Aaron Bates v. U.S.
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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volum es go to press. DISTRICT OF COLUMBIA COURT OF APPEALS Nos. 97-CF-1896, 01-CO-1373 and 02-CO-839 A ARON B ATES, A PPELLANT, v. U NITED S TATES, A PPELLEE. Appeals from the Superior Court of the District of C olumbia Criminal Division (F-7628-96) (Hon. Harold L. Cushenberry, Jr., Trial Judge) (Argued April 22, 2003 Decided October 23, 2003) Charles A. Murray for appellan t. Susan A. Nellor, Assistant United States Attorney, with whom Roscoe C. Howard, Jr., United States Attorney, and John R. Fisher, Roy W. M cLeese, III and Kenneth Kohl, Assistant United States Attorneys, were on the brief, for appellee. Before STEADMAN, S CHWELB and R UIZ, Associate Judges. R UIZ, Associate Judge: Followin g a jury trial, app ellant was fo und guilty o f firstdegree murder while armed (premeditated)1 and related weapons offenses. On appeal, he contends that the jury was misled when, in response to a jury note, the trial court reinstructed the jury on the element of premeditation, but without mentioning the element of deliberation. Appellant also asserts that the trial court abused its discretion whe n, after a post-trial hearing, 1 See D.C. Code § 22-2401and -3201 (1996) (recodified at D.C. Code § 22-2101 and -4502 (2001)). 2 the trial judge fou nd that a juror was not biased a gainst a defe nse witne ss and disp ensed w ith appellant s request to voir dire other jurors. We disagree with the contention that the trial court plainly erred when it instructe d the jur y solely on the e lemen t of prem editation . We agree, however, that given the limited record before it, the trial court co uld not m eaningfully exercise discretion committed to it in considering the motion for a new trial without further inquiry into the claim of juror bias. Accordingly, we vacate the order denying the motion for a new trial and remand the case for further proceedings on that issue. I. FACTUAL BACKGROUND In the early morning hours of August 30, 1996, Gregory Miller was shot mu ltiple times outside Dino s Metro Club in Northeast, Washington, D.C. He subsequently died from those gunshot wounds. A. The Governm ent s Case At trial, the govern ment s ev idence sho wed that Miller, accompanied by three friends, arrived at Dino s Metro Club at approximately 11:00 p.m., on A ugust 29, 1 996. A se curity guard testified that patrons of the club were unarmed as they had to clear a security check at the entrance. Antoine Wright, a f riend of M iller who w as with him that night, testified that 3 at approximately 2:00 a.m., about 30 minutes before he was fatally shot, Miller exchanged words with appellant, whom he belie ved w as repe atedly elbow ing him . 2 As a resu lt, security personnel asked appellant to leave the club. Some time later, outside the club, Miller saw the appellant and asked him why he had elbowed him. Appellant responded that he was not beefing with M iller, pulled his ca r keys out o f his pocke t, and, as Miller continued to ask for an e xplanation, walked backwards in the direction where his car was parked. Miller followed appellant. According to eyewitnesses, when appellant reached the passenger side of his car, he unlocked the door and removed a gun from the glove compartment. He then stoop ed over, as if h e was pu tting a clip in the gun, and made a slapping motion, as if to ensure the clip was secure. Miller turned and began to run down Bladensburg Road when he saw appellant raise his gun. Appellant got out of the car and began to chase Miller and fired two to three shots at him. Miller continued to run from appe llant, ducking behind cars as appellant continued the chase, shooting at him. At one point, Miller jumped out from behind a parked car and ran onto Bladensburg Road, where he collapsed face-up on the street. Appellant ran to Miller, stood directly over his prone body, and with his gun a distance of less than two f eet from M iller s body, fired nine to ten bullets into Miller s face and chest, emp tying his gu n. A police officer 3 on duty outside the club also witnessed appellant point his gu n in Miller s direction an d fire appro ximately te n or eleven shots. When his gun stopped firing, appellant turned and ran, with the gun still in his hand. Police 2 As Wright explained, [e]lbowing, it means swinging. 3 Five po lice offic ers we re at the s cene o f the sho oting. 4 officers pursued appellant and apprehended him. B. The Defense Appellant testified that he was acting in self-defense. He claimed that shortly after he arrived at the club, the band announced that C T is in th e hous e, meaning that someone from the Condon Terrace crew was in the club. As appellant was listening to the band, Miller, who was standing in front of him, stepped backwards. Appellant put his han d out to stop Miller, but Miller turned and slapped appellant s hand away. When appellant apologized, Miller r eplied, I m go ing to sta rt killing th ese mother fu ckers, y ou know. Appellant was scared to death because he knew that Miller was a member of the Condon Terrac e crew , which had a re putation for viole nce. Once outside the club, appellant testified, he heard Miller behind him saying, there go that mother fucker right there, I m going to bust his ass. Appellant turned to Miller and said, look man, I said my fault, and walked toward his car. As appe llant neared h is car, he saw Miller run across the street toward another car. Thinking that Miller was going to get a gun, appellant decided to leave, but realized that his car was blocked.4 Remembering 4 This testimony was disputed. There was a photograph of the area at that time indicating the contrary, as well as testimony from a police officer that the car was not blocked at the time of the shooting. 5 that he had a loaded 9 mm g un in his glove compartment, he removed the gun, got out of the car and began to run down Bladensburg Road. When he saw M iller run into the s treet, pull a gun from the waistband of his pants, and point the gun at him, appellant believed that Miller was going to kill him, and fired at Miller. A fter the first shot, appellant totally, like, blanked out for a while. He d id not recall shooting M iller in the back o r shooting h im numerous times in the front when he wa s lying o n the gr ound. When his gun stopped firing, appellant ran down Bladensburg Road, unaware the police were chasing him. He believed that the shots being fired at him were coming from members of the Condon Terrace crew, and only realized that it was the police wh o were ch asing him when a police car cu t off his flight. On cross-examination, appellant admitted that he never communicated his fear of the Condon Terrace crew to the bouncer at the club or an y of the police officers wh o were positioned directly outside the club on their regular beat, but said it was because mem bers of the Cond on Terrac e crew w ere near the officers. Calv in Antoine Wright corroborated that appellant was afraid; he testified that he witnessed the altercation outside the club between Miller and appellant, and that appellant had a sca red look o n his face. Appellant conceded that his accoun t did not exp lain the location of shell casings that the police found a distance away about 106 feet from where Miller was killed, in the route of the chase, or the bullet wounds in Miller s back. 6 A defense witness, Marlo Chaney, who had been at Dino s Metro Club the night of the shooting, testified that after the shooting she saw a man run up to Miller s body and take something. She cou ld not identify exactly what was taken, nor could she give a description of the man; she admitted that she never informed the police or the prosecutor that she had seen someone near Miller s body. C. Closing A rgume nts During closing arguments, the prosecutor argued that there was no evidence that supported appellant s claim of self-defense. Emphasizing that appellant had brought a gun with fourteen rounds of ammunition to a club which appellant frequented regularly and knew would not permit him to enter with weapons, the prosecutor asked the jury to infer that appellant had ill-intent before he arrived at the club. As appellant failed to ask for assistance from any of the police officers or sec urity person nel, and m ultiple witnesses saw appellant chase Miller and shoo t him in the back, and then approach him and shoot him repeatedly as he lay on the g round, the prosecutor c ontended that appellan t had an a ppreciable time to reconsider, an appreciable time to reconsider and he took action sufficient to form the intent required for first-degree premeditated murder. He stressed it was 106 feet from the first shell casings to Miller s body. This physical evidence corroborated eyewitness testimony that appellant first fired two shots at Miller and then ran another 106 feet to shoot him again. That distance, the location of shell casings and bullet wounds showed that it was 7 appellant who pursued Miller, and not vice-versa. T he prosec utor argued that a reason able person in this situation w ould not h ave felt at risk of immediate life-threatening harm and used deadly force. The defense stress ed in closing that appellan t s self-defense claim w as consisten t with evidence that demonstrated that Miller was the agg ressor, and that appellant s actions w ere reasonab le because he believed that Miller had a gun and was going to shoot him. He pointed to the testimony of Chaney, who s aw so meon e pick u p an ob ject (pre suma bly, a gun) from Miller s body after the shooting. Defense counse l noted that Wright, a government witness, testified that appellant had a scared look on his face and backed away from Miller towards his car outside the club. Defense counsel also argued that the location of the bullet casings was not to be relied upon because they had been strewn all throughout the road as numerous people exited the club and scattered all over after the shooting. He concluded that because appellant thought he could not leave because his car was blocked, and felt he could not approach police because members of the Condon Terrace crew were standing nearby, his actions were reasonably taken in self-defense. D. The Jury Notes The day after beginning its deliberations, the jury sent a note that said, W e need more explanation on the concept of premeditation. The trial judge summoned counsel, read the 8 note, and discussed his proposed answer to the jury's questions. He told both attorneys that he would reread the instruction for first-degree premeditated murder. Defense counsel suggested that the trial judg e not reread the entire first-de gree mu rder instruction , but only the part explaining what constitutes premeditation. The trial judg e noted , . . . I don t have any problem with that either. That s real short. You may have it, they may have it back there. But I[ ll] also tell them since we re all here if that doesn t answer their question and they have so methin g mor e specif ic, we c an pon der wh at to say about it. The trial judge instructed the jury: This is the first time I ve had a c hance to spea k to you today. I received your n ote. And I did provide a definition of premeditation in the written instructions, which you ha ve. I will read that again to you. But I know you have this already. And then since we re all here at this point, if simply reading the definition I ve provided doesn t get to your concern , then you will have to send me another communication and I ll see if I can do any better in term s of explain ing the con cept of premeditation in any other way than I ve previously set forth. Let me just red efine it as I set forth in the instructions. Premeditation means forming an intent or a desire to kill, to premed itate is to give thought before acting to taking a human life and then to reach a d efinite decision to kill. I don t kno w if I can b e any clearer than that. But if you have some more specific issue with respect to the concept of premeditation, I think what you need to do is tell me what you re concerned about and if I can be any clearer than I ve already been, I will. That s about the best I can do without know ing exa ctly wh at your conce rns are . . . . 9 After a few m inutes, th e jury se nt out a s econd set of no tes. The trial judg e informe d both attorneys: I ve got two different notes. Both from [juror] number 903. The first one says, The question s whether premeditation can occur almost instantaneously or need time, i.e. a plot to k ill. We know that you gave the definition, but could you elaborate more on the time for intent to kill. Obviously, the intent to kill [can] be as quick as a thought itself. There s another note. What happens if we can t reach a consensus? How long do we continue to deliberate, we can t reach a consensus on murder one or murder two. So these are two different communications. They re dead locked . I am going to tell them just keep deliberating. But I ll hear you with respect to how I should handle the first n ote, if you disagree with what I said, either one of you. The trial judge indicated that he would instruct that premeditation is the formation of a design to kill, [may be] instantaneous [] as quick as thought itself. Defense counsel inquired whether this formulation was straight out of the instruction, and after the trial judge confirme d it was, cou nsel commented that it seemed reasonable given it is in the instructio ns. With resp ect to the seco nd questio n, the judge said he w ould instruct the jury to continue with deliberations. Neither attorney objected to either instruction. The judge brought the jury into the courtroom and said: Ladies and gentlemen, I received these two communications. The first dealt with the concept of premeditation. You asked whether or not prem editation can occur alm ost instantane ously or needs a time or plot to kill. As I said in the instructions, ladies and gentleme n, preme ditation is the formation of a design to kill. It can be instantaneous. As quick as thought itself. So 10 the answer is n o, you do not need a plot to kill as set forth in this instructio n. The ju ry retired , and retu rned a g uilty ver dict. E. The Motion for New Trial After the verdict, but before sentencing , appellant filed a motion for a ne w trial asserting that two juro rs who se rved on h is jury failed to d isclose to the c ourt their prior relationship with Marlo Chaney, the defense witness who had been at Dino s Metro Club the night of the shoo ting and w ho testified at trial th at, after the shooting, she saw a man run up to Miller s body and take something. In an affidavit filed in support of appellant s motion for new trial, Chaney stated that when she testified at trial, she recognized one of the jurors, Tom Godwin, as someone she knew because Tom was someone who was a friend of my moth er s. She also stated that he had appeared at her mother s funeral service and had advised her that the jury found Aaron Bates guilty. According to Chaney s affidavit, When I asked him if he told the jud ge that h e knew me, he respon ded tha t he had not don e so. Appellant contended that the affidavit suggested juror partiality, and requested a hearing, which the trial judge granted.5 5 The othe r juror was s omeon e with w hom C haney ha d gone to school. Appellant does not challenge the trial court s action with respect to that juror. 11 At the hearing, Godwin testified that he knew Chaney and that he had mention ed to other jurors that he knew her, her mother had just died, and that was why Chaney was grouch y. Godwin testified that although he knew Chaney held him responsible for an incident that resulted in injuries to her son, who fell off a bed while playing when Godw in and his girlfriend were taking care of the child, he did n ot feel an y hostility toward her. In addition, he had recently attended her mother s funeral and there was no friction between them at the funeral. G odwin sa id that his relation ship with C haney did not affect his consideration of her trial testim ony, that he deliberated based on the evidence presented at trial, and that he delivered a fair ve rdict. In response to defense co unsel s que stion, God win stated that Chaney had never trashed his car. Even though appellant had inten ded to present Chaney s testimony at the hearing, she was not present. Expanding upon the affidavit, defense co unsel proffe red that Ch aney w ould testify tha t either God win or his girlfriend had abused her child and that she did not remain on good terms with him. Counsel also proffered that Chaney would testify that she had trashed Godwin s ca r in retaliation, and specifically, that she had literally smashed windows out and sliced tires. The government accepted the defense proffer. Accepting the defense proffer as true and crediting Godwin s testimony that he did not harbor any ill will against Chaney, the trial court denied the motion for a new trial on the ground that appellant had not shown that Godw in was biased. Although defense counsel asked to voir dire the other jurors, no other juror was heard from. 12 II. JURY INSTRUCTIONS Although appellant was given an opportunity to raise objections to the trial court s reinstruction after the second jury note, he failed to do so . Appellan t, therefore, m ay only prevail on his claim by dem onstrating p lain error so clearly prejudicial to substantial righ ts as to jeopa rdize the very fa irness an d integr ity of the trial. Allen v. United States, 495 A.2d 1145, 1151 (D.C. 198 5) (en ban c) (citation om itted); see also York v. United States, 803 A.2d 1009, 1011 (D.C. 2002) ( The failure to bring an alleged error to the attention of the trial court, however, though not an abandonment or relinquishment that precludes judicial review, does place a burden on the moving party to show that an error even one involving a question of law was plain, affected substantial rights and resulted in m anifest injustice. ); D.C. Super. Ct. Crim. R . 30 ( No party m ay assign as error any p ortion of the charge or omission therefrom un less that party o bjects thereto before the ju ry retires to con sider its verdict, stating distinctly the matter to which that party objects and the grounds for the objection. ). The appellant bears the burden of first establishing error, a deviation from the legal rule, and second, demonstrating that the error was pla in [which] is s ynonym ous with clear or, equivalently, obvious. United States v. Olano, 507 U .S. 725 , 732-34 (1993). In addition, plain error requires a greater showing of harm than that required to obtain relief under the harm less erro r standa rd. See Fields v. United States, 396 A.2d 522, 525 (D.C. 1978). Plain error is found only in the exceptional case where, after reviewing th e entire 13 record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice canno t have b een do ne. See O lano, 507 U.S. at 736. Decisions regarding wh ether and how to re-instruct the jury are committed to the broad discretion of the trial co urt. Coreas v. United States, 565 A.2d 594 , 599 (D.C. 1989 ). During re-instruction th e trial judge sh ould strive to achieve the ideal of a neutral, balanced instructio n. Id. (citation omitted). In reviewing jury instructions, we look at the instructions as a whole in assessing whether they constituted prejudicial error. Hunt v. United States, 729 A.2d 32 2, 325 (D.C. 199 9) (citation omitted). Although we have not found plain error when some instructions have been omitted, see, e.g., Jones v. United States, 477 A.2d 23 1, 24 2-43 (D.C . 198 4) (tr ial co urt's failure to sua sponte give a cautionary instruction on evidence of other crimes prior gun possession and threats was not plain error because the relevance of the evidence was noted by coun sel in their closing arguments, its relationship to issues before the jury was not complex or confused, and defense counsel's decision not to request a cautionary instruction was consistent with his trial strategy), certain instructional errors, which touch upon fundamental constitutional principles or call into question the integrity of the verdict, will constitute plain error. Allen, 495 A.2d at 1152-53 (equating plain error review with scop e of appella te review when defendant fails to comp ly with Rule 30 requirem ents). For ex ample, the re is plain error whe re the jury instru ctions could have con fused the jury on th e need for a unanimous verdict, see Davis v. United States, 448 A.2d 242, 244 (D.C. 1982) (per curiam) (ambiguous instruction created the possibility of a verdict that was not unanimous because, 14 combined with the government s alternative theories of the case, some jurors could have found guilt based on the defen dant s possession of the first packet of marijuana (but not the second), whereas others could have found guilt based on the possession of the second packet (but not the f irst)), or th e gove rnme nt s bur den to p rove gu ilt beyon d a reas onable doubt, see United States v. Alston, 179 U.S. App. D.C. 129, 130, 132-33, 551 F.2d 315, 316, 318-21 (1976) (ambiguous instruction on guilt beyond a reasonable doubt and government s burden). As concerns elements of the offense, we have held that an omission of an elem ent will not be plain error where the relevant facts are so clearly related that no rational jury, shown by its verdict to have found the facts necessary to convict the defendant under the instruction as given, could have failed, if fully instru cted on ea ch eleme nt, to have found in addition the facts necessary to comprise the omitted element. White v. United States, 613 A.2d 869, 870 (D.C. 1992) (en banc) (no rational juror finding that writings in question che cks were false could not have found that checks were of value over $250 where check s were introduced into evidenc e and not contested). In this case, appellant contends that by focusing solely on the element of premeditation, the trial court s reinstruction was an incomplete response that confused the jury becau se the se cond ju ry note , which asked a bout tim e, implicated the element of deliberation. Specifically, the appellant argues that the reinstruction did not make clear that in order to find appellant guilty of first-degree murder the jury which had indicated it was already deadlocked had to find both premeditation and deliberation. First-degree murder is the killing of a human being with deliberate and premeditated 15 malice . D.C. Co de § 22-2 101 (200 1). The prim ary distinction between first and seconddegree m urder is that: [First] degree murder, with its requirement of premeditation and deliberation, covers calcu lated and p lanned killing s, while homicides that are unplanned or im pulsive, even though they are intentional and with m alice aforeth ought, are murder in the second -degre e. Harris v. United States, 375 A.2d 505, 507 (D.C. 1977)(citing Austin v. United States, 127 U.S. App. D .C. 180 , 188, 38 2 F.2d 129, 137 (1967)). Premeditation means that the defendant formed the specific intent to kill the victim for some length of tim e, however short, before the mu rderou s act. Austin, 127 U.S. App. D.C. at 188, 382 F.2d at 137. The separate element of deliberation also does not require a minimum lapse of time, but the reflection and turning over in the mind of the accused concerning his existing design and purpose to kill. Harris, 375 A .2d at 50 5 (citatio n omi tted). In this case, before the jury retired to deliberate, the trial judge instructed the jury 6: . . . The defendant is charged with first-degree murder. I m going to instruct you on this charge and also on the lesser include d offen se of sec ond-d egree m urder. . . . First-degree premeditated murder is the killing of another person with the sp ecific intent to k ill that person, w ith premeditation and deliberation, and without self defense or mitigating circumstances. The essential elements of [this offense], each of which the Government must prove beyond a reasonable doubt, are: One, that the defendant cause d the death of the dece dent, Gregory Miller. Two, that he did so with the specific intent to kill the 16 decedent, Gregory Miller. Three, that he did so after premeditation. Four, that he did so after deliberation. Five, that he did not act in self defense. Six, that there were no mitigating circumstances. And sev en, that the de fendant w as armed with a pistol. Specific intent to kill means purpose or conscio us intention to cause death. Premeditation means forming an intent or design to kill. To prem editate is to give thought, before acting to taking a human life and then to reach a de finite decision to kill. Deliberation means c onsiderin g and reflecting on the preconceived design to kill, turning it ove r in the mind, g iving it second th ought. Although premeditation, the formation of a design to kill, may be instantaneous, as quick a s thoug ht itself, it is necessary that an appreciable time elapse between the formation of the design and the fatal act within w hich the re is, in fa ct, delibe ration. The law requ ires no particu lar period of tim e. It necessarily varies according to the circumstances of each case. Consideration of the matter may continue over a prolonged period: Hours, days, or even longer. Then again, it may cover a span o f minu tes or les s. After forming a n intent to kill, if one does not act instantly, but pauses and actually gives second thought a nd consid eration to the intended act, he has, in fact, deliberated. It is the fact of deliberation that is essentia l, not the length of time it may have gone on. . . . The essential elements of second-degree murder while armed, each of which the Government must prove beyond a reasonab le doubt, are: One, that th e defenda nt caused th e death of the decedent, Gregory Miller. Two, that at the time the defendant did so, he h ad the spec ific intent to kill or seriously injure the deced ent, or acted in conscious disregard of an extreme risk of death or serious b odily injury to the deced ent. Three, that the defendant did not act in self defense. Four, that there were no mitigating circumstances. And five, that the defendan t was arm ed with a p istol. 17 Second-degree murder differs from first-degree premeditated murder in that it does not require premeditation, deliberation or a specific inten t to kill. 6 (Emphasis added) When the trial judge reinstructed the jury the issue o n appeal he was responding to a question about premeditation which focused on the time element and asked whether a plot was required. The judge s reinstruction repeated part of the instruction previously given, that premeditation is the form ation of a design to kill, [may be] instantaneous, [] as quick as thought itself, and answered the juror s specific question, saying that a plot was not necessary in order to find premeditation. Although there is nothing incorrect in what the trial judge said, the issue is whether, in context, the jury could be confused by what was not said. We understand appellant s concern to be that, by focusing solely on the element of premeditation and saying that it requires no minimum lapse of time, the reinstruction was not neutral and balanced , Coreas, 565 A.2d at 599 , and might have distracted the jury s attention away from the additional and different element of deliberation. Although no minimum time is required to establish deliberation, some time is required after premeditation to give the e xisting spec ific intent to kill reflection a nd turning over in the mind, Harris, 375 A.2d at 508, or, in the words of the instruction, second thought and consideration. The trial judge might have had this shortcoming of a partial reinstruction in mind when he commented that the instruction on premeditation was real short and relied on the fact that 6 The jury was given a written copy of the judge s instructions. 18 the jury had the entire jury instruction with them. The full instruction made c lear that in contrast with premeditation which may be insta ntaneo us as q uick as though t itself, it is necessary that an appreciable time elapse between formulation of the design and the factual act, within which there is, in fact, delib eration. (Emp hasis ad ded.) 7 Although we have no doubt it would have been better to remind the jury of the element of deliberation in the reinstruction, we conclude that in light of the specific question asked, and given the trial judge s reliance that the jury had been given and had access to the full instruction, the partial reinstru ction w as not o bvious ly wro ng. We also think from the evidence of record, that there was no miscarriage of justice because no reasonable juror would find that the appellan t did not deliberate before he killed Miller. Appellant s self-defense theo ry is that he took his gun, ran and shot at Miller because he was scared of Miller and thought Miller was going to kill him. Even if the jury believed that appellant was scared in the club and when he got his gun from the car and began to run, it could not reasonably have found that he did not form the specific intent to kill or that he did not have time to deliberate. There is ample evidence that after Miller, who had been wounded in the back during the chase, fell to the ground, appellant ran ano ther 106 fee t to where he had fallen on the gro und before the final shots w ere fired. This gave appellant 7 In closing argument, the prosecutor comm ented that the 106 feet ap pellant ran to reach Miller wh ere he had fallen on the ground h ad provid ed that app reciable time reminding the jurors of the element of deliberation. 19 sufficient time to form the intent to kill, i.e., prem editate, and to deliberate on that intent as he approached Miller, stood over his body and fired ten rounds of bullets into his face and chest at close range. There also was overwhelming evidence from eyewitnesses that appellant chased an unarmed Miller, repeatedly shooting at him until he fell to the ground, and then proce eded to un load his weapon into his body. Wright testified that after Miller fell, he was still trying to get away from appellant. This may not be evidence of the plot the juror s question had in mind, but it was evidence of a calculated killing. Deliberation s turning over in the mind on ly requires a showing that a person considered his decision to kill. The lapse of time between the shots to Miller s back and app ellant s approach to wh ere he fell on the ground, combined with the manner in which appellant fired the final round, make it highly imp robable tha t a reasonab le juror would find that appellant formed an intent to kill, but doubt that he deliberated on his decision to do so. Even tho ugh the ev idence in this case is not as con clusive as w as the case in White, 613 A2d. at 879, neither is this a case where there was a complete failure to instruct on an element of the offense. As noted, the jury was first fully instructed on deliberation and it was only in response to a question that a partial reinstruction was given.8 8 We de tect here no change of government theory midtrial or other indication of possible jury confusion, as existed in Hawkins v. United States, 434 A.2d 446, 449 (D.C. 1981), where w e held that the court erred in reinstructing the jury, after deliberations had begun, that it could find either a simple assault, as charged, or a series of assaults, but that it did not hav e to break down the incidents. In Hawkins, the deliberatin g jury sent a note to the trial judge showing it was confused about the issue, whereupon the judge gave the jury additional, but amb iguous, instru ctions wh ich altered the legal theory of the case. In addition, in Hawkins the judge gave an affirmative instruction that the jury in fact did not (contin ued...) 20 III. JUROR BIAS The determination of juror bias or prejudice lies particularly within the discretion of the trial court, reversible only for a clear abuse of discretion . . . and the findings of fact underlying that determination are entitled to great deference. Washington v. Washington Hosp. Ctr., 579 A .2d 177 , 185 (D .C. 199 0) (citatio n omi tted). A trial judge has consid erable discretion in cond ucting a n inves tigation into alleg ed juro r misco nduct. See Leeper v. United States, 579 A.2d 695 at 699 ( the extent and type of the trial court's investigation into the improper contact are confided to the court's discretion and reviewable only for abuse ) (citations omitted). Appellant contends that the trial court abused its discretion in denying his motion fo r a new trial w ithout cond ucting a voir dire of all the jurors to investigate h is claim of juror bias. We do not decide that question because we conclude that within the framework chosen by the trial judge, it was an abuse of discretion to deny the motion for a new trial without further inquiry into the possibility of juror bias. Godw in testified that he mentioned to other jurors that he knew Chaney and her deceased mother and that Ch aney held him respo nsible for an incident that re sulted in relatively minor injuries to her son. He denied feeling any hostility toward Chaney, and also denied that she had vanda lized his car. The trial judge explicitly credited G odwin s testimony that any relationship that [Godwin] had with Ms. Chaney did not im pact upon his 8 (...continued) have to break down the incid ents, id. at 449, which has been held reversible error under the federal practice. Shivers v. United States, 533 A.2d 258 , 263 (D.C. 1987 ). 21 fairness and impartiality in this case, and found that appellant failed to demonstrate that anything said or done by Godwin, or that Godwin s past relationship with members of the Chaney family, ha d any im pact at all on his delibe rations in this case or the v erdict. Relying upon G odwin s te stimony a nd his assertion that he was not biased against Chaney, the trial judge denied appellant s motion for a new trial, without questioning any of the other jurors. We cannot square the judge s conclusion with his acceptance as true of defense counsel s proffer that Chaney would testify that Godwin or his girlfriend had abused Chaney s child, and tha t Chaney had retaliated by destroying the tires and windows of Godwin s car. Also ac cepted as tru e was the proffer that C haney s tes timony w ould challenge Godw in s claim th at he rema ined on good terms with Chaney after her son was injured. It is illogical to credit both a witness s in-court testimony and the proffer that another witness would p resent contrary testimony on a material fact. If the proffer is credited, Godw in was bia sed agains t Chaney , and he co uld have c onveyed his hostility against her to the other jurors. That could have led to their disbelieving Chaney s testimony suggesting that Miller had a gun. Chaney s testimony was the only evidence presented that corroborated appellant s c laim that he acted in self-defense because he was afraid that Miller had a gun and wa s going to sh oot him. T hus, Cha ney s testim ony, if believ ed, was v ital to appella nt s claim that he a cted in s elf-defe nse. Given the direct conflict between G odwin s testimony and defense counsel s proffer of Chaney s testimony, the trial court could not credit Godwin s testimony that he was not biased against Chaney w ithout first evaluating her credibility. If, after hearing from Chaney, there was a po ssibility of bias, the trial judge sho uld have questioned the other members of the jury in order to determine what Godwin told them about Chaney, and how it might have 22 affected their perception of her trial testimony. Without hearing from Chaney and in the absence of voir dire, the trial judge lacked a factual fou ndation to determine w hether there was jury bias requiring a new trial. Acco rdingly, on the present record , the court s determination that appellant suffered no actual prejudice as a result of the prior contact between a witness and a juror cannot stand. We vacate the order denying the m otion for a new trial and remand for further proceedings.9 So ordered.10 9 At oral argu ment, cou nsel for app ellant represe nted that in a s econd affid avit Chaney had denied that she trashed Godwin s car. In that affidavit Chaney also declared that she had informed defense counsel during trial that she recognized Godwin. Appellant moved to supplement the trial record to include C haney s se cond affida vit as part of his claim of ineffective assistance of counsel to show that counsel did not raise the issue of juror bias until after the verdict. The trial court denied this request, and appellant challenges the trial court s ruling excluding the affidavit in No. 02-CO-839. On remand, the trial court may reconsider its ruling on the new trial motion in light of that affidavit, and we express no opinion at this time on the trial court s denial of the appellant s motion to supplement, or on the apparent conflict between Chaney s two affidavits on whether she trashed Godwin s car. We note that the trial record is sparse on the facts underlying Chaney s accusation that Godw in abused her young c hild. The trial court also should con sider on remand whether, even if Godwin did not himself harbor ill will toward Chaney, other jurors could have thought her trial testimony unworth y of belief if they felt she h ad falsely ac cused him of child abuse. 10 We ha ve consid ered and s ee no m erit in appellant s other claims that the trial court abused its discretion by limiting testimony regarding the Condon Terrace Crew, denying appellant s motion to suppress evidence recovered in a warrantless search, and in admitting photographs of the d ecede nt to sho w prem editation and de liberatio n. Other than, possibly, in connection with the question of juror bias that is the subject of the remand, we see no merit to appellant s ineffective assistance of counsel claim.
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