Opinion
No. 99-CF-536
Argued May 10, 2001
Decided September 13, 2001
Appeal from the Superior Court of the District of Columbia Criminal Division (Hon. Frederick H. Weisberg, Trial Judge)
Brigitte L. Adams, appointed by the court, for appellant.
Thomas S. Rees, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney at the time the brief was filed, and John R. Fisher, and Mary-Patrice Brown, Assistant United States Attorneys, were on the brief, for appellee.
Before Steadman, Reid, and Washington, Associate Judges.
After a jury trial, appellant, William Anthony Price (Price), was found guilty of assault with a dangerous weapon (knife), possession of a firearm during a crime of violence, first-degree burglary, possession of a Molotov cocktail, and threats to injure a person on December 13 and 24, 1998. The trial judge also found Price guilty of second-degree theft and destruction of property. Price submitted a timely appeal to this court arguing that the trial judge erred by 1) denying his motion for a new trial because a juror was incompetent to serve and was coerced into agreeing with the verdict; 2) rejecting his request to assert the Fifth Amendment and spousal privileges of the complaining witness, Cheryl Beamon-Price (Beamon-Price); and 3) not sua sponte conducting a juror misconduct inquiry. We affirm.
A.
Price argues that the trial court abused its discretion by denying his motion for a new trial because juror number one failed to comprehend English and could not have understood the evidence presented at trial without undue influence from the other jurors. We review the trial judge's decision denying a motion for new trial for abuse of discretion, see Graham v. United States, 703 A.2d 825, 830 (D.C. 1997), and the trial judge's findings of fact with respect to the juror's competency to serve cannot be set aside unless clearly erroneous, see United States v. Hall, 989 F.2d 711, 714 (4th Cir. 1993).
On March 19, 1999, during the jury's deliberations, the jury submitted a note inquiring whether their verdict had to be unanimous. Before the trial judge could respond to the jury's question, the jury told the courtroom clerk to disregard the note because they were close to reaching a verdict. Sometime later that same day, the jury indicated that they had reached a verdict. The foreperson read the jury's verdicts, finding Price not guilty on the first four counts and counts six and seven, and guilty on counts five, eight, nine, ten, and eleven. Price requested a jury poll. The trial judge then asked juror number one whether his "individual verdict agree[d] with the verdict announced by the foreperson." The juror responded, "[n]ot guilty." The trial judge then asked the juror whether he understood "the verdict announced by the foreperson," and the juror replied, "[n]ot very clear." The juror then went on to state that he had some problems understanding English, and that he understood some of the evidence at trial.
After conferring with counsel, the trial judge instructed the jury to return to its deliberations stating, "I'm going to ask all twelve of you to go back to the jury room and satisfy yourselves, and then you'll satisfy me as to whether juror number one agrees or does not agree with the verdict that your foreperson announced." Once back in deliberations, the jury again sent a note stating that it was ready to proceed. Upon the return of the jury, the trial judge acknowledged that there was "obviously a language barrier of some kind," and that juror number one needed to be questioned separately as to determine whether he agreed with the verdict.
The trial judge asked juror number one if he felt that he understood the evidence, and the juror replied, "Yeah. Yes. I understand all of them. And we've been talking about the whole thing,. . . . Sometimes when you ask me something, then I didn't hear very clear. That's the reason." The trial judge then asked whether the juror understood the witnesses when they spoke, and he responded, "[s]ome of them; too fast, then I didn't catch all of them." The trial judge then inquired whether there was any particular witness whose testimony he may not have completely heard. The juror responded that he only had trouble with the testimony of one elderly witness, Norman Jackson.
During the voir dire of juror number one, he testified that: he discussed the case with the jurors, understood the deliberations in the jury room, discussed his opinions with the jurors, and comprehended the arguments made by counsel during the trial. In addition, juror number one stated that he had no difficulty hearing any witnesses, other than Mr. Jackson. The record also reflects the juror's testimony that he was a U.S. citizen of fifteen years of Chinese origin. He was a recently retired waiter at the Capitol Hilton Hotel, and though he spoke Chinese at home, he also interacted with non-Chinese friends.
After the voir dire, the trial judge concluded that juror number one was competent to perform his task as a juror. Specifically, the trial judge stated:
My judgment is that this juror is sufficiently fluent to understand the proceedings and the witnesses. I, myself, had a little trouble hearing Mr. Jackson, who spoke very low; that he answered all the questions that were asked of him perfectly and appropriately, including the questions asked unrelated to the evidence. He understood what we were asking and his answers were responsive and appropriate.
I don't have any reason at all to believe he didn't sufficiently understand the evidence, to participa[te] in deliberations as a juror in deliberations. As he said, he did participa[te]. He listened to the other jurors, expressed his views, and heard the views expressed by the others. I think it is appropriate to take the verdict with him on the jury.
The trial judge also observed that juror number one clearly understood the instructions he was given during the course of the trial with respect to showing up at the proper time in the morning and appearing at the right place. Thus, the verdict was accepted.
On March 29, 1999, Price filed a motion for a new trial and the trial judge orally denied the motion, restating its findings of March 19, 1999. In addition, the trial judge made these further findings:
[W]hen [the court] made [it's] findings with respect to juror number one after he agreed on the poll of the jury with the verdicts announced by the foreperson, it was based on perhaps more than anything else on my assessment of his demeanor and his ability to understand as I looked at him while the questions were being asked. I believe that his initial answer not guilty was the product of confusion on the poll of the jury since the first count which had been submitted to the jury was one in which the jury had returned a verdict of not guilty. And I believe in retrospect that he misunderstood my question on the poll when he answered not guilty to be asking about the first count rather than the entire verdict announced by the foreperson.
Be that as it may, once the poll — the jury was returned to the jury room and came back with its verdict and a poll was conducted. I was fully satisfied that that juror both understood the evidence to a sufficient degree and understood the deliberations, and was able to participate to a sufficient degree, and unequivocally that he agreed with the verdict announced by the foreperson, both with respect to the charges on which the jury found Mr. Price not guilty and with respect to the charges on which the jury found Mr. Price guilty.
Though a trial judge may grant a new trial "if required in the interest of justice," see Sup. Ct. Crim. R. 33, the trial judge concluded that the jury reached a unanimous verdict in this case, and that the verdict was freely and fairly arrived at without coercion. See Harris v. United States, 622 A.2d 697, 701 (D.C. 1993). The trial judge conducted an exhaustive voir dire of juror number one to discern whether he comprehended English, and agreed with and understood the final verdict. Upon a lengthy examination of juror number one by the trial judge, as well as the prosecuting and defense attorneys, the trial judge felt assured that the juror comprehended English, understood the evidence in the case, and participated in the jury deliberations. The trial judge also specifically found that juror number one's initial response to the poll, "[n]ot guilty," was mistakenly in reference to the first count Price was charged with, as opposed to the final verdict. See Williams v. United States, 136 U.S. App. D.C. 158, 164, 419 F.2d 740, 746 (1969) (upholding the trial judge's determination that a juror had become confused during the poll). Based on the trial court's finding that juror number one was competent to serve on the jury, Price's allegation that the juror was somehow coerced to agree with the final verdict is without factual support. See Crowder v. United States, 383 A.2d 336, 343 (D.C. 1978).
B.
Price also argues that the trial court erred in holding that he did not have standing to assert the Fifth Amendment right of Beamon-Price not to testify. We disagree. Only Beamon-Price, the holder of the privilege, may object to an adverse ruling with respect to the testimonial privilege. See Isler v. United States, 731 A.2d 837, 840 n. 6 (D.C. 1999) (commenting that appellant "wastes a good deal of time arguing that the trial judge erred in not sustaining [a witness'] initial blanket assertion of his Fifth Amendment right. The government fittingly responds that he has no basis to assert that right") (citation omitted); Lyons v. United States, 683 A.2d 1080, 1084 (D.C. 1996) (holding that "a defendant does not have standing to complain of an erroneous ruling on a witness' claim of privilege") (citation omitted); Bright v. United States, 698 A.2d 450, 458 (D.C. 1997) (ruling that appellant has no standing to assert a Fifth Amendment challenge on behalf of his brother who testified as a government witness). See also Ellis v. United States, 135 U.S. App. D.C. 35, 416 F.2d 791 (1969) and Keys v. United States, 767 A.2d 255, 259-61 (D.C. 2000). Thus, our case law makes it clear that only Beamon-Price can assert her Fifth Amendment testimonial privilege.
The very narrow exception to this principle recognized in Ellis is inapplicable to the present case for the reasons set forth in Keys.
Similarly, we conclude that Price does not have standing to challenge the trial court's decision ordering Beamon-Price to testify at trial by asserting the marital privilege. Although this court has not previously decided whether a non-testifying spouse has standing to assert the marital privilege of his or her spouse, we agree with other jurisdictions that have decided this issue, and hold that a non-testifying spouse does not have standing to make such an assertion.
After the Supreme Court decided in Trammel v. United States, 445 U.S. 40, 52 (1980), that the witness-spouse alone is the holder of the privilege, several circuit courts have considered the issue presented here and concluded that the non-testifying spouse does not have the right to assert the spousal privilege of the witness-spouse. See United States of America v. Anderson, 309 U.S. App. D.C. 54 (D.C.C. 1994); United States of America v. Lofton, 957 F.2d 476 (7th Cir. 1992); Grand Jury Subpoena of Jean Ford v. United States of America, 756 F.2d 249 (2d Cir. 1985). In Anderson, the United States Court of Appeals for the District of Columbia, explicitly stated that the non-testifying "spouse is without standing to contest the district court's decision to compel [the witness-spouse] to testify." 309 U.S. App. D.C. at 50 (citations omitted). The Anderson court relied on two decisions, Lofton and Grand Jury Subpoena. In Lofton, the United States Court of Appeals for the Seventh Circuit held that, "Lofton would have no standing to appeal the district court's determination that his wife waived her spousal testimonial privilege." Likewise in Grand Jury Subpoena, the United States Court of Appeals for the Second Circuit held that the non-testifying spouse has no right to intervene when the witness-spouse invokes his or her marital privilege and the government attacks the exercise of it. 756 F.2d at 255. We agree. The standing of the non-testifying spouse to invoke the marital privilege of the witness-spouse should be treated no differently than the standing of the non-testifying spouse for purposes of the Fifth Amendment, especially in light of the Supreme Court's decision in Trammel.
C.
Price's final contention that the trial court erred by not sua sponte conducting a juror misconduct inquiry is without merit. While Price, through counsel advised the trial judge that there may have been some fleeting contact between the jurors and Beamon-Price, he did not argue that the alleged contact between the three jurors constituted misconduct or was the product of juror bias thus, warranting a hearing. See Hill v. United States, 622 A.2d 680 (D.C. 1993) (commenting that a claim of juror impartiality or prejudice is necessary to prompt the trial judge to conduct a hearing or voir dire to the jurors); Parker v. United States, 757 A.2d 1280, 1287 (D.C. 2000) (noting that there is no immediate presumption that the alleged improper communication between the jurors and the witness resulted in prejudice); Artisst v. United States, 554 A.2d 327, 331 (D.C. 1989). Because Price failed to assert that he was prejudiced by the contact, if any, between the juror's and Beamon-Price and there was no meaningful claim of juror impartiality other than the fleeting contact observed by Price in the courtroom, we find no error in the trial judge's decision not to hold a hearing. See Johnson v. United States, 616 A.2d 1216, 1232 n. 25 (D.C. 1993).
Accordingly, Price's convictions on appeal are
Affirmed.