Following a jury trial, appellant Gregory Kittle was convicted of one count of assault and two counts of felony threats.
This appeal presents issues of first impression for this court regarding the interpretation and scope of the “no-impeach
We conclude that while the juror’s allegation that some of her fellow jurors expressed racial bias during deliberations is a matter that “inheres in the verdict,” it nevertheless implicates the fundamental importance of protecting the right to trial by an impartial jury. Therefore, under such circumstances, the trial judge does have discretion to inquire into a juror’s post-verdict allegation of racial or ethnic bias expressed during deliberations and to determine whether there is a substantial likelihood that such comments made a difference in the outcome of the trial. However, given the particular circumstances of this case, the trial judge did not err in exercising her discretion by declining to hold a hearing to address the juror’s post-verdict allegation of juror bias.
Appellant also alleges that the trial court’s refusal to give the jury a self-defense instruction with respect to his assault charge was reversible error; we disagree. Finally, appellant argues and the government concedes that his two felony threat convictions merge; we agree and remand the case to the trial court to vacate one of appellant’s felony threat convictions.
I. Alleged Juror Misconduct
A. Facts
Following a multi-day trial before Judge Ann O’Regan Keary, the jury found appellant guilty of assaulting Gilbert Davis and of two counts of felony threats.
I strongly feel that this case should not have taken as long as it did with the deliberations but some of us were faced with dealing with some jurors feeling*1148 that all “blacks” are guilty regardless. With feelings like those, I don’t think people like that should be allowed to serve on jury duty. I would seriously hope that our society is way above entertaining that thought.
The court provided copies of this letter to both counsel during a status hearing a few weeks later and admonished them not to conduct an independent investigation.
In response to the letter, appellant filed a motion for the trial court to grant a mistrial, or in the alternative, allow an investigation and hold an evidentiary hearing in response to Juror 237’s allegation that several fellow jurors felt that “all ‘blacks’ are guilty regardless.” The judge denied both requests on the record, emphasizing that as established by Sellars v. United States,
B. Discussion
Appellant’s argument that the trial judge erred by refusing to investigate Juror 237’s allegation that her fellow jurors harbored racial bias warrants a mixed standard of review. The issue of whether the juror’s testimony regarding statements made by her fellow jurors during deliberations is precluded by the no-impeachment rule is a matter of law, which we review de novo. See United States v. Villar,
1.
“Courts consistently have exercised great caution in allowing jurors to impeach their verdicts” for five significant reasons: “(1) discouraging harassment of jurors by losing parties eager to have the verdict set aside; (2) encouraging free and open discussion among jurors; (3) reducing incentives for jury tampering; (4) promoting
The well settled no-impeachment rule articulated in Sellars provides that jurors may not challenge a verdict on the basis of “matters which essentially inhere in the verdict itself, as opposed to extraneous influences.”
In Sellars, the appellant requested relief from his manslaughter conviction upon learning that, after reaching their final verdict, some jurors admitted to the trial judge that they misunderstood a jury instruction.
As noted above, the issue of whether the no-impeachment rule precludes the admission of post-verdict juror testimony regarding racial bias expressed by fellow jurors during deliberations is a matter of first impression for this court. Appellant argues that Juror 237’s claim that some of her fellow jurors believed that “all ‘blacks’ are guilty regardless” was evidence of an improper extraneous influence, which fell within an exception to the no-impeachment rule. In particular, appellant relies on an excerpt from Sellars recognizing that an “exception appears to be developing, i.e., to allow juror impeachment if necessary for the exposure of violations of the accused’s right to have the jury determine his guilt or innocence solely on the basis of the evidence adduced at trial.” 401 A.2d
“Extraneous influence” has been construed to cover publicity received and discussed' in the jury room, consideration by the jury of evidence not admitted in court, and communications or other contact between jurors and third persons, including contacts with the trial judge outside the presence of defendant and his counsel. By contrast, evidence of discussions among jurors, intimidation or harassment of one juror by another, and other intra-jury influences on the verdict is within the rule, rather than the exception, and is not competent to impeach a verdict.
United States v. Wilkerson,
For guidance in applying the no-impeachment rule, we look to the Supreme Court’s decision in Tanner v. United States,
In a post-Tanner case directly on point, the Seventh Circuit found that the no-impeachment rule excluded evidence of jurors’ racial bias because “[w]e cannot expunge from jury deliberations the subjective opinions of jurors, their attitudinal expositions, or their philosophies.” Shillcutt v. Gagnon,
2.
However, our inquiry does not stop here; we must also consider whether the substantial, countervailing interest of protecting the right to an impartial jury that is untainted by racial or ethnic bias requires that we recognize a constitutional exception to this evidentiary rule. The exception would allow the trial judge to exercise her discretion to conduct a hearing if it appears necessary to ensure that a juror’s racial or ethnic biases did not impair the defendant’s constitutional rights. For the following reasons, we conclude that such an exception to the no-impeachment rule is warranted.
As an alternative to his argument that juror testimony regarding racial bias is not precluded by the no-impeachment rule, appellant argues that the application of the no-impeachment rule deprived him of his Fifth Amendment right to due process and his Sixth Amendment right to trial by an impartial jury. That is, he asserts, regardless of the no-impeachment rule’s mandate, the trial court was obligated to inquire into Juror 237’s allegations to ensure that appellant’s constitutional rights were not jeopardized. In Sellars, the appellant did not raise the issue and we did not consider sua sponte whether the appellant’s constitutional right to a fair trial was implicated when we held that jurors’ testimony regarding their misunderstanding of the self-defense instruction was inadmissible. The government contends that the Supreme Court has already considered and rejected these constitutional concerns in Tanner.
In Tanner, the petitioners argued that the trial court’s refusal to consider testimony from jurors about their fellow jurors’ intoxication during the trial violated “the sixth amendment’s guarantee to a fair trial before an impartial and competent jury.”
Since Tanner, which dealt with the admissibility of juror testimony about juror competency, courts have grappled with its application to juror allegations of racial or ethnic bias expressed during deliberations. See discussion infra pp. 18-22. In particular, courts have considered whether the aforementioned aspects of the trial process that serve to protect a defendant against juror incompetence similarly operate to protect against the influence of racial bias on the defendant’s right to a fair trial.
In determining whether Tanner forecloses appellant’s constitutional argument, we first emphasize that “ ‘[t]he right to trial by an impartial judge or jury is fundamental and deeply embedded in American jurisprudence.’ ” Young v. United States,
At present, the federal courts are split on the issue of whether, given the fundamental importance of an impartial jury to a fair trial, an allegation of racial or ethnic bias amongst jurors may necessitate an exception to the no-impeachment rule even though allegations of juror incompetence did not.
In its review of the district court’s ruling, the First Circuit distinguished Tanner because it “did not address the issue of racial bias but instead involved issues of juror competence.” Id. at 85. After surveying post-Tanner case law, the court concluded that, “[wjhile the issue is difficult and close,” “the rule against juror impeachment cannot be applied so inflexibly as to bar juror testimony in those rare and grave cases where claims of racial or ethnic bias during jury deliberations implicate a defendant’s right to due process and an impartial jury.” Id. at 87. The court’s rationale was that “the four protections relied on by the Tanner Court do not provide adequate safeguards in the context of racially and ethnically biased comments made during deliberations.” Id. at 87. It explained:
While individual pre-trial voir dire of the jurors can help to disclose prejudice, it has shortcomings because some jurors may be reluctant to admit racial bias. In addition, visual observations of the jury by counsel and the court during trial ai*e unlikely to identify jurors harboring racial or ethnic bias. Likewise, non-jurors are more likely to report inappropriate conduct — such as alcohol or drug use — among jurors than racial statements uttered during deliberations to which they are not privy.
Id. (footnote omitted). For those reasons, the First Circuit concluded that the district court did have “discretion to inquire into the validity of the verdict” by considering juror testimony “to determine whether ethnically biased statements were made during jury deliberations, and, if so, whether there is a substantial probability that any such comments made a difference in the outcome of the trial.” Id. at 87 (observing that the experienced trial judge might have conducted an inquiry if he had possessed the discretion to do so). However, the court acknowledged the caveat that, for the sake of protecting the candid jury deliberation process, “not every stray or isolated off-base statement made at deliberations requires a hearing at which jury testimony is taken,” rather, such testimony is only necessary in “rare and exceptional cases.” Id. at 87-88; see also Shillcutt, supra,
Upon consideration of the Supreme Court’s admonition in Rose that racial bias “is especially pernicious in the administration of justice,” the concerns articulated in Villar, and the well-established laws regarding the illegality of state-sponsored discrimination, we conclude that the protections built into the trial process identified by Tanner do not adequately protect a defendant’s constitutional right to a trial and jury free from racial or ethnic bias.
Thus, we are unwilling to rigidly bind the discretion of trial judges to prevent further inquiry where it may be necessary to ensure that a defendant’s constitutional rights to a fair and impartial trial and jury are not jeopardized by racial or ethnic bias. Accordingly, we hold that trial judges have the discretion to consider juror testimony in certain “rare and exceptional circumstances” where claims of racial or ethnic bias amongst jurors implicate
3.
Having determined that the trial judge has discretion to admit juror testimony in rare and exceptional circumstances, where allegations of racial bias may have jeopardized a defendant’s constitutionally-protected rights, to an impartial jury, we conclude that the trial judge was not precluded from hearing juror testimony to investigate the allegation in Juror 237’s letter. However, we still must consider whether the trial judge erred by denying appellant’s request to inquire into the allegations raised by Juror 237’s letter. As noted above, we review the trial court’s decision to deny appellant’s motion for a mistrial without conducting a hearing for abuse of discretion. Wilson, supra,
Here, in response to Juror 237’s allegation of racial bias, the trial judge weighed several considerations and essentially determined that this was not a rare and exceptional case that required a hearing. Although the trial judge concluded that the Sellars no-impeachment rule precluded inquiry into the allegations raised by the juror that inhered in the verdict, she did not restrict her ruling to this conclusion. Cf. Johnson v. United States,
[the letter] prompts me to find no need to further interview or question Juror 237 or any other juror. There is nothing in this letter which actually impugns the verdict itself. Unlike some of the case examples where we have situations where jurors have made actual statements that call into question whether or not the verdict was an appropriate one, nothing in this letter does that.
Thus, the trial judge neither expressed concerns about the fairness of the trial, nor indicated that but for the constraints of Sellars, she would have conducted a hearing.
First and most importantly, the trial judge reasoned that, the verdict itself was nuanced; appellant was convicted of three counts, acquitted on three counts, and granted a mistrial on the remaining six counts, which were the most serious. If the verdict had been affected by racial bias, the trial court reasoned, it is arguably likely that appellant would have been convicted of all counts. Second, Ju
For these reasons, we discern no error in the trial judge’s conclusion that Juror 237’s letter did not jeopardize appellant’s constitutional right to an impartial jury. Nor do we conclude that the trial judge erred or abused her discretion by declining to hold a hearing and admit juror testimony. See Wilson, supra,
II. Self-Defense Jury Instruction
We next consider whether the trial judge committed reversible error by denying defense counsel’s request to give the jury a self-defense instruction with respect to his assault of Gilbert Davis, which arose from a bizarre chain of events that transpired at Davis’s apartment. “Although the trial judge may properly refuse to give a defendant’s requested instruction where no factual or legal basis for it exists, the failure to give such an instruction where some evidence supports it is reversible error.” Hernandez v. United States,
A. Facts
The chronology is somewhat convoluted. From the testimony of the government’s witnesses, Jonathan Frost, Jerome Allison, and Gilbert Davis, we glean the following facts.
According to Davis, appellant arrived at Davis’s apartment and approached a woman named Meeka.
Meanwhile, appellant, who Davis thought seemed “anxious,” put his arm around Davis, hugging him, while “negotiating about whether he could see [Meeka] or not.” At that point, due to “some kind of vibe that [Davis] got” and his impression that something about appellant was “out of character,” Davis grabbed appellant and held him for about fourteen minutes. During this period, Davis was lying on his back while holding appellant on top of him. Appellant attempted to get loose but Davis would not let him go. Davis testified that this made appellant “mad.” Davis stated that he “never threatened” appellant during this period. Eventually, Meeka pried Davis’s fingers off of appellant and according to Davis, once appellant was free, “he threw a few punches and kicked” Davis in the head. Davis testified that he did not block appellant’s blows because they “were both exhausted.”
Frost also observed appellant punch and kick Davis. He testified that he saw appellant hitting Davis, first with his fists and then with an ashtray, causing Davis’s head to bleed. Frost then saw appellant leave the apartment, flipping over furniture on his way out, proclaiming: “Call the [expletive] cops and tell them I did it.” Frost did not observe Davis threaten or strike appellant. Contrary to Frost’s testimony, Davis denied that appellant struck him in the head with a glass object. Davis did, however, agree that after appellant struck him with his fists, appellant knocked over some items in the apartment and left the apartment. After leaving Davis’s apartment, appellant forced his way into the apartment across the hall and provoked an altercation with Frost and Allison.
B. Discussion
We view this “evidence in the light most favorable to appellant.” Jones, supra,
Appellant argues that he was entitled to a self-defense instruction because he acted in response to Davis’s “unprovoked, irrational attack,” which was “made for no apparent reason” and that he reasonably believed that he would be attacked again after breaking free from Davis’s prolonged restraint. Further, he claims that his actions were necessary to prevent a second “attack” from Davis, citing Davis’s testimony that appellant “was really trying to get loose and I wouldn’t let him loose.” For several reasons, the evidence does not support appellant’s characterization of Davis’s actions, nor does appellant’s characterization accurately reflect appellant’s own role in triggering Davis’s extended restraint. First, appellant neglects to consider Frost’s testimony — which was not contradicted — that immediately before Davis restrained appellant, appellant had announced to the room that he had a gun. Second, Davis testified that he and appellant were friends, and that he restrained appellant in response to appellant’s hug and his own perception that appellant seemed like he “was out of character.” Such evidence suggests that appellant “provoked the conflict upon himself.” Murphy-Bey, supra,
The likelihood that appellant “actually believed he was in imminent danger of bodily harm” is belied by Davis’s testimony that when Meeka pried his fingers loose, he was exhausted and for that reason, he did not even attempt to block appellant’s blows. Id. It is very unlikely that Davis, who was lying on his back and was not shielding himself, posed an imminent threat to appellant’s safety when appellant struck him. Further, appellant’s actions immediately after striking Davis undermine the possibility that appellant acted in self-defense. Both Frost and Davis testified that appellant knocked over various household items and left the apartment, proclaiming: “call the [expletive] cops and tell them I did it.” Appellant continued his rampage by forcing his way into the apartment across the hall. It does not follow that, if appellant felt as if he was in imminent danger of a second attack, he would further provoke Davis by knocking over his furniture, he would state that someone should inform the police that he “did it” or that he would remain in the vicinity.
In Hernandez, which appellant cites as analogous, we held that the defense theory that Hernandez stabbed the victim “while threatened with serious injury by a stronger man who pinned him to the ground with a hand around his neck was not so barren of evidentiary support that it could legitimately be kept from the jury.”
Here, there was no evidence, “however weak,” to establish that appellant acted out of a fear of imminent harm. To the contrary, the evidence indicated that appellant announced to the room that he had a gun and that Davis restrained appellant for a prolonged period of time in response to a “weird vibe” he felt about appellant’s anxious behavior. This restraint made appellant mad, and acting out of such anger, appellant struck Davis several times and knocked over various household items in Davis’s apartment. Due to the lack of evidence establishing that appellant acted to defend himself from imminent harm, the self-defense instruction “would have invited the jury to engage in speculation and a trial court is not required to instruct the jury on a defense theory that indulges or encourages speculation about events or beliefs not supported by testimony.” Bonilla v. United States,
III. Conclusion
For the foregoing reasons, we remand this matter to the trial court to vacate one of appellant’s felony threat convictions. We affirm in all other respects.
So ordered.
Notes
. In violation of D.C.Code § 22-404 (2007 supp.) and D.C.Code § 22-1810 (2001).
. In our recent decision in Fortune v. United States, we acknowledged that "[t]he words 'inhere in the verdict’ have a somewhat archaic quality to them, and it may not be immediately clear to modern ears what the common law phraseology connotes.” Fortune v. United States,
. The jury acquitted appellant of destruction of property, first-degree burglary, and assault of Jonathan Frost with intent to commit robbery. The judge declared a mistrial with respect to the remaining charges for which the jury failed to reach a verdict: (1) assault of Jerome Allison with intent to commit robbery; (2) assault of Jonathan Frost with intent to kill while armed; (3) felony assault of Jonathan Frost; (4) assault of Jerome Allison with intent to kill while armed; and (5) two counts of possession of a firearm during a crime of violence.
. Rule 606(b), which addresses the juror's competency as a witness, provides:
(1) During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror's or another juror's vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror’s statement on these matters.
(2) Exceptions. A juror may testify about whether;
(A) extraneous prejudicial information was improperly brought to the jury's attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C)a mistake was made in entering the verdict on the verdict form.
Fed.R.Evid. 606.
. See, e.g., Bellamy v. United States,
. In reaching this holding, the Court emphasized the importance of the no-impeachment rule: "There is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it.” Tanner, supra,
. In addition, the Third Circuit reached the same conclusion in dicta. See Williams v. Price,
.But see United States v. Henley,
. Compare Villar, supra,
. Several other state courts have recognized this distinction when addressing allegations of juror misconduct. See, e.g., State v. Hunter,
. Appellant did not testify. The only witness called by the defense was an investigator who visited one of the crime scenes.
. Davis testified that he and appellant had become friends by playing chess together and he believed that they remained friends at the time of trial.
. Neither the government nor defense counsel questioned Davis about whether appellant made that statement.
. To support this theory, Hernandez called a witness who testified that, on the night of the
. Finally, appellant argues, and the government concedes, that his two convictions of felony threats should merge into a single offense. The felony threats convictions were supported by the following facts adduced at trial: when appellant left Davis’s apartment, he came across the hall and pushed his way into the apartment across the hall. Frost and Allison both testified that appellant entered the bedroom where Allison was and repeatedly demanded that Allison empty his pockets. Frost attempted to intervene to protect Allison, but appellant pushed Frost onto the bed, at which point Frost and appellant began to wrestle. Eventually, appellant got up to leave, but while doing so, he threatened to return and kill both Allison and Frost. According to Frost, appellant stated something along the lines of "I’m going to come back kill all you [expletive] in here.” Allison similarly testified: "He said ‘I'm going to kill all y’all when I come back.' ” As appellant’s threat to Allison and Frost was "one act directed at an undifferentiated group of victims,” we agree that appellant's felony threat convictions merge and remand this matter to the trial court to vacate one of these convictions. Cf. Hunter v. United States,