Jonathan Blades v. United States

• Court: District of Columbia Court of Appeals
• Decided: January 23, 2019
• Docket: 15-CF-663
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15-CF-663

JONATHAN BLADES, APPELLANT,

V.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the District of Columbia (CF1-2153-14) (Hon. Michael Ryan, Trial Judge) (Argued October 17, 2017 Decided January 23, 2019) Fleming Terrell, Public Defender Service, with whom Samia Fam and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellant. Nicholas P. Coleman, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time, and Elizabeth Trosman, Elizabeth H. Danello, Scott Sroka, and Christopher Macchiaroli, Assistant United States Attorneys, were on the brief, for appellee. Before THOMPSON and BECKWITH, Associate Judges, and FARRELL, Senior Judge. Opinion of the court by Associate Judge THOMPSON.

Opinion by Senior Judge FARRELL, concurring in part and concurring in the result, at page 35.

Dissenting opinion by Associate Judge BECKWITH at page 38. 2

THOMPSON, Associate Judge: Following a four-day jury trial, appellant was

convicted of assault with intent to kill while armed (“AWIKWA”) (firearm), two

counts of possession of a firearm during a crime of violence (“PFCV”), aggravated

assault while armed (“AAWA”) (firearm), possession of an unregistered firearm

(“UF”) and unlawful possession of ammunition (“UA”). Appellant asks this court

to reverse all of his convictions, contending that the trial court reversibly erred by

employing a husher during the voir dire of prospective jurors, in admitting a photo

array containing mugshots even though identity of the shooter was not an issue, in

not intervening when the prosecutor made certain remarks during the government’s

closing argument, and in giving a jury instruction on provocation. For the reasons

that follow, we affirm.

I.

The charges against appellant were based on an incident that occurred in the

early morning hours of February 2, 2014, outside of Look Lounge, near the

intersection of 20th and K Street, N.W. Johnny Campbell testified that he was

leaving the Look Lounge nightclub around 2:40 a.m. on that morning with his

friends Jeremy Paige and “Rob” and was turning right to walk to his car when he

ran into Areka Mitchell, with whom he had gone to high school. Campbell greeted 3

Mitchell, and Mitchell introduced appellant to Campbell as her fiancé. Campbell

testified that appellant then said in an “angry” voice, “Who the fuck are you?” and

“something like” “What are you all, like school buddies or study buddies?”

Campbell and appellant were “in each other’s face,” and appellant then struck

Campbell in the face.

Campbell testified that he hit appellant back and they began fighting.1

Appellant was on the ground when Campbell “felt a blow to [his] head,” which

“stunned [him],” and then felt a second blow to his head, which “shook [him] up”

and “made [him] get up off of [appellant].” Campbell then heard appellant say

either “I’m going to get my shit” or “[w]here’s my shit,” words that Campbell

understood to mean that appellant was “going to get [his] gun.” Campbell also

heard Mitchell say, “[h]e’s getting ready to bust your ass,” which Campbell

understood to mean that he was “about to get shot.” Campbell testified that he ran

diagonally across 20th Street, eventually turning left onto L Street. As he was

running across 20th Street, he heard gun shots, causing him to “r[u]n even faster,”

and he saw “[appellant] with [his] car door open . . . [and] fire coming from the

gun” in appellant’s hand. At some point, Campbell became aware of “a hole in

1 Appellant testified that before the fighting began, Rob left “to get the car for another buddy that was inside” and thus was not on the scene. 4

[his] back” and that he “couldn’t lift [his] arm up.” He eventually ran into a nearby

Exxon station where an ambulance was called and took him to a hospital. 2

Paige, Campbell’s friend since childhood, testified that he and Campbell

were walking to Campbell’s car when appellant called out to Campbell and got “in

[Campbell’s] face.” Paige testified that appellant pushed Campbell in the chest,

that Campbell responded by hitting appellant in the face, and that the two men “got

to grappling with each other.”3 Appellant then fell over a planter, and Campbell

“punch[ed] [appellant] against [appellant’s] car.” That was when Mitchell began

hitting Campbell in the back of his head with her high-heeled shoe. After this,

appellant and Campbell both got up and the fight continued in the middle of 20th

Street, at which time Paige was “trying to guide [Mitchell] from hitting [Campbell]

in the back of the head.” Paige testified that Campbell then “caught [appellant]

with two or three good shots,” and appellant fell to the ground. Campbell went

directly “across the street from [appellant’s] car,” and Mitchell “followed

[Campbell], screaming.” Paige “thought the fight was over,” but then saw

appellant, who had a gun in his hand, “reach[] in[to] the back seat” of his car

2 Campbell also testified that shortly after the shooting ceased, he saw appellant’s car coming at him and was hit and “rolled off the car.” Appellant was found not guilty of the charges related to this allegation. 3 Paige agreed that Campbell threw the first punch. 5

(which the testimony indicated was parked on 20th Street between K and L Street),

“load[] the magazine into the gun,” and “start[] shooting.” Paige testified that “it

seemed like [appellant shot] probably seven to eight bullets” but that “[i]t could be

more.” Paige testified that no one was physically hitting appellant at the point

when appellant started shooting and that there was no one near appellant who was

a physical threat to appellant at that time. Paige denied hitting, punching, or

kicking appellant or otherwise participating in the fight and testified that none of

the friends who had been with him and Campbell at the club was participating or

even standing around during the fight.

Metropolitan Police Department (“MPD”) Officer James Burgess, who was

with the MPD Crime Scene Investigations Division, collected evidence from the

scene of the shooting, including nine cartridge casings, one bullet fragment, and

two bullets. The cartridge casings were all found on 20th Street. Officer Burgess

testified that one of the bullets was found inside a newspaper box on L Street, near

the corner of 20th and L Street, and that the other bullet was found a little further

west on L Street.

Daniel Barrett, a firearms and toolmark examiner with the Department of

Forensic Science, testified that all nine cartridge casings were the same caliber and 6

from the same manufacturer and had the same caliber and manufacturer as casings

recovered from inside a semiautomatic firearm found in appellant’s residence. Mr.

Barrett further testified that “shell casing[s] . . . eject to [the shooter’s] right side”

and “bounce when [they] hit[] the cement.” Looking at Government Exhibit 40,

which depicted where the shell casings were found on 20th Street, Mr. Barrett

testified that the locations were “indicative of [the shooter] being off to the left and

walking in a straight line,” up 20th Street toward L Street.

Dr. Bruce Abell, the trauma surgeon who attended to Campbell on the

morning of the incident, testified that Campbell presented with abrasions to his lip

and face, swelling that was “consistent with someone being punched,” and “a small

laceration” on his scalp, which was “consistent with hitting something or being hit

by something.” Dr. Abell further testified that a bullet pierced and then left

Campbell’s body and that there was a wound in his left shoulder and on his back.

Dr. Abell could not tell which of the wounds was an entrance wound and which

was an exit wound. He opined, however, that the wounds were consistent with

Campbell’s “facing away from the shooter, but to an angle” and were “not

consistent with [Campbell’s] facing a shooter.” Dr. Abell also noted that “with

short range gunshots, . . . you can actually see some changes on the skin at the

entrance wound, . . . [i.e.,] stippling,” which Dr. Abell did not see on Campbell. 7

Dr. William Bruchey, an expert in firearms examination, ballistics, and

crime scene reconstruction, testified in the defense’s case that there is a

“randomness to the shell casing pattern” of a semiautomatic pistol. Based on

where the shell casings were found on 20th Street, Dr. Bruchey opined that the

shooter was “relatively stationary” rather than walking. Asked on cross-

examination how he accounted for the bullet “recovered further left on L Street,”

Dr. Bruchey said that a newsstand when hit by a bullet “can make [the bullet] take

a left turn.”

Appellant testified that after leaving Look Lounge on the early morning in

question, he went to retrieve his car, with the intent of pulling it in front of the club

to pick up his fiancée, Mitchell. The valet parking obstructed appellant from doing

this, so he turned right onto 20th Street and found an open parking spot

immediately upon turning. After parking, he reached into his glove compartment

and retrieved his loaded gun and put it on his hip “for protection” because he had

been shot about two months previously after leaving a club. The bullet from that

shooting had gone through his arm and into his chest and remained lodged there at

the time of the trial. 8

Appellant testified that he went to the front of the club and found Mitchell

and was walking back to his car with her when they encountered a group of three

guys who “were being loud[and] belligerent.” One was Campbell, and appellant

testified that Campbell “grabbed [Mitchell] by the hips and pulled her close” and,

when Mitchell “pushed his hand off her,” “kept on approaching, [and being]

aggressive toward her.” Appellant then grabbed Campbell’s shoulders, and turned

him around, and the two of them “had verbal words.” During this time, appellant

testified, Mitchell was pulling appellant away “because she . . . didn’t want the

argument to escalate” and walking towards the car. When appellant reached the

driver-side door but before he could get into the car, Campbell “ran up” and

punched him in the face. Campbell and appellant started fighting, and Paige “ran

over and . . . started . . . swinging at [appellant],” “hitting [him] on top of [his]

head,” and it became “like a moving brawl.” Appellant testified that he heard Rob

say “move back, let me stab him.” Appellant then “pushed off as hard as [he]

could” from the two others and reached for his gun and “pulled the trigger[] as fast

as [he] could,” afraid that one of the men would try to take the gun from him.

Appellant testified that he was concerned about “what would happen to . . . [the]

bullet in [his] chest” if he was hit the wrong way, that his intent was “to just get

them off of me” and “stop them from jumping me,” and that it was not his intent to

kill Campbell. Appellant told the jury that he was “disoriented from getting hit” in 9

the head and could not “see straight” because he had blood in his face and eyes, but

stopped shooting after he “started to come to and started to see clearly” and noticed

that “the threat wasn’t there” and the other men were not in front of him.

Appellant acknowledged that he fired nine shots but said that he did not think he

hit anyone and therefore just returned home after the shooting.

The jury received a verdict form that instructed jurors to consider whether

appellant was guilty of the lesser-included offense of assault with a dangerous

weapon (firearm) if they acquitted appellant of the AWIKWA (firearm) charge.

The jury found appellant not guilty of AWIKWA (automobile), assault with a

dangerous weapon (automobile), and AAWA (automobile). This appeal followed.

II.

We turn first to the issue appellant raised for the first time in a supplemental

brief, which this court granted him leave to file. In seeking permission from the

court to file the supplemental brief, counsel explained that it had come to her

attention that she “failed to raise a preserved issue of constitutional importance in

[a]ppellant’s opening brief: the denial of [appellant’s] right to a public trial during

jury selection,” an issue that counsel said was “essential to raise . . . on appeal in 10

order to provide effective assistance to [appellant].” The government did not

oppose appellant’s motion to file a supplemental brief, but asserts in a footnote to

its supplemental opposition brief that the court could treat the claim raised in the

supplemental brief as waived, as this court typically does with arguments raised for

the first time in a reply brief or during oral argument. Given counsel’s

commendable candor and the importance of effective assistance of counsel, we

elect to consider the “public-trial” issue raised in the supplemental brief.

The record shows that the court posed voir dire questions to prospective

jurors in open court and, thereafter, questioned individual jurors about their

responses at the bench, with the husher turned on to prevent everyone except the

court, the attorneys, appellant, and the court reporter from hearing the exchanges

that followed.4 As the court described the procedure, it entailed “doing the

examination up at the bench and leaving seats in the back of the courtroom for the

public and authorizing access to the proceedings as appropriate or where requests

are made.” Appellant’s contention in his supplemental brief is that the trial court

violated his constitutional right to a public trial by conducting individual-juror voir

4 “A ‘husher’ is a mechanical, white noise device intended to foster the confidentiality of conversations at the bench (in this case, to protect the privacy of prospective jurors).” Barrows v. United States, 15 A.3d 673, 681 n.13 (D.C. 2011). 11

dire at the bench with the husher turned on, an arrangement that prevented the

public from hearing the exchanges that occurred. Appellant asserts that the trial

court failed to make the findings required by Waller v. Georgia, 467 U.S. 39, 48

(1984) (“[T]he party seeking to close the [courtroom] must advance an overriding

interest that is likely to be prejudiced, the closure must be no broader than

necessary to protect that interest, the trial court must consider reasonable

alternatives to closing the proceeding, and it must make findings adequate to

support the closure.”). 5 Appellant asserts that in the absence of such findings, use

of the husher to preclude the public from hearing the voir dire exchanges at the

bench was structural error, entitling him to reversal of his convictions without a

required showing of prejudice or harm (and, accordingly, appellant has not

attempted to show prejudice from use of the husher).

In raising the public-trial issue in the trial court, appellant asserted that there

was no “compelling interest to exclude the public” and that conducting the jury

selection process “with the husher on albeit with . . . seats in the back of the

courtroom open . . . to people to sit in on a husher,” i.e., “where the matters can be

5 But see Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992) (joining the Ninth, Tenth and Eleventh Circuits in concluding that “when a trial judge orders a partial, as opposed to a total, closure of a court proceeding at the request of one party, a ‘substantial reason’ rather than [an] ‘overriding interest’ will justify the closure”). 12

seen but not heard,” was “not consistent with what the Constitution envisioned as

being an open trial.” The trial judge acknowledged that the public and the press

“have a right to participate” and a “right to get every syllable of th[e]

conversations” that occur at the bench during voir dire, a right the court reasoned,

however, “can get effectuated in different ways.” In denying appellant’s request to

proceed without the husher, the trial judge cited his concern about “the candor of

prospective jurors,” which he said was “[b]ased on 20 years of being a trial lawyer

and more than 10 years of being a [j]udge.” The judge explained that it was his

“experience and belief that [potential jurors] are less forthcoming in response

especially to sensitive questions when they don’t have, at least, the cover of the

husher and being up at the bench.”

The Sixth Amendment to the United States Constitution provides in

pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right

to a . . . public trial . . . .” U.S. Const. amend. VI. The Supreme Court has

recognized that the guarantee of a public trial extends to the voir dire examination

of potential jurors. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 504-10,

(1984) (considering the issue under the First Amendment); Presley v. Georgia, 558

U.S. 209, 213 (2010) (“[T]here is no legitimate reason, at least in the context of

juror selection proceedings, to give one who asserts a First Amendment privilege 13

greater rights to insist on public proceedings than the accused has [under the Sixth

Amendment].”). As this court has observed, “it is only under the most exceptional

circumstances that limited portions of a criminal trial may be closed even partially

to the public.” Kleinbart v. United States, 388 A.2d 878, 883 (D.C. 1978). We

held in Kleinbart that “[w]here the trial court has improperly excluded the public

or a portion thereof from the courtroom during a criminal trial, and the accused has

made timely objection to such exclusion, prejudice will be presumed without

placing the burden upon the accused to show actual harm to justify reversal.” Id. at

882 (reversing Kleinbart’s conviction because, during the testimony phase of his

trial, “the courtroom was locked upon order of the trial court,” which thereby

“closed [the] trial to all the public for a portion of at least one day” “for no

articulated reason,” id. at 879, 881, 883 (emphasis in the original)).

The government argues that appellant’s claim that he is entitled to reversal

of his convictions without any showing of actual harm is foreclosed by this court’s

holding in Copeland v. United States, 111 A.3d 627 (D.C. 2015): “We hold that

the long-standing practice in this jurisdiction of conducting individual voir dire at

the bench, within the view but outside the hearing of the public, is not a structural

error.” Id. at 634-35. Appellant discounts that explicit “hold[ing],” asserting that

it was not “needed to resolve Copeland’s ineffective assistance [of counsel] claim 14

[that was premised on counsel’s failure to inform Copeland of his right to be

present at the bench during the voir dire of individual jurors]” and thus was dictum,

and arguing in addition that the “hold[ing]” announced in Copeland is inconsistent

with this court’s holding in In re Access to Jury Questionnaires, 37 A.3d 879 (D.C.

2012).

Even assuming arguendo that the pertinent “hold[ing]” in Copeland was

dictum, we reach the same conclusion here, for the reasons the Copeland court

articulated and others. As we said in Copeland, “[w]hen questioning occurs at the

bench, the public can still observe the proceedings,” thus “further[ing] the values

that the public trial right is designed to protect,” and can “hear the general

questions posed to the jury panel.” 111 A.3d at 634 (internal quotation marks

omitted). We emphasized that when the husher is used during individual voir dire

questioning at the bench, “[t]he courtroom [i]s not closed, no one [i]s excluded

from observing voir dire, and a transcript of the proceeding is available.” Id. at

633. We explained that the husher procedure is “designed, in part, to protect a

juror’s privacy and to encourage potential jurors to be forthright when they might

otherwise be reluctant to discuss personal experiences or private matters” and also 15

“to prevent a potential juror’s answers to voir dire questions from prejudicing other

members of the venire.” Id. at 634.6

In general, courts have found there to be full or partial courtroom closures

only where some or all members of the public are precluded from perceiving

contemporaneously what is transpiring in the courtroom, because they can neither

see nor hear what is going on. For example, in Presley, 558 U.S. 209, the Court

held that the defendant’s right to a public trial was violated when the trial court

excluded the public, including the defendant’s uncle, from the courtroom during

voir dire of prospective jurors, to prevent jurors from overhearing some

inadvertent comment or conversation. Id. at 213. In Cable News Network, Inc. v.

United States, 824 F.2d 1046 (D.C. Cir. 1987), the D.C. Circuit summarily

reversed the district court’s determination “that voir dire examinations would be

6 We also said in Copeland that we could find “no authority . . . holding that the practice of conducting a limited amount of individual voir dire at the bench with a ‘husher’ on violates a defendant’s right to a public trial.” 111 A.3d at 633. In fact, there is at least one opinion that holds that use of a white noise device during voir dire violates the First Amendment in the absence of findings of fact supporting that restriction on the right of access. See In re Petitions of Memphis Pub. Co., 887 F.2d 646 (6th Cir. 1989); but see id. at 649 (Norris, J., dissenting) (“I do not believe that the district court’s limited use of a device which emitted static and its withholding of the transcript of the voir dire until the jury was impaneled violated any rights secured by the United States Constitution” and “I am not convinced that the procedure utilized was tantamount to closing the voir dire to the public.”). 16

conducted in camera save for any prospective jurors who elected to be questioned

in open court.” Id. at 1047. The D.C. Circuit did not state precisely what it meant

by “in camera,” but Black’s Law Dictionary defines “in camera” as meaning either

“[i]n the judge’s private chambers” or “[i]n the courtroom with all spectators

excluded.” (10th ed., West 2009 at 878). Thus, we read Cable News as holding

that the public-trial right is violated when individual-juror voir dire is held in the

judge’s chambers or elsewhere in a place from which the public is excluded.

Similarly, in ABC, Inc. v. Stewart, 360 F.3d 90, 95 (2d Cir. 2004), the court found

an erroneous closure of the voir dire proceedings where examinations of

prospective jurors were conducted in the judge’s robing room. Decisions of this

court rendered upon plain-error review have reached a similar result. See

(Antonio) Williams v. United States, 51 A.3d 1273, 1283 (D.C. 2012) (finding

obvious error where the voir dire of individual jurors was moved to a jury room,

from which spectators were excluded, to accommodate the visually impaired

prosecutor); see also Barrows, 15 A.3d at 679 (finding obvious error where the

trial court excluded members of the public from the courtroom during the time it

took to conduct voir dire, in order to accommodate the large number of potential

jurors in the venire). 17

By contrast, where proceedings are conducted in the open courtroom but

with some members of the public having an obstructed view, courts have generally

concluded that the process is an alternative to closure rather than a closure subject

to the requirements of Waller. See, e.g., Rodriguez v. Miller, 537 F.3d 102, 103-10

(2d Cir. 2007) (holding, upon reconsideration of an earlier ruling at Supreme Court

direction, that the trial court’s requirement that defendant’s family members sit

behind a screen to shield a testifying undercover police officer from their view or

otherwise be excluded from the courtroom during the officer’s testimony did not

violate clearly established federal law and was at least arguably a “reasonable

alternative to closure” of the courtroom to the family members, rather than a partial

closure);7 Pearson v. James, 105 F.3d 828, 830 (2d Cir. 1997) (characterizing the

placing of a screen between spectators and a testifying undercover officer as an

“alternative[] to closure”); United States v. Lucas, 932 F.2d 1210, 1217 (8th Cir.

1991) (use of screen to permit spectators to hear but not see detective’s testimony

7 As we observed in Kleinbart, “[t]he right to a public trial has never been definitively construed by the Supreme Court.” 388 A.2d at 881. The Supreme Court’s remand that prefaced the ruling in Rodriguez, see 537 F.3d at 103, suggests that the Supreme Court might agree that use of a device that partially but not fully obstructs the public’s ability to perceive trial proceedings, accompanied by reasonable access to transcripts, does not amount to a “closure” for purposes of the Sixth Amendment public-trial right. See Miller v. Rodriguez, 549 U.S. 1163 (2007) (remanding the “screen” issue to the Second Circuit in light of Carey v. Musladin, 549 U.S. 70 (2006) (pertaining to the meaning of “clearly established federal law”)). 18

was in lieu of closure of the courtroom and did not violate the defendant’s public-

trial right); State v. Schultzen, 522 N.W.2d 833, 836 (Iowa 1994) (public trial right

not violated by reasonable alternative to closure, or “quasi-closure,” that entailed

having three spectators (members of defendant’s family) seated behind

blackboards during a portion of the victim’s testimony so that the line of view

between the victim and the family members was obstructed).8

The foregoing case law supports a conclusion that the husher procedure

employed in this case — an instance of “the long-standing practice in this

jurisdiction of conducting individual voir dire at the bench, within the view but

outside the hearing of the public,” Copeland, 111 A.3d at 634-35 — does not

amount to a closure or partial closure of the courtroom, but is more appropriately

viewed as an alternative to closure. We think that even more so than the

obstructed-view procedures discussed in the foregoing cases, use of a husher

during the conduct of individual voir dire at the bench, along with access within a

8 See also State v. Drummond, 854 N.E.2d 1038, 1080 (Ohio 2006) (Moyer, C.J., dissenting) (referring to option of “placing a screen between the witnesses and the spectators to conceal the witnesses from public view” as an alternative to closing the courtroom). 19

reasonable time to transcripts of the individual prospective-juror examinations,9 is

a reasonable alternative to closure of the courtroom that enables the public to see

the court proceedings, including facial expressions and body language of at least

some of the participants at the bench, and thus honors the defendant’s right to a

public trial. We note also that use of the husher avoids the partial closure of the

courtroom entailed in the process that appellant’s trial counsel told the court had

recently been utilized by another judge and that counsel appeared to endorse for

use in this case: allowing the public to be in the courtroom as “the jurors [a]re sent

in through the back to answer questions” from the witness stand “with the other

jurors outside of the courtroom.” That procedure would have precluded other

prospective jurors from seeing the proceedings at the bench during the questioning

of their individual co-venire members. Although they were sworn trial

participants, the prospective jurors were nonetheless members of the public who

were entitled to view the voir dire proceedings.

In sum, we conclude that use of the husher during individual-juror voir dire

did not constitute closure or partial closure of the courtroom, but instead was a

“reasonable alternative [] to closing the proceeding,” Waller, 467 U.S. at 48, that

9 “[T]he constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript . . . available within a reasonable time.” Press-Enterprise, 464 U.S. at 512. 20

protected appellant’s public-trial right. 10 We therefore reject appellant’s claim of

error.

III.

Complainant Campbell testified that upon viewing a photo array presented

to him by MPD officers, he identified appellant as the shooter. The photo array,

with Campbell’s initials written near a circle around appellant’s face, was

published to the jury. Paige testified that he, too, “participated in an identification

procedure with the police” and identified appellant as the shooter. The government

introduced into evidence and published to the jury the “list of faces that [the

police] showed [Paige].”

10 We disagree with appellant’s contention that Jury Questionnaires requires a different result. In our opinion in Jury Questionnaires, we considered the issue of mid-trial and post-trial press “access to the jury questionnaires completed by the sixteen empaneled jurors,” 37 A.3d at 882 (italics added), and held that the trial court erred in not recognizing the press’s First Amendment right to such access and in failing to consider “alternatives to complete closure” of the questionnaires to public review. We noted that the trial court “had no problem keeping oral voir dire open to the public,” id. at 888, but we did not indicate whether a husher was used in the open courtroom and did not consider whether the press had a right to listen contemporaneously to oral voir-dire questioning of individual prospective jurors. 21

On appeal, appellant renews his at-trial objection to the trial court’s decision

to “admit[] and allow[] the prosecution to publish to the jury photo arrays

containing [appellant’s] mugshot.” Appellant argues that the photo arrays did not

satisfy the three-part test this court has adopted for admissibility. We conclude

that any error in admission of the photo arrays was harmless beyond a reasonable

doubt.

“For admission of ‘mug shot type’ photographs at trial: 1) [t]he government

must have a demonstrable need to introduce the photographs; and 2) [t]he

photographs themselves, if shown to the jury, must not imply that the defendant

has a prior criminal record; and 3) [t]he manner of introduction at trial must be

such that it does not draw particular attention to the source or implications of the

photographs.” See Bishop v. United States, 983 A.2d 1029, 1034 (D.C. 2009).

Appellant argues the government did not have “a demonstrable need to introduce

the photographs” because “identification was not in issue”: appellant admitted that

he was the shooter, and his trial counsel signaled in her opening statement that

appellant’s defense to the AWIKWA charge was self-defense. The government

retorts that it carried the “burden to prove appellant committed the charged

offenses through admissible evidence” and that Campbell’s and Paige’s immediate 22

ability to identify appellant “was significant evidence supporting their credibility

as witnesses.”

We think appellant has the better of the argument about whether there was a

demonstrable need to introduce the photo arrays. Campbell told the jury that he

circled on the photo array (Government Ex. 7) the photo of “the defendant who

shot me” and said at the time, “That’s definitely him. I am never going to forget

someone that shot me.” Similarly, Paige told the jury that upon identifying

appellant on the photo array (Government Ex. 10), he made the statements, “That’s

the guy. I remember him. I won’t forget his face.” Given all the foregoing, we

assume (though without definitively deciding) that, as in (Kirkland) Williams v.

United States, 382 A.2d 1 (D.C. 1978), the government had “no reason to show

identification” at trial. See id. at 5 (“The government adduced more than sufficient

testimony regarding positive photographic identification of appellant to satisfy that

need [to survive a motion for judgment of acquittal]; it was not necessary to

introduce the photos themselves.”).

We must next consider whether any error in permitting introduction of the

photo arrays was harmless beyond a reasonable doubt. See (Lenwood) Williams v.

United States, 481 A.2d 1303, 1304 (D.C. 1984) (applying the constitutional 23

harmless error standard articulated in Chapman v. California, 386 U.S. 18 (1967)).

The reason for the “rigid criteria for . . . admissibility” of mugshots is that

“introduction of mug shots into evidence . . . pose[s] a danger to the defendant’s

rights by their potential for implying a prior criminal record.” Letsinger v. United

States, 402 A.2d 411, 414 (D.C. 1979). 11 Examining the photo arrays, the trial

judge noted that the photos do not include “prison garb” and have “a gray or dark

gray background,” and that “it” — it’s unclear whether the court was referring to

appellant’s photo or the entire photo array — “doesn’t look . . . like a mugshot.”

Looking at the exhibits ourselves, we agree with the trial judge’s first two

observations; as to the court’s third observation, in our view the unsmiling

expressions on the men’s faces do suggest that the photos may be mugshots,

though appellant’s photo in the array looks less like a mugshot (and, perhaps, more

like a driver’s license photo) than most of the other photos. In addition, it is

significant that the mugshot serial numbers, the mugshot.com caption, and the

11 The photo array was of nine African-American men, including appellant. In the view of the author of this opinion, unnecessary publication to District of Columbia juries of photo arrays of African-American men also poses a danger of fostering unconscious bias. See Gause v. United States, 959 A.2d 671, 692 n.7 and n.8 (D.C. 2008) (Blackburne-Rigsby, J., dissenting) (citing a study showing that “although all racial groups harbor a significant amount of unconscious anti-Black bias, the distinction between Blacks and non-Blacks attitudes is great,” with “71.5% of Whites, 67.5% of Asians, and 60.5% of Latinos harbor[ing]” an unconscious anti-Black bias, compared to 32.4% of Blacks, and a study showing that “there may be race bias against the selection of Blacks in jury wheels and master jury lists”), rev’d on other grounds, 6 A.3d 1247 (D.C. 2010) (en banc). 24

caption “line up with serial numbers” were removed from the photo-array sheet

published to the jury. Further, the detective who prepared the photo arrays shown

to Campbell and Paige made no mention of the source of the photos in the array.

But even if the jurors could discern that the photos were mugshots, they also

knew from the parties’ stipulation regarding the “certificate of non[-]registration of

a firearm in Washington, D.C. for [appellant]” (which the trial court instructed was

“undisputed evidence”), and from the trial court’s instructions on the elements of

the charged offenses of UF and UA, 12 that appellant did not dispute that he acted in

violation of District of Columbia law by bringing an unregistered firearm and

ammunition into the District. Despite learning that appellant had broken the law in

that way, the jury acquitted him of the charged AWIKWA (car) offense, a verdict

we take as evidence that jurors were able to weigh whether the evidence supported

conviction notwithstanding the undisputed information they had about appellant’s

non-compliance with the District’s gun laws, which went beyond what an arrest

mugshot implies. For that reason, we conclude that introduction of the photo

arrays into evidence was harmless beyond a reasonable doubt.

12 I.e., that “[t]he firearm had not been registered to [appellant], as required by District of Columbia law” and that appellant lacked “a valid registration certificate for a firearm of the same gauge or caliber as th[e] ammunition” he possessed. 25

IV.

Appellant asserts that the prosecutor “seriously misstated the law” during his

rebuttal closing argument when, after reminding the jury of appellant’s testimony

that “he was worried . . . that the people supposedly beating him up could get his

gun,” went on to remark that appellant had “brought the gun to the neighborhood,”

and then told the jury that “a person can’t claim self-defense[] if they put

themselves in the position to ca[u]se the trouble.” In addition, appellant highlights

that after the court overruled defense counsel’s objection to the prosecutor’s

language, the prosecutor continued his rebuttal by “listing, among the reasons [why

appellant] did not act in self-defense, the fact that [appellant] brought that gun

there to begin with.” Appellant argues that through the foregoing remarks, the

prosecutor effectively told the jury that it should find that appellant “forfeited his

right to self-defense simply by choosing . . . to carry a gun.”

“When evaluating a claim of improper prosecutorial argument, we first

determine whether or not the challenged argument was improper.” Turner v.

United States, 26 A.3d 738, 742 (D.C. 2011). “If the argument was improper, we

then determine whether or not reversal is warranted, considering (1) the gravity of 26

the improper comments; (2) their relationship to the issue of guilt; (3) the effect of

any corrective action by the trial judge; and (4) the strength of the government’s

case.” Id.; see also Finch v. United States, 867 A.2d 222, 225-26 (D.C. 2005). “If

an objection was preserved,” we may ‘“affirm the convictions [if] we are satisfied

that the appellant did not suffer ‘substantial prejudice’ from the prosecutor’s

improper comments.” Id. at 226 (citing Kotteakos v. United States, 328 U.S. 750,

765 (1946)).

Acknowledging this court’s case law, 13 the government concedes that “a

defendant may be entitled to a self-defense claim even when in unlawful

possession of a firearm.” The government argues, however, that the prosecutor’s

remarks did not imply the contrary. Reviewing the prosecutor’s remarks as a

whole, we are persuaded by the government’s argument. See, e.g., Jones v. United

States, 739 A.2d 348, 353 (D.C. 1999) (“A criminal conviction is not to be lightly

overturned on the basis of a prosecutor’s comments standing alone, for the

statements must be viewed in context.” (internal quotation marks omitted)).

Although in isolation, the remarks appellant highlights may have conveyed the

erroneous message about which appellant complains, in his additional remarks, the

prosecutor focused on the principle that there is no “right to use excessive force”

13 See, e.g., Stewart v. United States, 687 A.2d 576, 579 (D.C. 1996). 27

and then made statements from which we think the jury would have understood

that use of the gun in a non-excessive way would have been permissible in self-

defense if appellant had perceived that he was in danger. The prosecutor

completed his theme by saying: “He brought that gun there. He didn’t fire a

warning shot. He didn’t brandish it.” The prosecutor’s references to firing a

warning shot and merely brandishing the gun were acknowledgments that although

appellant was not entitled to use excessive force, he might have been entitled to use

the gun in those non-lethal ways to protect himself.

Moreover, it was undisputed from the outset that appellant brought the gun

to the scene, and, at various junctures, the jury learned that this did not preclude a

finding that appellant acted in self-defense. For example, during defense counsel’s

opening statement, she told the jury that they would hear that appellant pulled his

gun out from his waistband when he was terrified that two men were going to kill

him, and then told the jury that appellant, like everyone, has “the right to use

reasonable force in self-defense.” The prosecutor objected and the court had a

conference with counsel at the bench, but after the conference had concluded,

defense counsel continued her opening statement by saying that “every citizen has

a right to self-defense . . . when that person actually believes he . . . is in imminent

danger of serious bodily harm, and when there are reasonable grounds for that 28

belief.” When the prosecutor objected again, the trial court overruled his objection

in open court. We think this exchange would have conveyed to the jury that self-

defense was not out of the case just because appellant brought a gun to the scene.

The court’s instructions to the jury lead us to the same conclusion. The

court told the jury that the defense theory regarding the charge of AWIKWA

(firearm) charge was that “it was reasonable for [appellant] to believe he was in

imminent danger of serious bodily injury or death” and that he “used the degree of

force reasonably necessary to defend himself.” Thereafter, the trial court gave the

jury a lengthy self-defense instruction that included the statement that “[i]f

Jonathan Blades actually and reasonably believed he was in imminent danger of

death or serious bodily harm, and that deadly force was necessary to repel such

danger, then he may use deadly force in self-defense.” The trial court also

specifically told the jury that “[s]elf-defense is a defense to the charge[] of

[AWIKWA] Firearm.” The court’s instructions thus conveyed to the jury that

appellant’s possession of a firearm did not preclude his claim of self-defense.

Further, even if we assume arguendo that the prosecutor’s comments did

imply that appellant had forfeited his right to self-defense by bringing a gun to the

scene, we would still conclude that appellant did not suffer “‘substantial prejudice’ 29

from the prosecutor’s improper comments” (quoting Finch, 867 A.2d at 226). We

note first that the jury had ample basis for rejecting appellant’s claim that his

actions were in self-defense. The evidence showed that appellant shot his gun nine

times; that Campbell, who appellant claims was his assailant, was shot not while

facing appellant, but in his back or angled shoulder; and that one of the bullets

landed around the corner from the location where appellant testified he began

firing his gun. There was also evidence (the absence of stippling) that permitted

the jury to infer that Campbell had not been shot when he was in close proximity to

appellant’s gun. In total, the government’s evidence suggested that appellant was

shooting at and pursuing targets who were running away from him rather than

placing him in imminent danger of bodily harm. Indeed, it seems likely,

notwithstanding the competing expert testimony about where the shooter might

have been standing when the shots were fired, that the jury would have found the

photographic evidence of where the casings came to rest — in a line going up 20th

Street toward L Street — and the testimony about the bullet found around the

corner on L Street to be strong evidence that appellant was pursuing Campbell.

Further, the jury, which was given an option of convicting appellant of the

lesser-included offense of assault with a dangerous weapon (firearm) (“ADW

(firearm)”), convicted appellant of AWIKWA (firearm). If jurors had credited 30

appellant’s testimony that he acted in self-defense but believed they were

precluded from acquitting appellant on that basis simply because he had brought a

gun into the District, they presumably would have convicted him of the lesser-

included ADW offense and not of AWIKWA (firearm). In convicting appellant of

AWIKWA (firearm), the jury necessarily found that appellant acted with an intent

to kill when he shot Campbell. 14 For that and all the foregoing reasons, we

conclude that even if improper, the prosecutor’s remarks did not prejudice

appellant, and the trial court did not reversibly err in not taking corrective action.

Appellant’s final argument is that the trial court committed reversible error

by giving, without a sufficient evidentiary basis, a provocation instruction that told

the jury that “[o]ne who deliberately puts himself in a position where he has reason

to believe that his presence will provoke trouble cannot claim self-defense.” The

court additionally instructed the jury that “if one, who is the aggressor or provokes

a conflict, later withdraws from it in good faith and communicate[s] that

14 The jury was instructed that one of the elements of AWIKWA, “which the [g]overnment must prove beyond a reasonable doubt” in this case, was that “Jonathan Blades intended to kill Johnny Campbell,” but that for a conviction of ADW, “the [g]overment need not prove the defendant intended to injure Johnny Campbell.” 31

withdrawal by words or actions, he may use deadly force to save himself from

imminent danger or death or serious bodily harm.”

A provocation instruction “is appropriately given when there is both

evidence of self-defense and evidence that the defendant provoked the aggression

from which he was defending himself.” Rorie v. United States, 882 A.2d 763, 775

(D.C. 2005). We have observed that “where the giving of the instruction is

technically incorrect, the error generally is harmless.” Id. Under some

circumstances, however, such as “where there are earlier discrete episodes of an

aggressive, even violent nature,” an inappropriately given provocation instruction

presents a danger that the jury could have been “confused by the earlier

‘provocative’ behavior of the defendant that did not operate as a legal trigger of the

final . . . confrontation between the victim and the defendant.” Id. In any event, “it

is axiomatic that a single instruction to a jury may not be judged in artificial

isolation, but must be viewed in the context of the overall charge.” Dickerson v.

United States, 620 A.2d 270, 273 (D.C. 1993) (internal quotation marks omitted).

The government cites, as evidence of provocation that warranted the

provocation instruction, appellant’s testimony that after Campbell “grabbed

[Mitchell] by the hips,” appellant “grabbed [Campbell] by his shoulder” and 32

“turned [Campbell] toward [him].” Whether or not this sufficed as evidence of

provocation, we are satisfied that the jury would not have viewed it as conduct that

deprived appellant of the right to self-defense or as the trigger of the gun violence

that followed. Under appellant’s account, what happened immediately afterwards

was that Mitchell pulled appellant away “because she . . . didn’t want the argument

to escalate,” appellant and Mitchell walked towards appellant’s car, and appellant

attempted to get into the car — i.e., actions by which appellant signaled his

withdrawal from the conflict. Under the account presented by Campbell and

Paige, after Campbell knocked appellant down, Campbell moved away from

appellant and was pursued by Mitchell, who was hitting Campbell in the head with

her high-heeled shoe; and appellant went to his car to retrieve a gun and began

shooting at the fleeing men.

If the jurors credited appellant’s account, the court’s withdrawal-from-the-

conflict instruction let them know — notwithstanding appellant’s previous

aggressive action in grabbing Campbell’s shoulder or pushing him — that by his

actions to disengage, appellant was restored to his right to use deadly force to save

himself from the danger of death or serious bodily harm he told the jury Campbell,

Paige, and Rob imminently posed when they followed him to his car. If on the

other hand the jury credited the Campbell/Paige account, appellant acted as the 33

aggressor and not in self-defense during the “final episode” of the incident, Rorie,

882 A.2d at 774, 777 — i.e., when Paige saw appellant loading a gun he had

retrieved from his car, and when Campbell, who had retreated after blows to his

head and who was fleeing northward on 20th Street after hearing Mitchell utter

words that Campbell understood to mean that appellant was “going to get [his]

gun.” Either way, we see no danger that the jury would have confusedly thought

that appellant’s prior action of turning Campbell around by the shoulder or pushing

Campbell was relevant to whether appellant was guilty of AWIKWA firearm.

Stated differently, only upon a “‘bizarre reconstruction’ of the evidence,” Tyree v.

United States, 942 A.2d 629, 639 (D.C. 2008), could jurors have thought that

appellant acted to ward off imminent harm to himself by shooting at Campbell but

was not entitled to a self-defense claim because of the earlier shoulder-grab or push

and the rule set out in the provocation instruction.

Further, as already noted, the jury was given an option of convicting

appellant of the lesser-included offense of assault with a dangerous weapon

(firearm), but convicted him of AWIKWA (firearm), meaning that it found that he

acted with an intent to kill. If jurors believed appellant’s account, and if what

prevented them from acquitting him on the ground of self-defense was that they

thought his grabbing of Campbell’s shoulder or pushing of Campbell was 34

provocation that caused him to forfeit his self-defense claim, they presumably

would have convicted him of the lesser-included ADW offense and not of

AWIKWA (firearm). 15 For that reason, too, we conclude that the court’s giving of

the provocation instruction, if error, was harmless; that is, we are satisfied that “the

guilty verdict actually rendered in this trial was surely unattributable to the error.”

Rorie, id. at 776 (internal quotation marks omitted).

**

For all the foregoing reasons, we conclude that appellant is not entitled to a

reversal of his convictions. However, we remand the matter to the trial court to

15 In Rorie by contrast, the record was “without facts to support that Mr. Rorie was the aggressor or provocateur toward [the stabbing victim/decedent] in the moments before the stabbing, [and] the jury necessarily had to take into account prior, unrelated, and prejudicial acts of Mr. Rorie toward [another person] simply to make sense of the language in the [provocation] instruction.” 882 A.2d at 769. The fact that the jury acquitted defendant Rorie of second-degree murder while armed (knife) and convicted him of the lesser-included offense of voluntary manslaughter while armed, id. at 764, suggested that jurors might have accepted his self-defense claim but for the inappropriately given provocation instruction. 35

merge appellant’s two PFCV convictions premised on his AWIKWA and AAWA

convictions.16 In all other respects, the judgment of the trial court is

Affirmed.

FARRELL, Senior Judge, concurring in part and concurring in the result: I

agree with Judge Thompson’s analysis of why use of the husher during voir dire

did not violate appellant’s right to a public trial. I also agree with her conclusion

that, although the government showed no demonstrable need to introduce the photo

arrays, any error in their admission was harmless beyond a reasonable doubt. That

is partly for the reasons stated by Judge Thompson, ante at 23-24, but also because

I believe that, rather than any inference of prior arrest implied by the photo arrays,

it was the strong inconsistency between appellant’s defense of self-defense and the

evidence that produced the guilty verdicts. The shell-casing evidence, among other

things, was at odds with appellant’s story that immediately fearing for his personal

safety he took out his gun and repeatedly fired at Johnny Campbell in an

impromptu act of self-defense. Nine expended shell-casings were found lying

16 See Nixon v. United States, 730 A.2d 145, 153 (D.C. 1999) (holding that PFCV convictions arising out of “a single possession of a single weapon during a single violent act” must “merge into one PFCV conviction”). 36

in roughly a straight line extending twenty feet and more along 20th Street.

According to firearms examination expert Barrett, this pattern showed that the

shooter was walking and firing along the line where the casings fell. That evidence

was consistent with Campbell’s account, corroborated by eyewitness Page, that

after an exchange of punches appellant withdrew to his car, retrieved a handgun or

ammunition for it, then turned and fired multiple shots at Campbell, each requiring

a separate trigger-squeeze, as Campbell ran from the scene. Additional evidence

summarized by Judge Thompson also confirms that “appellant was shooting at and

pursuing targets who were running away from him” and thus not “placing him in

imminent danger of bodily harm.” Ante at 29.1

The hardest issue in this appeal is the prosecutor’s repeated erroneous

suggestion in rebuttal argument that appellant had forfeited self-defense by the act

of bringing “the gun to the fistfight” or “to the neighborhood.” Although the trial

judge appeared to recognize this error later, he overruled appellant’s

contemporaneous objection to it and, in instructing the jury on provocation (“[o]ne

who deliberately puts himself in a position where he has reason to believe that his

1 Unlike Judge Thompson, however, I do not believe we should draw speculative inferences, ante at [25-26], from the jury’s acquittal of appellant of the assault charge based on his use of a car. 37

presence will provoke trouble cannot claim self-defense”), gave arguable support

to it.2 Nevertheless, like Judge Thompson, I am confident the jury did not reject

self-defense because of appellant’s having “brought the gun downtown,” but

instead because of his excessive use of force in the circumstances. “I will give

you the first nine reasons why this was not a case of self-defense,” the prosecutor

began rebuttal argument: “Bam, bam, bam, bam, bam, bam, bam, bam, bam . . .

the defendant standing there at the top of that block, walking forward, shooting as

he goes. . . .” As stated above, the combined ballistics evidence and testimony of

Campbell and Paige strongly favored this scenario of appellant retreating to his car

for a gun or ammunition and then firing repeatedly at Campbell when any threat of

harm from Campbell or his friends had largely dissipated. The eyewitness and

ballistics testimony, the opening statements and closing arguments of the parties,

and the jury instructions all focused primarily on this issue of whether, in firing the

gun, appellant had used force he actually and reasonably believed necessary to

avert immediate harm to his person. While the prosecutor tried to score extra

points by erroneously relying on appellant’s possession of the gun from the start, I

am convinced that this ultimately did not distract the jury from evaluating

2 Other than the risk it provided of buttressing the prosecutor’s mistaken argument, the provocation instruction itself was unobjectionable in a case where the jury could find, as the most reasonable hypothesis, that rather than withdraw from the scene appellant unnecessarily increased the danger of harm by going to his car and retrieving the gun or ammunition. 38

appellant’s actual use of the gun and convicting him based on evidence redolent of

excessive force.3

3 Similar to my earlier caveat, however, I cannot join Judge Thompson’s speculation, ante at 29-30, that the jury’s conviction of AWIKWA (firearm) rather than ADW was further indication that it was not prejudiced by the improper closing argument. 39

BECKWITH, Associate Judge, dissenting: Several clear principles have

emerged from the case law on a criminal defendant’s Sixth Amendment right to a

public trial. We know that the purpose of this right is to benefit the accused,

Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979), and that the right is at least

as protective as the press and the public’s First Amendment right to public trial,

Waller v. Georgia, 467 U.S. 39, 46 (1984). We know that contemporaneous

review of court proceedings is critical to the right’s protections,1 and that a

transcript is therefore not generally a meaningful substitute. 2 Most pertinent to the

present case, we know that the right extends to jury selection, Presley v. Georgia,

558 U.S. 209, 213 (2010) (describing this as “well settled”), and that closing the

1 See In re Oliver, 333 U.S. 257, 270 n.25 (1948) (“The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.”) (quoting Cooley, Constitutional Limitations (8th ed. 1927) at 647).

2 Presley v. Georgia, 558 U.S. 209, 214 (2010) (holding that the defendant’s public trial right was violated notwithstanding the availability of a transcript); ABC, Inc. v. Stewart, 360 F.3d 90, 99 (2d Cir. 2004) (holding that “where a right of access exists, a court may not deny access to a live proceeding solely on the grounds that a transcript may later be made available”) (citation omitted); In re Jury Questionnaires, 37 A.3d 879, 884 (D.C. 2012) (noting that “it is when the trial is unfolding that the public’s interest is greatest”). 40

voir dire proceedings in a criminal trial will violate the right to public trial unless it

satisfies the four-part test of Waller v. Georgia: “To close a proceeding: (1) the

party seeking closure must advance an ‘overriding interest that is likely to be

prejudiced’; (2) the closure must be ‘no broader than necessary to protect that

interest’; (3) the court must consider ‘reasonable alternatives’ to closure; and (4)

the court must ‘make findings adequate to support the closure.’” Rodriquez v.

Miller, 537 F.3d 102, 108 (2d Cir. 2008) (citing Waller, 467 U.S. at 48).3 And

finally, we know that a closure that does not satisfy the four-part Waller test is

structural error that requires reversal.4

In this case, the trial court decided that spectators of Mr. Blades’s criminal

trial would be able to see—but not hear—the questioning of prospective jurors

regarding their responses on jury questionnaires based on a generalized view that

3 “[T]he Waller test is rightly regarded as a rule of general applicability in the courtroom closure context.” Rodriquez, 537 F.3d at 108.

4 United States v. Gonzalez-Lopez, 548 U.S. 140, 148–49 (2006) (describing structural errors as those that “defy analysis by ‘harmless-error’ standards because they affect the framework within which the trial proceeds,” and including within the category of structural errors “the denial of the right to public trial” (internal brackets and quotation marks omitted)); see also Littlejohn v. United States, 73 A.3d 1034, 1042 (D.C. 2013) (stating that “if a defendant’s right to a public trial has been violated—i.e., if the four Waller criteria were not met—he need not show specific prejudice resulting from that violation.” (citing Waller v. Georgia, 467 U.S. 37, 49) (1984)). 41

jurors are more forthcoming and candid under the cover of the husher. My

colleagues in the majority do not dispute that such a generalized justification

would fail the Waller test. They conclude, however, that “the husher procedure in

this case . . . does not amount to a closure or partial closure of the courtroom, but is

more appropriately viewed as an alternative to closure.” Ante at 18. Such an

“alternative to closure,” they assume, is not subject to Waller’s prerequisites.

Although I am cognizant of the ramifications of recognizing a constitutional

problem with an apparently widely used Superior Court practice, I dissent from my

colleagues’ decision to uphold that practice here because it is impossible to

reconcile the majority’s view of the husher procedure as somehow exempt from

Waller’s requirements for proposed limitations on a public trial with the Supreme

Court’s public trial cases and with the decisions of this and other courts. 5 As an

initial matter, my colleagues do not explain why limitations short of closing the

courtroom door are not subject to the Waller test. And in fact, with the exception

of Copeland v. United States, 111 A.3d 627 (D.C. 2015), which I address infra, the

only case I have found that addresses a challenge on public-trial grounds to the

particular practice used in this case never questioned that the use of a husher 5 The trial court itself acknowledged that there was “a lot of strong language out there” in case law addressing the right to public trial and that it was not “by any stretch obvious” or “abundantly clear” that the approach was proper. 42

during voir dire was a type of closure subject to the requirements of Waller. See In

re Memphis Pub. Co., 887 F.2d 646, 648–49 (6th Cir. 1989) (citing Waller’s

precursor Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510

(1984)). In Memphis Publishing, the Sixth Circuit reversed without any harm

analysis because the trial court’s justification for using the husher during jury

selection was too general and “without any specific finding of fact to support [it].”

Id. Similarly, although the majority relies heavily upon obstructed view (hear-but-

not-see) cases in support of its view that the see-but-not-hear approach employed

here is an “alternative to closure,” those cases all make clear that a trial court’s use

of a screen to obstruct the public’s view of a witness or a proceeding is deemed

constitutional only where the court first satisfied the Waller criteria. See infra.

Whatever we call the husher procedure—a closure, a partial closure, or an

alternative to closure—and however longstanding and accepted the Superior Court

practice may be, its routine employment based on generalized concerns about juror

candor is the antithesis of applying and satisfying the Waller factors, which

require, among other things, individualized and adequately supported findings

demonstrating the necessity of the closure in the specific circumstances of that

case.

In case after case, the Supreme Court and other appellate courts have held 43

that limitations upon the public’s access to jury selection procedures were

unconstitutional, not based on the particular form of closure, but because the trial

court imposed it without satisfying the criteria of Waller. In Cable News Network,

Inc. v. United States, 824 F.2d 1046 (D.C. Cir. 1987), for example, the D.C. Circuit

summarily reversed the district court for failing to provide individualized, case-

specific justification for allowing each prospective juror in a criminal case to

choose whether to be “questioned in open court or in camera” regarding their

answers to the questionnaire they were given. Id. at 1048–49. And more recently,

in Jury Questionnaires, 37 A.3d 879, where the Washington Post challenged a

D.C. Superior Court judge’s ruling denying the newspaper access to the completed

jury questionnaires of prospective jurors in a high profile murder case, we

considered the questionnaires to be part of the jury selection process and thus

subject to the presumption of access (and to the Waller test) under the Supreme

Court public trial cases. Id. at 885–87. Much like in the present case, the trial

court in Jury Questionnaires expressed generalized concerns about the candor of

prospective jurors in justifying the decision to deny access to the questionnaires.

Because the trial court did not “articulate specific protectible privacy interests” or

“consider alternatives to complete closure to protect those interests,” we held that

this “blanket closure” ran afoul of the constitutional right of access to the trial—a

right the press enjoys as a surrogate for the public. Id. at 882, 887–89. 44

As mentioned above, the obstructed-view cases the majority cites as

examples of “alternatives to closing” likewise expose the flaw in the notion that

these purported “alternatives”—and by analogy, the see-but-not-hear procedure in

this case—are not impermissible closures if they fall short of the requirements the

Supreme Court has repeatedly stated must be met before a trial court restricts the

public’s access to a criminal trial. Every case the majority cites is a case in which

the approved-of alternative was tailored to the case based on a finding of

compelling need grounded in the specific circumstances, as opposed to the husher

procedure in this case, which was employed as a matter of longstanding practice

based on generalized concerns and without individualized findings about a case-

specific privacy interest at stake.

In Pearson v. James, 105 F.3d 828 (2d Cir. 1997), for example, the Second

Circuit granted habeas relief where the trial court closed the courtroom during an

undercover officer’s testimony because, even though the trial court had met three

of the four factors of Waller,6 it failed to consider reasonable alternatives to the

6 The court did this by identifying an overriding interest in preventing exposure of the officer’s identity and making specific and adequately supported findings that the closure was no more extensive than required to protect the interest asserted. Waller, 467 U.S. at 830. 45

proceeding, the third requirement of Waller. 7 Id. at 830–31. When the court stated

that placing a screen between the public and the testifying officer would have been

an alternative to closure, id. at 30, that meant it would have been a reasonable

alternative after the court had satisfactorily established, with individualized

findings supported by the record, that there was an overriding interest warranting

some type of closure. Each of the other obstructed-view cases on which the

majority relies holds exactly that: that the use of a screen to prevent the public

from seeing a particular witness was not a violation of the right to a public trial

because the court employing this method satisfactorily jumped through the Waller

hoops.8 These courts’ exacting adherence to Waller’s stringent test underscores

7 On rehearing en banc, the Second Circuit—granting review in Pearson and two other cases raising public trial issues on habeas—changed course and affirmed the district court’s denial of Mr. Pearson’s habeas petition after reconsidering and backing away from the holding of a prior Second Circuit decision, Ayala v Speckard, 89 F.3d 91 (2d Cir. 1996) (Ayala I), that a trial court was required to sua sponte consider alternatives to closing the court during the testimony of one witness. Ayala v Speckard, 131 F.3d 62 (2d Cir. 1997) (en banc) (Ayala II). More than a decade later, however, the Supreme Court clarified that its own precedent—specifically Waller and Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 (1984)—had all along established, contrary to the view of the en banc Second Circuit, “that trial courts are required to consider alternatives to closure even when they are not offered by the parties.” Presley v. Georgia, 558 U.S. 209, 214 (2010).

8 See United States v. Lucas, 932 F.2d 1210, 1217–18 (8th Cir. 1991) (upholding the use of a screen, which was the government’s initial request, where the trial court made specific individualized findings that an officer’s life would be in danger if she testified publicly, concluded that the government had established (continued…) 46

the distinction between their particularized scrutiny and the routine employment of

the husher in Superior Court voir dire proceedings and shows why the jury

selection procedure in this case violated Mr. Blades’s public trial right. Whether

these sorts of restrictions on jurors’ ability to see or hear certain court proceedings

are called closures or alternatives, they only become reasonable—and

constitutional—by surviving the test designed to confine them to the most

exceptional circumstances.

Given the strong presumption of openness, the majority’s effort to

distinguish cases that could more naturally be cited in support of Mr. Blades’s

argument in this case is perplexing. And yet my colleagues say that Cable News

does not support reversal here because it held the public trial right was violated

when the questioning of individual jurors was conducted “in camera,” a phrase that (…continued) two overriding interests likely to be prejudiced if the officer’s identity was not concealed, and settled upon the use of a screen after considering complete closure of the courtroom and the use of a disguise); State v. Schultzen, 522 N.W.2d 833, 836 (Iowa 1994) (rejecting criminal defendant’s contention that ordering his family members to sit behind a screen during parts of the child victim’s testimony violated his right to public trial where the trial court “met the requirements of Waller,” including making adequate findings to support the screening); Rodriquez v. Miller, 537 F.3d 102, 110 (2d Cir. 2008) (holding that the proposed use of a screen during an undercover officer’s testimony did not violate clearly established federal law where the state courts properly applied the Waller test and satisfied its factors with findings regarding two overriding interests that were firmly anchored in the record). 47

was left unexplained in the decision but that my colleagues are comfortable

concluding does not encompass private or inaudible proceedings at the bench. But

see, e.g., Bennett v. United States, 797 A.2d 1251, 1254 (D.C. 2002) (stating that

“the prosecutor provided the requested material to the trial judge in camera at an

ex parte bench conference”); United States v. Minsky, 963 F.2d 870, 874 (6th Cir.

1992) (“The court stated that the ex parte bench conference was part of

its in camera review of the FBI 302s for the express purpose of ruling on the

defense motions under both the Jencks Act and Brady.”)

The majority similarly distinguishes Jury Questionnaires on remarkably

narrow grounds. According to my colleagues, for example, Jury Questionnaires

does not support reversal in this case (1) because it did not address the specific

issue in the present case—namely, “whether the press had a right to listen

contemporaneously to oral voir-dire questioning of individual prospective jurors,”

ante at 20 n.10, and (2) because it involved access only to the questionnaires

completed by empaneled jurors. These are both true, but are not good reasons to

treat the use of the husher differently. My colleagues in the majority also

recognize the potential relevance of the court’s statement in Jury Questionnaires

that the trial court “had no problem keeping oral voir dire open to the public,”

which seems to suggest that voir dire was conducted openly in that case and that 48

the court recognized the importance of that openness. But the majority downplays

the significance of this statement because the court did not specifically say whether

a husher was used in Jury Questionnaires. Aside from the unlikelihood that the

Washington Post would have failed to challenge any procedure that prevented its

reporters from hearing the voir dire in that case, if the trial court had utilized a

husher at voir dire, the judge probably would not have said at a hearing that “the

press had heard all the individual questioning of prospective jurors,” Jury

Questionnaires, 37 A.3d at 884 (quotation in the appellate opinion and emphasis

added). See also id. at 888 (referring, in the course of a discussion about jury

candor, to “keeping oral voir dire open to the public”).

In the end, the idea that the right to public trial is not violated by a practice

that keeps the public from hearing what is going on during jury selection cannot be

squared with the values the Supreme Court has said the public trial right serves.

Ensuring “that judge and prosecutor carry out their duties responsibly,”

“encouraging witnesses to come forward,” and “discouraging perjury,” Waller, 467

U.S. at 46; see also Jury Questionnaire, are best accomplished by people who can

hear the proceedings. We should follow the Sixth Circuit’s lead in holding that

making voir dire inaudible to spectators can violate that right—and that it will

violate that right if it is not supported by case-specific findings that there is a 49

compelling interest justifying some form of closure and that the chosen method of

protecting that interest is no broader than necessary to do so. See Memphis

Publishing, 887 F.2d at 648–49. “[T]he sensible course is for the trial judge to

recognize that open trials are strongly favored, to require persuasive evidence of

serious risk to an important interest in ordering any closure, and to realize that the

more extensive is the closure requested, the greater must be the gravity of the

required interest and the likelihood of risk to that interest.” Ayala v. Speckard, 131

F.3d 62, 70 (2d Cir 1997) (en banc) (Ayala II).

Finally, although the majority does not ultimately decide the matter, the

parties in this case have thoroughly briefed and argued the question whether our

decision in Copeland v. United States, 111 A.3d 627 (D.C. 2015), precludes

reversal in this case because we are bound by its statement that it was “not

persuaded by the argument that [the defendant’s] right to public trial was violated

by the procedures used during the selection of his jury”—procedures the court

described as “conducting a limited amount of individual voir dire at the bench with

a ‘husher’ on.” Id. at 633. In the government’s view, this constitutes a holding by

this court that the practice at issue in this case does not violate the right to a public

trial. Mr. Blades counters that the court’s statement in Copeland was unnecessary

to its decision that trial counsel was ineffective by failing to inform Mr. Copeland 50

of his right to be present at the bench during the voir dire of jurors.9 Mr. Blades

also argues that to the extent Copeland did resolve the question in this case, that

holding was inconsistent with Jury Questionnaires and we are required to follow

the earlier decision. See Thomas v. United States, 731 A.2d 415, 420 n.6 (D.C.

1999).

While Copeland is not easily reconciled with Jury Questionnaires or, for

that matter, with the whole body of Supreme Court case law on the right to public

trial, what qualifies as a holding in a case and whether one of our decisions fails to

adhere to prior authority are difficult questions. The court’s decision today

exacerbates and prolongs the uncertainty caused by this tension between Jury

Questionnaire’s holding (that the preclusion of media access to jury questionnaires

in a criminal trial based on generalized concerns alone violates the public’s right to

be present at jury selection) and the language in Copeland, now reinforced by this

court (that a practice that precludes all members of the public from hearing voir

dire in a criminal case does not violate a defendant’s right to public trial, even

when the trial court imposes the practice without making individualized findings

justifying the closure and without satisfying the other requirements of Waller). 9 In support of this argument, Mr. Blades highlights the Copeland court’s statement that “we base our decision solely on appellant’s failure to satisfy the prejudice prong in Strickland[.]” Id. at 631 n.5. 51

The majority does not give us a unifying principle for understanding what types of

closures are subject to the Waller test and what types are not. The significance of

the public trial right and the importance of maintaining uniformity among our

cases and consistency with Supreme Court precedent may therefore make this case

a good candidate for en banc consideration.

Although I would reverse the judgment of the Superior Court in this case

based on the violation of the public trial right, I also take issue with some aspects

of my colleagues’ resolution of the remaining issues in this case—particularly their

harmless error analysis.

In my concurring colleague’s view, “[t]he hardest issue in this appeal” is the

trial court’s error in overruling Mr. Blades’s objection to the prosecutor’s

statements in closing argument. Ante at 36. Judge Farrell and I are in agreement

that “the prosecutor’s repeated . . . suggestion in rebuttal argument that appellant

had forfeited self-defense by the act of bringing ‘the gun to the fistfight’ or ‘to the

neighborhood’” was “erroneous.” Ante at 36–37. Unlike my colleagues, however,

I am not confident the misstatements were harmless, particularly given that, as

Judge Farrell also notes in his concurrence, the trial court’s provocation instruction

“gave arguable support” to the prosecutor’s misleading arguments by asserting that

a defendant “cannot claim self-defense” if he puts himself in a position to provoke 52

trouble. Ante at 37.

My colleagues nevertheless think the prosecutor’s misstatements could not

have caused the jury to convict on improper grounds because the government’s

evidence, particularly the physical evidence, all but compelled the jury to reject

Mr. Blades’s self-defense claim by demonstrating his “excessive use of force”

when he fired off nine shots while walking toward Mr. Campbell. Judge Farrell

quotes the prosecutor’s dramatic reenactment, in closing argument, of Mr. Blades

“walking forward, shooting as he goes.” Ante at 37. The majority likewise

highlights the government’s evidence “that appellant was shooting at and pursuing

targets who were running away from him[.]” 10 Ante at 29. And to be sure, this is

what the government’s firearm examination expert surmised when he looked at a

photograph showing where the expended shell casings landed. The expert’s

testimony is good evidence as far as it goes. The problem with making it the

centerpiece of the majority’s determination of harmless error, however, is that the

overall evidence of the walking-shooter scenario is weak, there is evidence of a

10 The majority’s harm analysis focuses on what “the government’s evidence suggested” and what the jury had “ample basis” for concluding. Ante at 29. The test for harm is not whether the government presented sufficient evidence of the offense. At the very least, if we apply a Kotteakos standard, we must be able to conclude “with fair assurance” that the result of the trial was not substantially swayed by the error. Kotteakos v. United States, 328 U.S. 750, 765 (1946). 53

self-defense counter-narrative that the jury could have credited, and the record

does not feature the kind of evidentiary lopsidedness that might assure us that the

prosecutor’s misstatements could not have played a role in the jury’s verdict

because no juror could have maintained any doubt that the government had

disproved self-defense beyond a reasonable doubt.

There are several reasons the ballistics evidence is inadequate footing for my

colleagues’ conclusion that the jurors could not possibly have been distracted by

the prosecutor’s misstatements and followed their false lead to conviction. As an

initial matter, the expert’s pattern-recognition testimony was the only evidence of a

walking-shooter scenario, and none of the actual witnesses to the shooting

described anything like this. Contrary to Judge Farrell’s view that “the combined

ballistics evidence and testimony of Campbell and Paige strongly favored this

scenario,” ante at 37, Mr. Campbell testified that he saw Mr. Blades shooting “with

the car door open,” while Mr. Paige said Mr. Blades shot in a “standing up-straight

position” “in the middle of the street.” Neither eyewitness described Mr. Blades as

walking while shooting, and their accounts contradicted each other. Some of these

discrepancies were minor and some were more consequential,11 but it is fair to say

11 Mr. Paige testified that Mr. Campbell threw the first punch, but Mr. Campbell testified that he only hit Mr. Blades after Mr. Blades had already punched him in the face. As to the fight on the street, Mr. Campbell testified that (continued…) 54

the walking-shooter narrative that was so critical to the government’s effort to

disprove self-defense was not so airtight as to warrant my colleagues’ faith in the

harmlessness of the prosecutor’s misstatements.

Apart from its lack of support from the other evidence, the government’s

expert’s testimony also had its own vulnerabilities. The expert acknowledged that

his moving-shooter conclusion was “based on generalities” and that he formed his

opinion just that morning, shortly before taking the stand, after being shown for the

very first time the photograph depicting the shell casings’ location. He

acknowledged that he had not actually visited the scene and was not aware of the

slope of the street where the casings were found. The expert admitted that

“[m]any, many variables” can affect where casings land and that they can bounce

up to 21 feet and they can roll. Though he had not consulted any studies or

(…continued) he fought with Mr. Blades only on the sidewalk area and only until Ms. Mitchell chased him across the street. By contrast, Mr. Paige testified that Ms. Mitchell hit Mr. Campbell with a shoe until Mr. Paige pulled her off Mr. Campbell. Mr. Paige then explained that Mr. Blades and Mr. Campbell “kept wrestling and fighting,” “steady punching each other” over the back of a trunk until they both “fell over to the middle of the street.” And as to events earlier in the evening, Mr. Paige testified that the group consisted of “about five or six of us” while Mr. Campbell testified that there were “[a]bout nine of us.” Mr. Paige testified that he and Mr. Campbell first saw Ms. Mitchell inside the Look Lounge, when she greeted and hugged them both, but Mr. Campbell testified that he did not see Ms. Mitchell in the club at all. 55

reference books before reaching his conclusion that the shooter in this case was

moving while shooting, during his testimony he recalled one comprehensive study

that concluded there could be as much as 75 percent error in shell casing pattern

recognition. The question is not whether the expert’s walking-shooter opinion was

relevant, or whether it supported the government’s theory of the case. It was and it

did. The question is whether it was so strong as to overwhelm the potential appeal,

for any juror, of Mr. Blades’s self-defense claim, and thus renders harmless the

prosecutor’s erroneous suggestion that Mr. Blades had relinquished his right to

claim self-defense by bringing a gun to the neighborhood. It was not.

My colleagues’ certainty about the power of the government’s physical

evidence is even less justified when one considers that the defense had a firearm

expert too—one who, unlike the government’s expert, had visited the scene, taken

measurements at the scene, and reviewed the police reports before forming his

opinion that the pattern of shell casings supported a scenario involving a stationary

shooter. Mr. Blades followed his expert’s testimony with his own account of the

incident and his take on the multiple gunshots and on Mr. Campbell’s proximity:

he testified that he committed the shooting in self-defense and that he fired his gun

blindly after being struck in the head and upon threat of being stabbed, just trying

to get the men away from him. Mr. Blades was undoubtedly an interested witness 56

with an incentive to avoid being convicted, and the prosecutor’s cross-examination

gave the jury additional reasons to question his testimony as well. For its part, the

government had its own problems with the credibility of its main witnesses, and

acknowledged in its brief that the jury may have had reasons to doubt some of the

testimony of Mr. Campbell and Mr. Paige. Most significantly, the jurors did not

believe that Mr. Blades had tried to run Mr. Campbell over with his car, and their

acquittal of Mr. Blades on the vehicular assault counts suggests they would have

viewed the entirety of Mr. Campbell’s testimony with some degree of skepticism.

All of this is to say that the record in this case is not conducive to a finding of

harmless error that is dependent upon the relative strength of the government’s

case—particularly where the error in question went to the central question whether

Mr. Blades shot Mr. Campbell in self-defense and where it was the government’s

burden to disprove self-defense beyond a reasonable doubt.12

12 In a portion of the opinion Judge Farrell explicitly does not join, Judge Thompson contends that the fact that the jury convicted Mr. Blades of assault with intent to kill while armed instead of the lesser assault with a deadly weapon means the jury must have rejected the theory underlying Mr. Blades’s defense of self- defense because it found that he intended to kill Mr. Campbell. Ante at 38 n.3. I agree with Judge Farrell. “[E]ven an intentional killing, if it comports with legally accepted notions of self-defense, is not malicious; it is excused and accordingly no crime at all.” Comber v. United States, 584 A.2d 26, 41 (D.C. 1990) (en banc) (citation omitted). The jury in this case could have believed that when Mr. Blades fired the gun, he was both defending himself against the threat of stabbing and intending to kill. 57

As to the admission of the mugshots in this case, although the majority states

that it is not “definitively deciding” that the government had “no reason to show

identification” at trial, it also concludes—and in his concurrence, Judge Farrell

agrees—that Mr. Blades “has the better of the argument about whether there was a

demonstrable need to introduce the photo arrays.” Ante at 22. We are in apparent

agreement, then, that the government had no reason to introduce Mr. Blades’s

actual mugshot in a case where defense counsel admitted in opening statement that

Mr. Blades was the shooter (in self-defense) and where the government presented

“more than sufficient testimony regarding positive photographic identification”

from its two eyewitnesses, Mr. Campbell and Mr. Paige. See (Kirk) Williams v.

United States, 382 A.2d 1, 5 (D.C. 1978). As demonstrable need is one of three

requirements the government must satisfy to justify admission of a mugshot-like

photo of a defendant in a criminal trial, Bishop v. United States, 983 A.2d 1029,

1034 (D.C. 2009), the admission of the array in this case was error.

My colleagues nonetheless go on to conclude that the introduction of the

mugshot was harmless beyond a reasonable doubt. Judge Farrell’s focus, in

concurrence, is again upon “the strong inconsistency” between Mr. Blades’s

defense theory and the physical evidence. Ante at 35. The government likewise

argues in its brief that it was “the obvious inconsistency of appellant’s testimony 58

with the physical evidence, and not any vague inference of prior arrest supposedly

implied by the arrays, that produced the verdicts.” But Mr. Blades’s testimony was

not inconsistent with the physical evidence—it was inconsistent with the

government’s expert’s opinion of the physical evidence. The government

concedes that Mr. Blades’s testimony was consistent with the defense expert’s

opinion of the physical evidence, but dismisses the expert’s testimony because “his

analysis suffered from two flaws”—namely, that he used a different gun at a

different location when conducting a test for comparison purposes and that he

made a “self-contradictory claim” about the randomness of how expended casings

land and the ability to see a pattern. These “flaws” were grounds for impeachment,

not the absolute repudiation of Mr. Blades’s theory of self-defense. As in (Kirk)

Williams, Mr. Blades’s account of the shooting “was not a wholly unlikely

possibility,” see 382 A.2d at 7, and the jury could well have believed it. 13 I see no

13 The government’s own confidence that the admission of the mugshots was harmless error was substantially based upon an inadvertent but significant factual error that the government conceded at oral argument. Specifically, the government’s assertions in its brief about the “obvious inconsistency” between the shell-casing evidence and Mr. Blades’s account of the incident relied in part upon the force of the evidence that “[t]he expended casings were found lying almost in a straight line, over a distance of nearly 60 feet on 20th Street.” The government subsequently repeated that evidence and emphasized its strength, asserting that Mr. Blades’s expert “simply failed to give the jury any reason to accept the self-evident improbability that nine shell casings, fired from the same gun at the same time, would conveniently land in a nearly 60-foot line down the hill.” But the government’s brief was mistaken, and as the prosecutor noted at oral argument, the (continued…) 59

grounds in this record for rejecting the possibility that the combination of Mr.

Blades’s testimony and the defense expert’s analysis could have created a doubt in

the mind of at least one juror, particularly where it was the government’s burden to

disprove self-defense beyond a reasonable doubt.

As for the harmlessness analysis in the majority opinion, while I agree with

my colleagues that the “unnecessary publication to District of Columbia juries of

photo arrays of African-American men also poses a danger of fostering

unconscious bias,” ante at 23 n.11, the majority’s grounds for nonetheless finding

the admission of the mugshot of the African-American defendant in this case

harmless beyond a reasonable doubt do not assure me that the jury in this case did

not “consider [Mr. Blades’s] bad character in deciding whether to convict [him] of

the charged crime.” Bishop v. United States, 983 A.2d at 1034, 1038 (citation

omitted). At the outset, that the men photographed were not in prison garb, that

someone removed the mugshot serial numbers, and that the detective who created

the arrays did not call them “mugshots” mean little when, as the majority

(…continued) expended casings were arranged within a space that was closer to 20 feet in distance than 60 feet. The government’s indication that “the expended casings were found lying almost in a straight line” is also different from the photograph of the casings’ locations, which shows five casings in a line, two several feet off to the left of the line and two several feet off to the right. 60

acknowledges, the “unsmiling expressions” on the faces of the men pictured in the

photo array still make the photos look like mugshots. See ante at 23. And the

array still bore indications that it had been altered, in the rough edge that was left

when “mugshot.com” was removed and in the mark at the top hiding the reference

to serial numbers. In any event, as this court noted in Williams, the exceptional

circumstances in which cleaned-up mugshots might be deemed admissible are

limited to those circumstances in which the government proves a demonstrable

need. See 382 A.2d at 5.

I also cannot agree that the introduction of the mugshot was harmless

beyond a reasonable doubt on the ground that the jury had already learned from the

evidence at trial that Mr. Blades actually broke the law by bringing an unregistered

firearm and ammunition into the district. According to Judge Thompson, the

jury’s acquittal on the car-related assault showed that the jury could weigh the

evidence unaffected by knowledge that Mr. Blades was a lawbreaker. Ante at 24.

On this point I align with Judge Farrell, who states in his concurrence that we

should not “draw speculative inferences” from these acquittals. See ante at 36 n.1.

But in any event, given how many states have far less restrictive gun laws than the

District’s and how some have no registration requirements at all, I am not as

confident as Judge Thompson that Mr. Blades’s possession of a gun contrary to the 61

laws of the District “went beyond what an arrest mugshot implies.” Ante at 24.

In Williams, this court held that the use of mug shots was not harmless

where the complainant’s account of a violent attack was not corroborated by

physical evidence. 382 A.2d at 7. Here, by contrast, my colleagues are confident,

albeit for different reasons, that the inference of prior arrest from the admission of

the mugshot did not cause the jury to reject Mr. Blades’s self-defense claim. But

this is a case where the parties presented competing expert testimony supporting

their respective accounts of how things happened, where there were strengths and

weaknesses to both versions but no glaring lopsidedness or foregone conclusions,

where the defendant had a motive to lie but presented a viable story of self-defense

consistent with the defense expert’s testimony, where the jury discredited the

complainant’s testimony about a separate incident after the shooting, and where the

government’s witnesses were neither united nor concretely helpful in corroborating

the government’s ballistics expert. Under these circumstances, the jury “might

well have been influenced because of the improper, indirect proof of [Mr.

Blades’s] criminal past.” Bishop, 983 A.2d at 1039.

This case raises an important question about the constitutionality of a 62

practice frequently used in our trial court. Ultimately, I believe my colleagues’

decision to uphold a practice that allowed the public to see, but not hear, the jury

selection in Mr. Blades’s criminal trial runs afoul of the applicable case law on the

right to public trial. I also cannot agree that the prosecutor’s repeated erroneous

statements in closing argument and the unnecessary admission of the mugshots

were harmless errors in the circumstances of this case. For these reasons, I

respectfully dissent.