything wrong. After some repetition, the judge sustained an objection to further questioning on this subject. As the government notes in its brief, "[gliven Ms. Johnson's responses to defense counsel's questioning, there was really no prospect that additional questioning would have yielded an admission that the witness did, in fact, fear that her conduct on May 29 would land her in jail.”

Thomas claims that the judge should have overruled the objection and that the jurors should have been permitted to assess Ms. Johnson’s demeanor during the further questioning on the subject of her possible fear of incarceration. But the jury had ample opportunity to observe Ms. Johnson’s demeanor, and the judge did not abuse her discretion by holding, in effect, that the subject had been sufficiently explored and that further ques*32tioning was not necessary to enable the jurors to evaluate Ms. Johnson’s demeanor.

. The defense proffered that two other children had been removed from Ms. Johnson’s home, possibly on account of her alleged drug use.

. As the Supreme Court explained in Van Arsdall, 475 U.S. at 680, 106 S.Ct. 1431, the trial court generally must allow some cross-examination “designed to show a prototypical form of bias[,]” defined as one from which “[a] reasonable jury might ... receive! ] a significantly different impression of [the witness’] credibility” (emphasis added) from that which other questioning has permitted. See Olden v. Kentucky, 488 U.S. 227, 232, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988). Whether cross-examination of Ms. Johnson about her fear of not regaining custody of two of her children, or of losing custody of her other three children, could reasonably have given the jury that “significantly different impression” — one not resting on negative inferences about her character as a parent — is the question I would answer negatively in the discussion that follows.

. Even if the judge’s restriction on cross-examination constituted an abuse of discretion — and I am satisfied that it did not — I am of the opinion, in light of the ample evidence of motive to lie, that any hypothetical error was harmless. There is no reasonable possibility that Ms. Johnson would tell the truth even if it meant going to prison (and probably losing custody of her children), but would lie in order to avoid impairing her chances of retaining or regaining custody. At the very least, the trial judge could reasonably so conclude.

. On direct examination, Thomas had testified in substance that Ms. Johnson tended to be aggressive and that he attempted to keep things peaceful and avoid trouble.

. Thomas also argues that the testimony about the telephone calls made by his sisters should not have been received in evidence. The prosecution did not claim, however, that these calls were threatening. Even assuming, arguendo, that this evidence was erroneously admitted, its admission was harmless. Thomas' attorney could have requested a limiting instruction regarding the purpose for which evidence of the calls could be considered by the jury, but counsel made no such request.