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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