Barrows v. United States, 08–CM–740.

• Decision Date: 24 February 2011
• Docket Number: No. 08–CM–740.,08–CM–740.
• Citation: 15 A.3d 673
• Parties: David O. BARROWS, Appellant,v.UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

15 A.3d 673

David O. BARROWS, Appellant,

v.UNITED STATES, Appellee.

No. 08–CM–740.

District of Columbia Court of Appeals.

Argued Oct. 6, 2010.Decided Feb. 24, 2011.

Jeffrey L. Light, Washington, DC, appointed by the court, for appellant.Kristina L. Ament, Assistant United States Attorney, with whom Ronald C. Machen, Jr., United States Attorney, and Roy W. McLeese III and Mary B. McCord, Assistant United States Attorneys, were on the brief, for appellee.Before RUIZ, KRAMER, and THOMPSON, Associate Judges.

THOMPSON, Associate Judge:

A jury convicted appellant David Barrows of engaging in disorderly and disruptive conduct on United States Capitol grounds, in violation of D.C.Code § 10–503.16(b)(4) (2001).¹ The government's evidence was that, on September 11, 2007, appellant entered a Senate Foreign Relations Committee hearing in the Hart Senate Office Building and, during the testimony of General David Petraeus, shouted, “You are trying to set a trap for us to bomb the helpless people of Iran. Aren't 750,000 deaths enough for your blood thirst?”

Appellant raises four issues on appeal, all of which relate to the trial court's conduct of the jury-selection process. Specifically, appellant contends that he was deprived of an impartial jury and a fair and public trial because the court (1) closed the courtroom to the public during voir dire; (2) improperly struck two prospective jurors for cause; (3) did not adequately probe the prospective jurors with questions regarding appellant's political views; and (4) improperly allowed the prosecutor to ask prospective jurors about whether they or any of their close relatives were injured during the September 11, 2001 terrorist attacks. We find no reversible error.

I.

After the court and the parties had discussed the government's proposed voir dire questions and before members of the jury venire entered the courtroom, the trial judge announced, “I'm going to ask everybody in the courtroom, just for voir dire, to please leave the courtroom, because I'm going to have to fill up the chairs in the back, okay. Is that okay with everybody? Not okay?” The trial judge then directed his attention to one spectator and said, “Okay. Ma'am, do you understand why you have to leave?” That unidentified spectator answered, “Yes. Thank you.” The judge then explained to another spectator why he wanted to close the courtroom during voir dire: “Well ma‘am, it's kind of hard for you to stay while we do this because I don't want to get confused as to who you are and who the jurors are. But after voir dire is over, you all—when the trial starts, you all are welcome to come in. Okay? It's [a]n open court, okay. All right.”

Appellant contends that he is entitled to reversal of his conviction because the closure of the courtroom to spectators during voir dire violated his Sixth Amendment right to a public trial. He made no contemporaneous objection to closure of the courtroom, however, instead raising the issue for the first time in this appeal. The government therefore argues that appellant has waived the issue ² or that his claim for relief is subject to plain error-review.³ Appellant, of course, disagrees, and asserts that the record “suggests that the second unidentified woman objected to being removed,” a putative objection that appellant argues sufficed to preserve the issue for appellate review. He relies on Williams v. United States, 966 A.2d 844, 847 (D.C.2009) (holding that, in limited circumstances, a co-defendant's objection may suffice to preserve an issue on appeal for an appellant who did not himself lodge the objection in the trial court).

Appellant concedes that the transcript of what transpired as the court was about to conduct voir dire contains no actual spectator objection, but he asks us to surmise from the trial judge's remarks (“Not okay? ... Well, ma'am, it's kind of hard for you to stay while we do this ....”) that an unidentified woman spectator objected to being removed from the courtroom. Even assuming that there was such a spectator objection (rather than, for example, a facial expression or gesture of displeasure) and that the rationale of Williams may be extended to cover spectator objections (an issue we need not and do not decide), we are not persuaded that the trial judge was alerted to the issue that appellant has raised on appeal. The (putative) spectator objection may not have been a rights-based or other legal objection (but instead, for example, an expression of displeasure at the spectator's having to expend energy to rouse herself and move out of the courtroom). We are unwilling to assume that the putative objection alerted the trial court to the legal error of which appellant now complains.⁴

At the same time, mindful that appellant proceeded pro se in the trial court (albeit with the assistance of two attorney-advisors), this is not a case in which the “circumstances suggest[ ] that the lack of objection might have been strategic, rather than inadvertent,” such that “overlooking the lack of objection simply encourages defense gamesmanship.” Robinson, 976 A.2d at 1080. We proceed therefore to review appellant's claim under the strictures of the plain-error standard. Under that standard of review, to obtain relief, appellant must show not only (1) that the trial court erred in excluding spectators from voir dire, but also (2) that the error “should have been ‘clear’ or ‘obvious' to the [trial] court,” (3) “affected his ‘substantial rights,’ ” and (4) “seriously affect[ed] the fairness, integrity, or public reputation of the judicial proceedings.” Zanders v. United States, 999 A.2d 149, 158 (D.C.2010) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (further citation omitted)). We have discretion to correct the error only if each of these four prongs is satisfied. Olano, 507 U.S. at 737, 113 S.Ct. 1770.

In light of the Supreme Court's 2010 opinion in Presley, the government concedes that the court's closure of the courtroom during voir dire was error. See 130 S.Ct. at 724 (“[T]he Sixth Amendment right to a public trial extends to the voir dire of prospective jurors”). The government also acknowledges that the error was structural ⁵ and that, under this court's jurisprudence, we must assume that it affected appellant's “substantial rights.” See Arthur v. United States, 986 A.2d 398, 413 (D.C.2009) (“[I]f [the error] is structural in nature, the defendant's substantial rights will be deemed to have been affected, without need for further analysis in the context of the particular trial.”) (citation omitted).⁶ The government contends, however, that the error was not “plain” at the time of appellant's 2007 trial and that appellant also has not met his burden with respect to the fourth prong of the plain-error test.

To support its argument that the error was not plain at the time of trial, the government points to the statement by the dissenting justices in Presley that the Court had not previously decided that “ voir dire is part of the ‘public trial’ that the Sixth Amendment guarantees.” 130 S.Ct. at 726 (Thomas, J., dissenting). In holding that the Sixth Amendment right to a public trial extends to voir dire, the Presley majority relied on the Court's holdings in two prior cases, Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (holding that the public-trial right extends to pretrial suppression hearings), and Press–Enterprise Co. v. Superior Court of Cal., Riverside Cnty., 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (holding that the press and the public have a First Amendment right to attend voir dire ). See Presley, 130 S.Ct. at 723–24. The government relies on the statement in the Presley dissent that neither Waller nor Press–Enterprise “govern[ed] squarely and directly” the issue of whether the accused's Sixth Amendment public-trial right extends to voir dire. Id. at 726 (Thomas, J., dissenting) (noting, at 727, that petitioner Presley “did not seek summary reversal based on ... well-established precedents ..., but instead asked [the Court] to ‘resolve [a] split of authority’ ”). The government also cites a number of federal court decisions reflecting that, prior to Presley, jurisprudence about whether the Sixth Amendment public-trial right extends to voir dire was less than well-settled.⁷

However, the Presley majority used strong language, declaring that under the Court's “clear precedents,” it was “so well settled that the Sixth Amendment right extends to jury voir dire that this Court may proceed by summary disposition.” 130 S.Ct. at 722–24. This court, too, has previously taken as a given that the Sixth Amendment right to a public trial “applies to the entire trial, including that portion devoted to jury selection.” Kleinbart v. United States, 388 A.2d 878, 881 n. 4 (D.C.1978). We must agree, therefore, that the error in excluding members of the public from the courtroom during voir dire (without a compelling reason and consideration of alternatives, as described in Waller⁸) was an obvious, and thus “plain,” error at the time of appellant's trial.

The question that remains is whether appellant has met his burden under plain-error review to show that the error in excluding spectators from the courtroom during voir dire “seriously affected the fairness, integrity or public reputation of the judicial proceedings.” A number of federal appellate courts have reasoned that because a structural error (such as denial of the right to a public trial) “necessarily render[s] a trial fundamentally unfair,” Neder, 527 U.S. at 8, 119 S.Ct. 1827, it is “difficult to imagine a case where structural error will not satisfy Olano's fourth requirement” of an error that “seriously affects the fairness ... of judicial proceedings.” United States v. Jimenez Recio, 371 F.3d 1093, 1103 n. 7 (9th Cir.2004). ⁹ One judicial opinion observed a dozen years after Olano that “[s]o far as can be...