Repeat repeat repeat your objections.

Tyrone Jackson v. United States, No. 11-CF-1442 (decided August 7, 2014)

The Players: Glickman, Blackburne-Rigsby, Steadman.  Opinion by Judge Steadman.  PDS for Appellant.  Trial judge: Gerald Fisher.

The Facts:  In this kidnapping and armed robbery trial, police found Christopher McClain in a vacant basement apartment wrapped in duct tape.  McClain claimed that when he arrived at the apartment complex earlier that night to provide a moving estimate, Jackson and two masked men bound and robbed him at gunpoint.  Jackson was found out of breath close to the scene soon after – he claimed that he was jogging but was not wearing workout clothes.  Co-defendant Alex Dickens, the maintenance man for the building, was also stopped running away from the scene.  McClain identified Jackson as his assailant but could not identify Dickens.

Jackson took the stand and told the jury that he came to the scene that night after an acquaintance named “Larry” asked him to come provide back-up security for McClain during a drug transaction.  Jackson testified that when he and McClain arrived at the apartment, three men held them at gun point and robbed McClain.  The defense asserted that McClain was lying about what happened because he faced twenty years in prison if he violated his probation, and therefore did not want police to find out he was involved in a drug deal.

During jury deliberations, the jury searched the contents of a phone found in the back of Dickens’s car, which was parked on the scene.   While the phone itself was introduced into evidence, the contents of the phone were not, and the phone was dead when it was sent to the jury room.  The parties examined the phone and agreed that it contained three pieces of potentially relevant information: Dickens had a contact named “Larry,” he had two e-mails from a “Larry” advertising an event, and he received a phone call from “Larry” at about 3:09 on the date of the offense.

Defense counsel asked the court to voir dire the jury to find out “what discussions” they had about the phone.  He also requested a mistrial, arguing that the extrajudicial information was prejudicial.  Defense counsel asserted that if he had known that the potential mastermind, Larry, had contacted Dickens, he would have “spent more time addressing . . . Dickens’s role in the offense.”  Finally, he requested a strong curative instructive. 

The trial court denied defense counsel’s first two requests but instructed the jury that the contents of the phone were not in evidence and that the jury could not consider that information in its deliberations.

Issue: Did the trial court err in failing to voir dire the jurors or declare a mistrial?

Holding: No.  With respect to the trial judge’s failure to conduct a voir dire of the jurors, the Court emphasized that the trial judge took great pains to find out what information the jury viewed, gave the parties an opportunity to articulate any potential prejudice, and asked for desired remedies.  There was no need to conduct a more in-depth discussion, the Court concluded, particularly given that defense counsel never asked for further inquiry after the jury revealed precisely what information they had viewed on the phone.

With respect to the denial of a mistrial, the Court held that the defense did not suffer significant prejudice from the jury’s exposure to the extraneous information.  If anything, the Court believed that the connection between Larry and Dickens corroborated Jackson’s defense theory.   The Court also noted that any potential link between Dickens and Larry was not critical to Jackson’s defense, and that unlike in other cases where Courts reverse because a jury has been exposed to extrajudicial information, the jury here committed no misconduct.  The cell phone was already in evidence and had been admitted without “limitation.”  Finally, the Court stated that there was no reason to believe the jury failed to follow the limiting instruction, especially given that it acquitted Dickens of the charged offenses.

Of note: 

• The Court’s ruling on prejudice is an interesting one, because the contents of the phone were clearly important to this jury.  The phone was dead when it went to the jury room yet the jury took the time to figure out how to charge it, turn it on, and then spent time exploring its contents.

• You need to make a super duper record to preserve issues.  When the parties learned that the jury had accessed the phone’s contents, defense counsel requested that the court ask the jury “questions about what . . . . discussions” it had with regard to the phone.  The trial court refused, stating that this would be an improper intrusion into the jury’s deliberations.  Despite defense counsel’s request to question the jury, the Court of Appeals held that counsel had not adequately preserved a request for voir dire.

• Specifically, the DCCA found that defense counsel had not adequately preserved a request for voir dire, because he: 1) did not challenge the court’s “improper intrusion” statement; 2) never asked for a voir dire again; and 3) made his initial request at the “very beginning of substantive discussion about what steps to take before any concrete information had been obtained as to what exactly had been accessed.”  JB.

 Read the full opinion here.