Appeal from the Superior Court of the District of Columbia (CMD-22626-07) (Hon. Robert R. Rigsby, Trial Judge)
The opinion of the court was delivered by: Thompson, Associate Judge:
Before RUIZ, KRAMER, and THOMPSON, Associate Judges.
A jury convicted appellant David Barrows of engaging in disorderly and disruptive conduct on United States Capitol grounds, in violation of D.C. Code § 10-503.16 (b)(4) (2001).*fn1 The government's evidence was that, on September 11, 2007, appellant entered a Senate Foreign Relations Committee hearing in the Hart Senate Office Building and, during the testimony of General David Petraeus, shouted, "You are trying to set a trap for us to bomb the helpless people of Iran. Aren't 750,000 deaths enough for your blood thirst?"
Appellant raises four issues on appeal, all of which relate to the trial court's conduct of the jury-selection process. Specifically, appellant contends that he was deprived of an impartial jury and a fair and public trial because the court (1) closed the courtroom to the public during voir dire;
(2) improperly struck two prospective jurors for cause; (3) did not adequately probe the prospective jurors with questions regarding appellant's political views; and (4) improperly allowed the prosecutor to ask prospective jurorsabout whether they or any of their close relatives were injured during the September 11, 2001 terrorist attacks. We find no reversible error.
After the court and the parties had discussed the government's proposed voir dire questions and before members of the jury venire entered the courtroom, the trial judge announced, "I'm going to ask everybody in the courtroom, just for voir dire, to please leave the courtroom, because I'm going to have to fill up the chairs in the back, okay. Is that okay with everybody? Not okay?" The trial judge then directed his attention to one spectator and said, "Okay. Ma'am, do you understand why you have to leave?" That unidentified spectator answered, "Yes. Thank you."
The judge then explained to another spectator why he wanted to close the courtroom during voir dire: "Well ma'am, it's kind of hard for you to stay while we do this because I don't want to get confused as to who you are and who the jurors are. But after voir dire is over, you all - when the trial starts, you all are welcome to come in. Okay? It's [a]n open court, okay. All right."
Appellant contends that he is entitled to reversal of his conviction because the closure of the courtroom to spectators during voir dire violated his Sixth Amendment right to a public trial. He made no contemporaneous objection to closure of the courtroom, however, instead raising the issue for the first time in this appeal. The government therefore argues that appellant has waived the issue*fn2 or that his claim for relief is subject to plain error-review.*fn3 Appellant, of course, disagrees, and asserts that the record "suggests that the second unidentified woman objected to being removed," a putative objection that appellant argues sufficed to preserve the issue for appellate review. He relies on Williams v. United States, 966 A.2d 844, 847 (D.C. 2009) (holding that, in limited circumstances, a co-defendant's objection may suffice to preserve an issue on appeal for an appellant who did not himself lodge the objection in the trial court).
Appellant concedes that the transcript of what transpired as the court was about to conduct voir dire contains no actual spectator objection, but he asks us to surmise from the trial judge's remarks ("Not okay? . . . Well, ma'am, it's kind of hard for you to stay while we do this . . . .") that an unidentified woman spectator objected to being removed from the courtroom. Even assuming that there was such a spectator objection (rather than, for example, a facial expression or gesture of displeasure) and that the rationale of Williams may be extended to cover spectator objections (an issue we need not and do not decide), we are not persuaded that the trial judge was alerted to the issue that appellant has raised on appeal. The (putative) spectator objection may not have been a rights-based or other legal objection (but instead, for example, an expression of displeasure at the spectator's having to expend energy to rouse herself and move out of the courtroom). We are unwilling to assume that the putative objection alerted the trial court to the legal error of which appellant now complains.*fn4
At the same time, mindful that appellant proceeded pro se in the trial court (albeit with the assistance of two attorney-advisors), this is not a case in which the "circumstances suggest that the lack of objection might have been strategic, rather than inadvertent," such that "overlooking the lack of objection simply encourages defense gamesmanship." Robinson, 976 A.2d at 1080. We proceed therefore to review appellant's claim under the strictures of the plain-error standard. Under that standard of review, to obtain relief, appellant must show not only (1) that the trial court erred in excluding spectators from voir dire, but also (2) that the error "should have been 'clear' or 'obvious' to the [trial] court," (3) "affected his 'substantial rights,'" and (4) "seriously affect[ed] the fairness, integrity, or public reputation of the judicial proceedings." Zanders v. United States, 999 A.2d 149, 158 (D.C. 2010) (quoting United States v. Olano, 507 U.S. 725, 732 (1993) (further citation omitted)). We have discretion to correct the error only if each of these four prongs is satisfied. Olano, 507 U.S. at 737.
In light of the Supreme Court's 2010 opinion in Presley, the
government concedes that the court's closure of the courtroom during
voir dire was error. See 130 S. Ct. at 724 ("[T]he Sixth Amendment
right to a public trial extends to the voir dire of prospective
jurors"). The government also acknowledges that the error was
structural*fn5 and that, under this court's
jurisprudence, we must assume that it affected appellant's
"substantial rights." See Arthur v. United States, 986 A.2d 398, 413
(D.C. 2009) ("[I]f [the error] is structural in nature, the
defendant's substantial rights will be
deemed to have been affected, without need for further analysis in the
context of the particular trial.") (citation omitted).*fn6
The government contends, however, that the error was not
"plain" at the time of appellant's 2007 trial and that appellant also
has not met his burden with respect to the fourth prong of the
To support its argument that the error was not plain at the time of trial, the government points to the statement by the dissenting justices in Presley that the Court had not previously decided that "voir dire is part of the 'public trial' that the Sixth Amendment guarantees." 130 S. Ct. at 726 (Thomas, J., dissenting). In holding that the Sixth Amendment right to a public trial extends to voir dire, the Presley majority relied on the Court's holdings in two prior cases, Waller v. Georgia, 467 U.S. 39 (1984) (holding that the public-trial right extends to pretrial suppression hearings), and Press-Enterprise Co. v. Superior Court of Cal., Riverside Cnty., 464 U.S. 501 (1984) (holding that the press and the public have a First Amendment right to attend voir dire). See Presley, 130 S. Ct. at 723-24. The government relies on the statement in the Presley dissent that neither Waller nor Press-Enterprise "govern[ed] squarely and directly" the issue of whether the accused's Sixth Amendment public-trial right extends to voir dire. Id. at 726 (Thomas, J., dissenting) (noting, at 727, that petitioner Presley "did not seek summary reversal based on . . . well-established ...