Argued January 15, 2013
Appeal from the Superior Court of the District of Columbia (FEL-6669-02) (Hon. Erik P. Christian, Trial Judge)
Jenifer Wicks for appellant.
Kathryn L. Rakoczy for appellee. Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Elizabeth H. Danello, Carolyn K. Kolben, and Ann K. H. Simon, Assistant United States Attorneys, were on the brief for appellee.
Before Washington, Chief Judge, Oberly, Associate Judge, and Pryor, Senior Judge.
Oberly, Associate Judge.
Travis Littlejohn was convicted of voluntary manslaughter while armed in connection with the stabbing death of Nadir Farooq. This court affirmed his conviction on direct appeal. Littlejohn v. United States, No. 05-CF-359, Mem. Op. & J. (D.C. Nov. 17, 2008). During the pendency of his direct appeal, Littlejohn filed a motion to vacate his conviction pursuant to D.C. Code § 23-110 (2001), alleging that trial counsel had been constitutionally ineffective for failing to object to the trial judge's order excluding Littlejohn's friends and family from the courtroom and thereby waiving his Sixth Amendment right to a public trial. The trial court denied this claim without a hearing. Because the record does not permit us to resolve the issue, we remand the case to the trial court for an evidentiary hearing to determine whether trial counsel's waiver of Littlejohn's right to a public trial constituted ineffective assistance of counsel.
I. Background and Procedural History
While he was at a "go-go" party one night in September 2002, Nadir Farooq was fatally stabbed in the neck after a confrontation with Littlejohn. The government charged Littlejohn with Farooq's murder, relying primarily on the testimony of Farooq's sister, Nailah, who testified that she saw Littlejohn swing at Farooq and saw Farooq fall to the floor bleeding. During the course of Littlejohn's trial, hostilities arose between Littlejohn's family and friends and the family and friends of Farooq.
At 4:00 p.m. on the first day of trial, the judge took a break during Nailah Farooq's testimony. During this break, Littlejohn's counsel brought to the court's attention the conflict between the two groups. The transcript of the bench conference that ensued is seriously incomplete, consisting of many "indiscernible" statements from Littlejohn's counsel, the prosecutor, and the judge, making it difficult to determine the nature of the conflict and the proposed solutions. Apparently, there had been "a huge melee in front of the courthouse, " and as the parties and the judge discussed how to respond, Littlejohn's counsel stated, "I can keep (indiscernible) and send the other group home." The judge responded: "Why can't you keep your group here, since you're going to be (indiscernible) PD-140s."
The court reporter was unable to discern much of the remaining brief discussion, but the judge soon stated that he would speak to each group. He brought in Farooq's friends and family and addressed them first:
It's been brought to my attention about the competing of the sides here, and I know it's a very stressful situation, and matters may have occurred at last court proceedings, but it's my intention and my desire that that does not repeat itself If it does, I have no other choice but to hold people in contempt and to incarcerate them for a substantial period of time if there is any arguments or fights, either in my courtroom, in the corridor, in the lobby, or outside of this courthouse, or any other way connected to this case. To prevent that, I'm ordering [any court observers on behalf of the decedent] to be in this courtroom at 4:30 on my right side, where [the prosecutor] is standing on that side, having a seat there by 4:30 each day until you are excused.
The judge then brought in Littlejohn's friends and family, explaining that because of the "tension between both sides . . . I want you all to make sure that you. . . leave this courtroom, courthouse at 4 o'clock each day.... This trial will be going on from 10:30 in the morning, but you are ordered to leave this courthouse at 4 o'clock each day." The court then dismissed them for the day: "So it's 4 o'clock today, so you all can go at this time . . . and we'll see you . . . at 10:30 tomorrow morning."
The trial then resumed with Nailah Farooq's direct examination and ended for the day at "about 4:40" p.m. The trial continued over the next two days, and the jury ultimately found Littlejohn guilty of armed manslaughter.
In his direct appeal, Littlejohn argued that the trial court had violated his Sixth Amendment right to a public trial when it closed the courtroom to his friends and family while a key prosecution witness was still testifying. This court affirmed his conviction, holding that, although "the right to a public trial is fundamental, " it is nonetheless subject to waiver, and Littlejohn's counsel waived his objection to the closure order when he "actively supported (and may even have proposed) the concept of staggering the departure times of the two groups in order to minimize the risk of a fracas." Littlejohn, No. 05-CF-359, Mem. Op. & J., at 1-2.
While his direct appeal was still pending, Littlejohn filed a § 23-110 motion to vacate his conviction. In that motion, he argued that his trial counsel had been ineffective in failing to object to the exclusion of his family and friends, preventing the court from considering alternative solutions to address the problems raised by the conflict between the two groups and waiving Littlejohn's right to challenge the court's closure order on appeal. We pause to note that not only was Littlejohn entitled to challenge his trial counsel's ineffectiveness in a collateral attack, but that claims of ineffective assistance of counsel are in fact more appropriately brought in a separate § 23-110 motion to vacate rather than on direct appeal. A collateral attack under § 23-110 permits the trial court to hold an evidentiary hearing, if necessary, and develop a record "regarding matters relevant to the ineffectiveness claim that do not appear in the record of the case on direct appeal." Shepard v. United States, 533 A.2d 1278, 1280 (D.C. 1987); see also Mack v. United States, 570 A.2d 777, 785 (D.C. 1990) ("This court is in the best position to assess a claim of ineffective assistance of counsel where a separate motion has been filed and an appropriate record has been made"); Ramsey v. United States, 569 A.2d 142, 146 (D.C. 1990) ("Ineffective assistance of counsel is the type of serious defect which is typically not correctable on direct appeal and is therefore an appropriate ground for a collateral attack.").
At the hearing on Littlejohn's motion, the parties and the court engaged in a preliminary discussion about what issues would be explored at the hearing. In discussing the courtroom closure claim, Littlejohn's counsel explained that the issue was whether "[trial] counsel essentially waiv[ed] [Littlejohn's] right to a public and open trial without consulting with him." The prosecutor objected to a hearing on this claim for two reasons: she argued that this claim was "brought up on appeal" and "addressed by the Court of Appeals, " and further, she "had absolutely no idea that defense was going to bring this up" because "it wasn't in the pleadings." On the merits, the prosecutor reasoned that "above and ...