A D.C. man is getting a new trial in a shooting case because a judge improperly let a jury consider a “muttered” statement of a witness, the city’s highest court has ruled.
The D.C. Court of Appeals on Thursday overturned Robert Garrett’s 2008 conviction on assault with a dangerous weapon and other firearms charges.
According to charging documents in the case, Garrett was accused of shooting and wounding a man on the 1200 block of 18th Street NE in January 2007.
During jury deliberations in his trial, the jury sent a note asking if “something is muttered [by a] witness while on the stand that was not in response to a question, can we consider that utterance?”
D.C. Superior Court Judge Harold Cushenberry answered the note by simply saying “yes,” without asking the jury about the remark.
Garrett’s attorneys objected, arguing they had no chance to challenge the admissibility of the utterance because no one knew what statement the jury was asking about.
“Because the court conducted no inquiry of the jury to attempt to determine what remark of a witness it had in mind, and because this left open the real likelihood that the jury gave weight to a witness’s utterance not tested by the adversarial process, we hold that the trial court abused its discretion,” the appellate opinion says.
Cushenberry had expressed concern that asking jurors for more detail would “violate the deliberative functions of the jury,” according to the opinion.
But the appeals court wrote that the court had an obligation to determine whether the jury had been exposed to inadmissible evidence.
The jurors’ note indicated they were “seriously interested” in considering the statement as evidence and considered it “qualitatively different from the normal testimony,” which should have spurred the trial judge to inquire further, the appeals court said.
“Ultimately, we do not see how the government could demonstrate that the jury’s consideration of the utterance was harmless considering that no one knows exactly what the utterance was,” the opinion said.
Bill Miller, a spokesman for the U.S. Attorney’s Office in D.C., said the office was reviewing the opinion and had no immediate comment.
