Appeals from the Superior Court of the District of Columbia (F-4745-97 & F-4811-97) (Hon. Rufus G. King, III, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and NEBEKER, Senior Judge.
Appellants Jeremiah Mungo and Lamont A. Peete were tried jointly for the murders of William Powell and Norman Isaac, who were fatally shot on June 3, 1997, as they sat in a car in an alley behind 58th and Blaine Streets, N.E. After the jury in appellants' first trial was unable to reach a verdict and the court declared a mistrial, appellants were retried during January and February 2000. The second jury found Peete guilty as charged of two counts of first-degree premeditated murder while armed, while convicting Mungo of two counts of the lesser-included offense of second-degree murder while armed. Both appellants were convicted of weapons charges as well. Both filed direct appeals from their convictions and, thereafter, both filed motions under D.C. Code § 23-110 seeking relief on the ground of ineffective assistance of counsel. After conducting an evidentiary hearing during the summer of 2006, the trial court denied both 23-110 motions in a single written order dated February 11, 2008. Both Mungo and Peete appealed that ruling, and we consolidated those appeals with their direct appeals.
The direct and collateral appeals raise related issues. In their direct-appeal briefs, appellants contend variously that the trial court (1) erred by permitting the use of stun belts during jury voir dire; (2) erroneously exercised its discretion in ruling on the parties' Batson challenges;
(3) violated appellants' rights under the Confrontation Clause in permitting a forensic pathologist to testify on the basis of autopsy documents prepared by a different medical examiner, whom the government did not call to testify; (4) abused its discretion by allowing the government to introduce "other bad acts" testimony; (5) abused its discretion by not declaring a mistrial in light of the inappropriate demeanor of each appellant's trial counsel; and (6) gave a legally erroneous and prejudicial aiding-and-abetting instruction. Appellants also contend that the trial court erred in rejecting their claims that their trial counsel provided ineffective assistance by failing to object to certain of the foregoing asserted trial-court errors, by their conduct that occasioned the errors, and by other omissions. We are unpersuaded that appellants are entitled to relief on any of these grounds, and we therefore affirm the judgments of conviction and the ruling of the trial court denying the 23-110 motions.
The government presented several eyewitnesses who testified that they saw Mungo and Peete, both carrying pistols, enter the alley and approach the driver's side of a parked car occupied by Powell and Isaac. According to witnesses, after Mungo exchanged heated words with Powell, Peete fired multiple shots into the car from a distance of two to three feet away, turned to leave, and then fired a second round of shots into the car. Police found Powell slumped over the steering wheel and Isaac in the passenger's seat, both having sustained multiple gunshot wounds.
During jury selection, the prosecutor advised the court that he was having lower-back problems that made standing for long periods of time painful, and he raised the possibility of conducting voir dire in the jury room instead of in the courtroom. Mr. Beaman, trial counsel for appellant Peete, commented that the "only difficulty will be[,] if we go in the jury room, Your Honor, they will have to take time to strap our clients into harnesses. I'm not sure how visible those harnesses are." The trial judge responded, "They have the stun belts.*fn1 I don't think they have to be very visible." The court then asked, "Are you asking for [the defendants] to be present?" When counsel Beaman responded in the affirmative, the court said, "it may just be easier to do it that way. So I'll "talk with the deputies . . . ." The record establishes that appellants did wear stun belts during two days of jury voir dire while they sat at one end of a table about fifteen feet away from where individual jurors were seated during their interviews. Acknowledging that their trial counsel neither objected to use of the stun belts nor asked the court to consider other security options, appellants now argue that the trial court plainly erred in directing or permitting use of the belts without making findings on the record to justify use of the devices. They also argue that their lawyers provided ineffective assistance by their failure to object to use of the stun belts, to propose alternatives, to ensure that the belts were not visible to jurors, to ensure that the court made relevant findings, and to ensure that the Marshal's Service rules for use of stun belts were followed.
We are not persuaded that the trial court plainly erred in permitting the use of stun belts under the circumstances here.*fn2 To be sure, the Supreme Court has held that "absent a trial court determination, in the exercise of its discretion" that their use is "justified by a state interest specific to a particular trial," the use of visible physical restraints during the guilt phase of a criminal trial violates due process because it "undermines the presumption of innocence and the related fairness of the factfinding process." Deck v. Missouri, 544 U.S. 622, 629, 630, 635 (2005). The Court has also recognized that the use of physical restraints can interfere with a defendant's ability to communicate with his counsel. Id. at 631 ("[S]hackles 'impose physical burdens, pains, and restraints . . ., tend to confuse and embarrass' defendants' 'mental faculties,' and thereby tend 'materially to abridge and prejudicially affect his constitutional rights.'") (citing People v. Harrington, 42 Cal. 165, 168 (1871)). Several courts of appeals in other jurisdictions have reasoned that stun belts amount to physical restraints, see, e.g., Gonzalez v. Pliler, 341 F.3d 897, 904 (9th Cir. 2003); can potentially chill a criminal defendant's consultation with counsel because of the danger of accidental activation of an electrical charge, see, e.g., Durham, 287 F.3d at 1302 n.2, 1305, 1308; and should not be used unless the trial court makes findings on the record that their use is warranted. See, e.g., United States v. Wardell, 581 F.3d 1272, 1287--88 (10th Cir. 2009); see also United States v. Edelin, 175 F. Supp. 2d 1, 4--5 (D.D.C. 2001). But, critical to our analysis, neither the United States Supreme Court nor this court has ever held that a stun belt qualifies as a type of physical restraint whose use is subject to the strictures that the Supreme Court set out in Deck, that the reasoning of Deck (which addressed the use of physical restraints during the guilt phase of a trial or during the penalty phase of a capital trial) applies equally to the limited use of restraints during jury selection;or that on-the-record findings are required before stun belts may be used. Accordingly, we cannot conclude that the trial court plainly erred in allowing the use of stun belts during the jury voir dire proceedings.*fn3
We also can find no error in the trial court's denial of appellants' ineffective-assistance claims premised on their counsels' failure to object to the use of stun belts. The cases on which appellants rely to establish that stun belts should be used only where a court has made on-the-record findings justifying their use and that stun belts constitute physical restraints, not only are from other jurisdictions, but also were decided after appellants' trial, which took place in 2000.*fn4
We cannot conclude that appellants' trial counsel were deficient for failing to anticipate the holding of those cases. Moreover, as the trial court implied on the basis of testimony by Mr. Tun (appellant Mungo's trial counsel) at the 23-110 hearing, defense counsel's willingness to accept the use of stun belts in conjunction with voir dire in the jury room was a tactical decision by counsel, whose objective was "for [appellant Mungo] to be able to participate in the jury selection process" instead of remaining at counsel table in the courtroom during the voir dire process. Peete testified at the 23-110 hearing that he had the same objective, telling his counsel that he "wanted to be involved" and "wanted to hear what was being said" during jury selection.
Even if arguendo appellants' trial counsel's failure to object to use of the stun belts or to insist on procedural safeguards amounted to deficient performance, "[s]tanding alone, the attorneys' failure to request an inquiry into the justification for the stun belt is not ineffective assistance. Some prejudice is required before a trial counsel's performance falls below the constitutional minimum." Wrinkles v. Buss, 537 F.3d 804, 815 (7th Cir. 2008) (citing Strickland v. Washington, 466 U.S. 668, 691--92 (1984)). On the issue of whether they were prejudiced by their counsel's failure to object, at the 23-110 hearing, appellants presented testimony by Jay Scott, a correctional officer who served on the jury that convicted appellants, who happened to meet appellant Mungo while Mungo was incarcerated, and who told the court that during the voir dire process, he noticed appellants wearing belts that he thought were stun belts.*fn5 Scott testified that this caused him to think that appellants were "some bad criminals" who "had definitely been in the system before." Asked whether "what happened in the jury room during voir dire affected [his] verdict in any way," Scott answered, "Yes." The trial court, however, gave little weight to Scott's testimony, finding that his "failures of recall" about other details of what he saw during voir dire and where he had seen a stun belt previously "decreased the value of" his testimony. We have no basis to disturb the court's credibility finding as to Scott's testimony, particularly in light of Mr. Tun's testimony that Mungo's jacket covered the stun belt he was wearing and that Tun took steps to ensure that the stun belt was not seen because he understood that it could be prejudicial. Moreover, as the trial court emphasized, although Scott answered "yes" to the question from Mungo's counsel about whether his verdict was affected by what he saw during the voir ...