Lyons v. United States

harmless; again accordingly, we once reverse TERRY, Before FERREN and Associate and for a remand new trial. KERN, Judges, Judge.* and Senior n follows, opinion In I parts and II Opinion for the court Judge Associate expanded corresponding are of versions TERRY. our in original opinion sections of this case. part explicit only II we make what was opinion Concurring Judge Senior (and implicit previous opinion in our in sever- p. KERN past): any infringement al in others TERRY, Judge: Associate of a defendant’s chal- se, lenge is reversible error and that such This case arises from murder for hire error can never be harmless. The remainder appellants’ committed in the course co- through VII, opinion, parts III caine-selling operation. Following a three- substantially before, only as the same jury appellant Lyons week found changes. few minor armed,1 guilty first-degree murder while (ADW),2 dangerous weapon assault with a cocaine;3 conspiracy appel-

and to distribute Cooper guilty lant was found of second-de- Appellants operated a cocaine-selling busi- ADW, gree armed,4 conspiracy murder while ness in area North Capitol and O cocaine, pistol carrying distribute and Streets, cut, Lyons pack- Northwest. would n withouta license.5 Both Lyons Cooper and age, supply persons and cocaine to other appealed, Lyons and in “runners,” known as who would then sell the (D.C.1992), we reversed their con- drug Cooper on the street. was one of Although victions and ordered a new trial. Lyons’ intermediate distributors as well aas rejected error, we most of their claims of we runner. in the Sometime summer government’s held inadvertent fail- Royster, “Rex,” Stephen also known as be- identify ure to one of its witnesses gan appellants by for cause trouble steal- appellants’ selection had violated Sixth ing cocaine them and them runners. impartial jury. Amendment to an Finally, early February Lyons ap- in government petition Roy rehear- him proached money filed a for Daniel and offered ing, Royster. and in initially orders entered December and and cocaine to kill After original opinion, hesitating, Roy vacated accepted our the offer.6 * (1989). Judge Rogers §§ Former Chief was a member of the 4. D.C.Code and 22-3202 22-2403 argument reargu- division that heard oral departure inment this case. After her from the (1989). § 5. D.C.Code 22-3204 court, replace Judge Kern was selected lot to her. plea govern- bargain, In accordance with a agreed plead guilty Roy ment to let to second- (1989). §§ 1. D.C.Code 22-2401 and 22-3202 degree cooperation murder return his full investigation prosecution all the (1989). § 2. D.C.Code 22-502 persons shooting other involved in the of Ste- phen Royster. § 3. D.C.Code 33-549 Roy when he had February selling nized one the female

On cocaine Lyons Capitol days prosecutor on North when Street testified two earlier.8 Royster approached him asked where immediately reported this fact to the trial Lyons Roy replied Lyons was was. and held judge, halted deliberations corner, to talk around the went both the and Detec- hearing which runner, Roy with him. then told another McCoy tive testified. Wimple, pistol” “go get Derrick be- hearing noted that At that cause, testified, Roy “figured that was the had been chosen on Royster. Wimple to kill time” went Coo- day and that on that of voir first house, per’s away which was a short distance McCoy prosecutor not mentioned Street, Capitol Cooper North there witness, prospec- prospective nor were gave brought him a .38 He caliber revolver. any jurors of them had tive asked whether Roy, gun up the back to who then walked in any close friends law enforce- relatives or him on the street and shot several testimony that five ment. The established Roy After “nine shooting, times. the walked years McCoy had had a earlier Detective house, steps” Cooper’s down the street juror ro- partner whom the had been with gun, Ac- handed her the and left the area. involved, McCoy mantically that had testimony, cording Roy’s Cooper was part- juror “on occasion” when his seen the standing in of her house and outside front work. The former picked up ner her after place. Royster shdoting the take died saw partner married at the time of his had been two weeks later of his wounds.7 juror. McCoy relationship said that with the Jury in selection this case extended over juror he the and his former had not seen days. day, two At the end of the first after together years. He partner for two also chosen, jurors nine no had been there were during explained his brief trial testimo- that Consequently, left. more venire members ny juror sitting jury in the he see the did not new venire had to be summoned on the sec- stand, leaving he the at box until was witness day jurors remaining ond so that the three “just which time smiled” him. The she and three be A full alternates could chosen. McCoy testified, juror day, the had next voir dire of second venire was conducted office and asked for his former called his day, day. part Each on the second by McCoy responded asking partner. When venues, voir dire of counsel for the both hung deliberating, up. she jury if the was still identified, by name, parties person in cir- similarly about the The testified might who witnesses be called McCoy under which she and cumstances day of course of the trial. On the second phone call. acquainted and about were however, selection, jury prosecutor he named four additional witnesses whom permitted hearing, the was After the previous day, had one of not mentioned the room, jury and the to return to McCoy of the whom was Detective James for both its deliberations. Counsel resumed Metropolitan Police. mistrial, court but the appellants moved for denied their motions. all Very late in the the court and time that a counsel learned for the first day of knew selected on the first voir dire II McCoy, government wit- one of the

Detective to name De prosecutor’s failure inadvertently whose had been nesses name potential government wit McCoy as a tective prosecutor naming in his by omitted when the on the first of voir day. a half-hour ness that About witnesses chosen, preju deliberations, McCoy juror McCoy who knew jury began its after the exer- by preventing the free recog- appellants that he had diced prosecutor informed the briefly very McCoy days had testified Roy Detective town for several after shoot- left Lyons Capitol ing. North with After he returned to the a conversation had had trial about Lyons neighborhood, employed. he ran into on Lyons Street he was told him that in which $1500, day. Lyons gave him but nei- street one anything ther of them said to the other. Wilson, right cise of peremptory challenge. example, For supra, decided appellants’ days original The trial court’s three our grant opinion failure to before when we found reversible error prejudice mistrial motion account of this prosecutor represented court error, to the be- error because the was not impeach fore trial he would not harmless, appellants’ must both reverse prior defendant with his convictions convictions. testified, defendant and then did so over Supreme century ago Court said that, objections. defense We concluded jurors to strike without cause circumstances, these the defendant important rights is “one of the most secured perempto- opportunity “missed the to use his Any system to the accused.... for the em- ry challenges eye excluding with toward panelling prevents of a or embar particularly incensed full, rasses the unrestricted exercise appellant’s prior the nature convic- _” right, accused of that must be condemned.” tions 606 A.2d at 1026.12 said that We Pointer v. United im- judge’s decision to allow this peachment 38 L.Ed. 208 Al interfering “had effect of though full, peremptory challenge ‘the the accused unrestricted exercise ” Pointer, specifically guaranteed by (citing right,’ id. at 1025 Constitut ion,9 supra), reasonably protected it “because defense counsel is the District of Colum prosecutor’s pretrial relied on the assurances bia long “regarded statute10 and has been that appellant impeached not be would necessary impartial as to a fair and trial.” prior his at trial to States, convictions he testified 1108, 1110 Wells v. United 515 A.2d n. peremptory his (D.C.1986) (citations omitted).11 detriment of exercise of 1 For this challenges selecting jury his evalua- reason, “[ijnter- repeatedly we have held that ” go tion of to trial.... Id. at whether per ference with defendant’s exercise of 1027. emptory challenges grounds for States, reversal.” Wilson United 606 A.2d In the of Detec- instant the omission accord, 1017, (D.C.1992); e.g., 1025 Wells v. McCoy’s tive from the witnesses name list of States, (“the supra, United 515 at 1111 A.2d prosecutor that the first recited on the prejudice defendant need not demonstrate to jury impossible appel- it for selection made (citations obtain of a reversal conviction” right peremptory lants to exercise omitted)); States, challenge against Williams v. United 552 who knew 510, (D.C.1988) (same). A.2d McCoy.13 Appellants 512 that make no claim verdict”); special Despite importance historically at- that affect v. United Cash States, 9, (“One peremptory challenges, tached it supra is settled that note 553 A.2d at 217 challenges "peremptory primary goals challenges are not of constitutional peremptory is to dimension” and are but "a to achieve Murray v. means impartiality”); assure the United trial’s Oklahoma, impartial jury.” 120, States, (D.C.1987) ("The end of an Ross pri 532 A.2d 123 101 mary duty of the court in the dire is to voir (1988) (citations omitted); accord, discover for those must be dismissed States, 215, e.g., United Cash v. 553 A.2d 217 n. 3 permit satisfy ... cause and 'to counsel to them ” (D.C.1989); States, Williams v. 552 (cita A.2d they impartial jury’ selves have an that 510, (D.C.1988). 512 5n. omitted)). tions 10. "An for individual summoned service prior sodomy 12. The convictions were for may upon peremptory challenge be ... excluded indecent acts with minor. provided by § as law....” D.C.Code 11- 1908(b)(2) (1989); 24(b) Super.CtCrim.R. see noting appellants 13. It did not is worth use procedures (prescribing per- exercise challenges, peremptory all of their so either States, emptory challenges); Taylor v. United 471 of them could have struck the tainted if the (D.C.1983) (rule A.2d 1004 “secures the during taint Indeed, voir dire. had been revealed cause”). challenge jurors without brief, Lyons appellant asserts in in an argument by appellant adopted Cooper: States, Accord, Boertje (D.C.1989) (voir challenges prospective jurors pattern dire of From the accused, exercised, possible, appears "serves to an far the defense assure as it certain that impartial any juror juror] they exposing [the biases would have stricken question in the faith, We answer prosecutor deliberately, or in failed less error. bad negative. McCoy’s at time to mention name the critical any during the voir nor is there basis Fulminante, supra, the Su In Arizona v. believing that his failure was

the record admis whether the preme considered Court inadvertent, as in fact he anything other than might be harm confession sion of a coerced Nevertheless, it was. the omission was said was, it The Court concluded less error. his, government therefore suf and the must past its reviewing decisions after consequences appeal. fer the Under analysis with availability of harmless error Columbia, District of a defen “[i]f law the reaching types respect of error. to other by the trial conclusion, dant can show that some action distinc drew clear the Court its impairment of court in a resulted denial and errors mere “trial errors” tion between peremptory challenge], then defects” in the [the] [of to “structural which amount in which Discussing the conviction must be reversed even without cases itself. several harmless, Williams, supra, to be showing prejudice.” errors it found doubt,15 (citations accord, omitted); beyond a 552 A.2d at 512 harmless reasonable even Wilson, 1025; Cash, at supra, 606 A.2d su the Court said: Wells, 217; supra, pra A.2d note connecting thread these common 1111; Taylor, supra A.2d at note “trial error”— cases is that each involved ; A.2d Butler v. United presenta- which occurred error 1004 (D.C.1977); may Armwood v. United jury, and which case to the tion of the (D.C.1977). n. 6 in the quantitatively assessed therefore be presented in or- context of other evidence preferable cure violation for this its admission determine whether der to challenge right appellants’ peremptory beyond a doubt. reasonable was harmless been to exclude the tainted would have (Rehn- 307-308, at 1264 111 S.Ct. 499 panel the the start of delib before C.J.).16 contrast, the Court ob- In quist, Unfortunately, since the did erations. relatively which few cases served that juror not learn of the connection between not be certain errors could it had ruled that McCoy Detective until after delibera defects had involved “structural harmless begun, only option to available tions had mechanism,” e.g., the trial of the constitution point grant the defense him at that was counsel, trial be- right to deprivation of the hold, as we motion for a mistrial. Thus we of of judge, exclusion members fore a biased original opinion, of in our that the denial held jury, grand race from the the defendant’s error.14 that motion was right to and the right self-representation, 309-310, 111 S.Ct. turn to narrow addressed' trial. Id. at public We cases). an error can (citing parties rehearing: whether the 1264-1265 Such harmless, mistrial, be- explained, Court denial of the motion never be trial court’s entire conduct juror “[t]he instance in each on the association between cause based beginning end is obvious- McCoy, harm- the trial from was or could be of and Detective purpose of limited for the acquainted potential the determining sufficient with a known she was government telephone call between of voir whether [first witness. On the ], might they recognized police juror’s or bias was evidence of dire three said the two However, govern- group potential it did not focus engendered officers from the of bias. have witnesses; problem all stricken—one in this ment three were as crucial we view the on what through peremptory per- appellants’ chal- for cause and two impairment of case: the lenges. resulting dis- challenge from the belated emptory specific relationship us and this Given the record before between the covery appellants, conclude both we cannot McCoy. claim Detective its exercised the defense "would have recogni- challenge juror’s peremptory if this ... 24, 18, California, Chapman v. 386 U.S. 15. See [McCoy] voir had been disclosed tion 828, 17 L.Ed.2d 87 S.Ct. Management Co. & Luchs dire.” Shannon (D.C.1982). Roberts, 447 A.2d opinion, portion Chief Justice In of his majority of the writing Rehnquist hearing after that the court conducted 14.The recognized McCoy Court. learning that Detective ly affected” subject reject the error. These analysis, Id. latter to harmless error analysis defects are not government’s corollary argument amenable to the engaged is which in to appellants plain determine whether a be must demonstrate error beyond “trial error” was harmless cause defense counsel failed to base “ a reasonable doubt because the trial ‘cannot impairment mistrial them motion reliably serve its function a vehicle for Assuming peremptory challenge. innocence, guilt determination of or and no government’s of the premise, correctness punishment may criminal regarded be as fun- we appellants are satisfied nonetheless that ” damentally Fulminante, fair.’ Id. at 111 S.Ct. at have burden. met their Under Clark, (quoting Rose v. the existence of a “structural defect” 577-578, 3101, 3105-3106, very reversible error because it taints the (1986)). drawing L.Ed.2d 460 reliability Thus the line fairness of the and hence the between “trial errors” and “structural de- guilt determining the trial as means of fects,” the Court concluded that the admis- or innocence. See Watts v. United (D.C.1976)(en banc) of a (defin sion coerced confession was “classic 362 error,”’ ‘trial id. at even ing plain and that clearly prejudi error as error “so admission of a coerced confession be rights jeopardize cial to substantial as to trial”); harmless. very integrity fairness and of the cf. —Olano, U.S. -, -, United States Fulminante, Following we conclude that (1993) which error occurred in this (under rule, plain appellate error court impairment appellant’s perempto- right of plain “should correct forfeited error affect ry challenge resulting from belated dis- ing rights seriously substantial the error covery relationship between fairness, integrity, repu public affects the government witness, and a must charac- (citation judicial proceedings” tation as a terized “structural defect” than a rather omitted)). punctuation Consequent internal prosecutor’s “trial error.” The omission had ly, appellants’ we must reverse convictions depriving the effect of appellants both of an and remand this case for a new trial.17 opportunity exercise chal- lenge certainly that almost would have been Appellant Cooper por- claims error two 13, supra. exercised. See note Unlike a tions of the instructions. our view of error, impact depriva- mere of this grounds, reversal on con- other we need not tion cannot be in “quantitatively assessed do, however, sider claims. these We address presented context of other in evidence order appel- certain other issues raised both to determine whether its was admission lants, one since of them must be decided harmless,” Fulminante, supra, 499 (see Cooper can before be retried note because it affected the infra), and the others will recur in a retrial. composition of the than the rather To those we now turn. issues Wilson, weight supra, of the evidence. Cf. A.2d at 1025-1026 n. 18. It therefore Ill was not —and could not error. be—harmless

Because Appellants we conclude that this error contend that structural judge admitting was a defect and hence is not in erred into evidence biased, government argument really 17. The cites as "a what it describes was not that is beside because, body growing authority of state and ... point ultimately, juror federal bias is not rejecting per a rule of se reversal” unless there issue. light was actual bias. own cases of our States, Our decision Harris v. United Wilson, however, as Wells and such are not (D.C.1992), government on A.2d 763 which the body authority. free to follow this Our cases relies, inapposite here also is because it involved any infringement clear that make only judge that the trial had claim violated peremptory challenge grounds re- "is process rights by refusing due to defendant’s any showing prejudice. without Wil- versal” son, supra, Although for cause. gov- strike a No issue was raised 606 A.2d at possible argues regarding any abridgment forcefully appellants ernment that suf- of the defen- prejudice peremptory challenge. fered no and that the in this case dant’s — U.S. -, 137, 116 denied, statement that “T-Bone told them cert. decedent’s States, (1991); Young to me.”18 ruled that v. United shoot (declarant (D.C.1978) sponta- statement was admissible under the 391 A.2d excep- dying and neous utterance declaration bleeding profusely); was been stabbed and hearsay ruling tions to the rule. This was States, supra, 368 A.2d Nicholson v. United grounds. correct on both (declarant thirty been stabbed at 564 statement). Second, making minutes before prerequisites There are three than ten Flaherty Ms. stated no more spontane admission of a under the statement firing of the passed minutes between the hearsay exception ous to the rule: utterance statement; Royster’s thus the shots and (1) presence of a serious occurrence reasonably “within a short statement came which causes state nervous excitement shooting. period” See Alston after the declarant, (2) physical or shock in the States, supra, at 1127 United reasonably made within a short declaration (“when immediately is made the utterance period of time after the occurrence so as disturbing incident ... or a few after the that the declarant has not reflected assure incident,” it within the minutes after the fits upon premeditated statement or (citations spontaneous exception) utterance (3) it, presence and cir constructed omitted)). Finally, “in the circumstances cumstances, totality suggest which in their totality spontaneity sinceri suggest spontaneity sincerity of the remark. assertion, Lyons’ ty.” Contrary there was States, Nicholson v. United significant Royster in which “was no interval (D.C.1977) (citation omitted). The admissi fully “had think and time to conscious” bility spontaneous of a utterance “is commit Rather, speculate.” testimony showed judicial ted to the sound discretion of the being in the time between shot short appeal only trial court. will We reverse Royster making statement was ruling clearly erroneous.” Alston quickly great pain, and that his condition (D.C. deteriorating. Royster made fact that 1983) (citations omitted). Appellants claim response the statement in Royster’s statement about T-Bone was Flaherty proof Ms. is not that he reflected spontaneous not a utterance because Young speaking. before reflect, premeditate, “had time to and con supra, 391 A.2d at 250. struct” it. We are satisfied that state requirements ment met all three for admis It also was not erroneous for the spontaneous

sion as a utterance. dying court to the statement under admit all, shooting First of was a “serious hearsay rule. exception to the declaration produced “physi- occurrence” that a state of declaration, dying declar- “To make out a Flaherty Royster. cal testi- shock” Karen hope of recov spoken must have without ant Royster’s assis- fied when she came to ery impending in the death.” shadow tance, pain. groaning and in She saw States, 96, 99, 54 Shepard 290 U.S. v. United chest, that that he had been shot in the (1933). The record 78 L.Ed. 196 S.Ct. bleeding lot although the “wasn’t wound conclusion, well court’s supports the trial it This good outside ... was hole there.” evidence, real founded in plainly types injury fits within the of situa- though his circumstances even ized “extreme recognized which court has as “ser- tions them. See McFad did articulate” [he not] Gayden v. United ious occurrences.” See (D.C. States, 14, (D.C.1990) (admis- 16 States, 578, den v. United 585 584 1978) (“The infer victim’s sense court can upheld when spontaneous sion of utterance circumstances— impending death from the shot six times and the declai’ant been wounds”).19 his pain”), doorstep from the nature extent “rolling on a in extreme was Royster’s after he appellant Lyons. ing and assistance came to ‘'T-Bone” is the nickname of Flaherty, shot. Karen The statement was heard the shoot- who worked near the scene of woman supra, Shepard, Supreme Court said in 19. The impending perception of death "must 582 reasons,

For these defendant, we find no error in the where the witness is not the Royster’s admission of statement. under indictment. 44, 800; accord, Id. at 416 F.2d at Salim v.

IV States, (D.C.1984). 710, United 714 however, recognized, The Ellis court also Appellants argue they were rejects judge erroneously when a a wit substantially prejudiced because the trial “ privilege, ness’ claim of ‘the reasons which judge permit govern refused to two of the underlie our denying standing rule to raise ment’s witnesses to invoke their Fifth rights outweighed by another’s ... are privilege Amendment against self-incrimina ” protect rights_’ need to ... fundamental tion. judge found that both witnesses 43, U.S.App.D.C. 135 at 416 F.2d at 799 privilege by waived the testifying before Jackson, 249, (quoting Barrows 346 U.S. grand jury. Appellants acknowledge the 257, 73 S.Ct. 97 L.Ed. 1586 rule that a proceed defendant in a criminal (1953)). adversely “[A] defendant affected in ing normally standing does not have to assert fact standing bring departure has such rights the constitutional of others. Alder judicial province appellate to the States, 165, 171-176, man v. United 394 U.S. Ellis, court for review and correction.” su 961, 965-968, (1969). 22 L.Ed.2d 176 44, pra, U.S.App.D.C. 135 416 F.2d at 800. specifically, More a defendant does not have standing complain of an ruling erroneous exception We hold that the Ellis to the no- on a witness’ privilege. Long claim of standing Long rule inap- of Alderman and is States, 14, U.S.App.D.C. 19, 124 plicable in the instant case because there was (1966) F.2d (citing Bowman v. ruling Unit no erroneous on the Fifth Amendment (9th Cir.1965) ed 350 F.2d judge waiver issue. The trial conducted a (“Where the witness party, lengthy is not the voir dire of the two witnesses in party may privilege not claim the nor take grand jury and reviewed their testi- advantage of an error of mony the court overrul validity order to determine the it”), denied, ing cert. scope of their spe- waivers.20 He then made (1966)). Appellants L.Ed.2d findings cific of fact and ruled that each of however, argue, that this case fits within the knowingly voluntarily them had waived exception principle to this privilege. announced Ellis ruling amply Because that U.S.App.D.C. supported evidence, by the we can find no F.2d 791 judge’s error in the refusal to sustain the privilege witnesses’ claim of at trial. The In Ellis the court held: exception Ellis apply. therefore does not voluntarily [A] witness who testifies before grand jury invoking privilege without V against self-incrimination, of which he has advised, been privilege may waives the Lyons argues that his Sixth Amend not thereafter claim it when he is called to speedy ment to a was violated testify aas witness at the trial delay the fifteen-month between his arrest grand jury, indictment returned and the start of the trial. He claims that evidence, conjec- exhibited in privilege and not left to proper Amendment “a consid- ture.” 290 U.S. 'at 54 S.Ct. at 24. Of require[s] eration of all the circumstances point testimony relevance on this grand jury testimony to examine the Royster’s about own awareness of his condition. and to conduct a voir dire of the [witness] out- him, Flaherty approached po- When Ms. first a presence jury.” side the Salim v. United scene, already they lice officer was States, supra, evaluating 480 A.2d at 715. "In attempted Royster. Flaherty both to move testi- validity the of a witness’ claim of the Fifth fied, moving, "When we talked to him about he privilege, Amendment the trial court must deter- " no,’ ’Oh, groaned. kind of went and he mine, circumstances, from all the whether the said, officer testified that "Don’t move apprehend claimant has reasonable cause to many me. I have been shot too times.” danger prosecution.” real States, of Reese v. United 152, (D.C.1983). 156-157 deciding In whether a witness who has testi- grand jury may fied before the later assert a Fifth sentence, and, conclusory delay in assert trial one prejudiced because some- his prejudice “while the to himself and “continuing one named “Chester” died ed pending.” Lyons case was asserts After because of his incarceration.” defense testimony 21, however, Chester would have rebutted the July he gaining his release on government of three witnesses who testified say speedy anything more about did not incriminating he about certain statements later, to year in a motion trial until almost had made. July speedy of a trial filed dismiss for lack 15, judge “most The trial found it delay was more than Because out, Lyons got there telling once Mr. [that] prima year, speedy trial claim has facie subsequent [of assertions his Sixth were no trigger inquiry into the merit so as to an right] until the eve of trial.”21 Amendment other relevant factors: the reasons for “strong give eviden- He declined to therefore delay, the defendant’s assertion his Sixth we, factor, tiary weight” and so do to this right, importantly— Amendment and —most Lyons’ move light in failure to particularly See, e.g., prejudice to the defense. Tribble dis trial an alternative to prompt (D.C.1982). 766, States, 447 A.2d States, 490 missal. See Graves v. United Nine of the fifteen months were consumed (en (D.C.1984) banc), 1086, A.2d 1098-1101 presentation grand of the case to the denied, 1064, 814, 88 106 S.Ct. cert. 474 U.S. “investigative has jury. type delay” This (1986). “fundamentally unlike been characterized as solely delay government undertaken Finally, prejudice we can no discern gain advantage tactical over the accused.” delay. resulting pre-trial from defense Tolliver v. United 681 Lyons how the death of Ches has not shown (D.C.1977). Moreover, ... immediate “[a]n defense, prejudiced nor can identi ter his we prosecutor’s impair indictment fy any prejudice from the record. See Parks ability investigation to continue or obtain (D.C.1982), indictments_” Id. record additional denied, 103 S.Ct. rt. ce plainly this was a difficult and shows (1983). is no There 77 L.Ed.2d 1303 (the complex three weeks ease lasted was, indicating when who Chester evidence witnesses), twenty-five and involved died, testimony would have he what govern- nothing there is to indicate that the pre Thus is unclear whether the been. it dragged conducting in ment its feet prevented delay fact Chester contrary, grand proceedings. To the no how proffer There is also testifying. judge filing of stated that before the the trial testimony would have rebutted Chester prose- upon he called indictment Lyons any government witnesses. did justifications periodic cutor “to make incarceration; he pre-trial oppressive suffer he grand jury delay, I found each time days only thirty-four out of jail for was in justifi- ... he did had demonstrated so his arrest and fifteen months between delay.” The cation some sense for vagueness of his of the trial. Given start delay from further characterized the any prejudice lack prejudice, the claim of “regrettable,” but there indictment to trial as record, relatively Lyons’ by the revealed delay, authority while ample that such confinement, the trial hold that brief government, is considered chargeable to the denying his motion err court did not heavily” “weighted more “neutral” and is less speedy trial. for lack dismiss Wingo, against government. Barker VI L.Ed.2d Cooper chal Finally, appellant Lyons in this case on June was arrested sup sufficiency lenges the evidence next he was ordered and the conviction as aider port her murder $25,000 surety bond. On June held on a considering any of eviden- claim abettor. conditions of a motion for review of he filed evi- insufficiency, view the tiary we must speedy “requested] in which release 8, began September Appellants’ 584 light neighborhood.

dence in the Capitol most favorable to the North Street On the government, bearing jury’s day shooting, Cooper mind the of the a witness saw credibility street, to determine the of witnesses and walking along saying to herself draw reasonable inferences from the evi that she was “tired of this shit.” Minutes Hubbard, dence. United States v. 429 A.2d Roy, Cooper, later the and same witness saw 1334, (D.C.) cases), (citing 1337-1338 cert. Lyons together, Cooper and he heard denied, 857, 308, 454 U.S. 102 S.Ct. 70 Lyons arguing Royster. Cooper’s In with (1981); States, Byrd v. United presence, Lyons “I’m Royster, said to tired (D.C.1978) 1225, cases). (citing ending Roy of this shit and it’s now.”23 shot recognize We no distinction between direct Royster very argument soon after this took Franey circumstantial evidence. interim, place. Roy In the told Derrick States, 1019, (D.C. United A.2d Wimple “go get pistol,” and he saw 1978) cases); (citing see Holland v. United Wimple gun Cooper. receive the States, 127, 348 U.S. 75 S.Ct. 137- jury reasonably Cooper could infer that when (1954). Applying 99 L.Ed. 150 these Roy Wimple gun, handed she knew that bar, principles venerable to the case at Royster. intended to shoot With that knowl- prove hold that the evidence was sufficient to edge, gun Roy- she also took the back after beyond Cooper reasonable doubt ster had been shot. From all of this evi- guilty of murder.22 significantly, dence —most from the fact that weapon she furnished the murder to the

“One who aids and abets another in com- triggerman readily mitting could find chargeable a criminal offense is aas —a principal she aided and abetted the murder. for all acts committed ‘in further- purpose, ance of the common if the act done scope purpose,

either is within the of that or VII probable consequence is the natural or appellants The convictions of both are re- ” States, act intended.’ West v. United 499 versed, and this case is for a new remanded (D.C.1985) (citation omitted). trial. presence at the scene “[P]roof crime Reversed and remanded. plus designedly encourages conduct which or support facilitates a crime will an inference KERN, Judge, concurring: Senior guilty participation in the crime as an Given circumstances of this aider and abettor.” Jefferson States, (D.C.1983) (citation agree majority’s with the conclusion omitted). appellants’ that we must reverse convictions and remand for new trial. Cooper

The evidence showed that Lyons purpose: shared a common to kill The record reflects an unusual situation in Royster stealing Jury in retaliation for cocaine this case. selection extended over two days required During from them and them sellers. the two two venires. jurors shooting, Cooper day, months before the twice first nine were selected. On the Royster, saying day, threatened that she would second three and three alternates “pay somebody day, kill” him and would “shoot were chosen. On each the venire was having [him] now” stolen cocaine. Five involved a voir dire. Counsel for the identified, name, days Royster’s shooting, Cooper parties person before told Jackson, Larry Royster, they expected a friend of that “we” to call witnesses would shoot if he came back to the course of the trial. On first infer, obliged Cooper’s 22. We are 23. A to address sufficien- reasonable could from all the because, evidence, argument cy ficient, Cooper Lyons if the evidence were insuf- that what were both Jeopardy Royster. the Double Clause of the Fifth “tired of” was the difficulties Lyons’ ending bespeaks Amendment her would bar retrial. Richardson statement "it’s now” end; bring v. United 3081, 3086, matter an intention to (1984); shooting 82 L.Ed.2d 242 Burks v. could infer that the reasonable so, planned doing and that means 2150-2151, Cooper plan. in that 57 L.Ed.2d shared witness, Detective selection, prosecutor forty-two jurors potential as a the identified stand, McCoy, leaving Upon the testified. day, prosecu- the witnesses. On the second at recognized one of the who smiled witnesses, forty-six tor identified one juror day next the called Detective him. The McCoy. At the end of whom was Detective part- McCoy’s speak office to with former jury juror during a who had deliberation McCoy if the asked ner. Detective When day, during the first and was been chosen juror hung up. jury deliberating, the was still separate during a room voir dire of the the Later, McCoy prose- contacted the Detective day, known second was discovered to have cutor, hearing At notified the court. the who McCoy. Detective The record reflects concerning devel- by held the trial court this during juror days two selection three the juror opment it was discovered the pros- the a members of venires had identified romantically police with a offi- been involved ecution witness. The court struck one part- McCoy’s former cer who was Detective potential jurors for cause. The defen- these consequently McCoy. ner and knew peremptory challenges to dants used out, majority points preferable other As the “The strike the two. appellants’ peremp- cure for this violation analysis majority’s I am the troubled to tory challenge right have been ex- would the issue: how to deal with the inadvertent panel juror the before clude the tainted from prosecutor all wit failure the to list the jury Majority op. the start of deliberations.” government the nesses for the to Unfortunately, problem did not the panel juror question from venire which the begun light jury the its come to until juror’s chosen to serve and this romantic deliberations, juror took when the partner of police involvement with the former Detective very unique step telephoning the coming light such “unlisted” to one witness McCoy’s how to ascertain she could office only its jury the commenced delibera after ju- Normally, a partner. contact his former majority citing Supreme the tion. The to knowledge be re- of a witness would ror’s Fulminante, decision in Arizona v. Court’s dire, during the course of the vealed the voir 1246, 113 trial, If a go totally would undetected. (1991), characterizes this error as a “struc a juror’s knowledge of discovered witness defect,” thereby creating rule tural juror during is either the voir of all future convictions in which for reversal cause, eliminated by the court for struck the failure to list all witnesses to the venire challenge by through the use I this panel agree. occurs. cannot view parties party, or allowed unusual, falling only not as case but one jury.1 who to When witness serve and “struc between the “classic error” venire initially introduced was not categories adopted in Fulmi- tural defect” trial, jury often asks the the court testifies view, wholly my government’s nante. newly wit- they announced whether know all to list inadvertent failure all witnesses witness, the new ness. If a identifies very fact-specific potential jurors requires a hearing holds a to determine the court approach, analyzing the and individualized jury at that should struck relationship appear juror/witness from an juror. as a or be allowed continue time defect” ance of bias rather than “structural Thus, very unusual one where case is a perspective. juror knows a court discovers that pre- Thus, by noting has been approach this case after all evidence I would witness sented, jury, and trial, charged has four the court during the one of the witness- deliberations. has initiated its identified to all who had been es However, juror. it is more relationship the witness notified 1. Neither the nor policies during closely practical follows the their association and more court of future, might In the court pre-trial witness testified. voir dire to instruct venire's behind the by instructing jury that if once, avoid this situation they identify trial, prior beginning of the to the any the course witness sepa- forty-six or more witnesses than to instruct notify they the court. In this should any juror they may rately identify on the need witness, juror, recognized with. be familiar any the court of instructed to inform have been situation, unique caught appropri prosecution Given this it is mistake that earlier peremptory by discharging ate to examine a chal what role could have been remedied lenge plays juror in Peremptory selecting a trial. chal an alternate to take her lenges time, help impartiality place. a secure trial’s At the same this is not a case juror important “are viewed as ‘one of the most concealed the court his where rights knowledge secured to the accused.’” Wells v. or her of a witness or other simi- States, (D.C. larly significant involving potential United fact bias. 1986) States, States, (quoting Pointer v. United 151 See Harris v. United 606 A.2d 763 (D.C.1992) (juror notify U.S. S.Ct. 38 L.Ed. 208 failed to that son had (1894)). “Hence, judge despite voir where the trial frus been convicted of a crime court’s Manage- per question); trates the defendant’s ‘effective use’ of Lucks dire Shannon & (D.C.1982) Roberts, emptory challenges, the defendant need not ment 447 A.2d 37 Co. prejudice (juror recognize demonstrate obtain reversal of a failed to witness voir witness). peremptory during recognized conviction.” Id. The use of but In this case, challenges impartial juror present does not assure an not when was even by jurors juror eliminating prosecutor with A with and so bias. listed the witnesses by bias is eliminated for cause the court the court. could not be deemed to have misled Rather, peremptory challenges during agree are often I that the harm- the voir dire. by party juror analysis used a to eliminate a for the less error in Harris and Shannon & appearance applicable given partic- of bias. not here See Williams United Luchs is (D.C.1988). Thus, pros- 552 A.2d 510 ular of the failure circumstances inadvertent, real, depri ease involves the but ecutor and the court to note that the witness ability McCoy vation of the defendant’s to utilize a was never identified to nine of the peremptory challenge potential jurors. to eliminate a appearance knowing for the bias: However, majori- agree do not prosecution having witness reason of ty’s a “structur- classification of this error as relationship police intimate with his one-time Fulminante, supra, al defect” under the partner. 113 L.Ed.2d Fulminante,

In Wilson v. 606 A.2d 1017 Chief Justice decision. (D.C.1992), Rehnquist, speaking majority, we found reversible error when for the de- upon prosecutor’s repre- affecting defendant relied defects” as “the scribed “structural impeach beginning to sentation that he would not the de- entire conduct of the trial from convictions, prior fendant with his and then end....” Id. at 111 S.Ct. at 1265. impeached prior the defendant with those Structural defects include the absence of de- during impartial judge. convictions the trial. We concluded fense counsel or an Id. opportu- that the defendant had “missed the defect cases are se reversible. Structural nity challenges classify type peremptory to use his with an The Court went on to other eye excluding might applies toward be in the court cases^-those which particularly analysis harmless-error “trial error” [defen- incensed nature —as is, prior convictions.” Id. at 1026. We cases. That “error which occurred dant’s] jury, recognized “picking presentation has of the case to the devel- oped may quantitatively as- into an art form” and the mid-trial which therefore change impeachment strategy pre- in context of other evidence interfered sessed whether its with the defendant’s exercise of sented order to determine beyond challenges jury strategy. Id. at 1025. admission was harmless a reasonable 307-08, 111 doubt.” Id. at S.Ct. at However, we do not have the Wilson situa- case, view, my change tion here. In this case there no This is neither “struc- Rather, prosecution strategy. there was a tural defect” nor a “trial error” case.2 It is convictions, recantation, prior Supreme and later in- 2. Based on the Court's decision Ful- minante, process. be described fected the entire trial Wilson case best bias, prosecu- involving potential The Harris "structural defect” case since promise impeach may defendant with also be described as a "structural defect” tor's not to rather, defect, the witness is the situation where it can be it a structural because juror’s jury’s partner time the up one beginning corrected until the friend. does not infect the entire deliberation and involving impar- trial. the cases Unlike after Although the trial court determined attor-

tial the absence of defense was not bi- special dire that voir identify a ney the failure to defendant, trial court against the ased the witness, juror a in order to discover whether appearance of bias the did not address witness, be the is an error that can knows Per- by unique the circumstances. caused ju- by during asking the trial the corrected guarantee the emptory challenges help they know and rors whether the witness excluding jurors have to a fair trial eliminating appear- an the who have certainly It not appearance of an bias. ance bias. to feel that for the defendant unreasonable juror appearance Also, presented a the of bias. this classified as the case cannot be all, romantically involved It not involve evi- After she been “trial error” case. does partner whose former presented police in the or trial with a officer dence case other this prosecution. the Had infor- context testified for error which can be “assessed the counsel dur- presented.” Id. at mation available to defense of other evidence been case, in to conclude present ing the it is reasonable 111 S.Ct. at voir defense, view, my because of the circum- falls a “structural defect” the between stances, juror. case, The’ ease a akin the so- would have struck the and “trial error” to deprived involving to list a scrutiny prosecutor’s cases failure witness called intermediate analysis to a fair trial gender requiring an the defendants then discrimination peremptory through ra- use of their scrutiny strict the effective somewhere between challenges. Mississippi University tional basis. See Hogan, Women if majority’s analysis, it is dis- the Under 3331, 73 L.Ed.2d 1090 to list a after the innocent failure covered juror the witness urge adopt analysis I to the knows court an witness friend, through friend a fact-specific the a friend of a based on circumstances police an potential appearance the In this the witness is not a officer or of bias. witness, ease, juror defendant is into essential the had entered a serious otherwise to an rever- police with a was a entitled automatic romance officer who nevertheless addition, failure to list partner of the inadvertent of this witness. In sal because certainly be a would hesitant police witness was a officer rather than such witness. civilian, future phone to reverse other convictions a conversation between has concluded de- place during initiated or and the witness took once the liberations, knows hitherto jury’s at the conclusion where deliberation law who is prosecution not a unlisted witness trial. This is situation where official, relationship is when the juror recognizes upon basis enforcement witness store; obscure, impact has limited the witness meeting party at a or in a one However, opin- those listed in “trial error” such as the Harris since no case. 606 A.2d juror's ever occurred. answer a voir dire Fulminante ion treated failure to analysis rather under an actual bias following the "structural defect" Rather than per also reversible error. Williams than as explain analysis, I would versus “trial error” appears be defect” in which a "structural case analyzing who caused the these five decisions A.2d 510. the court found no error. 552 judge, government, problem —and —the a less than desir- Williams court concluded that I do of each case. the individual circumstances challenge procedure peremptory was not able neatly into the all cases fit not feel that five boxes, but, reversible error since effect "trial defect” or error” "structural challenge future, choices the defendant's majority feels unfortunately for the proper proce- analysis. have been the same under adopt would Yet under compelled such Finally, appears analysis, Wells to be "structural defect” dure. these five "structural such an Rather, peremptory procedure defect” decision since se reversals. cases did not result evaluated and effective use of circumstances were defendant’s frustrated individual differing yielded deci- case-by-case approach challenges. of these cases 515 A.2d 1108. None case, possibly sions. classified as a error could prosecution In case. such a appearance of bias is de minimis. sum, required I conclude that we are appear-

reverse the convictions because the quite

ance of bias is substantial under the circumstances, viz., govern- identify failing

ment’s mistake in the wit- prevented the de-

ness the voir dire being fully

fense from able to exercise future,

peremptory challenges. In the identify

there is a failure to witnesses such as here,

occurred the trial court evaluate should juror/witness per- relationship from the

spective appearance of an of bias as well as perspective.

an actual If the bias relation-

ship appearance is such that the of bias is

high, should be struck from the replaced an alternate. If delib- begun, a mistrial should be

erations have low, appearance

declared. If of bias is dismissing

the trial continue without should ordering a mistrial. would majority

avoid a rule which adopts consequences for the serious —with

future. HANCOCK, Appellant,

James C.

The BUREAU OF NATIONAL

AFFAIRS, INC., Appellee.

No. 93-CV-109. Appeals.

District of Court of Columbia

Argued March July

Decided

Case Details

Case Name: Lyons v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Jul 28, 1994

Citation: 645 A.2d 574

Docket Number: 89-CF-250, 89-CF-299

Court Abbreviation: D.C.