Appeal from the Superior Court of the District of Columbia (F-720-02) (Hon. Thomas J. Motley, Trial Judge).
The opinion of the court was delivered by: King, Senior Judge
Before WASHINGTON, Chief Judge, and RUIZ, Associate Judge, and KING, Senior Judge.
Marlon Shields was convicted of two counts of assault with a dangerous weapon and several other weapons-related offenses arising out of a property dispute. On appeal, he contends that the manner in which the trial judge directed defense counsel to exercise his peremptory challenges was flawed, frustrating his right to a "meaningful exercise of his peremptory challenges." Shields further contends that defense counsel was ineffective because he failed to avail himself of the remedies offered by the trial court to correct any perceived flaws with the jury selection process and because counsel failed to consult with him before exercising peremptory challenges. After oral argument we ordered supplemental briefing, directing the parties to address whether counsel's deficiencies were such that we should presume prejudice, rather than apply the traditional Strickland v. Washington*fn1 analysis. We affirm.
During the early morning hours of January 30, 2004, Shields, along with his mother, entered a house on Queens Chapel Road, pulled out a gun, and ordered the two occupants of the home to leave. The two men complied, and one of them, Steager, immediately flagged down a nearby police officer who was patrolling the area. The responding officer found Shields, who appeared "angry," pacing in front of the house where the offense took place. After repeated requests by the officer, Shields eventually surrendered the weapon and he was then arrested.
Following his arrest, Shields gave a statement to police, which was admitted into evidence at trial. In this statement, he explained that he had gone to the house on Queens Chapel Road on his mother's behalf to re-establish control of that property. He admitted that his mother was not the owner of the house and he conceded that he did not know whether the occupants had permission to live there. He also admitted that he pointed a gun at the two occupants of the house.
A records search revealed that the firearm was not registered, and Shields had no license to carry it. A crime scene technician testified that the house on Queens Chapel Road was 275 feet from an elementary school.
Shields was charged with two counts of assault with a dangerous weapon,*fn2 possession of a firearm during a crime of violence,*fn3 carrying a pistol without a license within a gun-free school zone,*fn4 possession of an unregistered firearm,*fn5 and unlawful possession of ammunition.*fn6 A jury trial commenced on November 7, 2002. At the start of voir dire, the trial court instructed the members of the jury panel to record on an "answer sheet" any "yes" answers to a series of questions read by the court. The court then proceeded to interview each prospective juror at the bench, not just those who answered questions affirmatively. Shields indicated that he did not wish to be present at the bench during the individual interviews, and remained at counsel table. During voir dire, eighteen prospective jurors were excused for cause.
At the conclusion of voir dire, the judge explained to counsel that each side would be allotted ten peremptory strikes, but counsel would record on the strike sheet*fn7 two challenges at a time until the ninth round, when challenges were to proceed one at a time. The judge then instructed the attorneys to step outside the courtroom to complete the strike sheet while he responded to a jury note in another case. Before exiting the courtroom, defense counsel indicated that he needed time to consult with his client prior to completing the strike sheet. In addition, he expressed doubt about whether he could recall the race and gender of the jurors. The judge responded that counsel should do his best within the allotted time to complete the sheet. The prospective jurors also left the courtroom while the judge was dealing with the other matter.
After the trial judge concluded the other matter, both counsel and the jury panel returned to the courtroom. At that point the attorneys were in the process of recording their peremptory challenges in the "third set of two's." The remaining peremptory challenges were recorded on the strike sheet in the courtroom while the jury panel was present. Defense counsel then objected to the procedure for exercising peremptory challenges, claiming that he did not know the race or gender of several jurors nor did he have sufficient time to discuss the potential challenges with Shields.*fn8
I will give you an opportunity right now to discuss anybody you want. They [the jurors] are out there, you have the sheet, and I will ...