Appeal from the Superior Court of the District of Columbia (F-5339-04) (Hon. Erik P. Christian, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before REID, GLICKMAN and OBERLY, Associate Judges.
Appealing his conviction for assaulting a police officer, appellant Kelvin Martin claims the trial court violated his Sixth Amendment right to counsel by ordering him not to speak to his attorney about his testimony over a weekend recess that interrupted his cross-examination. We agree with appellant that this was plain error necessitating reversal.
Appellant was indicted and tried on one count of aggravated assault while armed and one count of assaulting, resisting or interfering with a police officer with a dangerous weapon. The charges arose when Officer Ross Dykman of the United States Park Police attempted to stop the vehicle appellant was driving, a Chevrolet Suburban, on the afternoon of August 23, 2004. Officer Dykman testified at trial that he approached the Suburban, which was halted in traffic, because he saw the front-seat passenger drinking from a bottle in a paper bag. Dykman suspected that the bag concealed an open container of alcohol. According to Dykman, he identified himself as a police officer and asked appellant for his driver's license and registration, which appellant made a show of looking for but was unable to provide. Dykman then instructed appellant to pull over to the curb when traffic cleared and told the passenger to hand over the paper bag. When the passenger, appellant's former co-defendant Robert Hawkins, refused to surrender the bag, Dykman reached into the vehicle to retrieve it.
At that point, Dykman testified, the encounter turned violent. Hawkins grabbed Dykman's wrist and yelled "Go!" The Suburban took off. It careened through the streets for several blocks, dragging Dykman along with it and, at one point, nearly crushing him against a parked van. As the wild ride continued, Dykman managed with his free hand to withdraw his service revolver from its holster. Hawkins grabbed the gun and tried to wrench it away from Dykman. Dykman fired several shots, missing appellant but hitting Hawkins, and then fell from the speeding vehicle onto the roadway. The Suburban was followed by a civilian witness who alerted the police, and its occupants soon were apprehended.
In their defense, appellant and Hawkins testified they thought Dykman was a carjacker, not a policeman. As they described the confrontation, they were stopped in traffic when a man holding a black gun appeared without warning on the passenger side of the vehicle. The man did not identify himself as a police officer and neither appellant nor Hawkins recognized that he was one.*fn1 As traffic began to move, the unknown gunman pointed his weapon at appellant and said, "If you pull off, I'm going to shoot you." Appellant, bewildered and "scared to death," pulled off in a panic. The gunman held on to the side of the moving Suburban as Hawkins tussled with him for his gun and appellant ducked and drove erratically to avoid being shot. The encounter ended when the gunman released his grip on the door of the car after shooting Hawkins.
Appellant took the stand at trial on a Friday afternoon. His direct examination was completed and the prosecutor began his cross-examination. At 4:45 p.m., the trial judge interrupted the cross-examination to adjourn the trial until Monday morning and to excuse the jury. The prosecutor then requested "an instruction that the witness who is being cross-examined should not talk about his testimony with counsel." Without asking for a response to that request from appellant, the trial judge responded, "Sure, that you'll follow that instruction. Mr. Martin, you're directed not to speak to anyone pending the examination on Monday at 10:30. Do you understand?" Appellant answered, "Yes, sir." Appellant's trial counsel stood mute during this exchange and did not object to, or seek relief from, the order.
In this court, appellant argues that the sequestration order violated his Sixth Amendment right to the assistance of counsel recognized by the Supreme Court in Geders v. United States*fn2 and Perry v. Leeke,*fn3 and that the order constituted plain error requiring reversal under this Court's en banc decision in Jackson v. United States.*fn4 Appellant is correct on both counts.
Geders and Perry hold that an order prohibiting a defendant from conferring with his counsel during an overnight (or other significant) interruption of his testimony is a denial of the defendant's Sixth Amendment right to counsel that requires reversal without any showing of prejudice.*fn5 In such a long recess, the Supreme Court explained in Perry, the defendant has a "right to unrestricted access to his lawyer for advice on a variety of trial-related matters" even though the consultation "will inevitably include some consideration of the defendant's ongoing testimony."*fn6 The goal of preventing improper influence or witness "coaching," which suffices to justify lengthy sequestration orders directed at ordinary witnesses,*fn7 must be pursued by other means when the witness is the defendant in a criminal trial.*fn8
Applying Geders in Jackson, this Court held that an unconstitutional prohibition on a testifying defendant's communication with his attorney during a recess is reversible error "regardless of whether prejudice was demonstrated, and despite [the defendant's] failure to remonstrate against the court's order."*fn9 As the Court explained, "deprivation of counsel's assistance is presumptively prejudicial and, this right being transcendent, inherently constitutes plain error."*fn10
The government argues, and appellant elects not to dispute, that the order in this case was narrower than the flat prohibition in Geders and Perry because -- understood in context -- the judge's instruction "not to speak to anyone" forbade only discussion of appellant's testimony. Even if that is so, the order still "went further than the law permits."*fn11 Jackson expressly held that an order "limited to discussion of testimony . . . would not survive constitutional ...