Wednesday, April 22, 2015

#RealTalk: The DCCA on (Re-)Interpreting Jurors and Witnesses



Kalete Johnson v. United States, No. 13-CF-838 (decided April 15, 2015).

Players: Associate Judges Glickman and Thompson, Senior Judge King. Opinion by Judge Thompson.  PDS for Mr. Johnson.  Trial Judge: Stuart Nash.

Facts: A jury convicted Mr. Johnson of conspiracy to rob, in violation of D.C. Code § 22-1805a. One morning, the complaining witness, Mr. Carrera, called the police to report that three young men wearing black jackets and black ski masks had approached his truck from behind while he was waiting for his work site to open. According to Mr. Carrera, the tallest of the three had approached his window and demanded that he surrender the vehicle, causing him to drive away in fear and call the police.  Mr. Carrera returned in time to see the police chasing three men. The officers apprehended two individuals named Carrington and Taylor, and Mr. Carrera identified them as two of the men involved. The police could not catch the third, tallest man but allegedly identified him as Mr. Johnson, using a nickname provided by Mr. Carrington and Mr. Taylor.

Mr. Johnson faced several charges in connection with his alleged role in this incident. During jury selection, the trial judge stated that trial would last approximately eight days. Juror 809 voiced concern about the hardship of paying for childcare during that time, but the trial judge would not dismiss her. Juror 809 was selected, and on the fourth day of trial, she sent a note saying, “[I]t looks like it’s going to be very difficult for me to participate in trial this next week. I can’t afford my child’s care anymore.” In a follow-up inquiry, the juror explained that her babysitter had cancelled but that another had been called. The juror had no alternate arrangements for the day other than her husband, who recently started a new job. Finally, in answer to the question “Is this going to be a problem . . . the rest of the week as well or is it just today?”, the juror stated, “Probably will be a the rest of the week, too.” The trial judge dismissed Juror 809 over the defense’s objection, citing cancellation of childcare as his reason, over and above the financial hardship he had previously rejected.

At trial, Mr. Taylor testified that when he, Mr. Carrington, and Mr. Johnson were walking toward Mr. Carrera’s truck, Mr. Carrington stated that he “wanted to get the truck[.]” Mr. Johnson responded by saying “like All right, like, go ahead, do what you got to do.” After a few questions regarding the meaning of these words, the prosecution sought to impeach Mr. Taylor with his grand jury testimony that Mr. Johnson meant that he would help Mr. Carrington take the truck from Mr. Carrera. The defense objected that the prosecution should not be allowed to elicit what Mr. Taylor thought Mr. Johnson meant. The trial judge overruled the objection, reasoning that Mr. Johnson’s words were ambiguous and that Mr. Taylor could help clarify their meaning using communication cues that he was able to observe.

Issue 1: Whether the trial court abused its discretion by dismissing Juror 809 in light of ambiguities in the record regarding the nature and duration of the juror’s asserted hardship.

Holding: No. On the record presented, the trial judge could have reasonably concluded that when the juror said “Probably will be a problem the rest of the week, too” she meant that obtaining childcare, as opposed to merely paying for it, would be the problem. By the time the trial judge dismissed Juror 809, he had seen her several times, giving him many chances to see her demeanor. The husband’s appearance in court underscored the need for him to work that afternoon, and thus, his unavailability to provide childcare. The trial judge did not abuse his discretion in failing to postpone afternoon proceedings to see if Juror 809 could get another babysitter for the rest of the week because she said her problems would persist for that long.  

Issue 2: Whether the trial court abused its discretion by admitting Mr. Taylor’s lay opinion testimony about the meaning of “all right.”  

Holding: No. Under Fed. R. Evid. 701, a lay witness is permitted to opine on the meaning of words that “would have been clear in context to the person hearing them, but may not be clear to one merely hearing the words.”  Slip op. at 6 (quoting United States v. Martin, 920 F.2d 393, 397-98 (6th Cir. 1990) (emphasis in original)).  Mr. Taylor had heard Mr. Johnson make this statement and knew Mr. Johnson “like a brother.”  He also provided a factual basis for his opinion that by “all right,” Mr. Johnson meant he would help take the truck from Mr. Carrera.  Specifically, Mr. Taylor testified that after saying “all right,” Mr. Johnson walked toward the passenger side of the truck.

Of Note: 

  • The opinion should be read with care, because the Court notes a number of factual circumstances that are important to its conclusions. If a juror is being dismissed prematurely, you can emphasize the limited, fact-bound nature of this opinion.  And be sure the record is absolutely clear where the juror’s availability to serve is concerned.  

  • As for distinguishing the court's ruling admitting lay opinion as to what another witness meant, point out that Mr. Johnson knew Mr. Taylor “like a brother,” there was a factual basis for Mr. Taylor’s opinion, and Mr. Johnson’s statement was clear in context but ambiguous when repeated after the fact.  WC 

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