Jonathan Blades v. United States , 200 A.3d 230 ( 2019 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-CF-663 £
FILED I 3 { 0 /°(
Diltrict of &1J~ia
JONATHAN BLADES, APPELLANT, Court of Appeals
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CFl-2153-14)
(Hon. Michael Ryan, Trial Judge)
(Argued October 17, 2017 Decided January 23, 2019)
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 Dane/lo, 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 of the court by Associate Judge THOMPSON.
Opinion by Senior Judge FARRELL, concurring in part and concurring in the
result, at page 3 5.
Dissenting opinion by Associate Judge BECKWITH at page 38.
2
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
3
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
1
Appellant testified that before the fighting began, Rob left “to get the car
for another buddy that was inside” and thus was not on the scene.
4
[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
2
Campbell also testified that shortly after the shooting ceased, he saw
appellant’s car coming at him and was hit and “rolled off the car.” Appellant was
found not guilty of the charges related to this allegation.
3
Paige agreed that Campbell threw the first punch.
5
(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
6
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.
7
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.
8
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
9
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
10
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
4
“A ‘husher’ is a mechanical, white noise device intended to foster the
confidentiality of conversations at the bench (in this case, to protect the privacy of
prospective jurors).” Barrows v. United States, 15 A.3d 673, 681 n.13 (D.C.
2011).
11
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
5
But see Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992) (joining the
Ninth, Tenth and Eleventh Circuits in concluding that “when a trial judge orders a
partial, as opposed to a total, closure of a court proceeding at the request of one
party, a ‘substantial reason’ rather than [an] ‘overriding interest’ will justify the
closure”).
12
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
13
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 was not “needed to resolve Copeland’s ineffective assistance [of counsel] claim
14
[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
15
“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
6
We also said in Copeland that we could find “no authority . . . holding that
the practice of conducting a limited amount of individual voir dire at the bench
with a ‘husher’ on violates a defendant’s right to a public trial.” 111 A.3d at 633.
In fact, there is at least one opinion that holds that use of a white noise device
during voir dire violates the First Amendment in the absence of findings of fact
supporting that restriction on the right of access. See In re Petitions of Memphis
Pub. Co., 887 F.2d 646 (6th Cir. 1989); but see id. at 649 (Norris, J., dissenting) (“I
do not believe that the district court’s limited use of a device which emitted static
and its withholding of the transcript of the voir dire until the jury was impaneled
violated any rights secured by the United States Constitution” and “I am not
convinced that the procedure utilized was tantamount to closing the voir dire to the
public.”).
16
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).
17
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
7
As we observed in Kleinbart, “[t]he right to a public trial has never been
definitively construed by the Supreme Court.” 388 A.2d at 881. The Supreme
Court’s remand that prefaced the ruling in Rodriguez, see 537 F.3d at 103, suggests
that the Supreme Court might agree that use of a device that partially but not fully
obstructs the public’s ability to perceive trial proceedings, accompanied by
reasonable access to transcripts, does not amount to a “closure” for purposes of the
Sixth Amendment public-trial right. See Miller v. Rodriguez, 549 U.S. 1163(2007) (remanding the “screen” issue to the Second Circuit in light of Carey v.
Musladin, 549 U.S. 70 (2006) (pertaining to the meaning of “clearly established
federal law”)).
18
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
8
See also State v. Drummond, 854 N.E.2d 1038, 1080 (Ohio 2006) (Moyer,
C.J., dissenting) (referring to option of “placing a screen between the witnesses and
the spectators to conceal the witnesses from public view” as an alternative to
closing the courtroom).
19
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
9
“[T]he constitutional values sought to be protected by holding open
proceedings may be satisfied later by making a transcript . . . available within a
reasonable time.” Press-Enterprise, 464 U.S. at 512.
20
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].”
We disagree with appellant’s contention that Jury Questionnaires requires
10
a different result. In our opinion in Jury Questionnaires, we considered the issue
of mid-trial and post-trial press “access to the jury questionnaires completed by the
sixteen empaneled jurors,” 37 A.3d at 882 (italics added), and held that the trial
court erred in not recognizing the press’s First Amendment right to such access and
in failing to consider “alternatives to complete closure” of the questionnaires to
public review. We noted that the trial court “had no problem keeping oral voir dire
open to the public,” id. at 888, but we did not indicate whether a husher was used
in the open courtroom and did not consider whether the press had a right to listen
contemporaneously to oral voir-dire questioning of individual prospective jurors.
21
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
22
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 positive photographic identification of appellant to satisfy that
need [to survive a motion for judgment of acquittal]; it was not necessary to
introduce the photos themselves.”).
We must next consider whether any error in permitting introduction of the
photo arrays was harmless beyond a reasonable doubt. See (Lenwood) Williams v.
United States, 481 A.2d 1303, 1304 (D.C. 1984) (applying the constitutional
23
harmless error standard articulated in Chapman v. California, 386 U.S. 18 (1967)).
The reason for the “rigid criteria for . . . admissibility” of mugshots is that
“introduction of mug shots into evidence . . . pose[s] a danger to the defendant’s
rights by their potential for implying a prior criminal record.” Letsinger v. United
States, 402 A.2d 411, 414 (D.C. 1979).11 Examining the photo arrays, the trial
judge noted that the photos do not include “prison garb” and have “a gray or dark
gray background,” and that “it” — it’s unclear whether the court was referring to
appellant’s photo or the entire photo array — “doesn’t look . . . like a mugshot.”
Looking at the exhibits ourselves, we agree with the trial judge’s first two
observations; as to the court’s third observation, in our view the unsmiling
expressions on the men’s faces do suggest that the photos may be mugshots,
though appellant’s photo in the array looks less like a mugshot (and, perhaps, more
like a driver’s license photo) than most of the other photos. In addition, it is
significant that the mugshot serial numbers, the mugshot.com caption, and the
11
The photo array was of nine African-American men, including appellant.
In the view of the author of this opinion, unnecessary publication to District of
Columbia juries of photo arrays of African-American men also poses a danger of
fostering unconscious bias. See Gause v. United States, 959 A.2d 671, 692 n.7 and
n.8 (D.C. 2008) (Blackburne-Rigsby, J., dissenting) (citing a study showing that
“although all racial groups harbor a significant amount of unconscious anti-Black
bias, the distinction between Blacks and non-Blacks attitudes is great,” with
“71.5% of Whites, 67.5% of Asians, and 60.5% of Latinos harbor[ing]” an
unconscious anti-Black bias, compared to 32.4% of Blacks, and a study showing
that “there may be race bias against the selection of Blacks in jury wheels and
master jury lists”), rev’d on other grounds, 6 A.3d 1247 (D.C. 2010) (en banc).
24
caption “line up with serial numbers” were removed from the photo-array sheet
published to the jury. Further, the detective who prepared the photo arrays shown
to Campbell and Paige made no mention of the source of the photos in the array.
But even if the jurors could discern that the photos were mugshots, they also
knew from the parties’ stipulation regarding the “certificate of non[-]registration of
a firearm in Washington, D.C. for [appellant]” (which the trial court instructed was
“undisputed evidence”), and from the trial court’s instructions on the elements of
the charged offenses of UF and UA,12 that appellant did not dispute that he acted in
violation of District of Columbia law by bringing an unregistered firearm and
ammunition into the District. Despite learning that appellant had broken the law in
that way, the jury acquitted him of the charged AWIKWA (car) offense, a verdict
we take as evidence that jurors were able to weigh whether the evidence supported
conviction notwithstanding the undisputed information they had about appellant’s
non-compliance with the District’s gun laws, which went beyond what an arrest
mugshot implies. For that reason, we conclude that introduction of the photo
arrays into evidence was harmless beyond a reasonable doubt.
12
I.e., that “[t]he firearm had not been registered to [appellant], as required
by District of Columbia law” and that appellant lacked “a valid registration
certificate for a firearm of the same gauge or caliber as th[e] ammunition” he
possessed.
25
IV.
Appellant asserts that the prosecutor “seriously misstated the law” during his
rebuttal closing argument when, after reminding the jury of appellant’s testimony
that “he was worried . . . that the people supposedly beating him up could get his
gun,” went on to remark that appellant had “brought the gun to the neighborhood,”
and then told the jury that “a person can’t claim self-defense[] if they put
themselves in the position to ca[u]se the trouble.” In addition, appellant highlights
that after the court overruled defense counsel’s objection to the prosecutor’s
language, the prosecutor continued his rebuttal by “listing, among the reasons [why
appellant] did not act in self-defense, the fact that [appellant] brought that gun
there to begin with.” Appellant argues that through the foregoing remarks, the
prosecutor effectively told the jury that it should find that appellant “forfeited his
right to self-defense simply by choosing . . . to carry a gun.”
“When evaluating a claim of improper prosecutorial argument, we first
determine whether or not the challenged argument was improper.” Turner v.
United States, 26 A.3d 738, 742 (D.C. 2011). “If the argument was improper, we
then determine whether or not reversal is warranted, considering (1) the gravity of
26
the improper comments; (2) their relationship to the issue of guilt; (3) the effect of
any corrective action by the trial judge; and (4) the strength of the government’s
case.” Id.; see also Finch v. United States, 867 A.2d 222, 225-26 (D.C. 2005). “If
an objection was preserved,” we may ‘“affirm the convictions [if] we are satisfied
that the appellant did not suffer ‘substantial prejudice’ from the prosecutor’s
improper comments.” Id. at 226 (citing Kotteakos v. United States, 328 U.S. 750,
765 (1946)).
Acknowledging this court’s case law,13 the government concedes that “a
defendant may be entitled to a self-defense claim even when in unlawful
possession of a firearm.” The government argues, however, that the prosecutor’s
remarks did not imply the contrary. Reviewing the prosecutor’s remarks as a
whole, we are persuaded by the government’s argument. See, e.g., Jones v. United
States, 739 A.2d 348, 353 (D.C. 1999) (“A criminal conviction is not to be lightly
overturned on the basis of a prosecutor’s comments standing alone, for the
statements must be viewed in context.” (internal quotation marks omitted)).
Although in isolation, the remarks appellant highlights may have conveyed the
erroneous message about which appellant complains, in his additional remarks, the
prosecutor focused on the principle that there is no “right to use excessive force”
13
See, e.g., Stewart v. United States, 687 A.2d 576, 579 (D.C. 1996).
27
and then made statements from which we think the jury would have understood
that use of the gun in a non-excessive way would have been permissible in self-
defense if appellant had perceived that he was in danger. The prosecutor
completed his theme by saying: “He brought that gun there. He didn’t fire a
warning shot. He didn’t brandish it.” The prosecutor’s references to firing a
warning shot and merely brandishing the gun were acknowledgments that although
appellant was not entitled to use excessive force, he might have been entitled to use
the gun in those non-lethal ways to protect himself.
Moreover, it was undisputed from the outset that appellant brought the gun
to the scene, and, at various junctures, the jury learned that this did not preclude a
finding that appellant acted in self-defense. For example, during defense counsel’s
opening statement, she told the jury that they would hear that appellant pulled his
gun out from his waistband when he was terrified that two men were going to kill
him, and then told the jury that appellant, like everyone, has “the right to use
reasonable force in self-defense.” The prosecutor objected and the court had a
conference with counsel at the bench, but after the conference had concluded,
defense counsel continued her opening statement by saying that “every citizen has
a right to self-defense . . . when that person actually believes he . . . is in imminent
danger of serious bodily harm, and when there are reasonable grounds for that
28
belief.” When the prosecutor objected again, the trial court overruled his objection
in open court. We think this exchange would have conveyed to the jury that self-
defense was not out of the case just because appellant brought a gun to the scene.
The court’s instructions to the jury lead us to the same conclusion. The
court told the jury that the defense theory regarding the charge of AWIKWA
(firearm) charge was that “it was reasonable for [appellant] to believe he was in
imminent danger of serious bodily injury or death” and that he “used the degree of
force reasonably necessary to defend himself.” Thereafter, the trial court gave the
jury a lengthy self-defense instruction that included the statement that “[i]f
Jonathan Blades actually and reasonably believed he was in imminent danger of
death or serious bodily harm, and that deadly force was necessary to repel such
danger, then he may use deadly force in self-defense.” The trial court also
specifically told the jury that “[s]elf-defense is a defense to the charge[] of
[AWIKWA] Firearm.” The court’s instructions thus conveyed to the jury that
appellant’s possession of a firearm did not preclude his claim of self-defense.
Further, even if we assume arguendo that the prosecutor’s comments did
imply that appellant had forfeited his right to self-defense by bringing a gun to the
scene, we would still conclude that appellant did not suffer “‘substantial prejudice’
29
from the prosecutor’s improper comments” (quoting Finch, 867 A.2d at 226). We
note first that the jury had ample basis for rejecting appellant’s claim that his
actions were in self-defense. The evidence showed that appellant shot his gun nine
times; that Campbell, who appellant claims was his assailant, was shot not while
facing appellant, but in his back or angled shoulder; and that one of the bullets
landed around the corner from the location where appellant testified he began
firing his gun. There was also evidence (the absence of stippling) that permitted
the jury to infer that Campbell had not been shot when he was in close proximity to
appellant’s gun. In total, the government’s evidence suggested that appellant was
shooting at and pursuing targets who were running away from him rather than
placing him in imminent danger of bodily harm. Indeed, it seems likely,
notwithstanding the competing expert testimony about where the shooter might
have been standing when the shots were fired, that the jury would have found the
photographic evidence of where the casings came to rest — in a line going up 20th
Street toward L Street — and the testimony about the bullet found around the
corner on L Street to be strong evidence that appellant was pursuing Campbell.
Further, the jury, which was given an option of convicting appellant of the
lesser-included offense of assault with a dangerous weapon (firearm) (“ADW
(firearm)”), convicted appellant of AWIKWA (firearm). If jurors had credited
30
appellant’s testimony that he acted in self-defense but believed they were
precluded from acquitting appellant on that basis simply because he had brought a
gun into the District, they presumably would have convicted him of the lesser-
included ADW offense and not of AWIKWA (firearm). In convicting appellant of
AWIKWA (firearm), the jury necessarily found that appellant acted with an intent
to kill when he shot Campbell.14 For that and all the foregoing reasons, we
conclude that even if improper, the prosecutor’s remarks did not prejudice
appellant, and the trial court did not reversibly err in not taking corrective action.
V.
Appellant’s final argument is that the trial court committed reversible error
by giving, without a sufficient evidentiary basis, a provocation instruction that told
the jury that “[o]ne who deliberately puts himself in a position where he has reason
to believe that his presence will provoke trouble cannot claim self-defense.” The
court additionally instructed the jury that “if one, who is the aggressor or provokes
a conflict, later withdraws from it in good faith and communicate[s] that
14
The jury was instructed that one of the elements of AWIKWA, “which
the [g]overnment must prove beyond a reasonable doubt” in this case, was that
“Jonathan Blades intended to kill Johnny Campbell,” but that for a conviction of
ADW, “the [g]overment need not prove the defendant intended to injure Johnny
Campbell.”
31
withdrawal by words or actions, he may use deadly force to save himself from
imminent danger or death or serious bodily harm.”
A provocation instruction “is appropriately given when there is both
evidence of self-defense and evidence that the defendant provoked the aggression
from which he was defending himself.” Rorie v. United States, 882 A.2d 763, 775
(D.C. 2005). We have observed that “where the giving of the instruction is
technically incorrect, the error generally is harmless.” Id. Under some
circumstances, however, such as “where there are earlier discrete episodes of an
aggressive, even violent nature,” an inappropriately given provocation instruction
presents a danger that the jury could have been “confused by the earlier
‘provocative’ behavior of the defendant that did not operate as a legal trigger of the
final . . . confrontation between the victim and the defendant.” Id. In any event, “it
is axiomatic that a single instruction to a jury may not be judged in artificial
isolation, but must be viewed in the context of the overall charge.” Dickerson v.
United States, 620 A.2d 270, 273 (D.C. 1993) (internal quotation marks omitted).
The government cites, as evidence of provocation that warranted the
provocation instruction, appellant’s testimony that after Campbell “grabbed
[Mitchell] by the hips,” appellant “grabbed [Campbell] by his shoulder” and
32
“turned [Campbell] toward [him].” Whether or not this sufficed as evidence of
provocation, we are satisfied that the jury would not have viewed it as conduct that
deprived appellant of the right to self-defense or as the trigger of the gun violence
that followed. Under appellant’s account, what happened immediately afterwards
was that Mitchell pulled appellant away “because she . . . didn’t want the argument
to escalate,” appellant and Mitchell walked towards appellant’s car, and appellant
attempted to get into the car — i.e., actions by which appellant signaled his
withdrawal from the conflict. Under the account presented by Campbell and
Paige, after Campbell knocked appellant down, Campbell moved away from
appellant and was pursued by Mitchell, who was hitting Campbell in the head with
her high-heeled shoe; and appellant went to his car to retrieve a gun and began
shooting at the fleeing men.
If the jurors credited appellant’s account, the court’s withdrawal-from-the-
conflict instruction let them know — notwithstanding appellant’s previous
aggressive action in grabbing Campbell’s shoulder or pushing him — that by his
actions to disengage, appellant was restored to his right to use deadly force to save
himself from the danger of death or serious bodily harm he told the jury Campbell,
Paige, and Rob imminently posed when they followed him to his car. If on the
other hand the jury credited the Campbell/Paige account, appellant acted as the
33
aggressor and not in self-defense during the “final episode” of the incident, Rorie,
882 A.2d at 774, 777 — i.e., when Paige saw appellant loading a gun he had
retrieved from his car, and when Campbell, who had retreated after blows to his
head and who was fleeing northward on 20th Street after hearing Mitchell utter
words that Campbell understood to mean that appellant was “going to get [his]
gun.” Either way, we see no danger that the jury would have confusedly thought
that appellant’s prior action of turning Campbell around by the shoulder or pushing
Campbell was relevant to whether appellant was guilty of AWIKWA firearm.
Stated differently, only upon a “‘bizarre reconstruction’ of the evidence,” Tyree v.
United States, 942 A.2d 629, 639 (D.C. 2008), could jurors have thought that
appellant acted to ward off imminent harm to himself by shooting at Campbell but
was not entitled to a self-defense claim because of the earlier shoulder-grab or push
and the rule set out in the provocation instruction.
Further, as already noted, the jury was given an option of convicting
appellant of the lesser-included offense of assault with a dangerous weapon
(firearm), but convicted him of AWIKWA (firearm), meaning that it found that he
acted with an intent to kill. If jurors believed appellant’s account, and if what
prevented them from acquitting him on the ground of self-defense was that they
thought his grabbing of Campbell’s shoulder or pushing of Campbell was
34
provocation that caused him to forfeit his self-defense claim, they presumably
would have convicted him of the lesser-included ADW offense and not of
AWIKWA (firearm).15 For that reason, too, we conclude that the court’s giving of
the provocation instruction, if error, was harmless; that is, we are satisfied that “the
guilty verdict actually rendered in this trial was surely unattributable to the error.”
Rorie, id. at 776 (internal quotation marks omitted).
**
For all the foregoing reasons, we conclude that appellant is not entitled to a
reversal of his convictions. However, we remand the matter to the trial court to
15
In Rorie by contrast, the record was “without facts to support that Mr.
Rorie was the aggressor or provocateur toward [the stabbing victim/decedent] in
the moments before the stabbing, [and] the jury necessarily had to take into
account prior, unrelated, and prejudicial acts of Mr. Rorie toward [another person]
simply to make sense of the language in the [provocation] instruction.” 882 A.2d at
769. The fact that the jury acquitted defendant Rorie of second-degree murder
while armed (knife) and convicted him of the lesser-included offense of voluntary
manslaughter while armed, id. at 764, suggested that jurors might have accepted
his self-defense claim but for the inappropriately given provocation instruction.
35
merge appellant’s two PFCV convictions premised on his AWIKWA and AAWA
convictions.16 In all other respects, the judgment of the trial court is
Affirmed.
FARRELL, Senior Judge, concurring in part and concurring in the result: I
agree with Judge Thompson’s analysis of why use of the husher during voir dire
did not violate appellant’s right to a public trial. I also agree with her conclusion
that, although the government showed no demonstrable need to introduce the photo
arrays, any error in their admission was harmless beyond a reasonable doubt. That
is partly for the reasons stated by Judge Thompson, ante at 23-24, but also because
I believe that, rather than any inference of prior arrest implied by the photo arrays,
it was the strong inconsistency between appellant’s defense of self-defense and the
evidence that produced the guilty verdicts. The shell-casing evidence, among other
things, was at odds with appellant’s story that immediately fearing for his personal
safety he took out his gun and repeatedly fired at Johnny Campbell in an
impromptu act of self-defense. Nine expended shell-casings were found lying
16
See Nixon v. United States, 730 A.2d 145, 153 (D.C. 1999) (holding that
PFCV convictions arising out of “a single possession of a single weapon during a
single violent act” must “merge into one PFCV conviction”).
36
in roughly a straight line extending twenty feet and more along 20th Street.
According to firearms examination expert Barrett, this pattern showed that the
shooter was walking and firing along the line where the casings fell. That evidence
was consistent with Campbell’s account, corroborated by eyewitness Page, that
after an exchange of punches appellant withdrew to his car, retrieved a handgun or
ammunition for it, then turned and fired multiple shots at Campbell, each requiring
a separate trigger-squeeze, as Campbell ran from the scene. Additional evidence
summarized by Judge Thompson also confirms that “appellant was shooting at and
pursuing targets who were running away from him” and thus not “placing him in
imminent danger of bodily harm.” Ante at 29.1
The hardest issue in this appeal is the prosecutor’s repeated erroneous
suggestion in rebuttal argument that appellant had forfeited self-defense by the act
of bringing “the gun to the fistfight” or “to the neighborhood.” Although the trial
judge appeared to recognize this error later, he overruled appellant’s
contemporaneous objection to it and, in instructing the jury on provocation (“[o]ne
who deliberately puts himself in a position where he has reason to believe that his
1
Unlike Judge Thompson, however, I do not believe we should draw
speculative inferences, ante at [25-26], from the jury’s acquittal of appellant of the
assault charge based on his use of a car.
37
presence will provoke trouble cannot claim self-defense”), gave arguable support
to it.2 Nevertheless, like Judge Thompson, I am confident the jury did not reject
self-defense because of appellant’s having “brought the gun downtown,” but
instead because of his excessive use of force in the circumstances. “I will give
you the first nine reasons why this was not a case of self-defense,” the prosecutor
began rebuttal argument: “Bam, bam, bam, bam, bam, bam, bam, bam, bam . . .
the defendant standing there at the top of that block, walking forward, shooting as
he goes. . . .” As stated above, the combined ballistics evidence and testimony of
Campbell and Paige strongly favored this scenario of appellant retreating to his car
for a gun or ammunition and then firing repeatedly at Campbell when any threat of
harm from Campbell or his friends had largely dissipated. The eyewitness and
ballistics testimony, the opening statements and closing arguments of the parties,
and the jury instructions all focused primarily on this issue of whether, in firing the
gun, appellant had used force he actually and reasonably believed necessary to
avert immediate harm to his person. While the prosecutor tried to score extra
points by erroneously relying on appellant’s possession of the gun from the start, I
am convinced that this ultimately did not distract the jury from evaluating
2
Other than the risk it provided of buttressing the prosecutor’s mistaken
argument, the provocation instruction itself was unobjectionable in a case where
the jury could find, as the most reasonable hypothesis, that rather than withdraw
from the scene appellant unnecessarily increased the danger of harm by going to
his car and retrieving the gun or ammunition.
38
appellant’s actual use of the gun and convicting him based on evidence redolent of
excessive force.3
BECKWITH, Associate Judge, dissenting: Several clear principles have
emerged from the case law on a criminal defendant’s Sixth Amendment right to a
public trial. We know that the purpose of this right is to benefit the accused,
Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979), and that the right is at least
as protective as the press and the public’s First Amendment right to public trial,
Waller v. Georgia, 467 U.S. 39, 46 (1984). We know that contemporaneous
review of court proceedings is critical to the right’s protections,4 and that a
transcript is therefore not generally a meaningful substitute.5 Most pertinent to the
3
Similar to my earlier caveat, however, I cannot join Judge Thompson’s
speculation, ante at 29-30, that the jury’s conviction of AWIKWA (firearm) rather
than ADW was further indication that it was not prejudiced by the improper
closing argument.
4
See In re Oliver, 333 U.S. 257, 270 n.25 (1948) (“The requirement of a
public trial is for the benefit of the accused; that the public may see he is fairly
dealt with and not unjustly condemned, and that the presence of interested
spectators may keep his triers keenly alive to a sense of their responsibility and to
the importance of their functions.”) (quoting Cooley, Constitutional Limitations
(8th ed. 1927) at 647).
5
Presley v. Georgia, 558 U.S. 209, 214 (2010) (holding that the defendant’s
public trial right was violated notwithstanding the availability of a transcript);
ABC, Inc. v. Stewart, 360 F.3d 90, 99 (2d Cir. 2004) (holding that “where a right of
(continued…)
39
present case, we know that the right extends to jury selection, Presley v. Georgia,
558 U.S. 209, 213 (2010) (describing this as “well settled”), and that closing the
voir dire proceedings in a criminal trial will violate the right to public trial unless it
satisfies the four-part test of Waller v. Georgia: “To close a proceeding: (1) the
party seeking closure must advance an ‘overriding interest that is likely to be
prejudiced’; (2) the closure must be ‘no broader than necessary to protect that
interest’; (3) the court must consider ‘reasonable alternatives’ to closure; and (4)
the court must ‘make findings adequate to support the closure.’” Rodriquez v.
Miller, 537 F.3d 102, 108 (2d Cir. 2008) (citing Waller, 467 U.S. at 48).6 And
finally, we know that a closure that does not satisfy the four-part Waller test is
structural error that requires reversal.7
(…continued)
access exists, a court may not deny access to a live proceeding solely on the
grounds that a transcript may later be made available”) (citation omitted); In re
Jury Questionnaires, 37 A.3d 879, 884 (D.C. 2012) (noting that “it is when the
trial is unfolding that the public’s interest is greatest”).
6
“[T]he Waller test is rightly regarded as a rule of general applicability in
the courtroom closure context.” Rodriquez, 537 F.3d at 108.
7
United States v. Gonzalez-Lopez, 548 U.S. 140, 148–49 (2006) (describing
structural errors as those that “defy analysis by ‘harmless-error’ standards because
they affect the framework within which the trial proceeds,” and including within
the category of structural errors “the denial of the right to public trial” (internal
brackets and quotation marks omitted)); see also Littlejohn v. United States, 73
(continued…)
40
In this case, the trial court decided that spectators of Mr. Blades’s criminal
trial would be able to see—but not hear—the questioning of prospective jurors
regarding their responses on jury questionnaires based on a generalized view that
jurors are more forthcoming and candid under the cover of the husher. My
colleagues in the majority do not dispute that such a generalized justification
would fail the Waller test. They conclude, however, that “the husher procedure in
this case . . . does not amount to a closure or partial closure of the courtroom, but is
more appropriately viewed as an alternative to closure.” Ante at 18. Such an
“alternative to closure,” they assume, is not subject to Waller’s prerequisites.
Although I am cognizant of the ramifications of recognizing a constitutional
problem with an apparently widely used Superior Court practice, I dissent from my
colleagues’ decision to uphold that practice here because it is impossible to
reconcile the majority’s view of the husher procedure as somehow exempt from
Waller’s requirements for proposed limitations on a public trial with the Supreme
(…continued)
A.3d 1034, 1042 (D.C. 2013) (stating that “if a defendant’s right to a public trial
has been violated—i.e., if the four Waller criteria were not met—he need not show
specific prejudice resulting from that violation.” (citing Waller v. Georgia, 467
U.S. 37, 49) (1984)).
41
Court’s public trial cases and with the decisions of this and other courts. 8 As an
initial matter, my colleagues do not explain why limitations short of closing the
courtroom door are not subject to the Waller test. And in fact, with the exception
of Copeland v. United States, 111 A.3d 627 (D.C. 2015), which I address infra, the
only case I have found that addresses a challenge on public-trial grounds to the
particular practice used in this case never questioned that the use of a husher
during voir dire was a type of closure subject to the requirements of Waller. See In
re Memphis Pub. Co., 887 F.2d 646, 648–49 (6th Cir. 1989) (citing Waller’s
precursor Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510
(1984)). In Memphis Publishing, the Sixth Circuit reversed without any harm
analysis because the trial court’s justification for using the husher during jury
selection was too general and “without any specific finding of fact to support [it].”
Id. Similarly, although the majority relies heavily upon obstructed view (hear-but-
not-see) cases in support of its view that the see-but-not-hear approach employed
here is an “alternative to closure,” those cases all make clear that a trial court’s use
of a screen to obstruct the public’s view of a witness or a proceeding is deemed
constitutional only where the court first satisfied the Waller criteria. See infra.
8
The trial court itself acknowledged that there was “a lot of strong language
out there” in case law addressing the right to public trial and that it was not “by any
stretch obvious” or “abundantly clear” that the approach was proper.
42
Whatever we call the husher procedure—a closure, a partial closure, or an
alternative to closure—and however longstanding and accepted the Superior Court
practice may be, its routine employment based on generalized concerns about juror
candor is the antithesis of applying and satisfying the Waller factors, which
require, among other things, individualized and adequately supported findings
demonstrating the necessity of the closure in the specific circumstances of that
case.
In case after case, the Supreme Court and other appellate courts have held
that limitations upon the public’s access to jury selection procedures were
unconstitutional, not based on the particular form of closure, but because the trial
court imposed it without satisfying the criteria of Waller. In Cable News Network,
Inc. v. United States, 824 F.2d 1046 (D.C. Cir. 1987), for example, the D.C. Circuit
summarily reversed the district court for failing to provide individualized, case-
specific justification for allowing each prospective juror in a criminal case to
choose whether to be “questioned in open court or in camera” regarding their
answers to the questionnaire they were given. Id. at 1048–49. And more recently,
in Jury Questionnaires, 37 A.3d 879, where the Washington Post challenged a
D.C. Superior Court judge’s ruling denying the newspaper access to the completed
jury questionnaires of prospective jurors in a high profile murder case, we
43
considered the questionnaires to be part of the jury selection process and thus
subject to the presumption of access (and to the Waller test) under the Supreme
Court public trial cases. Id. at 885–87. Much like in the present case, the trial
court in Jury Questionnaires expressed generalized concerns about the candor of
prospective jurors in justifying the decision to deny access to the questionnaires.
Because the trial court did not “articulate specific protectible privacy interests” or
“consider alternatives to complete closure to protect those interests,” we held that
this “blanket closure” ran afoul of the constitutional right of access to the trial—a
right the press enjoys as a surrogate for the public. Id. at 882, 887–89.
As mentioned above, the obstructed-view cases the majority cites as
examples of “alternatives to closing” likewise expose the flaw in the notion that
these purported “alternatives”—and by analogy, the see-but-not-hear procedure in
this case—are not impermissible closures if they fall short of the requirements the
Supreme Court has repeatedly stated must be met before a trial court restricts the
public’s access to a criminal trial. Every case the majority cites is a case in which
the approved-of alternative was tailored to the case based on a finding of
compelling need grounded in the specific circumstances, as opposed to the husher
procedure in this case, which was employed as a matter of longstanding practice
based on generalized concerns and without individualized findings about a case-
44
specific privacy interest at stake.
In Pearson v. James, 105 F.3d 828 (2d Cir. 1997), for example, the Second
Circuit granted habeas relief where the trial court closed the courtroom during an
undercover officer’s testimony because, even though the trial court had met three
of the four factors of Waller,9 it failed to consider reasonable alternatives to the
proceeding, the third requirement of Waller.10 Id. at 830–31. When the court
stated that placing a screen between the public and the testifying officer would
have been an alternative to closure, id. at 30, that meant it would have been a
reasonable alternative after the court had satisfactorily established, with
9
The court did this by identifying an overriding interest in preventing
exposure of the officer’s identity and making specific and adequately supported
findings that the closure was no more extensive than required to protect the interest
asserted. Waller, 467 U.S. at 830.
10
On rehearing en banc, the Second Circuit—granting review in Pearson
and two other cases raising public trial issues on habeas—changed course and
affirmed the district court’s denial of Mr. Pearson’s habeas petition after
reconsidering and backing away from the holding of a prior Second Circuit
decision, Ayala v Speckard, 89 F.3d 91 (2d Cir. 1996) (Ayala I), that a trial court
was required to sua sponte consider alternatives to closing the court during the
testimony of one witness. Ayala v Speckard, 131 F.3d 62 (2d Cir. 1997) (en banc)
(Ayala II). More than a decade later, however, the Supreme Court clarified that its
own precedent—specifically Waller and Press-Enterprise Co. v. Superior Court of
California, 464 U.S. 501, 510 (1984)—had all along established, contrary to the
view of the en banc Second Circuit, “that trial courts are required to consider
alternatives to closure even when they are not offered by the parties.” Presley v.
Georgia, 558 U.S. 209, 214 (2010).
45
individualized findings supported by the record, that there was an overriding
interest warranting some type of closure. Each of the other obstructed-view cases
on which the majority relies holds exactly that: that the use of a screen to prevent
the public from seeing a particular witness was not a violation of the right to a
public trial because the court employing this method satisfactorily jumped through
the Waller hoops.11 These courts’ exacting adherence to Waller’s stringent test
underscores the distinction between their particularized scrutiny and the routine
employment of the husher in Superior Court voir dire proceedings and shows why
the jury selection procedure in this case violated Mr. Blades’s public trial right.
Whether these sorts of restrictions on jurors’ ability to see or hear certain court
proceedings are called closures or alternatives, they only become reasonable—and
11
See United States v. Lucas, 932 F.2d 1210, 1217–18 (8th Cir. 1991)
(upholding the use of a screen, which was the government’s initial request, where
the trial court made specific individualized findings that an officer’s life would be
in danger if she testified publicly, concluded that the government had established
two overriding interests likely to be prejudiced if the officer’s identity was not
concealed, and settled upon the use of a screen after considering complete closure
of the courtroom and the use of a disguise); State v. Schultzen, 522 N.W.2d 833,
836 (Iowa 1994) (rejecting criminal defendant’s contention that ordering his family
members to sit behind a screen during parts of the child victim’s testimony violated
his right to public trial where the trial court “met the requirements of Waller,”
including making adequate findings to support the screening); Rodriquez v. Miller,
537 F.3d 102, 110 (2d Cir. 2008) (holding that the proposed use of a screen during
an undercover officer’s testimony did not violate clearly established federal law
where the state courts properly applied the Waller test and satisfied its factors with
findings regarding two overriding interests that were firmly anchored in the
record).
46
constitutional—by surviving the test designed to confine them to the most
exceptional circumstances.
Given the strong presumption of openness, the majority’s effort to
distinguish cases that could more naturally be cited in support of Mr. Blades’s
argument in this case is perplexing. And yet my colleagues say that Cable News
does not support reversal here because it held the public trial right was violated
when the questioning of individual jurors was conducted “in camera,” a phrase that
was left unexplained in the decision but that my colleagues are comfortable
concluding does not encompass private or inaudible proceedings at the bench. But
see, e.g., Bennett v. United States, 797 A.2d 1251, 1254 (D.C. 2002) (stating that
“the prosecutor provided the requested material to the trial judge in camera at an
ex parte bench conference”); United States v. Minsky, 963 F.2d 870, 874 (6th Cir.
1992) (“The court stated that the ex parte bench conference was part of
its in camera review of the FBI 302s for the express purpose of ruling on the
defense motions under both the Jencks Act and Brady.”)
The majority similarly distinguishes Jury Questionnaires on remarkably
narrow grounds. According to my colleagues, for example, Jury Questionnaires
does not support reversal in this case (1) because it did not address the specific
issue in the present case—namely, “whether the press had a right to listen
47
contemporaneously to oral voir-dire questioning of individual prospective jurors,”
ante at 20 n.10, and (2) because it involved access only to the questionnaires
completed by empaneled jurors. These are both true, but are not good reasons to
treat the use of the husher differently. My colleagues in the majority also
recognize the potential relevance of the court’s statement in Jury Questionnaires
that the trial court “had no problem keeping oral voir dire open to the public,”
which seems to suggest that voir dire was conducted openly in that case and that
the court recognized the importance of that openness. But the majority downplays
the significance of this statement because the court did not specifically say whether
a husher was used in Jury Questionnaires. Aside from the unlikelihood that the
Washington Post would have failed to challenge any procedure that prevented its
reporters from hearing the voir dire in that case, if the trial court had utilized a
husher at voir dire, the judge probably would not have said at a hearing that “the
press had heard all the individual questioning of prospective jurors,” Jury
Questionnaires, 37 A.3d at 884 (quotation in the appellate opinion and emphasis
added). See also id. at 888 (referring, in the course of a discussion about jury
candor, to “keeping oral voir dire open to the public”).
In the end, the idea that the right to public trial is not violated by a practice
that keeps the public from hearing what is going on during jury selection cannot be
48
squared with the values the Supreme Court has said the public trial right serves.
Ensuring “that judge and prosecutor carry out their duties responsibly,”
“encouraging witnesses to come forward,” and “discouraging perjury,” Waller, 467
U.S. at 46; see also Jury Questionnaire, are best accomplished by people who can
hear the proceedings. We should follow the Sixth Circuit’s lead in holding that
making voir dire inaudible to spectators can violate that right—and that it will
violate that right if it is not supported by case-specific findings that there is a
compelling interest justifying some form of closure and that the chosen method of
protecting that interest is no broader than necessary to do so. See Memphis
Publishing, 887 F.2d at 648–49. “[T]he sensible course is for the trial judge to
recognize that open trials are strongly favored, to require persuasive evidence of
serious risk to an important interest in ordering any closure, and to realize that the
more extensive is the closure requested, the greater must be the gravity of the
required interest and the likelihood of risk to that interest.” Ayala v. Speckard, 131
F.3d 62, 70 (2d Cir 1997) (en banc) (Ayala II).
Finally, although the majority does not ultimately decide the matter, the
parties in this case have thoroughly briefed and argued the question whether our
decision in Copeland v. United States, 111 A.3d 627 (D.C. 2015), precludes
reversal in this case because we are bound by its statement that it was “not
49
persuaded by the argument that [the defendant’s] right to public trial was violated
by the procedures used during the selection of his jury”—procedures the court
described as “conducting a limited amount of individual voir dire at the bench with
a ‘husher’ on.” Id. at 633. In the government’s view, this constitutes a holding by
this court that the practice at issue in this case does not violate the right to a public
trial. Mr. Blades counters that the court’s statement in Copeland was unnecessary
to its decision that trial counsel was ineffective by failing to inform Mr. Copeland
of his right to be present at the bench during the voir dire of jurors. 12 Mr. Blades
also argues that to the extent Copeland did resolve the question in this case, that
holding was inconsistent with Jury Questionnaires and we are required to follow
the earlier decision. See Thomas v. United States, 731 A.2d 415, 420 n.6 (D.C.
1999).
While Copeland is not easily reconciled with Jury Questionnaires or, for
that matter, with the whole body of Supreme Court case law on the right to public
trial, what qualifies as a holding in a case and whether one of our decisions fails to
adhere to prior authority are difficult questions. The court’s decision today
exacerbates and prolongs the uncertainty caused by this tension between Jury
12
In support of this argument, Mr. Blades highlights the Copeland court’s
statement that “we base our decision solely on appellant’s failure to satisfy the
prejudice prong in Strickland[.]” Id. at 631 n.5.
50
Questionnaire’s holding (that the preclusion of media access to jury questionnaires
in a criminal trial based on generalized concerns alone violates the public’s right to
be present at jury selection) and the language in Copeland, now reinforced by this
court (that a practice that precludes all members of the public from hearing voir
dire in a criminal case does not violate a defendant’s right to public trial, even
when the trial court imposes the practice without making individualized findings
justifying the closure and without satisfying the other requirements of Waller).
The majority does not give us a unifying principle for understanding what types of
closures are subject to the Waller test and what types are not. The significance of
the public trial right and the importance of maintaining uniformity among our
cases and consistency with Supreme Court precedent may therefore make this case
a good candidate for en banc consideration.
Although I would reverse the judgment of the Superior Court in this case
based on the violation of the public trial right, I also take issue with some aspects
of my colleagues’ resolution of the remaining issues in this case—particularly their
harmless error analysis.
In my concurring colleague’s view, “[t]he hardest issue in this appeal” is the
trial court’s error in overruling Mr. Blades’s objection to the prosecutor’s
statements in closing argument. Ante at 36. Judge Farrell and I are in agreement
51
that “the prosecutor’s repeated . . . suggestion in rebuttal argument that appellant
had forfeited self-defense by the act of bringing ‘the gun to the fistfight’ or ‘to the
neighborhood’” was “erroneous.” Ante at 36–37. Unlike my colleagues, however,
I am not confident the misstatements were harmless, particularly given that, as
Judge Farrell also notes in his concurrence, the trial court’s provocation instruction
“gave arguable support” to the prosecutor’s misleading arguments by asserting that
a defendant “cannot claim self-defense” if he puts himself in a position to provoke
trouble. Ante at 37.
My colleagues nevertheless think the prosecutor’s misstatements could not
have caused the jury to convict on improper grounds because the government’s
evidence, particularly the physical evidence, all but compelled the jury to reject
Mr. Blades’s self-defense claim by demonstrating his “excessive use of force”
when he fired off nine shots while walking toward Mr. Campbell. Judge Farrell
quotes the prosecutor’s dramatic reenactment, in closing argument, of Mr. Blades
“walking forward, shooting as he goes.” Ante at 37. The majority likewise
highlights the government’s evidence “that appellant was shooting at and pursuing
targets who were running away from him[.]”13 Ante at 29. And to be sure, this is
13
The majority’s harm analysis focuses on what “the government’s
evidence suggested” and what the jury had “ample basis” for concluding. Ante at
29. The test for harm is not whether the government presented sufficient evidence
(continued…)
52
what the government’s firearm examination expert surmised when he looked at a
photograph showing where the expended shell casings landed. The expert’s
testimony is good evidence as far as it goes. The problem with making it the
centerpiece of the majority’s determination of harmless error, however, is that the
overall evidence of the walking-shooter scenario is weak, there is evidence of a
self-defense counter-narrative that the jury could have credited, and the record
does not feature the kind of evidentiary lopsidedness that might assure us that the
prosecutor’s misstatements could not have played a role in the jury’s verdict
because no juror could have maintained any doubt that the government had
disproved self-defense beyond a reasonable doubt.
There are several reasons the ballistics evidence is inadequate footing for my
colleagues’ conclusion that the jurors could not possibly have been distracted by
the prosecutor’s misstatements and followed their false lead to conviction. As an
initial matter, the expert’s pattern-recognition testimony was the only evidence of a
walking-shooter scenario, and none of the actual witnesses to the shooting
described anything like this. Contrary to Judge Farrell’s view that “the combined
(…continued)
of the offense. At the very least, if we apply a Kotteakos standard, we must be able
to conclude “with fair assurance” that the result of the trial was not substantially
swayed by the error. Kotteakos v. United States, 328 U.S. 750, 765 (1946).
53
ballistics evidence and testimony of Campbell and Paige strongly favored this
scenario,” ante at 37, Mr. Campbell testified that he saw Mr. Blades shooting “with
the car door open,” while Mr. Paige said Mr. Blades shot in a “standing up-straight
position” “in the middle of the street.” Neither eyewitness described Mr. Blades as
walking while shooting, and their accounts contradicted each other. Some of these
discrepancies were minor and some were more consequential,14 but it is fair to say
the walking-shooter narrative that was so critical to the government’s effort to
disprove self-defense was not so airtight as to warrant my colleagues’ faith in the
harmlessness of the prosecutor’s misstatements.
Apart from its lack of support from the other evidence, the government’s
expert’s testimony also had its own vulnerabilities. The expert acknowledged that
14
Mr. Paige testified that Mr. Campbell threw the first punch, but Mr.
Campbell testified that he only hit Mr. Blades after Mr. Blades had already
punched him in the face. As to the fight on the street, Mr. Campbell testified that
he fought with Mr. Blades only on the sidewalk area and only until Ms. Mitchell
chased him across the street. By contrast, Mr. Paige testified that Ms. Mitchell hit
Mr. Campbell with a shoe until Mr. Paige pulled her off Mr. Campbell. Mr. Paige
then explained that Mr. Blades and Mr. Campbell “kept wrestling and fighting,”
“steady punching each other” over the back of a trunk until they both “fell over to
the middle of the street.” And as to events earlier in the evening, Mr. Paige
testified that the group consisted of “about five or six of us” while Mr. Campbell
testified that there were “[a]bout nine of us.” Mr. Paige testified that he and Mr.
Campbell first saw Ms. Mitchell inside the Look Lounge, when she greeted and
hugged them both, but Mr. Campbell testified that he did not see Ms. Mitchell in
the club at all.
54
his moving-shooter conclusion was “based on generalities” and that he formed his
opinion just that morning, shortly before taking the stand, after being shown for the
very first time the photograph depicting the shell casings’ location. He
acknowledged that he had not actually visited the scene and was not aware of the
slope of the street where the casings were found. The expert admitted that
“[m]any, many variables” can affect where casings land and that they can bounce
up to 21 feet and they can roll. Though he had not consulted any studies or
reference books before reaching his conclusion that the shooter in this case was
moving while shooting, during his testimony he recalled one comprehensive study
that concluded there could be as much as 75 percent error in shell casing pattern
recognition. The question is not whether the expert’s walking-shooter opinion was
relevant, or whether it supported the government’s theory of the case. It was and it
did. The question is whether it was so strong as to overwhelm the potential appeal,
for any juror, of Mr. Blades’s self-defense claim, and thus renders harmless the
prosecutor’s erroneous suggestion that Mr. Blades had relinquished his right to
claim self-defense by bringing a gun to the neighborhood. It was not.
My colleagues’ certainty about the power of the government’s physical
evidence is even less justified when one considers that the defense had a firearm
expert too—one who, unlike the government’s expert, had visited the scene, taken
55
measurements at the scene, and reviewed the police reports before forming his
opinion that the pattern of shell casings supported a scenario involving a stationary
shooter. Mr. Blades followed his expert’s testimony with his own account of the
incident and his take on the multiple gunshots and on Mr. Campbell’s proximity:
he testified that he committed the shooting in self-defense and that he fired his gun
blindly after being struck in the head and upon threat of being stabbed, just trying
to get the men away from him. Mr. Blades was undoubtedly an interested witness
with an incentive to avoid being convicted, and the prosecutor’s cross-examination
gave the jury additional reasons to question his testimony as well. For its part, the
government had its own problems with the credibility of its main witnesses, and
acknowledged in its brief that the jury may have had reasons to doubt some of the
testimony of Mr. Campbell and Mr. Paige. Most significantly, the jurors did not
believe that Mr. Blades had tried to run Mr. Campbell over with his car, and their
acquittal of Mr. Blades on the vehicular assault counts suggests they would have
viewed the entirety of Mr. Campbell’s testimony with some degree of skepticism.
All of this is to say that the record in this case is not conducive to a finding of
harmless error that is dependent upon the relative strength of the government’s
case—particularly where the error in question went to the central question whether
Mr. Blades shot Mr. Campbell in self-defense and where it was the government’s
56
burden to disprove self-defense beyond a reasonable doubt.15
As to the admission of the mugshots in this case, although the majority states
that it is not “definitively deciding” that the government had “no reason to show
identification” at trial, it also concludes—and in his concurrence, Judge Farrell
agrees—that Mr. Blades “has the better of the argument about whether there was a
demonstrable need to introduce the photo arrays.” Ante at 22. We are in apparent
agreement, then, that the government had no reason to introduce Mr. Blades’s
actual mugshot in a case where defense counsel admitted in opening statement that
Mr. Blades was the shooter (in self-defense) and where the government presented
“more than sufficient testimony regarding positive photographic identification”
from its two eyewitnesses, Mr. Campbell and Mr. Paige. See (Kirk) Williams v.
United States, 382 A.2d 1, 5 (D.C. 1978). As demonstrable need is one of three
requirements the government must satisfy to justify admission of a mugshot-like
15
In a portion of the opinion Judge Farrell explicitly does not join, Judge
Thompson contends that the fact that the jury convicted Mr. Blades of assault with
intent to kill while armed instead of the lesser assault with a deadly weapon means
the jury must have rejected the theory underlying Mr. Blades’s defense of self-
defense because it found that he intended to kill Mr. Campbell. Ante at 38 n.3. I
agree with Judge Farrell. “[E]ven an intentional killing, if it comports with legally
accepted notions of self-defense, is not malicious; it is excused and accordingly no
crime at all.” Comber v. United States, 584 A.2d 26, 41 (D.C. 1990) (en banc)
(citation omitted). The jury in this case could have believed that when Mr. Blades
fired the gun, he was both defending himself against the threat of stabbing and
intending to kill.
57
photo of a defendant in a criminal trial, Bishop v. United States, 983 A.2d 1029,
1034 (D.C. 2009), the admission of the array in this case was error.
My colleagues nonetheless go on to conclude that the introduction of the
mugshot was harmless beyond a reasonable doubt. Judge Farrell’s focus, in
concurrence, is again upon “the strong inconsistency” between Mr. Blades’s
defense theory and the physical evidence. Ante at 35. The government likewise
argues in its brief that it was “the obvious inconsistency of appellant’s testimony
with the physical evidence, and not any vague inference of prior arrest supposedly
implied by the arrays, that produced the verdicts.” But Mr. Blades’s testimony was
not inconsistent with the physical evidence—it was inconsistent with the
government’s expert’s opinion of the physical evidence. The government
concedes that Mr. Blades’s testimony was consistent with the defense expert’s
opinion of the physical evidence, but dismisses the expert’s testimony because “his
analysis suffered from two flaws”—namely, that he used a different gun at a
different location when conducting a test for comparison purposes and that he
made a “self-contradictory claim” about the randomness of how expended casings
land and the ability to see a pattern. These “flaws” were grounds for impeachment,
not the absolute repudiation of Mr. Blades’s theory of self-defense. As in (Kirk)
Williams, Mr. Blades’s account of the shooting “was not a wholly unlikely
58
possibility,” see 382 A.2d at 7, and the jury could well have believed it.16 I see no
grounds in this record for rejecting the possibility that the combination of Mr.
Blades’s testimony and the defense expert’s analysis could have created a doubt in
the mind of at least one juror, particularly where it was the government’s burden to
disprove self-defense beyond a reasonable doubt.
As for the harmlessness analysis in the majority opinion, while I agree with
my colleagues that the “unnecessary publication to District of Columbia juries of
photo arrays of African-American men also poses a danger of fostering
unconscious bias,” ante at 23 n.11, the majority’s grounds for nonetheless finding
the admission of the mugshot of the African-American defendant in this case
16
The government’s own confidence that the admission of the mugshots
was harmless error was substantially based upon an inadvertent but significant
factual error that the government conceded at oral argument. Specifically, the
government’s assertions in its brief about the “obvious inconsistency” between the
shell-casing evidence and Mr. Blades’s account of the incident relied in part upon
the force of the evidence that “[t]he expended casings were found lying almost in a
straight line, over a distance of nearly 60 feet on 20th Street.” The government
subsequently repeated that evidence and emphasized its strength, asserting that Mr.
Blades’s expert “simply failed to give the jury any reason to accept the self-evident
improbability that nine shell casings, fired from the same gun at the same time,
would conveniently land in a nearly 60-foot line down the hill.” But the
government’s brief was mistaken, and as the prosecutor noted at oral argument, the
expended casings were arranged within a space that was closer to 20 feet in
distance than 60 feet. The government’s indication that “the expended casings
were found lying almost in a straight line” is also different from the photograph of
the casings’ locations, which shows five casings in a line, two several feet off to
the left of the line and two several feet off to the right.
59
harmless beyond a reasonable doubt do not assure me that the jury in this case did
not “consider [Mr. Blades’s] bad character in deciding whether to convict [him] of
the charged crime.” Bishop v. United States, 983 A.2d at 1034, 1038 (citation
omitted). At the outset, that the men photographed were not in prison garb, that
someone removed the mugshot serial numbers, and that the detective who created
the arrays did not call them “mugshots” mean little when, as the majority
acknowledges, the “unsmiling expressions” on the faces of the men pictured in the
photo array still make the photos look like mugshots. See ante at 23. And the
array still bore indications that it had been altered, in the rough edge that was left
when “mugshot.com” was removed and in the mark at the top hiding the reference
to serial numbers. In any event, as this court noted in Williams, the exceptional
circumstances in which cleaned-up mugshots might be deemed admissible are
limited to those circumstances in which the government proves a demonstrable
need. See 382 A.2d at 5.
I also cannot agree that the introduction of the mugshot was harmless
beyond a reasonable doubt on the ground that the jury had already learned from the
evidence at trial that Mr. Blades actually broke the law by bringing an unregistered
firearm and ammunition into the district. According to Judge Thompson, the
jury’s acquittal on the car-related assault showed that the jury could weigh the
60
evidence unaffected by knowledge that Mr. Blades was a lawbreaker. Ante at 24.
On this point I align with Judge Farrell, who states in his concurrence that we
should not “draw speculative inferences” from these acquittals. See ante at 36 n.1.
But in any event, given how many states have far less restrictive gun laws than the
District’s and how some have no registration requirements at all, I am not as
confident as Judge Thompson that Mr. Blades’s possession of a gun contrary to the
laws of the District “went beyond what an arrest mugshot implies.” Ante at 24.
In Williams, this court held that the use of mug shots was not harmless
where the complainant’s account of a violent attack was not corroborated by
physical evidence. 382 A.2d at 7. Here, by contrast, my colleagues are confident,
albeit for different reasons, that the inference of prior arrest from the admission of
the mugshot did not cause the jury to reject Mr. Blades’s self-defense claim. But
this is a case where the parties presented competing expert testimony supporting
their respective accounts of how things happened, where there were strengths and
weaknesses to both versions but no glaring lopsidedness or foregone conclusions,
where the defendant had a motive to lie but presented a viable story of self-defense
consistent with the defense expert’s testimony, where the jury discredited the
complainant’s testimony about a separate incident after the shooting, and where the
government’s witnesses were neither united nor concretely helpful in corroborating
61
the government’s ballistics expert. Under these circumstances, the jury “might
well have been influenced because of the improper, indirect proof of [Mr.
Blades’s] criminal past.” Bishop, 983 A.2d at 1039.
This case raises an important question about the constitutionality of a
practice frequently used in our trial court. Ultimately, I believe my colleagues’
decision to uphold a practice that allowed the public to see, but not hear, the jury
selection in Mr. Blades’s criminal trial runs afoul of the applicable case law on the
right to public trial. I also cannot agree that the prosecutor’s repeated erroneous
statements in closing argument and the unnecessary admission of the mugshots
were harmless errors in the circumstances of this case. For these reasons, I
respectfully dissent.