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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 11-CF-1442

TYRONE C.JACKSON, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court 

of the District of Columbia

(CF3-26074-09)

(Hon. Gerald I. Fisher, Trial Judge)

(Argued February 4, 2014 Decided August 7, 2014)

Daniel Gonen, Public Defender Service, with whom James Klein and Sloan 

S.J. Johnston, Public Defender Service, were on the brief, for appellant.

Allen O’Rourke, Assistant United States Attorney, with whom Ronald C. 

Machen, Jr., United States Attorney, and Elizabeth Trosman, Elizabeth H. 

Danello, George Pace, and Kathryn L. Rakoczy, Assistant United States Attorneys, 

were on the brief, for appellee.

Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and 

STEADMAN, Senior Judge.

STEADMAN, Senior Judge: A T-Mobile Google cell phone with a dead 

battery was introduced into evidence at the joint trial of appellant Tyrone C. 

Jackson and his co-defendant, Alex Dickens, its owner. The cell phone was given 
2

to the jury along with other evidence to have during deliberations. On its own, the 

jury managed to activate the cell phone and peruse its contents. After inquiry, the 

court denied appellant’s motion for a mistrial and instead gave a limiting 

instruction. The issue on appeal is whether, in so doing, the court abused its 

discretion. We hold that it did not and affirm appellant’s convictions.

1

I. Factual Summary

A. The Conflicting Accounts

The charges in this case arose from events that took place at 2439 25th 

Street SE on December 9, 2009. The police discovered complainant Christopher 

McClain wrapped in duct tape on the floor of a vacant basement apartment. Two 

sharply differing stories were presented to explain the precursory events, one by 

McClain for the government and one by appellant for the defense, which may be 

summarized as follows.

 

1

 The jury convicted appellant of one count of kidnapping while armed, 

D.C. Code §§ 22-2001, 22-4502 (2012 Repl.), and one count of armed robbery,

D.C. Code §§ 22-401, 22-4502(2012 Repl.). The jury either acquitted or hung on 

the several remaining counts against appellant and on all of the charges against 

Dickens. 
3

McClain, a self-employed mover, testified that he went to that address

around 7:30 p.m. on December 9, 2009, to provide a moving estimate for a woman 

named “Nikki.” As he entered the building, he was dragged into the vacant 

apartment by appellant. There appellant, with the help of two other men who were 

already in the apartment, bound and robbed McClain at gunpoint. Several 

witnesses in the area reported they had seen men matching McClain’s descriptions 

running from the area and police shortly found appellant by himself, out of breath 

and covered in sweat, not wearing workout clothes but claiming he was out 

jogging. Once police brought appellant to the scene for identification, McClain 

identified him as the man he had been “tussling” with inside the apartment. Police 

also stopped co-defendant Dickens who was running away from the area, but 

appellant could not identify him, explaining that the other assailants had been 

wearing masks. Dickens—who was employed as the maintenance man at the 

building where the incident took place and had keys to all the locks in the building, 

including the vacant apartment—had his wife’s SUV located behind the apartment 

building with his wallet, the cell phone, and duct tape in a tool box in the rear 

cargo area. There was conflicting testimony between the officers about whether 

the keys were in the ignition with the motor running and the doors were open or 

the ignition was turned off and the doors were locked. 
4

In sharp contrast, appellant testified that McClain, a previously convicted 

drug dealer, was robbed and assaulted during a drug deal, and that McClain lied 

about appellant’s role in the incident to hide his own illegal conduct and to curry 

favor with authorities, given his criminal record and his other ongoing criminal 

matters.2 Appellant testified that he and McClain were acquainted through Larry 

McMichael, a club promoter for whom appellant worked security. Larry called 

him at his home the day of the incident, asking if appellant could work that 

evening, and he said yes, assuming that Larry was referring to security work at the 

club. When Larry called back with details, appellant learned that the job was 

accompanying a mutual acquaintance, McClain, to a drug transaction as “back-up.”

When appellant followed McClain into the empty apartment, a man pulled a gun 

on McClain and himself, and a second man frisked and disarmed McClain. A third 

man appeared who tried to rob and restrain McClain while the gunman kept both 

men in his sight until someone announced that the police were out front, causing 

the assailants to flee. Appellant denied that Dickens was any of these three men. 

Appellant explained that he fled the apartment before police arrived because he 

 

2 Mr. McClain admitted that at the time of the incident in this case and his 

November 2009 drug arrest, he was on probation in three different counties in 

Virginia, and faced up to twenty years in prison if he violated probation by 

breaking the law. 
5

was on probation and feared arrest. Police searched appellant but found none of 

the items McClain claimed were taken during the robbery. 

B. The Activated Cellphone

After deliberating for several days and sending multiple notes to the court, 

the jury sent a note asking: “Are the electronic contacts on Alex Dickens’s cell 

phone admissible, such as contact lists etc.?” Before responding, the court

conferred with the parties, none of which had reviewed the contents of Dickens’s 

cell phone prior to trial because the phone’s battery was dead. Everyone agreed 

that they needed more information. The court brought the jury to the courtroom 

and asked the foreperson whether the jury had already accessed the electronic 

contacts and was told that the jury had “gone through them.” Counsel and the 

court talked further about what the next step should be, in the course of which 

appellant’s counsel said “I think my request is to ask further questions about what 

exactly they’re – what discussions have –” and the court interrupted “I can’t ask 

them about their discussions. I think that would be an improper intrusion on the 

jury deliberations.” The court suggested that the next step should be to retrieve the 

phone and find out what exactly its contents were, to which all parties agreed. At 

appellant counsel’s suggestion, the court recalled the jury and posed an additional 
6

question: “[w]ith regards to the cell phone, beyond the contacts, did the jury look 

at any other part of the cell phone?” The foreperson responded, “Yes, yes.” The 

court then decided to allow the parties to figure out how to charge the phone and 

examine its contents overnight. 

The next day, the court began by asking the parties what relevant 

information they had found on the phone. The parties determined that the only 

contents of potential interest to the jury were: (1) two e-mails from a person 

named “Larry,” “in the nature of a mass e-mailing advertising a restaurant/bar on 

Benning Road and a specific date of an event” sent on December 4th; (2) a contact 

named “Larry” in the cell phone’s contact list; and (3) a phone call listed in the 

phone’s call records, showing that co-defendant Dickens’s phone received a call 

from “Larry’s” number at 3:09 p.m. on the date of the offense. There was no 

response to either of the e-mails, and there was no last name attributed to “Larry” 

anywhere on the phone. 

The court then asked counsel what prejudice would result from the jury’s 

exposure to this information. Appellant’s counsel immediately asserted that the 

phone’s contents were not in evidence and the jury should not have been allowed 

to consider them, and he asked for a mistrial. Co-defendant Dickens’s counsel 
7

explained that the “Larry” contact and communications were troubling because the 

jury could easily assume it was Larry McMichael, the alleged mastermind behind 

the drug-deal robbery, contrary to the assertions during trial that “there was no 

connection to any Larry.” Appellant’s counsel explained that had he known of this 

evidence, he would have moved for severance, and spent more time addressing codefendant Dickens’s role in the offense. 

At the suggestion of co-defendant’s counsel, the court decided to make still 

further inquiry of the jury to determine precisely what categories of information 

the jurors accessed on the phone. The jury responded with a note stating that it had 

reviewed Dickens’s emails, texts, call logs and contacts list and denied having 

accessed any other categories. The court then stated that in its view, the only 

question remaining was whether to give a limiting instruction. At that point, codefendant’s counsel joined appellant in requesting a mistrial, noting the particular 

prejudice imposed on his client by the Larry phone number. Appellant’s counsel 

said that, without abandoning his motion for a mistrial, he was requesting the court 

in the alternative to “issue a strong curative instruction and instruct [the jury] not to 

consider this evidence.” Neither counsel asked the court to engage in any further 

inquiry of the jury. The court then denied a mistrial without prejudice and penned 
8

a proposed instruction that both parties agreed to “in light of the court’s ruling on 

the mistrial.” The court gave the following instruction.

Government Exhibit Number 76, the telephone, was 

introduced for two purposes only – its location where it 

was found and the telephone number that belongs to it. 

The other contents of the phone are not in evidence. And 

you may not consider the other contents at all in reaching 

your decisions in this case. 

Appellant’s counsel renewed his motion for a mistrial after the jury

delivered its partial verdict shortly before 3 p.m., the same afternoon that the court

gave the limiting instruction. The court reiterated its conclusion that the evidence 

on the cell phone did not “actually detract[] from your client’s situation” and 

denied the renewed mistrial motion.

II. Analysis

Appellant argues that the court abused its discretion, first by failing to 

conduct a sufficient inquiry of the jury to determine whether it had been tainted by 

its review of the contents of co-defendant Dickens’s phone and, further by denying 

his motion for a mistrial and instead instructing the jury to disregard the contents 
9

of the phone. “‘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.’” Al-Mahdi v. United States, 867 A.2d 1011, 1019 (D.C. 2005) (quoting 

Leeper v. United States, 579 A.2d 695, 699 (D.C.1990)). Juror partiality is not 

“‘presumed’ or ‘imputed’ from the fact alone of the juror’s exposure to extraneous 

material.” Hill v. United States, 622 A.2d 680, 684 (D.C. 1993). “The remedy for 

a claim of juror partiality or taint is a thorough inquiry by the trial judge into 

whether the defendant suffered actual prejudice.” Hill, 622 A.2d at 684 (emphasis 

in original); see Smith v. Phillips, 455 U.S. 209 (1982); Shannon & Luchs Mgmt.

Co. v. Roberts, 447 A.2d 37, 41 (D.C. 1982). The court must determine whether

“the judgment of the jury was substantially swayed by the presence of the 

unauthorized evidence in the jury room.” Moore v. United States, 927 A.2d 1040, 

1063 (D.C. 2007). It is “usually appropriate for the judge to take charge of the 

inquiry and to take the initiative in questioning jurors and eliciting the facts.” AlMahdi, 867 A.2d at 1018-19 (citation omitted). The parties, however, “must be 

afforded . . . a fair opportunity to help ‘fashion the proper inquiry’ and pose 

appropriate questions of their own.” id. (quoting Hill, 622 A.2d at 686). “‘An 

assessment of juror bias [may] require [ ] consideration of a number of factors, 

including the nature of the communication, the length of the contact, the possibility 

of removing juror taint by a limiting instruction, and the impact of the 
10

communication on both the juror involved and the rest of the jury.’” Al-Mahdi,

867 A.2d at 1019 (quoting Williams, 822 F.2d at 1188-89). Ultimately, “‘the

extent and type of the trial court’s investigation into the improper contact are 

confided to the court’s discretion.’” Id. (quoting Leeper, 579 A.2d at 699). 

This court also reviews a denial of a motion for a mistrial because of jury 

exposure to non-admitted evidence for abuse of discretion. See Ransom v. United 

States, 932 A.2d 510, 517 (D.C. 2007); Moore, 927 A.2d at 1063. “A mistrial is a 

severe remedy – a step to be avoided whenever possible, and one to be taken only 

in circumstances manifesting a necessity therefore.” Thompson v. United States, 

45 A.3d 688, 695 (D.C. 2012). “If ‘the improperly admitted evidence could not

have substantially swayed the jury,’ the trial court did not abuse its discretion by 

denying appellant a mistrial.” Moore, 927 A.2d at 1063 (quoting Parker v. United 

States, 601 A.2d 45, 53 (D.C. 1991)).

In the instant case, both the court and the respective trial counsel were 

presented with a difficult and delicate situation. They struggled over a span of two 

days (and 74 pages of transcript) on the question of the proper actions to be taken 

in response to the unexpected event. As already set forth in detail, the court here

proceeded prudently and carefully. First, the court assessed the nature of the 
11

communication. When the jury sent the note asking, “are the electronic contacts 

on Alex Dickens’s cell phone admissible, such as contact lists etc.?” the court 

confirmed with the foreperson that the jury had already accessed the contents of 

the phone. Next, the court retrieved the phone from the jury, again consulted the 

jury as to whether they had accessed any contents other than the contacts list, and

conferred further with the parties, permitting them to review the contents of the 

phone overnight. Then, the following day, the court asked the parties what 

relevant information was on the phone, and they identified the three contents of 

potential interest to the jury. Next, the court assessed the possible prejudice, 

asking the parties what prejudice they believed would result from the jury’s 

exposure to this information. The court consulted the jury yet a third time, asking 

it to clarify exactly which categories of information the jurors accessed on the 

phone. Finally, after further discussion, the court gave a limiting instruction. 

Appellant now claims that the court should have inquired further into 

possible prejudice, although he did not ask for any further inquiry beyond that 

made by the court. Appellant makes much of the fact that he asked the court to 

inquire into what “discussions” the jury had had about the cell phone material and 

the court’s comment that such an inquiry “would be an improper intrusion on the 

jury deliberations.” Appellant, however, did not challenge that comment. At no 
12

point subsequently did either counsel suggest making any inquiries beyond what 

the court had made in three separate consultations with the jury, but rather pressed 

for a mistrial. In particular, appellant never subsequently asserted, as he argues 

now on appeal, that the court was obliged to individually question the jurors about 

“how, why, or when” the jury accessed the phone’s contents and whether the jurors 

could disregard what they had learned. Neither of these inquiries would have 

involved an exploration of the “discussions” about which the court was concerned. 

“An objection must sufficiently articulate the objecting party’s argument to 

preserve the claim on appeal.” Timms v. United States, 25 A.3d 29, 36 (D.C. 

2011). 

Moreover, appellant’s initial concern over the jury’s “discussions” of the cell

phone contents occurred almost at the very beginning of substantive discussion 

about what steps to take, before any concrete information had been obtained as to 

what exactly had been accessed. Indeed, a hasty inquiry at that point into the jury 

deliberations without further information could itself have been the subject of 

criticism. In any case, here, just as in Leeper, “[a] fair reading of the colloquy 

between court and counsel, suggests that defendant’s counsel wanted the judge to 

declare a mistrial, rather than to ask additional questions.” Leeper, 579 A.2d at 

700-01. While of course the court could have very well engaged in some further 
13

questioning, of the jury, we do not think it abused its discretion, especially in the 

absence of any request for further inquiry, in determining that a limiting 

instruction, as appellate counsel alternatively proposed, would be sufficient to 

remove any prejudice. 

With respect to prejudice, “[f]ollowing a proper hearing, 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.” Leeper, 579 A.2d at 698

(citations omitted). We see no basis to second-guess the court’s determination, 

made by one intimately familiar with the trial proceedings, that with the limiting 

instruction the material found on the cell phone would not and did not 

“substantially sway” the jury. Moore, 927 A.2d at 1063. Even if the evidence was 

taken to establish a link between Dickens and McMichael, the degree to which this 

link undermined appellant’s (as opposed to Dickens’s) defense remains

questionable. Indeed, this evidence would seem to corroborate appellant’s theory 

of the case that he was a victim and there was a link between McMichael, who 

allegedly orchestrated the attack, and appellant’s attackers, which Dickens could 

have facilitated. This was precisely the court’s observation when it stated, “I don’t 

see how the evidence connecting Mr. Dickens stronger [sic] to these events 
14

actually detracts from your client’s situation.” 

Furthermore, unlike Hill v. United States, on which appellant relies, the link 

between Dickens and McMichael was not the “primary factual issue before the 

jury,” or critical to appellant’s defense, as was the identification issue in Hill that 

was implicated by the juror’s visit to the crime scene the night before deliberations 

to inspect the lighting conditions himself. Hill, 622 A.2d at 884-85. Here, the 

major issue before the jury was what role appellant had in the events—whether he 

participated in the assault, or was a victim himself. It is difficult to see how a 

possible link between Dickens and Larry McMichael would have significantly 

altered the jury’s view of that issue. 

Finally, the jury’s examination of the cell phone was not the result of any 

advertent misconduct or impropriety, as the phone was an exhibit admitted into 

evidence without objection or limitation. The “inference of prejudice is 

significantly weaker than in cases where the contact was improper rather than 

innocent.” Leeper, 579 A.2d at 699 n.9. The inference is especially weak here 

given the jury’s decision not to convict co-defendant Dickens on any count. The

jury’s verdict suggests it followed the court’s limiting instruction to disregard the 

contents of the phone. We “presume that a jury follows the court’s instructions, 
15

absent any indication to the contrary.” Lewis v. United States, 930 A.2d 1003, 

1008 (D.C. 2007). 

For these reasons, the court’s decision to instruct the jury rather than declare 

a mistrial was not an abuse of discretion. Accordingly, the judgment of conviction 

appealed from must be

Affirmed.