Hughes v. United States

REID, Associate Judge:

After a jury trial, appellant William Z. Hughes was convicted of first degree burglary while armed, in violation of D.C.Code §§ 22-1801(a), -S203 (1996 Repl.); assault with a dangerous weapon, in violation of D.C.Code § 22-502; possession of a firearm during a crime of violence, in violation of D.C.Code § 22-3204(b); carrying a pistol without a license, in violation of D.C.Code § 22-3204; and simple assault, in violation of D.C.Code § 22-502. Hughes filed a timely appeal. He contends that (1) he was denied his Sixth Amendment right to a fair trial by an impartial jury; (2) he was denied due process because of the introduction of “other crimes” evidence; and (3) the evidence was insufficient to convict him beyond a reasonable doubt. We reverse and remand the case for a new trial.

I.

The right to trial by an impartial judge or jury is fundamental and deeply embedded in American jurisprudence. In Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975), the Supreme Court stated that, “[t]he constitutional standard of fairness requires that a defendant have ‘a panel of impartial, ‘indifferent’ jurors.’ ” (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961)). Indeed, “[n]o matter how strong [the] evidence [against the accused, and even if it is] ‘exceptionally strong,’ [the accused has] a constitutional right to have it passed on by an impartial jury.” Dennis v. United States, 339 U.S. 162, 175, 70 S.Ct. 519, 527, 94 L.Ed. 734 (1950) (Black, J., dissenting). The mandate of fairness is rooted in the Sixth Amendment to the Constitution, which specifies that an accused “shall enjoy the right to ... trial, by an impartial jury.” In 1950, Justice Felix Frankfurter reminded us that, “[t]he constitutional command for trial by an ‘impartial jury' casts upon the judiciary the exercise of judgment in determining the circumstances which preclude that free, fearless and disinterested capacity in analyzing evidence which is indispensable if jurymen [and jurywomen] are to deal impartially with an accusation.” Dennis, supra, 339 U.S. at 181, 70 S.Ct. at 525 (Frankfurter, J., dissenting).1 Moreover, *1208the majority in Dennis recognized that, “[i]mpartiality is not a technical conception. It is a state of mind.” Id. at 172, 70 S.Ct. at 523 (citation omitted). In that regard, “the juror’s assurances that he [or she] is equal to [the] task cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate ‘the actual existence of ... an opinion in the mind of the juror as will raise the presumption of partiality.’” Murphy, supra, 421 U.S. at 800, 95 S.Ct. at 2036 (quoting Irvin, supra, 366 U.S. at 723, 81 S.Ct. at 1642-43).

II.

Here, on two occasions, Juror No. 1 signaled to the trial court that he questioned his own state of mind regarding his ability to be fair, fearless and disinterested in examining evidence against Hughes. First, during the voir dire, he conscientiously summarized his contacts and past working relationships with persons in law enforcement, including those in the U.S. Attorney’s Office for the District of Columbia. In response to a question from the government attorney, he indicated that he had served as a law clerk to a federal appellate court judge and that “in general the prosecutors ... [in criminal] eases did bang up jobs and the defense lawyers did not do very good jobs.” He added, “I’m not saying that I ever saw you [defense counsel] do a bad job, but my general sense is that the work was more professional on the Government’s side.” When asked whether his belief regarding prosecutors and defense counsel “[would] ... have a tendency to affect [his] outlook on the determination as to guilt or innocence of a particular individual,” Juror No.l responded in part, “I mean not necessarily the guilt or innocence.” When the government attorney inquired again, a few minutes later, whether “any of [the juror’s] experiences either as an attorney or as a clerk in dealing with criminal matters ... cause [him] to be unable to be fair and impartial in the determination of guilt or innocence,” he stated,

I would never want to say I’m unable to be fair or impartial, but I should tell you that for the past five months I have been on leave from my law firm and have been working on the White House security review, which is a special group put together under the Secretary of the Treasury ... for enforcement to investigate the various incidences that have happened at the White House.
My colleagues in that group are two ... Assistant U.S. Attorneys, including one who recently left this office, the D.C. office, named Elizabeth Breese, and two former federal prosecutors in addition to that.
And in the course of that review, which was sort of an investigation but also an investigation with the Secret Service, that worked in close conjunction with the Secret Service, both agents and officers of the Uniformed Division, officers who had contact with MPD, had contact with the FBI and also had, not direct contact, but reviewed the work of Park Police to some degree, and also to the degree that one of the incidences that took place was a life matter, which was the Duran shooting at the White House, my group worked in conjunction with the U.S. Attorney’s Office in order to preserve the integrity of that case.
So my general — I should tell you that for the past five months I have been working closely with people on the law enforcement side of things and in general had a much more, you know, much more favorable view of the whole process than maybe I would have before.

When asked whether he had an opinion of Ms. Bresee, Juror No. 1 replied, “I think that I trust her.2 I mean she has become a good friend. I trust her completely and don’t believe she would ever do anything dishonest or untowards as a U.S. Attorney, although she has left the office, now.” Defense counsel posed no questions to Juror No. 1, but moved to strike him on the ground that “he gave me the impression that he would be just a little *1209bit biased.” The trial judge denied the motion, stating that the juror “said that he felt he could be impartial.”3 Defense counsel did not use any of his peremptory challenges to strike Juror No. 1, even though he was seated first in the jury box.

The second occasion on which Juror No. 1 signaled to the trial court that he questioned his own ability to “lay aside his impression or opinion[s],” Irvin, supra, 366 U.S. at 723, 81 S.Ct. at 1643, and his own impartiality, occurred while trial was in progress. As the first day of the trial ended, and following the testimony of Reginald Collier, a government witness who mentioned Ms. Bresee’s name during redirect examination, Juror No. 1 apparently asked to speak with the trial judge.4 He was invited to the bench and conveyed his physical reaction to his state of mind or psychological condition:

My heart is skipping a little bit here. Part of the defense theory seems to be that the prosecutors may have inserted words into the witness’ mouth and one of the prosecutors is a close friend of mine, Elizabeth Breese, and in terms of my objectivity I don’t feel I’m — I mean I absolutely refuse to accept that that may have been done.

The trial court responded, “Thank you. I will ask you to keep an open mind and hear all of the evidence and come to your conclusions.” The juror did not state that he would, or would be able to, keep an open mind. Instead, he said, “I just thought I had to tell you.” The trial court replied, “I appreciate that. Any questions for this gentleman before he leaves?” Defense counsel stated, simply, “no.” During an additional brief dialogue between the counsel and the trial court, defense counsel still made no move to strike Juror No. 1 for bias. No further testimony was taken on the first day of the trial.

At the beginning of the second day of trial, defense counsel told the trial judge, “I want to — that last juror that ... came up and talked about the fact that he knew Ms. Breese and that he had palpitations, I want to get him out of there for cause. It bothers me. We can have one of the alternates take his place.” When the trial judge asked whether there was “any objection,” the prosecutor said “yes” based upon his voir dire questioning of the juror, his understanding that the juror “indicated clearly that he could follow the court’s instructions and would do so and that he would set aside whatever feelings he has.” Defense counsel insisted that circumstances had changed since the voir dire:

There wasn’t a problem originally during the voir dire, your Honor. I thought, when he said that he could handle it, that there wasn’t a problem, but when he got up there Friday and said that he had palpitations of the heart and he was getting very, very uncomfortable, that bothered me. That means that something has triggered something and I just think there’s cause to have him removed.

Defense counsel agreed with the trial court that the jury would not “be called upon to make any assessment of Ms. Breese or her conduct.” However, defense counsel maintained that since the prosecuting attorney was “taking over [Ms. Bresee’s] case that she worked so hard on and he is working so hard on ... there may be a bit of feeling that— that he will have a feeling towards — a good feeling towards the prosecution as against the defense attorney and the defense case.” After reminding defense counsel that “I think we explored those during voir dire in the jury room,” the trial court denied “the request to strike the juror for cause.”

III.

Understandably, the trial court was concerned with repeated delays in the trial of Hughes and the costs involved in his trial. Moreover, the trial court obviously weighed the fact that defense counsel had not used a peremptory strike against Juror No. 1, even though he was the first juror to be seated. Indeed, we cannot fault the trial judge for *1210refusing to strike Juror No. 1 during the voir dire, simply because he had worked with law enforcement officials. Nonetheless, the early signal of potential problems with Juror No. l’s impartiality served as a reminder of the need for the trial court to be “ever watchful to prevent prejudicial occurrences ... when they happen.” Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982).

In Allison v. United States, 451 A.2d 877 (D.C.1982), we said we “ ‘should not reverse the trial judge’s decision [as to whether to strike a juror] ... unless the juror’s partiality is manifest.’ ” Id. at 879 (quoting Wilburn v. United States, 340 A.2d 810, 812 (D.C.1975)). However, we also stated “that ‘[o]nly by a punctilious regard for a suspicion of prejudice can we hope to maintain the high tradition of our jury system. We must make sure that the lamentations of the unsuccessful litigant [are] without foundation, either in fact or circumstance.’ ” Id. (quoting United States v. Chapman, 158 F.2d 417, 421 (10th Cir.1946)).

IV.

We conclude that the failure of the trial court to grant defense counsel’s request to strike Juror No. 1 and replace him with an alternate juror, or to reopen the voir dire to determine whether actual bias existed, constituted a structural error requiring reversal of Hughes’ conviction. It is a structural error because Juror No. 1 clearly was not impartial, but manifested, even through physical symptoms of heart palpitations, his definite bias in favor of the government. “[S]truetural defects in the constitution of the trial mechanism ... defy analysis by ‘harmless-error’ standards.” Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 1264, 113 L.Ed.2d 302 (1991); see also Lyons v. United States, 683 A.2d 1066, 1070 (D.C.1996). The Supreme Court concluded in Fulminante that a trial conducted by a judge who is not impartial is a “structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’ ” 499 U.S. at 310, 111 S.Ct. at 1265 (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 3105-06, 92 L.Ed.2d 460 (1986)). In addition, in Rose, the Supreme Court stated clearly, “[h]armless-error analysis ... presupposes a trial, at which the defendant, represented by counsel, may present evidence and argument before an impartial judge and jury.” Id. at 578, 106 S.Ct. at 3106.

Juror No. 1 manifested prejudice in favor of the government when, finding his “heart skipping a little bit here,” he told the trial court that a former Assistant U.S. Attorney who had worked on Hughes’ case is “a close friend of mine,” and that he “absolutely refuse[d] to accept” that “the prosecutors may have inserted words into the witness’ mouth.”5 These words were not indicative of an open mind. Hence, the trial court should have replaced Juror No. 1 with one of the alternate jurors or, at least should have had “a punctilious regard for a suspicion of prejudice.” Allison, supra, 451 A.2d at 879. A suspicion of prejudice should have prompted the trial court, at a minimum, to re-open the voir dire to determine whether actual bias existed. See Artisst v. United States, 554 A.2d 327, 331 (D.C.1989). When the trial court asked Juror No. 1 “to keep an open mind and hear all of the evidence and come to your conclusions,” Juror No. 1 merely said, “I just thought I had to tell you.” This response could hardly erase a suspicion of prejudice, or refute the presence of manifest prejudice. Yet, the trial court made no effort to question Juror No. 1 after defense counsel moved on the second day of trial to strike him for cause, and after the juror did not assure the trial court that he could and would keep an open mind. Nor did the trial court ask to review Juror No. l’s response to questions posed during the voir dire, in particular his statements that (1) when he served as a law clerk to a federal appellate court judge, he thought “in general [that] the prosecutors ... [in criminal] cases did bang up jobs and the defense lawyers did not do *1211very good jobs;” (2) he “would never say I’m unable to be fair or impartial, but ... for the past five months I have been working closely with people on the law enforcement side of things and in general had a much more ... favorable view of the whole process than maybe I would have before.”

In short, the record does not reflect any explicit or unequivocal statement from Juror No. 1 that he could be a “fair, fearless and disinterested” juror. Rather, it reflects Juror No. l’s favorable view of law enforcement officials, his close friendship with a former Assistant U.S. Attorney who worked on the Hughes’ prosecution before she left the U.S. Attorney’s office, and his close working relationship with law enforcement officials during the five months preceding the Hughes’ trial. Ten government witnesses were presented at trial and only two defense witnesses, including Hughes. Juror No. l’s decidedly favorable view of government attorneys, his close working relationship with law enforcement officials, and his physical reaction to even a suggestion of impropriety by an Assistant U.S. Attorney, undoubtedly demonstrate that he was predisposed to believe the testimony of the ten government witnesses. Given these circumstances, the fact that he never gave the trial court explicit assurance that he could view the evidence with an open mind is telling. The conclusion is inescapable that the presence of Juror No. 1 in the jury box denied Hughes “the right to ... trial, by an impartial jury,” guaranteed by the Sixth Amendment to the Constitution.

Viewed in the light most favorable to the government, the evidence was sufficient to support each of Hughes’ convictions. See Parker v. United States, 601 A.2d 45, 51 (D.C.1991). Nonetheless, because of our conclusion with regard to the juror bias issue, a new trial is essential.

Accordingly, we are constrained to reverse the judgment of the trial court and remand with instructions to grant Hughes a new trial.6

Reversed and remanded.

. Justice Jackson expressed the view in Dennis, that "[t]he right to fair trial is the right that *1208stands guardian over all other rights.” 339 U.S. at 173, 70 S.Ct. at 524 (Jackson, J., concurring).

. The correct spelling of Ms. Breese’s name, as indicated on a certificate of service found in the record is "Bresee.” We have retained the spelling that appears in direct quotes from the record.

. The record does not reflect an explicit and unequivocal statement from Juror No. 1 that he could be impartial despite his legal experiences.

. On redirect examination, Mr. Coflier was asked, "Did Ms. Breese tell you to say anything in terms of what happened? Did she put any ideas into your head as to what happened?” Mr. Collier replied, "No, she didn’t."

. During voir dire, Juror No. 1 described Ms. Bresee as "a good friend.”

. Because of our reversal and remand, we do not reach the issue raised by Hughes regarding the introduction of "other crimes” evidence.