A jury convicted John H. Jenkins of possession with intent to distribute heroin. D.C. Code § 33-541(b)(2)(A) (1987). Judge Salzman sentenced him to four to twelve years of imprisonment. In seeking reversal of his conviction, Jenkins alleges that the trial court erred in refusing (1) to require disclosure of the location of a police observation post and (2) to question the entire venire panel regarding possible bias in favor of police testimony. We disagree with his first contention, but, finding merit in his second argument, we reverse and remand for a new trial.
I.
The government introduced evidence showing that Metropolitan Police Officers James Starliper and Jay Wendell, from a covert observation post, observed Jenkins apparently selling narcotics at 1103 0 Street, N.W. at about 12:10 a.m. on June
At trial, before the voir dire of the jury panel, defense counsel requested the court to ask the entire venire panel whether anyone “would give more weight to the testimony of a police officer.” The court declined. Instead, the court indicated it would ask that question only of the prospective jurors “who [are] police officer[s]” but would instruct the jury, after the close of all the evidence, “not [to] give more weight to the testimony of a police officer.”
At the voir dire, which the trial court itself conducted, the court described the offense charged, then asked all the prospective jurors if they had heard about the incident; if any of them had special familiarity with the immediate area of the alleged offense; if they were acquainted with the prosecutor, defense counsel, or defendant; if they had strong feelings about drugs that would prevent them from “decidpng] this case fairly and impartially, on the evidence you hear and the instructions of law which the Court will give”; if they had reservations about sitting in judgment against another person such that they would be unable to decide the case based on the evidence and the law as instructed by the court; if, in the previous five years, they or their close friends or relatives had been witnesses to crimes, victims of crimes, or accused or convicted of crimes; if any in this group had legal training; and if any in the same group had been “employed by any law enforcement agency,” defined as a “police force in and out of the District of Columbia, special police officers, prosecutors, corrections officers, someone in the Sheriff’s Department, someone in the Department of Justice, other than the individual who has already disclosed that to us, someone in the Marshal’s Service, Sheriff’s Department, Internal Revenue Service, Secret Service or any other law enforcement agency.”
One person employed by the Metropolitan Police Department as a crossing guard responded affirmatively to this last question, and the following dialogue took place:
The CouRt: Do you think that because you are a crossing guard you’d be inclined to believe the testimony of someone else in the law enforcement business more than anyone else, just because they’re a police officer?
The JüROr: No.
The Court: Could you be fair and impartial?
The Juror: Yes, I would.
The court conducted this questioning from the bench while the prospective juror stood at her seat. Consequently, their discussion could be heard by everyone in the courtroom.
As promised, the trial court, at the end of trial, instructed the jury on the proper treatment of police testimony:
Now police officers testified in this case; several of them. A police officer’s testimony is to be considered by you just like the testimony of any other witness. And in evaluating the credibility of any of these police officers, the believability of them, you should use the very same guidelines that you would apply to the testimony of any other witness. In no event should you give either greater or lesser belief to the testimony of a witness simply because the witness is a police officer.
On the first day of trial, defense counsel implied that he might wish to request disclosure of the location of the police observation post, “since that is where all the observations were made from and all of the identifications were made from.” Counsel also wanted “to determine the distance of the identification.” The government, while professing “no objection to giving information such as distance, clarity of view, lack
Defense counsel adduced evidence that the observation post was diagonally across the street from Jenkins’ transactions; that there were light posts, trees, and parked cars in the area (but these had not obstructed the officers’ view); and that the officers, one with binoculars and the other without, had observed the transaction from 200 to 250 feet away. On the second day of trial, defense counsel formally requested the court to order the government to reveal the observation post. He argued that the police testimony about Jenkins’ observed activities was incredible, that one officer testified about obstacles, and that nondisclosure had restricted Jenkins’ right to cross-examination. The court denied the request because the defense failed to demonstrate necessity, as required by Thompson, to overcome the government’s conditional privilege to maintain secrecy. The court noted that the testimony indicated a well-lighted street, good visibility, and, contrary to defense counsel’s assertion, no obstruction.
II.
Jenkins alleges on appeal that the trial court erred in refusing to require disclosure of the observation post. We disagree. In
Thompson,
III.
Jenkins also argues that the trial court erred in failing, upon defense request, to inquire of the full panel of prospective jurors whether they would believe the testimony of a police officer more readily than that of other persons. He contends that where, as here, the government’s case relies exclusively on the testimony of police officers, and where the defense challenges their credibility, the court’s refusal to hon- or this request was an abuse of discretion requiring reversal of the conviction.
The purpose of
voir dire
is to allow the parties to satisfy themselves of an impartial jury,
Harvin v. United States,
A defendant’s right to an adequate
voir dire
is grounded in the sixth amendment guarantee of an impartial jury.
Rosales-Lopez v. United States,
In outlining a nonconstitutional standard for abuse of discretion at voir dire in the federal courts when racial or ethnic prejudice is at issue, the Supreme Court noted that the determination
does not depend upon a comparison of the concrete costs and benefits that its application is likely to entail. These are likely to be slight: some delay in the trial versus the occasional discovery of an unqualified juror who would not otherwise be discovered. There is, however, a more significant conflict at issue here—one involving the appearance of justice in the federal courts.
Rosales-Lopez,
Although the Supreme Court in
Rosales-Lopez
dealt exclusively with the question of racial and ethnic prejudice, the “reasonable possibility” standard effectively sums up the earlier caselaw of this jurisdiction on
voir dire
for bias attributable to police testimony. Our courts have held that, when the government’s case consists entirely of police testimony challenged by the defense, failure to question prospective jurors, upon request, about “possible disqualification” for bias regarding such testimony may require reversal of a conviction depending on the impact of that testimony on the case as a whole.
Harvin,
In
Sellers,
the trial judge, who alone questioned the venire panel, refused a defense request to ask whether “any of the jurors [is] inclined to give more weight to the testimony of a police officer
merely because he is a police officer
than any other witness in the case.” 106 U.S.App.D. C. at 210,
In
Brown,
the only prosecution witnesses were military police officers and Metropolitan Police officers.
when important testimony is anticipated from certain categories of witnesses, whose official or semi-official status is such that a juror might reasonably be more, or less, inclined to credit their testimony, a query as to whether a juror would have such an inclination is not only appropriate but should be given if requested.
the importance of the government agent’s testimony to the case as a whole; the extent to which the question concerning the venireperson’s attitude toward government agents is covered in other questions on voir dire and on the charge to the jury; the extent to which the credibility of the government agent-witness is put into issue; and the extent to which the testimony of the government agent is corroborated by non-agent witnesses.
United States v. Baldwin,
When assessed by reference to Har-vin, Sellers, Brown, and Baldwin, the trial court’s denial of Jenkins’ requested voir dire question must be held reversible error. Police testimony constituted the entire case for the prosecution; there were no “non-agent witnesses” to corroborate that testimony. Further, Jenkins contested the testimony both by presenting an alibi defense and by challenging the police witnesses’ ability to observe the alleged drug transaction.
Additionally, the potential bias was not covered by other questions. The court’s question about the prospective jurors’ ability to be impartial in the drug context was not sufficient to disclose bias regarding police testimony. Similarly, in asking whether the prospective jurors had friends or family who recently had been witnesses to, victims of, or accused or convicted of a crime, the trial court did not address the particular bias Jenkins sought to elicit.
Finally, by addressing the requested question in open court to the one prospective juror who disclosed a prior affiliation with the police, the trial court did not ferret out the only possible bias within the venire panel. Such selective questioning is premised on an assumption that it is not “reasonably possible” for prospective jurors without police connections to be influenced by a bias for or against the police. We find nothing in the record or in common experience to support such an assumption. A voir dire question directed at a single prospective juror, even though posed in open court and within earshot of all the venire members, is not sufficient to assure impartiality among the rest of the venire members to whom the question was not addressed and who, of course, did not respond.
The trial court did instruct the jury that it should assess the credibility of police witnesses no differently from its assessment of other witnesses. While that instruction may have reduced the potential for harm, a jury instruction at the end of trial cannot be a substitute for a
voir dire
question before trial. A question on
voir dire
will facilitate more informed use of peremptory challenges, as well as challenges for cause, altogether excluding biased jurors.
Brown,
Because we conclude that the trial court abused its discretion in failing, upon request, to ask all the prospective jurors at voir dire whether any would tend to give either more or less credence to testimony of police officers, we must reverse the judgment and remand the case for a new trial.
So Ordered.
Notes
. In
Boone v. United States,
As we understand the Supreme Court, therefore, the test under the nonconstitutional rule of the federal courts governing
voir dire
as to racial and ethnic prejudice — the "reasonable possibility standard,”
Rosales-Lopez,
. The government relies on interpretations of
Brown
v.
United States,