Appeal from the United States District Court of the Virgin Islands (St. Croix) (Crim. Action Nos. 85-70 and 85-71)
BEFORE: SLOVITER, STAPLETON and ROSENN, Circuit Judges
STAPLETON, Circuit Judge:
On July 8, 1985, the First Pennsylvania Bank in Frederiksted, St. Croix was robbed. Appellant Rueben Dowling was arrested and charged with both federal and territorial offenses in connection with the robbery. The first trial for those offense, held in the District Court for the Virgin Islands, resulted in a hung jury on November 14, 1985. On April 2, 1986, after a second trial in the court, a jury convicted Dowling of all charges.
During the second trial, the trial judge received a note from a juror that indicated that the jury had been exposed to extra-record information both about the facts of the case and about Dowling's past criminal record, which included a prior conviction for bank robbery. The judge then addressed the members of the jury in banc and asked each to raise his juror's card if he or she had been exposed to any information that "had rendered [him or her] incapable of giving a fair trial." Appendix to Appellant's Br. at 20. When no one affirmatively responded to its inquiry, the trial court denied the defendant's motion for a mistrial.
On appeal, Dowling asserts that his right to a fair trial was violated by the district court's failure to conduct a thorough and individual examination of each juror. In addition, Dowling contends that the district court committed "plain error" when it failed to ascertain what the members of the jury had heard and thereby make an informed judgment about whether they could be counted on to judge impartially on the basis of the record evidence alone.
Although we find that the trial judge did not abuse his discretion in declining to individually question the jurors, we hold that the trial court committed reversible error in failing to conduct a voir dire of the jury that would have permitted the court to evaluate the potential prejudice to the defendant.
During the period following Dowling's arrest for the bank robbery, he received considerable publicity in the local press. Newspaper articles indicated that Dowling had previously been convicted of bank robbery and had been released from prison on probation in May 1985. The articles further indicated that, following his release, Dowling had been charged and later acquitted of an attempted armed robbery on July 20, 1985. They also indicated that he had been charged with murder for the shooting death of a storeowner arising out of an attempted armed robbery on September 25, 1985.
During the second trial, defense counsel informed the trial court that that morning's edition of the St. Croix Avis contained an article about the trial that revealed that Dowling had previously been convicted of bank robbery, that he had been acquitted of the September shooting death of the storeowner, and that his bail had been revoked following that acquittal. Defense counsel asked that the court determine whether the jury had been expressed to this article and that the court admonish the jury to avoid exposure to media reports relating to the trial. The trial judge then asked the jury in banc whether any juror had read the article in the Avis. Upon receiving no response, the court admonished the jury to ignore media reports relating to the trial until the trial was over. Thereafter the prosecution concluded its evidence and Dowling rested his case without offering any evidence.
Before closing argument, the trial judge received a note from Diane Delgado, an alternate juror, which read as follows:
It is my duty to report to you that one of the jurors is being prejudice [sic] on this case - that we noticed it yesterday when she stated that she listened to the news and read the newspaper - also that she even knew the case from beforehand and other crimes that Mr. Dowling committed. We feel that something must be done before the final part is said.
Id. at 1. The note identified the prejudiced juror as Carmencita Richardson.
The district court informed counsel of the note in chambers and counsel agreed to excuse Richardson. Defense counsel agreed to excuse Richardson. Defense counsel further sought independent, in camera examination of each juror to determine the extent to which Richardson had influenced each juror with information concerning the case and Dowling's prior criminal record. The prosecution argued that the court should utilize general questions to the whole jury to ascertain whether individual questioning would be necessary. The court decided to question Delgado individually and, at least initially, ask only general questions of the entire jury. In speaking of his intentions with respect to the interrogation of Delgado, the trial judge stated," In the course of this I'll ask if she knows of any other jurors to whom these complaints had been communicated and we will go from there." Id. at 17.
At a side bar conference with counsel, the trial judge questioned Delgado as to whether she could be fair to all parties and render a verdict based solely on the evidence presented in this court. Upon Delgado's affirmative response, counsel agreed to seat Delgado in place of Richardson.*fn1 The trial judge then asked whether Delgado had witnessed Richardson supplying "to other jurors any information which would tend to prejudice any other juror." Id. at 19. The following was Delgado's response and the judge's reaction to it:
THE JUROR: In that case I am not too sure. She had mentioned that in front of all of the jurors and they were very uncomfortable about the situation so--
THE COURT: Then I'm going to make a general inquiry of the jurors. Thank you.
Id. Given the context, we believe Delgado's uncertainty was about whether other jurors were in fact prejudiced and not about whether they were exposed to potentially prejudicial information concerning the case and Dowling's criminal record. Clearly, the district court understood the second sentence of Delgado's response to mean that all of the jurors had been exposed to such information.
The district judge then questioned the jury in banc. He asked the jurors to raise their juror's cards if they had "received any information in this matter, that has not been part of the evidence in the case which you consider has rendered you incapable of giving a fair trial to either side in this case." Id. at 20. The court further asked jurors to identify themselves if they were unable to "decide the case solely on the basis of the evidence that has been received in the case." Id. The district court received no response to its questions.
Defense counsel then moved for a mistrial on the ground that Richardson had tainted the jury and that the court's general inquiry was insufficient to determine the extent of the prejudice. Id. at 21. Defense counsel did not request that the court further question the jury in banc. The prosecutor took the mistrial motion to imply a renewed request for individual, in camera questioning of the jurors and objected on the ground that "any more probing [might] result in prejudice." Id. at 22. The trial judge expressed the same concern, but did ask whether any juror would like to discuss the matter privately at side bar. Upon receiving no response, the trial judge denied the motion for a mistrial. Closing arguments ensued.II.
Dowling asserts that the trial judge erred in not questioning each juror individually out of the presence of the other jurors. Where there is a significant possibility that a juror or potential juror has been exposed to prejudicial extra-record information, we have expressed our preference, in general, for individual, in camera questioning of the possibly-tainted juror. Government of the Virgin Islands v. Rosado, 699 F.2d 121, 125 (3d Cir.), cert. denied, 464 U.S. 832, 78 L. Ed. 2d 114, 104 S. Ct. 113 (1983); United States v. Starks, 515 F.2d 112, 124-25 (3d Cir. 1975); United States v. D'Andrea, 495 F.2d 1170, 1173 n.8 (3d Cir.), cert. denied, 419 U.S. 855, 95 S. Ct. 101, 42 L. Ed. 2d 88 (1974); United States ex ...