DCCA declines to open Pandora’s box

Brian Lamont Copeland v. United States, No. 13-CO-746 (decided March 12, 2015).

 

Players: Chief Judge Washington, Associate Judge Fisher, and Senior Judge Ferren.  Opinion by Judge Fisher.  Jenifer Wicks for Mr. Copeland.  Trial Judge: Anthony C. Epstein.

Facts: Brian Copeland was convicted of first-degree sexual abuse, and his conviction was affirmed on appeal.  Mr. Copeland subsequently filed a motion for relief under D.C. Code § 23-110, alleging that his trial attorney had performed deficiently during jury selection.  At trial, Mr. Copeland’s defense attorney had conducted voir dire at the bench, and the trial judge had turned on the “husher,” a white noise machine intended to prevent those present in the courtroom from overhearing conversations at the bench.  Mr. Copeland remained seated at defense counsel’s table and did not participate in voir dire.  His attorney did not advise him of his right, pursuant to Super. Ct. Crim R. 43(a) and the Fifth and Sixth Amendments, to be present at the bench during voir dire.  When Mr. Copeland challenged this oversight by filing a § 23-110 motion in Superior Court, the trial judge rejected his motion without a hearing.

Issue 1: Assuming that the performance of Mr. Copeland’s trial attorney was deficient, did Mr. Copeland establish that he had been prejudiced by that performance?

Holding 1: No.  Mr. Copeland filed an affidavit in support of his § 23-110 motion, but the affidavit did not claim that Mr. Copeland would have exercised his right to be present at the bench during voir dire and did not assert that his trial attorney should have conducted voir dire differently or challenged any other jurors.  Consequently, Mr. Copeland failed to show that he had been prejudiced by his attorney’s conduct.

Issue 2: Can Mr. Copeland’s failure to show prejudice be excused because the trial court’s voir dire procedures violated Appellant’s right to a public trial and, thus, amounted to a structural error in which prejudice must be presumed?

Holding 2: No.  Unlike situations where the public is excluded from the courtroom during trial, the common practice of conducting individual voir dire at the bench is not a structural error.  It is worth noting that if the Court had ruled that defense counsel’s behavior at trial amounted to deficient performance and that it was a structural error, most criminal defendants who were recently convicted in D.C. would have valid § 23-110 claims.

Of note: The Court’s opinion highlights the importance of identifying a specific form of prejudice when filing § 23-110 motions.  The opinion also suggests that challenges to the trial court’s voir dire procedures are unlikely to garner defendants relief if trial counsel has not lodged a timely objection.  CK

Read full opinion here.