# Lyons v. United States > District of Columbia Court of Appeals · July 28, 1994 · 645 A.2d 574 URL: https://www.frixlaw.com/law-library/cases/9701193 ## Case - **Full name:** Richard L. LYONS, A/K/A Walter Lyons, Appellant, v. UNITED STATES, Appellee; Pamela K. COOPER, Appellant, v. UNITED STATES, Appellee - **Court:** District of Columbia Court of Appeals - **Decided:** July 28, 1994 - **Citations:** 645 A.2d 574; 1994 D.C. App. LEXIS 116; 1994 WL 392726 - **Precedential status:** Published - **Opinion:** Concurrence by Kern - **Judges:** Ferren, Terry, Kern - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9701193 ## Opinion text KERN, Senior Judge, concurring: Given the particular circumstances of this case, I agree with the majority’s conclusion that we must reverse appellants’ convictions and remand for a new trial. The record reflects an unusual situation in this case. Jury selection extended over two days and required two venires. During the first day, nine jurors were selected. On the second day, three jurors and three alternates were chosen. On each day, the venire was involved in a voir dire. Counsel for the parties identified, in person or by name, the witnesses they expected to call during the course of the trial. On the first day of jury *585 selection, the prosecutor identified forty-two witnesses. On the second day, the prosecutor identified forty-six witnesses, one of whom was Detective McCoy. At the end of trial during jury deliberation a juror who had been chosen during the first day, and was in a separate room during the voir dire of the second day, was discovered to have known Detective McCoy. The record reflects that during the two days of juror selection three members of the venires had identified a prosecution witness. The court struck one of these potential jurors for cause. The defendants used their peremptory challenges to strike the other two. I am troubled by the majority’s analysis of the issue: how to deal with the inadvertent failure by the prosecutor to list all the witnesses for the government to the particular venire panel from which the juror in question was chosen to serve and this juror’s romantic involvement with the former police partner of one such “unlisted” witness coming to light only after the jury commenced its deliberation. The majority citing to the Supreme Court’s decision in Arizona v. Fulminante, 499 U.S. 279 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991), characterizes this error as a “structural defect,” thereby creating a per se rule for reversal of all future convictions in which the failure to list all witnesses to the venire panel occurs. I cannot agree. I view this case not only as unusual, but as one falling between the “classic trial error” and “structural defect” categories adopted in Fulmi-nante. In my view, the government’s wholly inadvertent failure to list all witnesses to all potential jurors requires a very fact-specific and individualized approach, analyzing the juror/witness relationship from an appearance of bias rather than a “structural defect” perspective. Thus, I would approach this case by noting that during the trial, one of the four witnesses who had not been identified to all the jurors as a potential witness, Detective McCoy, testified. Upon leaving the stand, he recognized one of the jurors who smiled at him. The next day the juror called Detective McCoy’s office to speak with his former partner. When Detective McCoy asked if the jury was still deliberating, the juror hung up. Later, Detective McCoy contacted the prosecutor, who notified the court. At the hearing held by the trial court concerning this development it was discovered that the juror had been romantically involved with a police officer who was Detective McCoy’s former partner and consequently knew McCoy. As the majority points out, “The preferable cure for this violation of appellants’ peremptory challenge right would have been to exclude the tainted juror from the panel before the start of jury deliberations.” Majority op. at 9. Unfortunately, the problem did not come to light until the jury had begun its deliberations, when the juror in question took the very unique step of telephoning Detective McCoy’s office to ascertain how she could contact his former partner. Normally, a juror’s knowledge of a witness would be revealed during the voir dire, the course of the trial, or would go totally undetected. If a juror’s knowledge of a witness is discovered during the voir dire, the juror is either struck by the court for cause, eliminated through the use of peremptory challenge by a party, or allowed by the judge and parties to serve on the jury. 1 When a witness who was not initially introduced to the venire testifies at trial, the court often asks the jury whether they know the newly announced witness. If a juror identifies the new witness, the court holds a hearing to determine if the juror should be struck from the jury at that time or be allowed to continue as a juror. Thus, this case is a very unusual one where the court discovers that a juror knows a witness after all the evidence has been presented, the court has charged the jury, and the jury has initiated its deliberations. *586 Given this unique situation, it is appropriate to examine what role a peremptory challenge plays in a trial. Peremptory challenges help secure a trial’s impartiality and “are viewed as ‘one of the most important rights secured to the accused.’” Wells v. United States, 515 A.2d 1108, 1111 (D.C.1986) (quoting Pointer v. United States, 151 U.S. 396, 408 , 14 S.Ct. 410, 414 , 38 L.Ed. 208 (1894)). “Hence, where the trial judge frustrates the defendant’s ‘effective use’ of peremptory challenges, the defendant need not demonstrate prejudice to obtain reversal of a conviction.” Id. The use of peremptory challenges does not assure an impartial trial by eliminating jurors with bias. A juror with bias is eliminated for cause by the court. Rather, peremptory challenges are often used by a party to eliminate a juror for the appearance of bias. See Williams v. United States, 552 A.2d 510 (D.C.1988). Thus, this ease involves the inadvertent, but real, deprivation of the defendant’s ability to utilize a peremptory challenge to eliminate a potential juror for the appearance of bias: knowing a prosecution witness by reason of having an intimate relationship with his one-time police partner. In Wilson v. United States, 606 A.2d 1017 (D.C.1992), we found reversible error when defendant relied upon the prosecutor’s representation that he would not impeach the defendant with his prior convictions, and then impeached the defendant with those prior convictions during the trial. We concluded that the defendant had “missed the opportunity to use his peremptory challenges with an eye toward excluding jurors who might be particularly incensed by the nature of [defendant’s] prior convictions.” Id. at 1026 . We recognized that “picking a jury has developed into an art form” and the mid-trial change of impeachment strategy interfered with the defendant’s exercise of peremptory challenges and jury strategy. Id. at 1025 . However, we do not have the Wilson situation here. In this case there was no change of prosecution strategy. Rather, there was a prosecution mistake that if caught earlier could have been remedied by discharging the juror and selecting an alternate to take her place. At the same time, this is not a case where the juror concealed from the court his or her knowledge of a witness or other similarly significant fact involving potential bias. See Harris v. United States, 606 A.2d 763 (D.C.1992) (juror failed to notify that son had been convicted of a crime despite court’s voir dire question); Shannon & Lucks Management Co. v. Roberts, 447 A.2d 37 (D.C.1982) (juror failed to recognize witness at voir dire, but during trial recognized witness). In this case, the juror was not even present when the prosecutor listed the witnesses and so could not be deemed to have misled the court during the voir dire. I agree that the harmless error analysis in Harris and Shannon & Luchs is not applicable here given the particular circumstances of the failure by the prosecutor and the court to note that the witness McCoy was never identified to nine of the jurors. However, I do not agree with the majority’s classification of this error as a “structural defect” under the Fulminante, supra, 499 U.S. 279 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 , decision. In Fulminante , Chief Justice Rehnquist, speaking for the majority, described “structural defects” as affecting “the entire conduct of the trial from beginning to end....” Id. at 309 , 111 S.Ct. at 1265 . Structural defects include the absence of defense counsel or an impartial judge. Id. Structural defect cases are per se reversible. The Court went on to classify other type of cases^-those in which the court applies a harmless-error analysis — as “trial error” cases. That is, “error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” Id. at 307-08 , 111 S.Ct. at 1264 . This case, in my view, is neither a “structural defect” nor a “trial error” case. 2 It is *587 not a structural defect, because it can be corrected up until the beginning of the jury’s deliberation and does not infect the entire trial. Unlike the cases involving the impartial judge or the absence of a defense attorney from the trial, the failure to identify a witness, in order to discover whether a juror knows the witness, is an error that can be corrected during the trial by asking the jurors whether they know the witness and by eliminating the jurors who have an appearance of bias. Also, this case cannot be classified as a “trial error” case. It does not involve evidence presented in the case or other trial error which can be “assessed in the context of other evidence presented.” Id. 499 U.S. at 308 , 111 S.Ct. at 1264 . The present case, in my view, falls between a “structural defect” ease and a “trial error” case, akin to the so-called intermediate scrutiny cases involving gender discrimination requiring an analysis somewhere between strict scrutiny and rational basis. See Mississippi University for Women v. Hogan, 458 U.S. 718 , 102 S.Ct. 3331 , 73 L.Ed.2d 1090 (1982). I urge this court to adopt an analysis based on the fact-specific circumstances of the potential appearance of bias. In this ease, the juror had entered into a serious romance with a police officer who was a partner of this witness. In addition, the witness was a police officer rather than a civilian, and a phone conversation between the juror and the witness took place during the jury’s deliberation at the conclusion of the trial. This is not a situation where the juror recognizes the witness upon the basis of one meeting at a party or in a store; rather, it is the situation where the witness was at one time the partner of the juror’s friend. Although the trial court determined after a special voir dire that the juror was not biased against the defendant, the trial court did not address the appearance of bias caused by the unique circumstances. Peremptory challenges help guarantee the right to a fair trial by excluding jurors who have an appearance of bias. It certainly was not unreasonable for the defendant to feel that the juror presented the appearance of bias. After all, she had been romantically involved with a police officer whose former partner testified for the prosecution. Had this information been available to defense counsel during the voir dire, it is reasonable to conclude that the defense, because of the circumstances, would have struck the juror. The’ prosecutor’s failure to list a witness deprived the defendants of then right to a fair trial through the effective use of their peremptory challenges. Under the majority’s analysis, if it is discovered after the innocent failure to list a witness that the juror knows the witness through a friend of a friend of a friend, and the witness is not a police officer or an otherwise essential witness, the defendant is nevertheless entitled to an automatic reversal because of the inadvertent failure to list such witness. I would certainly be hesitant to reverse other convictions in the future once the jury has initiated or concluded deliberations, where the juror knows a hitherto unlisted prosecution witness who is not a law enforcement official, when the relationship is obscure, and the witness has a limited impact *588 on the prosecution case. In such a case, the appearance of bias is de minimis. In sum, I conclude that we are required to reverse the convictions because the appearance of bias is quite substantial under the particular circumstances, viz., the government’s mistake in failing to identify the witness during the voir dire prevented the defense from being able to fully exercise their peremptory challenges. In the future, if there is a failure to identify witnesses such as occurred here, the trial court should evaluate the juror/witness relationship from the perspective of an appearance of bias as well as an actual bias perspective. If the relationship is such that the appearance of bias is high, the juror should be struck from the jury and replaced by an alternate. If deliberations have begun, a mistrial should be declared. If the appearance of bias is low, the trial should continue without dismissing the juror or ordering a mistrial. I would avoid a per se rule which the majority adopts — with serious consequences for the future. . Neither the juror nor the witness notified the court of their association during the day the witness testified. In the future, a court might avoid this situation by instructing the jury that if they identify any witness during the course of trial, they should notify the court. In this case, the witness, who recognized the juror, might have been instructed to inform the court of any relationship with a juror. However, it is more practical and more closely follows the policies behind the venire's pre-trial voir dire to instruct the jury once, prior to the beginning of the trial, than to instruct forty-six or more witnesses separately on the need to identify any juror they may be familiar with. . Based on the Supreme Court's decision in Ful-minante, the Wilson case might best be described as a "structural defect” case since the prosecutor's promise not to impeach the defendant with his prior convictions, and later recantation, infected the entire trial process. 606 A.2d 1017 . The Harris case, involving potential juror bias, may also be described as a "structural defect” *587 case. 606 A.2d 763 . However, the Harris opinion treated a juror's failure to answer a voir dire question under an actual bias analysis rather than as per se reversible error. Williams also appears to be a "structural defect” case in which the court found no error. 552 A.2d 510 . The Williams court concluded that a less than desirable peremptory challenge procedure was not reversible error since the effect on the jury and the defendant's peremptory challenge choices would have been the same under a proper procedure. Finally, Wells appears to be a "structural defect” decision since the peremptory procedure frustrated the defendant’s effective use of the challenges. 515 A.2d 1108 . None of these cases could possibly be classified as a trial error case, since no “trial error” such as those listed in Fulminante ever occurred. Rather than following the "structural defect" versus “trial error” analysis, I would explain these five decisions by analyzing who caused the problem — the government, judge, or juror — and the individual circumstances of each case. I do not feel that all five cases fit neatly into the "structural defect” or "trial error” boxes, but, unfortunately for the future, the majority feels compelled to adopt such an analysis. Yet under such an analysis, these five "structural defect” cases did not result in per se reversals. Rather, the individual circumstances were evaluated and a case-by-case approach yielded differing decisions. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9701193. Public record. Not legal advice.