Boone v. United States

483 A.2d 1135, 1984 D.C. App. LEXIS 520

• Court: District of Columbia Court of Appeals
• Decided: October 2, 1984
• Docket: 82-1584
• Status: Published

Opinions

MACK, Associate Judge:

On May 12, 1982, appellant was charged with assault with intent to kill while armed (D.C.Code §§ 22-501, -3202 (1981)), mayhem and malicious disfigurement while armed (D.C.Code §§ 22-506, -8202 (1981)), and possession of a prohibited weapon (D.C.Code § 22-3214(b) (1981)). The government dismissed the mayhem count on August 6, 1982. Appellant’s jury trial began that same day. On August 9, 1982, the jury returned a verdict of not guilty on the charge of assault with intent to kill, and verdicts of guilty on the lesser-included offense of assault with a dangerous weapon (D.C.Code § 22-502 (1981)) and on the charge of possession of a prohibited weapon. Appellant was sentenced pursuant to the Federal Youth Corrections Act, 18 U.S.C. § 5010(c) (1976), to concurrent terms of up to ten years on each count.

Appellant raises three issues on appeal before this court, but in light of our disposition, we choose to address only one: whether the trial court’s refusal to allow appellant to approach the bench, where prospective jurors were being examined on voir dire, violated appellant’s right to be present at all stages of his trial.¹- We find that the trial court’s ruling did deny appellant a right to be present at trial and that this error requires reversal of appellant’s conviction.

The facts leading to appellant’s conviction may be briefly summarized as follows. On October 27, 1981, at about 9:00 p.m., complainant met appellant and took him to an apartment in the 1500 block of S Street, Northwest. Complainant, then a fifty-six year-old man, and appellant, a seventeen-year-old man, had known one another since June of 1981. According to complainant, the two men ate dinner, had drinks, listened to stereo music and watched television before retiring. Complainant further testified that appellant arose at approximately 8:00 a.m. the next morning, began drinking and suddenly, without provocation or cause, attacked complainant with a razor blade and cut his throat. A struggle ensued, complainant attempted to flee, and appellant, voicing a threat, thereafter left the apartment. (Complainant was treated for his injuries at a local hospital.)

Appellant, testifying on his own behalf, narrated a substantially different account of the incident. According to appellant, he and complainant had engaged in sexual relations on the evening of October 27, 1981, as they had done on previous occasions. On the morning of the incident, complainant asked appellant to perform oral sodomy and when the latter refused and sought to leave, complainant blocked his egress. Complainant then forced appellant back to the bed. As complainant reclined on the bed, appellant, seated on the side thereof, saw a razor blade on a nearby table, cut complainant with it, and escaped.

Appellant contends that his right to be present during all stages of his trial, a right embodied in Super.Ct.Crim.R. 43(a)(2),² was violated by the trial court’s refusal to permit him to be present during that portion of the voir dire examinations of prospective jurors conducted at the bench. Prior to commencement of the voir dire, appellant, in reliance on this court’s decision in Robinson v. United States, 448 A.2d 853 (D.C.1982), reh’g en banc denied, 456 A.2d 848 (D.C.1983), made a clear and timely request to be present at the bench conferences with any prospective jurors. The record indicates that the denial of that request appears to have been made in direct contravention of our decision in Robinson where we held that adherence to Super.Ct.Crim.R. 43(a) requires that a defendant, upon request, be allowed to be present at all stages of voir dire.³ 448 A.2d at 855. Nevertheless, we will look closely at the instant case to determine if there are factual or legal considerations that might place it beyond the rationale or holding of Robinson.

Since our decision in Robinson, we have had two opportunities to elaborate upon the ramifications of a defendant’s right to be present at the bench under such circumstances. In Welch v. United States, 466 A.2d 829, 838-39 (D.C.1983), we held that a defendant’s failure to request to be present or to object to his exclusion therefrom constituted a waiver of his right to be present. And, more recently in Brodis v. United States, 468 A.2d 1335, 1336-37 (D.C.1983), we held that our ruling in Robinson is not to be given retroactive effect. Under the facts at bar, appellant’s trial was commenced after Robinson was decided and a timely request to participate was voiced and then denied. Thus, on the surface, we are confronted with a case in a similar posture to that of Robinson.

In view of the trial court’s expression of confusion, it is instructive to review the underpinnings and policies which precipitated our holding in Robinson. We stated in Robinson that upon request, Rule 43(a) requires a defendant to be permitted to participate at that portion of the voir dire conducted at the bench.⁴ Robinson, supra, 448 A.2d at 855-56. Our holding stemmed from the recognition that this portion of the voir dire constituted a stage of the trial. Id. The overriding concern embraced by Rule 43 is that “after indictment ... nothing shall be done in the absence of the prisoner.” Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892); see Robinson, supra, 448 A.2d at 855; Washington, supra note 4, 227 U.S.App.D.C. at 191-92, 705 F.2d at 496-97. To implement this stricture and to facilitate the defendant’s participation in the jury selection process, we determined in Robinson that first hand observations of prospective jurors at the bench are to be permitted.

The importance of the defendant’s presence at voir dire cannot be overemphasized. The defendant alone has peculiar knowledge about the facts of the alleged incident which brings him before his peers for judgment, about himself, and possibly about any participants or victims. No matter how extensive or involved were prior discussions with his lawyer, what may be irrelevant when heard or seen by his lawyer may tap a memory or association of the defendant’s which in turn may be of use to his defense. As Justice Cardozo writing for the Court in Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) said, the “defense may be made easier if the accused is permitted to be present at the examination of jurors ... for it will be in his power, if present, to give advice or suggestion or even to supersede his lawyers altogether and conduct the trial himself.” See United States v. Alessandrello, 637 F.2d 131, 151 (3d Cir.1980) (Higginbotham, J., dissenting), cert. denied, 451 U.S. 949, 101 S.Ct. 2031, 68 L.Ed.2d 334 (1981).⁵

Concomitant to the importance of defendant’s presence at voir dire so that he may assist his lawyer, is the necessity that the defendant be present so that he may effectively exercise his peremptory challenges. Though the peremptory challenge has never been held to be constitutionally mandated by the Supreme Court, Alessandrello, supra, 637 F.2d at 151-52 (Higginbotham, J., dissenting), the Supreme Court has often noted its significance. See, e.g., Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965) (“a necessary part of a trial by jury”); Frazier v. United States, 335 U.S. 497, 506, 69 S.Ct. 201, 206, 93 L.Ed. 187 (1948) (“an opportunity beyond the minimum requirements of fair selection”); Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894) (“one of the most important of the rights secured to the accused”). Indeed, the trial’s impartiality is, in part, secured by the exercise of the peremptory challenge. See Lewis, supra, 146 U.S. at 378, 13 S.Ct. at 139. It is difficult to articulate what constitutes the basis prompting an exercise of a peremptory challenge. But, it is precisely the vagueness of an impression or intuitive feeling, or the desire “to express an arbitrary preference,” Frazier, supra, 335 U.S. at 506, 69 S.Ct. at 206, which serves to illustrate the need for the defendant to be present when a prospective juror is being examined so that his impressions may be gained first hand. See Robinson, supra, 448 A.2d at 855; Washington, supra, 227 U.S.App.D.C. at 192, 705 F.2d at 497. Surely, just as it is difficult to articulate what induces the exercise of a peremptory challenge, it is improbable to expect a lawyer to be able to relate those impressions gained at the bench to his client. Each impression is, at bottom, a personal one. In this context, we point out that, as a general matter, the only vocal response given by many jurors is to inquiries to which they are directed to respond at the bench where the defendant is unable to hear and to observe their reactions.⁶ The Supreme Court in Lewis, supra, quoting Blackstone stated:

“As every one must be sensible, what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another ... the law wills not that he should be tried by any one man against whom he has conceived a prejudice even without being able to assign a reason for such his dislike.”

146 U.S. at 376, 13 S.Ct. at 138 (quoting 4 W. Blackstone, Commentaries 353). And yet an additional reason is noted by the Court, from Blackstone, to impress further the importance of the peremptory challenge:

“Because, upon challenges for cause shown, if the reasons assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment; to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases, peremptorily to set him aside.”

Id. Undoubtedly, each defendant possesses unique sensibilities. In this case, we find pervasive logic for our position that the impressions of the defendant, characterized as “a male prostitute” by the government, may have differed from those of defense counsel.

In the interest of further instruction, we remind that our holding in Robinson implicitly recognized the constitutional underpinnings of Rule 43 in embracing the standard of review of Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, reh’g denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), for its violation. Subsequently, in Welch, supra, 466 A.2d at 838, we stated that Rule 43(a) “incorporates the protections afforded by the Sixth Amendment Confrontation Clause, the Fifth Amendment Due Process Clause, and the common law right of presence.” See Brodis, supra, 468 A.2d at 1336; Winestock v. United States, 429 A.2d 519, 529 (D.C.1981); Singletary v. United States, 383 A.2d 1064, 1070 (D.C.1978); accord Washington, supra, 227 U.S.App.D.C. at 191-92, 705 F.2d at 496-97; Alessandrello, supra, 637 F.2d at 137-38; United States v. Brown, 571 F.2d 980, 986-87 (6th Cir.1978). Furthermore, we note that the District of Columbia Circuit Court of Appeals has found that the defendant’s right to be present “is an essential concomitant of a defendant’s right to effective assistance of counsel.” Washington, supra, 227 U.S.App.D.C. at 192, 705 F.2d at 497.

Two early cases from the Supreme Court provide instruction as to the meaning of the defendant’s right to be present at trial. In Hopt v. Utah, 110 U.S. 574, 578, 4 S.Ct. 202, 204, 28 L.Ed. 262 (1884), the Court held, based upon a Utah statute, that it was error to exclude the defendant from the selection of jurors. Specifically, the Court stated, “[f]or every purpose, therefore, involved in the requirement that the defendant shall be personally present at the trial, where the indictment is for a felony, the trial commences at least from the time when the work of empanelling the jury begins.” Id. The Court later in Lewis, supra, 146 U.S. at 375-76, 13 S.Ct. at 138, relying in part upon Hopt, held that it was error to require the defendant to exercise his rights of challenge where he “was not brought face to face with the jury until after the challenges had been made and the selected jurors were brought into the box to be sworn.” 146 U.S. at 375-76, 13 S.Ct. at 138. Lewis is often quoted for its statement that “after indictment found, nothing shall be done in the absence of the prisoner.” Id. at 372, 13 S.Ct. at 137. But, while some language in Lems arguably implies that there exists a constitutional right to be present, see id. at 375-76, 13 S.Ct. at 138, other language indicates that the Court referred to the right “as it exists at common law.” Id. at 377, 13 S.Ct. at 139. Any doubt that the Court had not tied the right of presence to a constitutional framework was removed in Snyder, supra, 291 U.S. at 117, 54 S.Ct. at 336, where the Court clarified that language in Hopt and Lewis on the right of presence was, respectively, dictum and discussion on the rule at common law. Although in Snyder, the Court held that a defendant has no constitutional right to be present at a view of the scene of an alleged crime, it did state that “the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Id. at 107-08, 54 S.Ct. at 333; see Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948). Subsequent cases, moreover, recognized that the confrontation clause of the sixth amendment gives the defendant “a right to be present at all stages of the proceedings where fundamental fairness might be thwarted by his absence.” Faretta v. California, 422 U.S. 806, 816, 95 S.Ct. 2525, 2531, 45 L.Ed.2d 562 (1975) (citing Snyder, supra; see also Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970) (the confrontation clause guarantees the defendant the basic right to be present at every stage of the trial).⁷ Furthermore, it has been argued that the “weight of modern authority supports a broad constitutional right of presence.” Proffitt v. Wainwright, 685 F.2d 1227, 1256 & n. 41 (11th Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983); see, e.g., Robinson, supra, 448 A.2d at 855-56; Winestock, supra, 429 A.2d at 529; Washington, supra, 227 U.S.App.D.C. at 191-92, 705 F.2d at 496-97; Bustamante v. Eyman, 456 F.2d 269, 272-74 (9th Cir.1972).⁸

Turning to our review of the instant case, there is no dispute that the trial court’s ruling, denying appellant’s request to be present at the bench during voir dire, constituted a violation of Rule 43 as it has been interpreted by this court. The only issue remaining is whether the government has met the burden of showing what this court has said it must meet, that the trial court’s error was “ ‘harmless beyond a reasonable doubt.’ ” Robinson, supra, 448 A.2d at 856 (quoting Winestock v. United States, supra, 429 A.2d at 529); accord Washington, supra, 227 U.S.App.D.C. at 193, 705 F.2d at 498; Alesandrello, supra, 637 F.2d at 138 n. 11; United States v. Crutcher, 405 F.2d 239, 244 (2d Cir.1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969).

We conclude that the government has failed to show that the error was harmless. As in Robinson, supra, the bulk of the voir dire was conducted at the bench. Approximately 23 prospective jurors approached the bench after responding affirmatively to questions posed by the trial judge. During these bench conferences, which comprise over 30 pages of the transcript, the court inquired further as to whether each prospective juror could render a fair and impartial verdict. Though defense counsel was permitted to consult with appellant at the close of the voir dire, appellant had had no opportunity to hear or to observe the majority of prospective jurors. The government’s evidence, hinging as it did upon the credibility of the complaining witness, could hardly be characterized as strong. The sole defense of appellant was that of self-defense (a theory upon which the judge refused to instruct), and the success of that defense depended upon the jurors’ acceptance of the credibility of a defendant who had admitted engaging in homosexual activities. Yet appellant was refused the right “to assist his counsel in the selection of the jurors,” Arnold v. United States, supra note 8, 443 A.2d at 1327, and his ability to use effectively his peremptory challenges “to express an arbitrary preference,” Frazier v. United States, supra, 335 U.S. at 506, 69 S.Ct. at 206, was severely limited.⁹ In our view this refusal constituted reversible error.

We made an additional observation to address the concerns of the trial judge about the comfort of jurors and the disruption of a customary practice.¹⁰ It is true that for roughly the past ten years, the questioning of jurors on sensitive matters has been conducted at the bench outside of the defendant’s immediate presence and hearing. The circuit court in Washington, supra, 227 U.S.App.D.C. at 191, 705 F.2d at 496, noted that this practice was traceable back to a suggestion made by the circuit court in United States v. Ridley, supra, note 6.¹¹ Ironically enough, however, that practice evolved not out of a concern for the well-being of prospective jurors, but rather in response to a perceived potential for fostering an atmosphere prejudicial to the defendant. See id. at 81, 412 F.2d at 1128. Still, we cannot be insensitive to, or unmindful of, the comfort or the security of persons who perform a public service in the administration of justice;¹² but neither can we ignore the principle that the presence of the defendant is essential to the legitimacy of our criminal justice system. Cf Lewis v. United States, supra, 146 U.S. at 372, 13 S.Ct. at 137. The flexible approach reflected in our decision in Robinson, supra,13 and followed in principle by the circuit court of appeals in Washington, supra, best accommodates these sometimes competing considerations.

We do not intend to convey the meaning that once a defendant’s right to be present at voir dire is invoked, it can only be satisfied by his presence at the bench. The quintessential elements of the right require that the defendant have the ability to hear and to observe jurors’ responses. Thus, we agree with the District of Columbia Circuit Court of Appeals’ observation in Washington, supra, that the trial court might allow alternative procedures where, for example, there are multiple defendants or where security is a problem. 227 U.S.App.D.C. at 192 n. 4, 705 F.2d at 497 n. 4. In this context we suggest that alternatives such as “the use of closed circuit television and the opportunity to consult with counsel,” id., or holding portions of the voir dire either in chambers or in the jury room, or holding the entire voir dire in open court as was once the traditional practice, might satisfy the right to be present. Plainly, an accused has nothing to gain yet much to lose by intimidating a prospective juror during voir dire.

Finally we would remind that the openness of the process of jury selection is a matter of importance to the criminal justice system. The Supreme Court in Press-Enterprise Co. v. Superior Court of California, supra note 12, recently emphasized that public access to the jury selection process “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to the public confidence in the system.” 104 S.Ct. at 823. Addressing the question of whether the voir dire is to be open to the public and press, Chief Justice Burger recognized the “presumptive openness of the jury selection process,” based upon the practice of public selection of jurors traceable to the beginning of the sixteenth century. Id. Although the court conducted its inquiry into values under the first amendment, id. 104 S.Ct. at 824 n. 8; see id. 104 S.Ct. at 827-28 (Stevens, J., concurring), we find formidable logic in the deduction that if the public enjoys a presumptive right to attend the process of jury selection surely the defendant is entitled to the same access. For clearly, “[n]o right ranks higher than the right of the accused to a fair trial.” Id. 104 S.Ct. at 823.

It is therefore ordered that the judgment of the trial court be reversed and the case remanded for a new trial.

So ordered.

1 . We do not address the other two factually-oriented legal issues: whether the trial court's refusal to instruct the jury as to the claim of self-defense was erroneous or whether the trial court’s instructions to the jury on the use of deadly force to prevent the commission of a forcible felony were improper.

2 . Rule 43 reads in pertinent part:

(a) PRESENCE REQUIRED. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this Rule.

3 . In denying appellant’s request to be present at the bench, the trial judge stated:

[Ijt’s a very difficult situation for a judge, ... to confront a situation where his legal opinion is that a panel of the Court of Appeals has reached an erroneous conclusion.

I have read the opinion, I have tried to understand its logic, I have looked at the citations, authorities cited by that panel for the conclusions that it reaches, and I can’t understand how they reached the conclusion.

4 . Recently, the District of Columbia Circuit Court of Appeals has also recognized this right. United States v. Washington, 227 U.S.App.D.C. 184, 191-92, 705 F.2d 489, 496-97 (1983).

5 . Judge Higginbotham, writing in dissent in Al-essandrello, supra, also indicated that while the defendant’s presence at the bench is critical to the attainment of an impartial jury and hence an impartial trial, it is also necessary "to the appearance of impartiality." 637 F.2d at 151. According to Blackstone, " 'how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him Lewis v. United States, supra, 146 U.S. at 376, 13 S.Ct. at 138 (quoting 4 W. Blackstone, Commentaries 353).

6 . The most common such inquiry, known as the “Ridley question," asks whether the juror or a member of his immediate family has recently been a witness to, or a victim of, or arrested for a crime. See United States v. Ridley, 134 U.S. App.D.C. 79, 412 F.2d 1126 (1969).

7 . Arguably; however, to the extent the right of presence is derived from the sixth amendment right of confrontation, it may well be "limited to the stages of the trial when there are witnesses to be questioned.” Snyder v. Massachusetts, supra, 291 U.S. at 107, 54 S.Ct. at 333; see Alessandrello, supra, 637 F.2d at 137 n. 8.

8 . Several courts, nonetheless, have remarked that although Rule 43 has constitutional underpinnings, its scope is broader than the constitutional right it encompasses. See Arnold v. United States, 443 A.2d 1318, 1327 (D.C.1982); Washington, supra, 227 U.S.App.D.C. at 192-93 n. 5, 705 F.2d at 397-98 n. 5; Alessandrello, supra, 637 F.2d at 138; Brown, supra, 571 F.2d at 986 & n. 5. Indeed, relying solely upon Rule 43 the Supreme Court held in Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 2094, 45 L.Ed.2d 1 (1975) that a defendant has the right to be present when the trial judge responds to a communication from the jury. See Alessandrello, supra, 637 F.2d at 138 (Rule 43 provides unqualified right to be present at the jury impaneling); Brown, supra, 571 F.2d at 986 (Rule 43 guarantees right to be present at in-chambers conference concerning the dismissal of a juror). Thus, given the expansive statutory scope of Rule 43, it is difficult to define precisely its constitutional boundaries.

9 .See p. 1138 supra.

10 . The trial court stated:

I have been involved in litigation in this jurisdiction since 1968.... [A]ll of that time, up until I became a judge, it was all criminal litigation_ [I]n every single case ... voir dire was conducted at the bench without the Defendant being present.

There are some obvious practical difficulties with that situation. The first one is this. Jurors are, my experience teaches me, alarmed even at the thought that defendants in a criminal trial may be looking at a jury list that gives their identity. Jurors, as human beings, I believe would be at least uncomfortable in a situation where they are face to face with a person who is going to be on trial while they are revealing intimate things about themselves.

11 . At the trial level in Ridley, jurors responded in open court to questions posed in voir dire as to whether any juror or member of his family had been a victim of a crime. While none of the twelve jurors ultimately chosen had responded affirmatively to those questions, appellant nonetheless argued that the jury panel had been "unduly exposed to a climate prejudicial to one accused of crime.” Ridley, supra, 134 U.S. App.D.C. at 81, 412 F.2d at 1128. The circuit court did not address the allegation of prejudice since the issue was first raised on appeal. However, the court suggested that alternative methods might be considered which would not involve "delay or inconvenience disproportionate to the prejudice which may or may not reasonably be thought to inhere in the present system.” Id. at 81, 412 F.2d at 1128. The circuit court later approved of the procedure whereby prospective jurors, who affirmatively respond to questions indicating that they have had prior contact with the criminal justice system, are examined at the bench outside of the hearing of other prospective jurors. See United States v. Caldwell, 178 U.S.App.D.C. 20, 32 & n. 42, 543 F.2d 1333, 1345 & n. 42 (1974), cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976); United States v. Bryant, 153 U.S.App.D.C. 72, 76-77, 471 F.2d 1040, 1044-45 (1972), cert. denied, 409 U.S. 1112, 93 S.Ct. 923, 34 L.Ed.2d 693 (1973).

12 . In Press-Enterprise Co. v. Superior Court of California, — U.S. -, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) the Supreme Court stated that the presumption of openness attached to voir dire may be rebutted by a prospective jur- or’s affirmative request for closure to protect legitimate privacy interests. Id 104 S.Ct. at 825. But see id. 104 S.Ct. at 826 (Blackmun, J., concurring) (the case need not address or decide whether prospective jurors have such a right to privacy). In so stating, the Court suggested that an in camera proceeding on the record with counsel present might provide a proper recourse. Id. 104 S.Ct. at 825. We can attach no significance to the Court’s failure to mention the defendant’s presence at such a proceeding. The comment was obviously dictum in an opinion expounding first amendment principles in a context where defendant’s trial counsel opposed (along with the prosecutor) the press’ requested release of the transcript of the voir dire.

13 . In Robinson, supra, we chose not to adopt a rule whereby violations of Rule 43(a) would automatically mandate reversal. Instead, we decided to examine each case on "an ad hoc basis.” 448 A.2d at 855-56.