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Blades v. United States

Court of Appeals of The District of Columbia

January 23, 2019

Jonathan Blades, Appellant,
v.
United States, Appellee.

          Argued October 17, 2017

          Appeal from the Superior Court of the District of Columbia (CF1-2153-14) Hon. Michael Ryan, Trial Judge

          Fleming Terrell, Public Defender Service, with whom Samia Fam and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellant.

          Nicholas P. Coleman, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time, and Elizabeth Trosman, Elizabeth H. Danello, Scott Sroka, and Christopher Macchiaroli, Assistant United States Attorneys, were on the brief, for appellee.

          Before Thompson and Beckwith, Associate Judges, and Farrell, Senior Judge.

          OPINION

          THOMPSON, ASSOCIATE JUDGE

         Following a four-day jury trial, appellant was convicted of assault with intent to kill while armed ("AWIKWA") (firearm), two counts of possession of a firearm during a crime of violence ("PFCV"), aggravated assault while armed ("AAWA") (firearm), possession of an unregistered firearm ("UF") and unlawful possession of ammunition ("UA"). Appellant asks this court to reverse all of his convictions, contending that the trial court reversibly erred by employing a husher during the voir dire of prospective jurors, in admitting a photo array containing mugshots even though identity of the shooter was not an issue, in not intervening when the prosecutor made certain remarks during the government's closing argument, and in giving a jury instruction on provocation. For the reasons that follow, we affirm.

         I.

         The charges against appellant were based on an incident that occurred in the early morning hours of February 2, 2014, outside of Look Lounge, near the intersection of 20th and K Street, N.W. Johnny Campbell testified that he was leaving the Look Lounge nightclub around 2:40 a.m. on that morning with his friends Jeremy Paige and "Rob" and was turning right to walk to his car when he ran into Areka Mitchell, with whom he had gone to high school. Campbell greeted Mitchell, and Mitchell introduced appellant to Campbell as her fiancé. Campbell testified that appellant then said in an "angry" voice, "Who the fuck are you?" and "something like" "What are you all, like school buddies or study buddies?" Campbell and appellant were "in each other's face," and appellant then struck Campbell in the face.

         Campbell testified that he hit appellant back and they began fighting.[1]Appellant was on the ground when Campbell "felt a blow to [his] head," which "stunned [him]," and then felt a second blow to his head, which "shook [him] up" and "made [him] get up off of [appellant]." Campbell then heard appellant say either "I'm going to get my shit" or "[w]here's my shit," words that Campbell understood to mean that appellant was "going to get [his] gun." Campbell also heard Mitchell say, "[h]e's getting ready to bust your ass," which Campbell understood to mean that he was "about to get shot." Campbell testified that he ran diagonally across 20th Street, eventually turning left onto L Street. As he was running across 20th Street, he heard gun shots, causing him to "r[u]n even faster," and he saw "[appellant] with [his] car door open . . . [and] fire coming from the gun" in appellant's hand. At some point, Campbell became aware of "a hole in [his] back" and that he "couldn't lift [his] arm up." He eventually ran into a nearby Exxon station where an ambulance was called and took him to a hospital.[2]

         Paige, Campbell's friend since childhood, testified that he and Campbell were walking to Campbell's car when appellant called out to Campbell and got "in [Campbell's] face." Paige testified that appellant pushed Campbell in the chest, that Campbell responded by hitting appellant in the face, and that the two men "got to grappling with each other."[3] Appellant then fell over a planter, and Campbell "punch[ed] [appellant] against [appellant's] car." That was when Mitchell began hitting Campbell in the back of his head with her high-heeled shoe. After this, appellant and Campbell both got up and the fight continued in the middle of 20th Street, at which time Paige was "trying to guide [Mitchell] from hitting [Campbell] in the back of the head." Paige testified that Campbell then "caught [appellant] with two or three good shots," and appellant fell to the ground. Campbell went directly "across the street from [appellant's] car," and Mitchell "followed [Campbell], screaming." Paige "thought the fight was over," but then saw appellant, who had a gun in his hand, "reach[] in[to] the back seat" of his car (which the testimony indicated was parked on 20th Street between K and L Street), "load[] the magazine into the gun," and "start[] shooting." Paige testified that "it seemed like [appellant shot] probably seven to eight bullets" but that "[i]t could be more." Paige testified that no one was physically hitting appellant at the point when appellant started shooting and that there was no one near appellant who was a physical threat to appellant at that time. Paige denied hitting, punching, or kicking appellant or otherwise participating in the fight and testified that none of the friends who had been with him and Campbell at the club was participating or even standing around during the fight.

         Metropolitan Police Department ("MPD") Officer James Burgess, who was with the MPD Crime Scene Investigations Division, collected evidence from the scene of the shooting, including nine cartridge casings, one bullet fragment, and two bullets. The cartridge casings were all found on 20th Street. Officer Burgess testified that one of the bullets was found inside a newspaper box on L Street, near the corner of 20th and L Street, and that the other bullet was found a little further west on L Street.

         Daniel Barrett, a firearms and toolmark examiner with the Department of Forensic Science, testified that all nine cartridge casings were the same caliber and from the same manufacturer and had the same caliber and manufacturer as casings recovered from inside a semiautomatic firearm found in appellant's residence. Mr. Barrett further testified that "shell casing[s] . . . eject to [the shooter's] right side" and "bounce when [they] hit[] the cement." Looking at Government Exhibit 40, which depicted where the shell casings were found on 20th Street, Mr. Barrett testified that the locations were "indicative of [the shooter] being off to the left and walking in a straight line," up 20th Street toward L Street.

         Dr. Bruce Abell, the trauma surgeon who attended to Campbell on the morning of the incident, testified that Campbell presented with abrasions to his lip and face, swelling that was "consistent with someone being punched," and "a small laceration" on his scalp, which was "consistent with hitting something or being hit by something." Dr. Abell further testified that a bullet pierced and then left Campbell's body and that there was a wound in his left shoulder and on his back. Dr. Abell could not tell which of the wounds was an entrance wound and which was an exit wound. He opined, however, that the wounds were consistent with Campbell's "facing away from the shooter, but to an angle" and were "not consistent with [Campbell's] facing a shooter." Dr. Abell also noted that "with short range gunshots, . . . you can actually see some changes on the skin at the entrance wound, . . . [i.e., ] stippling," which Dr. Abell did not see on Campbell.

         Dr. William Bruchey, an expert in firearms examination, ballistics, and crime scene reconstruction, testified in the defense's case that there is a "randomness to the shell casing pattern" of a semiautomatic pistol. Based on where the shell casings were found on 20th Street, Dr. Bruchey opined that the shooter was "relatively stationary" rather than walking. Asked on cross-examination how he accounted for the bullet "recovered further left on L Street," Dr. Bruchey said that a newsstand when hit by a bullet "can make [the bullet] take a left turn."

         Appellant testified that after leaving Look Lounge on the early morning in question, he went to retrieve his car, with the intent of pulling it in front of the club to pick up his fiancée, Mitchell. The valet parking obstructed appellant from doing this, so he turned right onto 20th Street and found an open parking spot immediately upon turning. After parking, he reached into his glove compartment and retrieved his loaded gun and put it on his hip "for protection" because he had been shot about two months previously after leaving a club. The bullet from that shooting had gone through his arm and into his chest and remained lodged there at the time of the trial.

         Appellant testified that he went to the front of the club and found Mitchell and was walking back to his car with her when they encountered a group of three guys who "were being loud[and] belligerent." One was Campbell, and appellant testified that Campbell "grabbed [Mitchell] by the hips and pulled her close" and, when Mitchell "pushed his hand off her," "kept on approaching, [and being] aggressive toward her." Appellant then grabbed Campbell's shoulders, and turned him around, and the two of them "had verbal words." During this time, appellant testified, Mitchell was pulling appellant away "because she . . . didn't want the argument to escalate" and walking towards the car. When appellant reached the driver-side door but before he could get into the car, Campbell "ran up" and punched him in the face. Campbell and appellant started fighting, and Paige "ran over and . . . started . . . swinging at [appellant]," "hitting [him] on top of [his] head," and it became "like a moving brawl." Appellant testified that he heard Rob say "move back, let me stab him." Appellant then "pushed off as hard as [he] could" from the two others and reached for his gun and "pulled the trigger[] as fast as [he] could," afraid that one of the men would try to take the gun from him. Appellant testified that he was concerned about "what would happen to . . . [the] bullet in [his] chest" if he was hit the wrong way, that his intent was "to just get them off of me" and "stop them from jumping me," and that it was not his intent to kill Campbell. Appellant told the jury that he was "disoriented from getting hit" in the head and could not "see straight" because he had blood in his face and eyes, but stopped shooting after he "started to come to and started to see clearly" and noticed that "the threat wasn't there" and the other men were not in front of him. Appellant acknowledged that he fired nine shots but said that he did not think he hit anyone and therefore just returned home after the shooting.

         The jury received a verdict form that instructed jurors to consider whether appellant was guilty of the lesser-included offense of assault with a dangerous weapon (firearm) if they acquitted appellant of the AWIKWA (firearm) charge. The jury found appellant not guilty of AWIKWA (automobile), assault with a dangerous weapon (automobile), and AAWA (automobile). This appeal followed.

         II.

         We turn first to the issue appellant raised for the first time in a supplemental brief, which this court granted him leave to file. In seeking permission from the court to file the supplemental brief, counsel explained that it had come to her attention that she "failed to raise a preserved issue of constitutional importance in [a]ppellant's opening brief: the denial of [appellant's] right to a public trial during jury selection," an issue that counsel said was "essential to raise . . . on appeal in order to provide effective assistance to [appellant]." The government did not oppose appellant's motion to file a supplemental brief, but asserts in a footnote to its supplemental opposition brief that the court could treat the claim raised in the supplemental brief as waived, as this court typically does with arguments raised for the first time in a reply brief or during oral argument. Given counsel's commendable candor and the importance of effective assistance of counsel, we elect to consider the "public-trial" issue raised in the supplemental brief.

         The record shows that the court posed voir dire questions to prospective jurors in open court and, thereafter, questioned individual jurors about their responses at the bench, with the husher turned on to prevent everyone except the court, the attorneys, appellant, and the court reporter from hearing the exchanges that followed.[4] As the court described the procedure, it entailed "doing the examination up at the bench and leaving seats in the back of the courtroom for the public and authorizing access to the proceedings as appropriate or where requests are made." Appellant's contention in his supplemental brief is that the trial court violated his constitutional right to a public trial by conducting individual-juror voir dire at the bench with the husher turned on, an arrangement that prevented the public from hearing the exchanges that occurred. Appellant asserts that the trial court failed to make the findings required by Waller v. Georgia, 467 U.S. 39, 48 (1984) ("[T]he party seeking to close the [courtroom] must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.").[5] Appellant asserts that in the absence of such findings, use of the husher to preclude the public from hearing the voir dire exchanges at the bench was structural error, entitling him to reversal of his convictions without a required showing of prejudice or harm (and, accordingly, appellant has not attempted to show prejudice from use of the husher).

         In raising the public-trial issue in the trial court, appellant asserted that there was no "compelling interest to exclude the public" and that conducting the jury selection process "with the husher on albeit with . . . seats in the back of the courtroom open . . . to people to sit in on a husher," i.e., "where the matters can be seen but not heard," was "not consistent with what the Constitution envisioned as being an open trial." The trial judge acknowledged that the public and the press "have a right to participate" and a "right to get every syllable of th[e] conversations" that occur at the bench during voir dire, a right the court reasoned, however, "can get effectuated in different ways." In denying appellant's request to proceed without the husher, the trial judge cited his concern about "the candor of prospective jurors," which he said was "[b]ased on 20 years of being a trial lawyer and more than 10 years of being a [j]udge." The judge explained that it was his "experience and belief that [potential jurors] are less forthcoming in response especially to sensitive questions when they don't have, at least, the cover of the husher and being up at the bench."

         The Sixth Amendment to the United States Constitution provides in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right to a . . . public trial . . . ." U.S. Const. amend. VI. The Supreme Court has recognized that the guarantee of a public trial extends to the voir dire examination of potential jurors. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 504-10, (1984) (considering the issue under the First Amendment); Presley v. Georgia, 558 U.S. 209, 213 (2010) ("[T]here is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has [under the Sixth Amendment]."). As this court has observed, "it is only under the most exceptional circumstances that limited portions of a criminal trial may be closed even partially to the public." Kleinbart v. United States, 388 A.2d 878, 883 (D.C. 1978). We held in Kleinbart that "[w]here the trial court has improperly excluded the public or a portion thereof from the courtroom during a criminal trial, and the accused has made timely objection to such exclusion, prejudice will be presumed without placing the burden upon the accused to show actual harm to justify reversal." Id. at 882 (reversing Kleinbart's conviction because, during the testimony phase of his trial, "the courtroom was locked upon order of the trial court," which thereby "closed [the] trial to all the public for a portion of at least one day" "for no articulated reason," id. at 879, 881, 883 (emphasis in the original)).

         The government argues that appellant's claim that he is entitled to reversal of his convictions without any showing of actual harm is foreclosed by this court's holding in Copeland v. United States, 111 A.3d 627 (D.C. 2015): "We hold that the long-standing practice in this jurisdiction of conducting individual voir dire at the bench, within the view but outside the hearing of the public, is not a structural error." Id. at 634-35. Appellant discounts that explicit "hold[ing]," asserting that it as not "needed to resolve Copeland's ineffective assistance [of counsel] claim [that was premised on counsel's failure to inform Copeland of his right to be present at the bench during the voir dire of individual jurors]" and thus was dictum, and arguing in addition that the "hold[ing]" announced in Copeland is inconsistent with this court's holding in In re Access to Jury Questionnaires, 37 A.3d 879 (D.C. 2012).

         Even assuming arguendo that the pertinent "hold[ing]" in Copeland was dictum, we reach the same conclusion here, for the reasons the Copeland court articulated and others. As we said in Copeland, "[w]hen questioning occurs at the bench, the public can still observe the proceedings," thus "further[ing] the values that the public trial right is designed to protect," and can "hear the general questions posed to the jury panel." 111 A.3d at 634 (internal quotation marks omitted). We emphasized that when the husher is used during individual voir dire questioning at the bench, "[t]he courtroom [i]s not closed, no one [i]s excluded from observing voir dire, and a transcript of the proceeding is available." Id. at 633. We explained that the husher procedure is "designed, in part, to protect a juror's privacy and to encourage potential jurors to be forthright when they might otherwise be reluctant to discuss personal experiences or private matters" and also "to prevent a potential juror's answers to voir dire questions from prejudicing other members of the venire." Id. at 634.[6]

         In general, courts have found there to be full or partial courtroom closures only where some or all members of the public are precluded from perceiving contemporaneously what is transpiring in the courtroom, because they can neither see nor hear what is going on. For example, in Presley, 558 U.S. 209, the Court held that the defendant's right to a public trial was violated when the trial court excluded the public, including the defendant's uncle, from the courtroom during voir dire of prospective jurors, to prevent jurors from overhearing some inadvertent comment or conversation. Id. at 213. In Cable News Network, Inc. v. United States, 824 F.2d 1046 (D.C. Cir. 1987), the D.C. Circuit summarily reversed the district court's determination "that voir dire examinations would be conducted in camera save for any prospective jurors who elected to be questioned in open court." Id. at 1047. The D.C. Circuit did not state precisely what it meant by "in camera," but Black's Law Dictionary defines "in camera" as meaning either "[i]n the judge's private chambers" or "[i]n the courtroom with all spectators excluded." (10th ed., West 2009 at 878). Thus, we read Cable News as holding that the public-trial right is violated when individual-juror voir dire is held in the judge's chambers or elsewhere in a place from which the public is excluded. Similarly, in ABC, Inc. v. Stewart, 360 F.3d 90, 95 (2d Cir. 2004), the court found an erroneous closure of the voir dire proceedings where examinations of prospective jurors were conducted in the judge's robing room. Decisions of this court rendered upon plain-error review have reached a similar result. See (Antonio) Williams v. United States, 51 A.3d 1273, 1283 (D.C. 2012) (finding obvious error where the voir dire of individual jurors was moved to a jury room, from which spectators were excluded, to accommodate the visually impaired prosecutor); see also Barrows, 15 A.3d at 679 (finding obvious error where the trial court excluded members of the public from the courtroom during the time it took to conduct voir dire, in order to accommodate the large number of potential jurors in the venire).

         By contrast, where proceedings are conducted in the open courtroom but with some members of the public having an obstructed view, courts have generally concluded that the process is an alternative to closure rather than a closure subject to the requirements of Waller. See, e.g., Rodriguez v. Miller, 537 F.3d 102, 103-10 (2d Cir. 2007) (holding, upon reconsideration of an earlier ruling at Supreme Court direction, that the trial court's requirement that defendant's family members sit behind a screen to shield a testifying undercover police officer from their view or otherwise be excluded from the courtroom during the officer's testimony did not violate clearly established federal law and was at least arguably a "reasonable alternative to closure" of the courtroom to the family members, rather than a partial closure);[7] Pearson v. James, 105 F.3d 828, 830 (2d Cir. 1997) (characterizing the placing of a screen between spectators and a testifying undercover officer as an "alternative[] to closure"); United States v. Lucas, 932 F.2d 1210, 1217 (8th Cir. 1991) (use of screen to permit spectators to hear but not see detective's testimony was in lieu of closure of the courtroom and did not violate the defendant's public-trial right); State v. Schultzen, 522 N.W.2d 833, 836 (Iowa 1994) (public trial right not violated by reasonable alternative to closure, or "quasi-closure," that entailed having three spectators (members of defendant's family) seated behind blackboards during a portion of the victim's testimony so that the line of view between the victim and the family members was obstructed).[8]

         The foregoing case law supports a conclusion that the husher procedure employed in this case - an instance of "the long-standing practice in this jurisdiction of conducting individual voir dire at the bench, within the view but outside the hearing of the public," Copeland, 111 A.3d at 634-35 - does not amount to a closure or partial closure of the courtroom, but is more appropriately viewed as an alternative to closure. We think that even more so than the obstructed-view procedures discussed in the foregoing cases, use of a husher during the conduct of individual voir dire at the bench, along with access within a reasonable time to transcripts of the individual prospective-juror examinations, [9] is a reasonable alternative to closure of the courtroom that enables the public to see the court proceedings, including facial expressions and body language of at least some of the participants at the bench, and thus honors the defendant's right to a public trial. We note also that use of the husher avoids the partial closure of the courtroom entailed in the process that appellant's trial counsel told the court had recently been utilized by another judge and that counsel appeared to endorse for use in this case: allowing the public to be in the courtroom as "the jurors [a]re sent in through the back to answer questions" from the witness stand "with the other jurors outside of the courtroom." That procedure would have precluded other prospective jurors from seeing the proceedings at the bench during the questioning of their individual co-venire members. Although they were sworn trial participants, the prospective jurors were nonetheless members of the public who were entitled to view the voir dire proceedings.

         In sum, we conclude that use of the husher during individual-juror voir dire did not constitute closure or partial closure of the courtroom, but instead was a "reasonable alternative [] to closing the proceeding," Waller, 467 U.S. at 48, that protected appellant's public-trial right.[10] We therefore reject appellant's claim of error.

         III.

         Complainant Campbell testified that upon viewing a photo array presented to him by MPD officers, he identified appellant as the shooter. The photo array, with Campbell's initials written near a circle around appellant's face, was published to the jury. Paige testified that he, too, "participated in an identification procedure with the police" and identified appellant as the shooter. The government introduced into evidence and published to the jury the "list of faces that [the police] showed [Paige]."

         On appeal, appellant renews his at-trial objection to the trial court's decision to "admit[] and allow[] the prosecution to publish to the jury photo arrays containing [appellant's] mugshot." Appellant argues that the photo arrays did not satisfy the three-part test this court has adopted for admissibility. We conclude that any error in admission of the photo arrays was harmless beyond a reasonable doubt.

         "For admission of 'mug shot type' photographs at trial: 1) [t]he government must have a demonstrable need to introduce the photographs; and 2) [t]he photographs themselves, if shown to the jury, must not imply that the defendant has a prior criminal record; and 3) [t]he manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs." See Bishop v. United States, 983 A.2d 1029, 1034 (D.C. 2009). Appellant argues the government did not have "a demonstrable need to introduce the photographs" because "identification was not in issue": appellant admitted that he was the shooter, and his trial counsel signaled in her opening statement that appellant's defense to the AWIKWA charge was self-defense. The government retorts that it carried the "burden to prove appellant committed the charged offenses through admissible evidence" and that Campbell's and Paige's immediate ability to identify appellant "was significant evidence supporting their credibility as witnesses."

         We think appellant has the better of the argument about whether there was a demonstrable need to introduce the photo arrays. Campbell told the jury that he circled on the photo array (Government Ex. 7) the photo of "the defendant who shot me" and said at the time, "That's definitely him. I am never going to forget someone that shot me." Similarly, Paige told the jury that upon identifying appellant on the photo array (Government Ex. 10), he made the statements, "That's the guy. I remember him. I won't forget his face." Given all the foregoing, we assume (though without definitively deciding) that, as in (Kirkland) Williams v. United States, 382 A.2d 1 (D.C. 1978), the government had "no reason to show identification" at trial. See id. at 5 ("The government adduced more than sufficient testimony regarding ...


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