Prosecutors should not ask questions that contain misleading information, and when they do the defense is entitled to present evidence to correct the record, even if that means a mid-trial continuance

Brian K. Gilliam, John A. Daniels, and Ronald L. English v. United States, Nos. 08-CF-725; 08-CF-879; 08-CF-914 (decided November 21, 2013)

Players: Glickman, Fisher, Oberly.  Opinion by Judge Glickman.  PDS for Mr. English.  Montrell Scaife for Mr. Gilliam.  Thomas T. Heslep for Mr. Daniels.  Trial judge: Geoffrey Alprin.  Trial prosecutor: S. Vinet Bryant. 

Issue 1: Did the trial court err in denying the defense request for a continuance after the prosecutor introduced misleading information through questioning of a defense witness? 

Facts:  The defendants were convicted of conspiracy with intent to kill and gun-related charges, but acquitted of murder and assault charges.

The case involved a conspiracy that depended, in part, on the four co-conspirators (the 3 defendants and the government cooperator) getting together via a phone call between the government cooperator (Mr. Holmes) and one of the co-defendants (Mr. Daniels).  Mr. English’s attorneys introduced evidence that they believed showed Mr. Holmes’ testimony about that call was false: Holmes’ cell phone records that showed no call with Mr. Daniels during the relevant time.  They introduced the records through a custodian of records (Custodian # 1). 

AUSA Vinet Bryant, however, cross-examined Custodian # 1 about whether Holmes had a second phone and even asked whether he had checked a specific second number, (202) 277-1049.  Custodian #1 testified that (of course) he would not know if Holmes had a phone with a different service provider, and that he (of course) had not checked the records for the second phone number referenced in the prosecutor’s question. 

Mr. English’s counsel, who had previously been unaware of any other cell phone number belonging to Mr. Holmes, then scrambled mid-trial to obtain the records for this second phone number.  The records showed that Mr. Holmes did in fact have a second cell phone with the number referenced in AUSA Bryant’s question, but that the phone was not in service at the relevant time. 

The defense showed these records to the prosecutor, along with an affidavit from the custodian of those records (Custodian #2).  AUSA Bryant refused to stipulate to the authenticity of the records and insisted that she needed to cross-examine Custodian #2.  Custodian #2 was half-way across the country, however, so the defense requested a brief continuance of the trial in order for her to travel to D.C. and appear as a witness.  Judge Alprin denied the continuance and the jury convicted the appellants on conspiracy and weapons charges.   

Holding 1: Yes, the trial court abused its discretion in denying the continuance because it underestimated the value of the evidence, which would have showed conclusively that Holmes lied about the phone call, and because the prosecutor’s questions about the second phone “had the real potential to mislead the jury into assuming facts not in evidence[.]” 

Of Note:

• If a prosecutor’s question creates a misimpression with the jury, even if there is no actual evidence of the fact implied by the question, the defense is entitled to a continuance / delay of the trial in order to correct that misimpression through evidence; the general instruction that “questions are not evidence” and addressing the issue in closing arguments are not an adequate remedy.

• The Court of Appeals was not pleased with the conduct of the prosecutor and the trial court’s failure to correct the record:  “It therefore is dismaying that, after personally inspecting the phone records and having an opportunity to contact the Sprint Nextel records custodian, the prosecutor objected to the relief appellants sought; equally dismaying that the court did not acknowledge its duty to take appropriate action.”  Slip op. at 25

• “It is immaterial that the prosecutor had a good faith basis to ask the question and did not intend to mislead the jury.”  The problem was created because the “question threatened to plant a false and damaging insinuation …”  Slip op. at 24

• Although there was no actual evidence of a second phone, defense counsel argued forcefully in closing that there was no such evidence, and the judge instructed to the jury during final instructions that questions are not evidence, “those palliatives were not an adequate substitute for the hard evidence the court excluded.”   Slip op. at 28

• Relevant factors in determining whether a trial court abused its discretion in denying a continuance to secure a witness include 1) the probative value of the witness’s testimony, 2) the likelihood that the witness would appear if the continuance were granted, 3) whether the party seeking the continuance has exercised due diligence and good faith, 4) the prejudice to the party if the continuance is denied, 5) the prejudice to the opposing party if the continuance is granted, and 6) the duration of the requested continuance and any consequent disruption or delay of the trial.  Slip op. at 2.

Holding 2: No, Mr. Daniels’ Second Amendment rights were not violated because he was convicted, based on the instruction to the jury, of carrying the pistol without a license “in connection with the homicide of Anthony Knight” which is clearly not a purpose protected by the Second Amendment. 

Issue 3: Whether the conspiracy instruction erroneously permitted the jury to convict the appellants of a conspiracy based entirely on conduct in Maryland? 

Facts:  The government’s theory was that the conspiracy was formed in Maryland, some acts in furtherance of the conspiracy were committed in Maryland, and other acts in furtherance of the conspiracy were committed in D.C.  The jury instruction permitted the jury to find the defendants guilty of conspiracy by finding only that a conspiracy was formed and that at least one overt act was committed. 

Holding 3: Jurisdiction for conspiracy requires that either the formation of the conspiracy or at least one of the overt acts take place within the District of Columbia.  Because in this case the government’s theory is the conspiracy was formed in Maryland, if the appellants are retried for conspiracy the trial court should instruct the jury specifically that it must find that one of the conspirators committed at least one of the overt acts that allegedly occurred in D.C. in order to find a defendant guilty of conspiracy. 

Read full opinion here 

No Plain Error In Denying a Special Unanimity Instruction Where Multiple Threats Uttered During an Abduction Were Not Clearly or Obviously Factually or Legally Separate

Angela Guevara & Demecio Lopez v. United States, Nos. 11-CF-209 & 11-CF-280 (decided October 10, 2013)

Players:  Glickman, Oberly, Belson.  Opinion by Senior Judge Belson.  PDS for Ms. Guevara.  Phillip C. Zane for Mr. Lopez.  Trial judge:  Craig Iscoe.

Facts:  After an argument, Demecio Lopez and his brother Armando seized Silvano Lopez (their former brother-in-law), forcing him into a van driven by Angela Guevara and occupied by an unidentified man.  They drove around for a while, then stopped, and Armando and the unknown man stabbed Silvano.  They later left him near Catholic University.  In the course of the kidnapping and stabbing, Silvano was threatened three times.  When Silvano first entered the van, the unidentified man held a knife to his throat and told him he was going to die.  When Silvano’s cell phone rang during the van ride, the same man told Silvano he would cut him if he answered.  And when leaving Silvano after the stabbing, Demecio told him he would murder him in the hospital if Silvano identified his assailants to police.  Based on this incident, Demecio Lopez was convicted of armed kidnapping, related assault charges, and threats.  Angela Guevara was convicted only of threats.   

           

Issue 1:  Did the trial court commit plain error in failing to give a sua sponte special unanimity instruction telling the jury that in order to convict Ms. Guevara of threatening to injure or kill Silvano Lopez it must unanimously decide which of three possible threats served as the basis for conviction?

Issue 2:  Did the trial court’s failure to correct translation problems at trial amount to plain error entitling Demecio Lopez to a new trial? 

Holding 1:  No.  Any error was not plain because it was not clear or obvious that the three threats were factually or legally distinct, and the trial court reasonably could have seen the threats as part of a “single unbroken chain of events.”  Nor did Ms. Guevara show prejudice to her substantial rights, where the prosecutor’s closing argument referred to only one of the threats.

Holding 2:  No.  There was no plain error where the trial court “took precautions from the outset to ensure an accurate translation” and “assiduously policed the translation issues as they arose.”

Of Note:      

• Indications that the three threats were not “factually separate” included the facts that    they all occurred during the course of the abduction, all were “communicated in a similar manner and to the same person,” all took place within a “relatively short” period of about forty-five minutes, and all were motivated by a desire to silence Silvano Lopez.  Slip op. at 16-17. 
• Even though the Court identified these reasons to believe that the three threats were not            factually distinct, it “recognize[d] . . . that if defendant’s counsel had asked for a special unanimity instruction and stated the basis for it, the court might have been obliged to give such an instruction to the jury.”  Slip op. at 22.

 How To Use:  Given its recognition that a special unanimity instruction might have been required on the facts of this case if counsel had requested one, the opinion may offer support for a request for a special unanimity instruction at trial if the evidence shows distinct factual bases for a charged offense “separated by time, location, and surrounding circumstances.”  See Slip op. at 22 n.19.  MW.

Read full opinion here

Jury Says It's Confused About an Instruction? The Judge Can't Just Repeat the Original Instruction

Gray v. United States, No. 10-CF-1466

(decided Nov. 7, 2013)

Players: Fisher, Thompson, and Wagner.  Opinion for the Court by Judge Thompson; opinion concurring in part and dissenting in part by Judge Wagner.  PDS for Mr. Gray.  Trial judge: Ann O’Reagan Keary.

Facts:  Jeremiah Gray was convicted of armed robbery and gun charges.  The two complainants alleged that three men robbed them at gunpoint, and one of the men was struck in the face with a gun and injured, but they offered little description of their assailants, other than that they were black men in black jackets.  Shortly after the robbery, an officer saw two men matching that description about a block away, acting as if they were knocking on the door of a residence (the occupant indicated he did not know them).  The officer stopped the two men, Mr. Gray and Frank Tate.  Mr. Gray had nothing incriminating on him; Mr. Tate had some items belonging to one of the complainants.  The officers conducted a show-up identification procedure, and the complainants identified both men as their assailants. 

            During deliberations, the jury sent in a note asking whether “for someone to be found guilty of aiding and abetting an armed robbery and possession of a firearm during a crime of violence or dangerous crime, do they have to have participated at the time of the crime, or could they have participated after the crime occurred?”  The court responded by re-reading the aiding and abetting instruction that it had already given the jury, a copy of which the jury had with them throughout deliberations.

Issue:  Whether the trial court’s response to the jury note adequately responded to, and clarified the confusion revealed by, the jury note.  

Held:   The trial court's response was insufficient.  The note revealed juror uncertainty as to whether Mr. Gray could be convicted if he merely helped Mr. Tate abscond with proceeds from the armed robbery—but did not participate in it himself—and it was incumbent on the court to clarify that such after-the-fact participation was insufficient to convict Mr. Gray of aiding and abetting the armed robberies.

Of note:

• The Court’s instruction was faulty because it could have left the jurors with the false impression that they could convict Mr. Gray, under an aider and abettor theory, for acting as an accessory after the fact.  The instructions told jurors that they could convict Mr. Gray if he “participated in the crime as something wished to bring about and … intended by his actions to make it succeed,” and since the armed robbery instruction told jurors that robbery required “that the defendant carried away the property after taking it,” it was possible the jury convicted Mr. Gray on the basis that he helped Mr. Tate carry the property away after the fact, rather than for participating in the robbery.  
• The most important part of this opinion may be in the Court’s harm analysis, where it indicated not only that it was reviewing the instructional error under a Chapman “constitutional harm” standard of review—rejecting the government’s arguments that Kotteakos should apply—but expressly stating that the standard was dispositive of the issue, and that the Court would not have reversed but for its application of Chapman.  So often the Court just punts on these issues and invokes the familiar “under any standard” language that signifies it does not want to get dragged into a debate about which standard for evaluating harm applies.  Not only did the Court refuse to do that here, but by explicitly stating that the standard of review mattered to the disposition, it warded off any future argument that this was just dicta. 

How to use:

For trial counsel:

•  The opinion uses strong language telling trial courts that they need to be proactive in clarifying points of juror confusion; where a trial court attempts to re-read an instruction the jury already has in response to a note, this opinion could be used to press for a more concrete clarification (but whether you want to do that will depend on what concrete answer the court will give).
•  Where the evidence against your client suggests he may have only participated in the charged offense after-the-fact, be pro-active in asking the court to modify any instructions that could lead jurors to convict under an aider and abettor theory for that activity.  Do not wait for a jury note.

For appellate counsel:

• When raising a claim of instructional error, invoke the Chapman standard of review if the error can fairly be viewed as speaking to “a controlling issue” in the case, and use the facts of Gray when arguing about what constitutes such a controlling issue.  JD  
  
  
  Read Gray v. United States Here
  
  
  
  

If he looks like a police officer, walks like a police officer, and quacks like a police officer … it’s not probable cause that he’s unlawfully impersonating a police officer. Plus a good holding on what constitutes a “dangerous weapon.”

Tuckson v. United States, No. 11-CF-522

(decided Oct. 3, 2013)

Players: Fisher, Thompson, Ruiz.  Opinion by Senior Judge Ruiz.  Dissent by Associate Judge Thompson.  PDS for Mr. Tuckson.  Trial judge: Gerald Fisher.

Facts: MPD officers saw Antione Tuckson driving a Chevy Impala that appeared “outfitted” to look like an unmarked police car, complete with dark windows, long antennas, and a “police-style dash light.”  He was also dressed in what the officers thought looked like an undercover police style – slacks, a button down shirt, and “thin gloves.”  After running his plates and determining that the car was not in fact a police vehicle, the officers stopped him and asked if he was a police officer; Tuckson answered that he was not.  The officer told him that he was parked illegally (in front of a fire hydrant) and that his window tint appeared to be illegal.  Tuckson refused to give consent for a search but handed over his keys so that the officers could conduct a window tint check.  An officer opened the driver’s side door and found a collapsible baton in the door pocket.  Officers then placed him under arrest for possessing a “prohibited weapon” and for “impersonating a police officer.”  In a search incident to arrest, police found a loaded handgun, “police handcuffs,” and an extra magazine under a jacket on the front passenger seat.  Tuckson was charged with three firearms possession offenses for the handgun and ammunition.  He moved to suppress the gun and ammunition on the ground that the police lacked probable cause to arrest him (and thus the gun and ammunition were the fruits of an unlawful arrest).

Issue 1:  Did police have probable cause to arrest Tuckson either for possessing a prohibited weapon (PPW) under D.C. Code § 22-4514(b) or carrying a dangerous weapon (CDW) under D.C. Code § 22-4504(a)?

Issue 2:  Did police have probable cause to arrest Tuckson for impersonating a police officer, in violation of D.C. Code § 22-1406?

Holding 1:  No.  The dispositive question is whether the collapsible baton qualifies as a “dangerous weapon.”  A collapsible baton is not listed as a per se prohibited weapon in either the PPW or CDW statutes, nor is it an “inherently dangerous” weapon, as its ordinary use and design is to help police control suspects without inflicting serious bodily injury.  Thus, to conclude that the baton was a “dangerous weapon” within the meaning of the PPW and CDW statutes, the court would have to find that Tuckson intended to use it as a dangerous weapon.  There was no probable cause to believe that he did – the baton was holstered and tucked away, and Tuckson never even touched it in their presence.  Thus, there was no reason to think it was anything more than “a prop to complete a hobbyist’s police officer costume.”

Holding 2:  No.  The crime of impersonating a police officer requires both that the individual falsely represent himself as a police officer and that he do so with fraudulent design.  Assuming without deciding that police had probable cause to believe that Tuckson was falsely representing himself as a police officer, there was no evidence that he had a “fraudulent design.”

Of note:                  

·         On the dangerous weapon issue, the Court emphasizes that it is not enough that Tuckson may have intended to use the baton to impersonate a police officer.  The phrase “unlawfully against another” in the PPW statute means that the person intends to use the object “as a weapon,” i.e., “to harm” someone.

·         On the impersonation issue, the Court rejects the government’s arguments that Tuckson could have had a “fraudulent design” to avoid punishment for either his illegal parking or his illegal tinting.  Tuckson made no attempt to get away with these acts or use his police officer guise to get an advantage, and the mere fact of his illegal parking and tinted windows was not enough to establish a fraudulent intent.

·         The Court also rejects the notion that probable cause can rest on a belief that the person is about to commit a crime.  Thus, even if there was reason to think that Tuckson later might have tried to use his police officer impersonation fraudulently, there was no probable cause that he was doing so at the moment the police officers saw him.

·         Notably, the Court “decline[d] to affirm” on the alternative ground that the “automobile exception” permitted the police to search Tuckson’s car because they had probable cause to believe it contained either contraband or evidence of a crime.  The trial court had not ruled on that ground, and the government never argued it; rather, it was raised for the first time by Judge Thompson at oral argument.  Moreover, it was “debatable” whether that exception applied – to find that it did, the Court would have to “endorse the generalization” that any person whose car is equipped to look like a police car “is likely to also carry guns or evidence of fraudulent intent.”  Slip op. at 22.  Judge Thompson dissented in part on this ground.

How to use:

·         Tuckson is useful for PPW/CDW cases involving objects that have non-weapon uses (e.g., steak knives, flowerpots), as it makes clear that, in such cases, the defendant’s intent is imperative – the government must prove that the person carrying the object intended to use it as a dangerous weapon.  It is not enough that the object could be used to inflict serious bodily injury; that must have actually been the person’s purpose in carrying it.  

·         FOR APPELLATE PRACTITIONERS:  Tuckson is a helpful case to cite if a judge proposes affirming your client’s conviction on a basis that the government never raised.  The Court explains that “considerations of good order, judicial efficiency, and respect for the proper role of institutional litigants . . . argue against our consideration of an argument that the government has not seen fit to present,” and that the Court should consider such an alternative ground only in the very rare circumstance in which its application is “beyond serious debate.”  Slip op. at 21.  CM

A Defendant’s Own “Extraordinary Efforts” Help Establish Good Cause for Filing a Motion To Recall the Mandate Out of Time

Long v. United States, Nos. 98-CF-1088, 98-CF-1425 & 04-CO-1503 (decided October 24, 2013)

Players:  Glickman, Belson, Schwelb.  Opinion by Senior Judge Belson.  Sydney J. Hoffman for Mr. Long.  Trial judge:  Nan R. Shuker.

Facts:  This case concerns a motion to recall a mandate issued in 2006, and has a long procedural history.  Mr. Long was convicted in 1998 of first-degree premeditated murder and related charges.  According to proper procedures at the time, he was sentenced to life in prison without parole based on a finding by the trial judge that three aggravating factors existed:  1) that the murder was especially heinous, atrocious or cruel; 2) that the victim was especially vulnerable due to age; and 3) that the murder was committed after substantial planning.

Mr. Long appealed his conviction and also filed a 23-110 motion to vacate his conviction on grounds of ineffective assistance of counsel.  While his appeal was pending, sentencing law changed dramatically with a number of Supreme Court decisions beginning with Apprendi.  In light of these cases, the DCCA held that criminal defendants are entitled to a jury trial on the aggravating factors that determine eligibility for LWOP and reviewed pre-Apprendi LWOP sentences for plain error, Keels v. United States, 785 A.2d 672 (D.C. 2001), reversing and remanding several cases for resentencing.

Mr. Long began trying to invoke the Apprendi line of cases in 2001.  In April of 2001, he wrote to his attorney on direct appeal (Lawyer #1) and brought Apprendi to his attention, but the lawyer did not raise an Apprendi issue in the appeal.  In July of 2004, Mr. Long filed a pro se Rule 35(a) motion to correct his sentence, citing Apprendi.  The trial court denied the motion and no appeal was noticed.  In May of 2005, Lawyer #1 filed an appeal from the summary denial of Mr. Long’s 23-110 motion, again failing to cite either Apprendi or Keels.  That appeal was consolidated with Mr. Long’s direct appeal.  In November of 2006, the DCCA affirmed the convictions but remanded for a hearing on the 23-110 motion.  A new lawyer (Lawyer #2) was appointed for the remand.    

In April of 2008, Lawyer #2 filed a Renewed Motion for Correction of Sentence,” referring back to Mr. Long’s pro se Rule 35 filing, and cited Apprendi and related cases.  The filing stated that Lawyer #1 should have raised an Apprendi issue, but did not.  The government’s opposition in June of 2008 noted that any claim of ineffective assistance by appellate counsel should be litigated in a motion to recall the mandate.  Lawyer #2’s motion was denied by the trial court as procedurally barred.  A new lawyer (Lawyer #3) was appointed in January of 2009, and handled the appeal from the denial of the post-hearing 23-110.

In February of 2012, the DCCA affirmed the denial of the 23-110, stating that Mr. Long could have pursued his Apprendi claim on direct appeal.  The next month, in March of 2012, Lawyer #3 filed the motion to recall the mandate that is the subject of this appeal.  The motion argued that Mr. Long was denied effective assistance of counsel when Lawyer #1 failed to raise an Apprendi claim on direct appeal.  The motion to recall the mandate was filed more than 180 days after the mandate issued, the time period permitted by D.C. App. R. 41(f).   

Issue 1:  Did the appellant establish “good cause” for the DCCA to exercise its authority under D.C. App. R. 26(b) to extend the time prescribed by Rule 41(f) for filing a motion to recall the mandate?

Issue 2:  Did appellate counsel provide ineffective assistance by failing to raise an Apprendi claim?

Holding 1:  Yes.  Appellant’s own “extraordinary efforts” to bring an Apprendi claim warranted an exception to the time period set out in Rule 41(f) for motions to recall the mandate, where counsel’s failure to file a motion to recall the mandate at an earlier time was contrary to an “implicit duty.”

Holding 2:  Counsel on direct appeal (Lawyer #1) provided ineffective assistance by failing to raise an Apprendi challenge to the procedures used to sentence Mr. Long to LWOP.  Remand for resentencing was required because the DCCA could not determine that the jury would have reached the same decision as the trial judge on whether the murder was especially heinous, atrocious or cruel, one of the three aggravating factors that served as the basis for the LWOP sentence. 

Of Note:

• Noting that ordinarily counsel’s mistake of law or lack of due diligence “will not excuse a failure to comply with court rules,” the DCCA invokes an exception in this case “for exceptional cases where an attorney’s conduct was so plainly contrary to ‘his express instructions or his implicit duty to devote reasonable efforts in representing his client, provided that the client himself is diligent in pursuing the claim.’”  Slip op. at 13 (quoting Lynch v. Meridian Hill Studio Apts., Inc., 491 A.2d 515, 518 (D.C. 1985)).
• It also notes that the government failed to identify any prejudice as a result of the delay in filing the motion to recall the mandate.
• The court deviates from ordinary procedures by ruling on the merits of Mr. Long’s IAC    claim in the same opinion where it grants the motion to recall the mandate, explaining that this “streamlined approach” is appropriate because “a ruling on one is essentially a decision on the other.”  Slip op. at 16 note 13.
• In analyzing whether the jury would have found beyond a reasonable doubt that the murder was especially heinous, atrocious, or cruel if that aggravating factor had been properly submitted to it, the DCCA concluded that “reasonable minds could well have disagree about whether this murder was ‘especially heinous, atrocious, or cruel,’ a standard that requires a conclusion that this murder was worse than most first-degree premeditated murders.”  Slip op. at 21.  Surveying the evidence, the court observed that   the killing was “not committed at random against an unsuspecting member of the community, but rather in revenge against the perpetrator of an earlier crime who may have acted as though he was armed at the time of the shooting.”  Id. at 25.  It also was not “just for . . . fun” and did not involve torture or “gratuitous suffering.”  Id.
• In an extensive footnote, the DCCA comments on the trial court’s reliance at sentencing on Mr. Long’s suppressed confession, observing that although at the time of sentencing it was permissible for the judge to consider evidence suppressed at trial, “we are doubtful that the general inapplicability of the exclusionary rule at sentencing still holds when the sentencing hearing is actually being conducted to prove defendant’s guilt of what are, functionally, elements of a crime.”  Slip op. at 26-27 note 16.

How To Use: 

Long is useful primarily for its analysis in permitting Mr. Long to file his motion to recall the mandate out of time, as it shows that a defendant’s own actions in trying to bring an issue to counsel’s attention can go a long way towards establishing good cause for extending the time period prescribed by rule.  It may also offer some guidance about the applicability of the “especially heinous, atrocious, or cruel” aggravating factor, though it stops short of offering a more explicit definition of its scope.  MW.

The Right To Be Present at Voir Dire Includes a Right To Observe Potential Jurors, Not Just Hear What They Say

Hager & Davis v. United States, Nos. 09-CF-1405, 10-CF-65, 10-CF-66 & 10-CF-67

Players:  Glickman, Oberly, Reid.  Opinion by Judge Oberly.  Bruce A. Johnson, Jr., for Mr. Hager.  Jenifer Wicks for Mr. Davis.  Trial judge:  Gregory Jackson.

Facts:  Before voir dire began at a joint robbery trial, Mr. Davis’s counsel asked the trial judge “if we can pick the jury in the back, because otherwise it would get very crowded at the bench and I would like Mr. Davis to hear what goes on.”  The trial judge responded that he could instead provide headsets “so that Mr. Davis and, if necessary, Mr. Hager, can hear everything that goes on.”  Mr. Davis’s counsel answered that she “would rather be able to consult with him during it, but headsets is better than nothing.”  The judge countered that “if we have to go to the jury room it will slow us way down,” and ordered the headsets. 

The voir dire was conducted at the bench without the defendants, and “the record is thin” on what the defendants were able to see.  The government conceded at oral argument that “at best, it was ‘possible’” that Mr. Davis might have been able to see the sides of jurors’ faces at the bench, and their full faces as they walked away from the bench after voir dire. 

Initial tests of the headsets before individual voir dire revealed that they were not working properly, but the court moved on with voir dire, apparently without waiting for the problem to be fixed.  Mr. Davis’s counsel pointed out “at least once more during voir dire” that the defendants were having trouble hearing.    

Issue:  Did the trial court violate Mr. Davis's right under the Fifth and Sixth Amendments and Superior Court Criminal Rule 43(a) to be present at his own criminal proceeding by denying his request to be present at the bench during voir dire?

Held:  Yes.  It was constitutional error to conduct voir dire in a manner that prevented the defendant from reasonably observing potential jurors during questioning.

Of Note: 

Error:

• The court emphasizes that the problem here was that Mr. Davis was not able to see the jurors while they were at the bench.  The right to be present at voir dire “extends not only to the defendant’s ability to hear the responses that jurors give, but also to reasonably view their demeanor during those responses in order to assess their various qualities as jurors and make decisions about whether to exercise challenges.  Otherwise, the defendant’s right to ‘observe’ voir dire would be rendered meaningless.”  Slip op. at 14. 
• Thus, although the faulty headphones compounded the error, they were not the primary problem.
• Given the thin record about what Mr. Davis could actually see during voir dire, as well as the government’s concessions at oral argument, the DCCA found it “reasonable . . . to assume that from Davis’s position while sitting at counsel table the jurors were turned away from him and his primary view during voir dire would have been of their backs.” Slip op. at 14-15.
• There were no extenuating circumstances such as security concerns that might have justified the denial of Mr. Davis’s request to be present.

Harm:

• “[T]he best view of whether the error was harmless looks at the degree to which the error impacted the defendant’s ability to meaningfully participate in the voir dire,” rather than the strength of the government’s case.  Slip op. at 16 note 8.
• The harm analysis “does not focus on the significance of the jurors’ answers,” because it   is “where the juror seems uncontroversial, but where the defendant desires to exercise his right ‘to express an arbitrary preference,’ in which the defendant’s presence is needed most greatly.”  Slip op. at 16 note 8.

Preservation:

• The defense must assert the right to be present at the bench for voir dire, and a failure to assert the right constitutes a waiver.
• Mr. Davis’s counsel sufficiently asserted his right to be present and preserved the issue for appeal by asking to “pick the jury in the back, because otherwise it would get very crowded at the bench and I would like Mr. Davis to hear what goes on.”
• Although there were some ambiguities in the ensuing colloquy between counsel and the court, the trial judge had a responsibility to determine whether Mr. Davis “interpreted his comment as a denial or was intentionally relinquishing the right he had clearly asserted only seconds before,” slip op. at 12, and the judge “made no effort to assume this responsibility.”
• Mr. Hager did not assert his right to be present and therefore waived the issue for purposes of appeal.

How To Use:

Hager makes clear that the right to be present at voir dire is not merely a right to hear what jurors are saying.  If a defendant makes a request to be present at the bench for voir dire—or, as in this case, to conduct voir dire “in the back” in anticipation that it would be too crowded at the bench—it is not an adequate response for the court to offer headphones.  It is critical to assert the right to be present during voir dire, however, and it does not take much to do so.  Mr. Hager did not assert his right, and as a result he does not benefit from the court’s decision.  MW. 

Read Hager and Davis v. United States