Kalete JOHNSON, Appellant, v. UNITED STATES, Appellee.
No. 13-CF-838.
District of Columbia Court of Appeals.
Submitted Jan. 6, 2015. Decided April 15, 2015.
I.
At appellant‘s trial, the government presented evidence that on December 29, 2012, appellant, accompanied by two friends, Aquil Carrington and Leonard Taylor, conspired to rob Edin Carrera of his truck. Carrera, who was sitting in the truck with the engine running while he waited for the construction site where he worked to open for the day, testified that he noticed, through his rearview mirror, three young men approaching his truck, dressed in black jackets and black ski masks. As the three men got closer to the truck, the tallest one (аppellant, according to the government‘s theory) walked towards the passenger side, one walked towards the driver‘s side, and one stayed behind the truck. The tallest man then approached Carrera‘s window, hit the window, and said, “son of a bitch, give me the truck.” Carrera testified that he was scared, so quickly drove away and, after turning a corner, stopped and called thе police. Upon seeing some of his coworkers head towards the construction site, and “fe[eling] more secure,” Carrera drove back to the worksite. As Carrera was returning to the worksite, he saw the police arrive and the three men run away as the police approached them. Officers apprehended the two shorter men—Carrington and Taylor—and shоwed them to
II.
Taylor2 testified at trial that when appellant, Carrington, and he were walking toward Carrera‘s truck, Carrington said that he “wanted to get the truck[,]” and appellant responded by saying “like, All right, like, go ahead, do what you got to do.” The prosecutor asked Taylor whether appellant “was ... participating in this[.]” Taylor responded, “Not that I could see.” The prosecutor then asked Taylor what he had understood appellant to mean when he said, “All right.” Taylor responded, “Like, go [a]head.” The prosecutor said, “You‘re testifying under oath, sir, that he didn‘t agree?” Taylor responded, “Right. Yeah, like, go ahead, come on.” The prosecutor observed that there was “a difference” between those interpretations and asked Taylor whether he had understоod appellant to say “go ahead you do it” or “go ahead we‘ll do it.” Taylor‘s response was “Like, not understanding but, like, Come on.” When the prosecutor asked, “So [appellant] was going to do it with [Carrington]?” Taylor responded, “I guess” (an answer that the court struck, sustaining a defense objection). The prosecutor then impeached Taylor with a portion of his grand jury testimоny, which the court agreed was “different than what he‘s testified here in court.” In his grand jury testimony, Taylor testified that when Carrington said, “[w]e‘re going to get this car,” appellant responded, “all right” or “[a]ll right, come on[,]” meaning (Taylor agreed with the prosecutor) that appellant would “do it with [Carrington,]” i.e., would “help [Carrington] take the truck.” The grand jury testimony was read to the petit jury over defensе counsel‘s objection that the government should not be permitted to “elicit what [Taylor] believed words to mean.” The trial judge overruled the objection, reasoning that “all right, come on” “is susceptible to different interpretations” and that “the inflexion of the voice, who it was said to, the demeanor of the person who said it” were all “communication cues that can be used by someone who is actually [t]here to hear those words[,] to invest those words with one meaning over the other meaning.”
Appellant now argues that the trial court abused its discretion in admitting Taylor‘s lay opinion testimony about the meaning of appellant‘s words, “all right.” He argues that the words had no specialized meaning that would make Taylor‘s interpretation helpful to the jury. He also argues that the government failed to elicit a factual basis for the opinion, in that the prosecutor did not ask Taylor to explain how or why he reached his understanding of appellant‘s meaning. Appellant emphasizes that Taylor “did not claim that his opinion was based on [appellant‘s] inflexion or demeanor ... [or] communication cues.”
Federal Rule of Evidence 701 states the law governing opinion testimony by lay witnesses that has been adopted under the case law in our jurisdiction. See King v. United States, 74 A.3d 678, 681 n.12 (D.C. 2013). The Rule provides that a
Taylor‘s testimony was that he heard both Carrington‘s statement and appellant‘s reply, establishing that he had “personal knowledge of the facts from which [his] opinion [was] derived,” United States v. Baraloto, 535 Fed. Appx. 263, 273 (4th Cir. 2013) (per curiam) (internal quotes omitted), and furnishing one of the foundations required for lay opinion testimony under Rule 701. Further, Taylor testified that (although he had known appellant only a few months) he was close to appellant “like a brother,” and that he had been walking and talking and “working together” with both appellant and Carrington just before the statements in question were made. After Taylor gave the answers about the meaning of appellant‘s words that prompted the prosecutor to impeach Taylor with his grand jury testimony, the jury heard the grand jury testimony in which Taylor agreed that in saying, “All right” or “[a]ll right, come on[,]” appellant meant that he would “help [Carrington] take the truck.” Thereafter, Taylor provided a factual basis for that interpretation, by going on to testify at trial that appellant “started walking up towards the truck” and went toward its “passenger hood side[.]” Thus, Taylor‘s testimony established the context and provided an adequate basis for his opinion about what appellant meant by saying, “All right“; in other words, taken as a whole, Taylor‘s testimony showed that his opinion was of a type that “a reasonable person normаlly could form based on the perceived facts.” Dunn, 919 N.E.2d at 612.
Appellant further argues that Taylor‘s opinion about the meaning of ordinary words was not “helpful” to the jury. We agree that the words “all right” are not “jargon” or “code.” See King, 74 A.3d at 681-82. However, common experience teaches that speakers utter the words “all right” with varying degrees of acceptance, interest, and еnthusiasm, and we therefore find reasonable the trial court‘s assessment that the words were ambiguous, i.e., “susceptible to different interpretations,” and that Taylor‘s opinion testimony would be “helpful to clearly understanding the witness‘s testimony or to determining a fact in issue[,]”
III.
During jury selection, the trial judge informed the venire that the trial and subsequent deliberations would likely take about eight days to complete. Juror 809 exprеssed to the judge concern about the financial hardship of paying for childcare if she was selected to serve. She asked for “some kind of consideration for that[.]” The judge responded, “All I can do is tell [you] we‘re going to move this as quickly as possible, but I‘m afraid I can‘t[.]” Juror 809 was ultimately selected to serve. On the fourth day of trial, she sent a note to the trial judge which read, “[I]t looks like it‘s going to be very difficult for me to participate in this trial next week. I can‘t afford my child‘s care anymore. I‘m so sorry to tell you this now.” Discussing the note with counsel for the parties, the judge explained “[t]he trial is not going any longer than we had outlined for [Juror 809] during the selection process” and said that he was inclined to tell the juror that there was nothing the court could do to aсcommodate her. The judge called the juror to the bench to discuss her note. She asked the judge whether he could ask the courthouse childcare facility to accept her daughter, who did not meet the facility‘s minimum age requirement, but the judge stated that he could not do so.
On the Monday after the ensuing weekend, however, Juror 809 appeared at the courthouse with her husband and young daughter, again asking to be excused. The prosecutor stated that the government did not “have a problem excusing the juror.” After conferring with appellant, defense counsel said that he “liked” the juror and objected to excusing her “without investigating this further.” The judge decided to speak again with the juror. The juror explained that, the previous week, her husband had watchеd their year-and-a-half old daughter until he went to work at 1:00 p.m., and the babysitter had taken over for the rest of the afternoon, including picking up the juror‘s son from school and caring for him; that the babysitter had cancelled because she was “behind on her classes“; and that the juror had “called another babysitter and—.” The juror never completed that last statement, but agreed that shе had no arrangements for the day other than her husband, who had started a “new job” just two months earlier. With leave of court, the prosecutor interjected a question, asking the juror, “Is this going to be a problem ... the rest of the week as well or is it just today?” The juror answered, “Probably will be the rest of the week, too.”3
Over defense counsel‘s objection that the proceedings were still within the estimate the court had given the juror earlier and that the juror‘s circumstances were foreseeable, the judge decided to excuse Juror 809 and replace her with an alternate. The judge explained that he made that decision “not so much” because of the juror‘s financial concerns, although that was a “significant” concern and “the fact that her husband felt the need to come [to court] to back her up ... [was] a significant factor.” The judge told counsel that “at the end of the day,” what caused him to excuse the juror was “not the financial concern” but the fact that “childcare cancelled [sic] out on her.”
Appellant asserts that the trial court abused its discretion in excusing Juror 809 and replacing her with an alternate because, he argues, the court did not have a “firm factual foundation” to conclude that the juror could not have served for any part of February 11 or the next day. He argues that the juror‘s husband was available to care for their child, that “the trial court made no finding ... about what hardship [the husband] would face, if any, as a consequence of missing work that afternoon,” and that the cоurt did not ask about the outcome of the juror‘s call to the replacement babysitter. Citing Hinton v. United States, 979 A.2d 663, 682 (D.C. 2009) (en banc), appellant further argues that the court‘s desire to avoid delaying the trial by a single afternoon was not a “compelling” reason that “require[d] the juror‘s premature discharge.”
Under Super. Ct. Crim. R. 24(c), an alternate juror “shall replace a juror who ... becomes or is found to be unable or disqualified to perform juror duties.” In Hinton, we stated that “a trial court appropriately may find an empaneled juror unable or disqualified to perform juror
We review the trial court‘s decision to replace a juror with an alternate for an abuse of discretion, reсognizing “the trial judge‘s superior ability to observe the demeanor of the juror” and understanding that “[i]t is not our function ... to second-guess a reasonable judgment of the trial court.” Hinton, 979 A.2d at 683-84 (internal quotes omitted). “[W]e will find that the trial court exercised its discretion erroneously if it replaced the juror for an improper or legally insufficient reason, if its ruling lacked a firm factual foundation, or if the trial court otherwise failed to exercise its judgment in a rational and informed manner.” Id. at 683 (internal quotes omitted).
We are satisfied upon our review of the record that the trial court exercised its judgment to replace Juror 809 “in a rational and informed manner” and did not
In light of Juror 809‘s statement that her problem would persist the rest of the week, we also cannot conclude that the court unreasonably exercised its discretion in declining to postpone afternoon proceedings (it was almost noon when the court last spoke with Juror 809) to see whether the juror‘s childcare problem might be resolved by the next day. Unlike in United States v. Tabacca, 924 F.2d 906, 915 (9th Cir. 1991), a case on which appellant relies, Juror 809 was not “certain to be available the next day,” and the judge stated that he was “not prepared” to suspend the trial “given the amount of time [the court] already asked [the] jury to devote to the case.” The judge‘s decision, made in recognition of the continued uncertainty surrounding whether Juror 809 would be able to come to court, was like decisions that other appellate courts have upheld against claims of abuse of discretion.6
Wherefore, the judgment of the trial court is
Affirmed.
Abune SAMUEL, Appellant,
v.