Beard v. United States, 84-1803.

• Decision Date: 07 January 1988
• Docket Number: No. 84-1803.,84-1803.
• Citation: 535 A.2d 1373
• Parties: Jeffrey L. BEARD, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1373

535 A.2d 1373

Jeffrey L. BEARD, Appellant, v. UNITED STATES, Appellee.

No. 84-1803.

District of Columbia Court of Appeals.

Argued October 13, 1987.

Decided January 7, 1988.

Richard K. Gilbert, Washington, D.C., for appellant.

Elizabeth Trosman, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell and Donald Allison Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before PRYOR, Chief Judge, and TERRY and ROGERS, Associate Judges.

ROGERS, Associate Judge:

In appealing his conviction of assault with intent to commit robbery while armed (D.C. Code §§ 22-501, -3202), carrying a pistol without a license (id. § 22-3204), threatening to injure a person (id. § 22-2307), and obstructing justice (id. § 22-722), appellant contends, and we agree, that reversible error occurred when the trial judge denied appellant's request to be present at the bench during voir dire of individual jurors. Because we reverse and remand for a new trial, we address several evidentiary issues as well. We disagree with appellant's contention that, in the absence of evidence that a threat was intended to be communicated to the victim, there is insufficient evidence of the threats charge. We also disagree that his right to cross-examine witnesses was violated. We agree, however, that the trial judge erred in (1) his application of the marital privilege to statements made in the presence of a third person, (2) instructing, in the absence of objection, that a hearsay inconsistent statement was admissible only for impeachment, and (3) failing to determine, before admitting into evidence an "enhanced" tape recording, that the recording accurately reflects the original tape.

I

Appellant contends that the trial judge's refusal to allow him to approach the bench where prospective jurors were being examined on voir dire violated his right to be present at all stages of his trial. The government responds that the trial judge did not refuse access to the bench, but rather expressed no more than his preference that appellant remain at counsel table and appellant acquiesced.

Under SUPER.CT.CRIM.R. 43(a) a criminal defendant has the right to be present "at every stage of the trial including the impaneling of the jury."¹ Rule 43(a) "incorporates the protections afforded by the Sixth Amendment Confrontation Clause, the Fifth Amendment Due Process Clause, and the common law right of presence. . . ." Welch v. United States, 466 A.2d 829, 838 (D.C. 1983). This court has stated that the "importance of the defendant's presence at voir dire cannot be overemphasized" because "what may be irrelevant when heard or seen by his lawyer may tap a memory or association of the defendant's which in turn may be of use to his defense." Boone v. United States, 483 A.2d 1135, 1137-38 (D.C. 1984) (en banc). A defendant's presence is necessary so that he may effectively exercise his peremptory challenges. Id. at 1138.

The disputed colloquy took place when counsel for both sides, appellant, and one juror approached the bench at the beginning of the first bench conference during voir dire, and proceeded as follows:

DEFENSE COUNSEL: Your Honor, I request that Mr. Beard be present for these conferences as well.

THE COURT: Why?

DEFENSE COUNSEL: So that he can assist me in voir diring this case.

THE COURT: You can go back at any time and tell him.

(Mr. Beard resumed his seat at the counsel table.)

The government's argument that this did not constitute a denial of counsel's motion for appellant's presence is unconvincing. The trial judge clearly did not grant defense counsel's request for appellant's presence, but instead pointed out the mitigating feature of the different arrangement which was to prevail. Indeed, in view of our then outstanding opinion in Robinson v. United States, 448 A.2d 853 (D.C. 1982), the most reasonable interpretation of the judge's statement is that it was a denial of counsel's request. The government's suggestion that the judge was merely saying that defense counsel could confer with appellant whether appellant was at counsel table or the bench is belied by the plain language of the exchange. Nothing in the judge's comment implies that appellant had the option of standing at the bench.

Nor does the record indicate that appellant waived his right to be present at the bench. Welch, supra, 466 A.2d at 839 ("[A]ppellant's failure either to request that he be present during the portions of the proceedings which took place in his absence or to object to his exclusion therefrom constitutes a waiver of that right. . . ." (Emphasis added)).² He made an unequivocal request for permission to stand at the bench. Once the trial judge denied the request, defense counsel did not have to argue with the judge in order to preserve the point on appeal. That the trial judge's response arguably was ambiguous does not mean defense counsel had to press his point more strongly in the face of what he reasonably interpreted as a denial of his unequivocal request. Under Rule 43(b) this court has held that before determining that a defendant's absence from trial is voluntary, the trial judge must find that defendant is intentionally relinquishing a known right. Black v. United States, 506 A.2d 1130, 1132 (D.C. 1986) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). While no such finding need be made regarding presence at the bench in the absence of a request for presence or objection to exclusion, Welch, supra, 466 A.2d at 839, a rule similar to that enunciated in Black should apply where defendant has clearly asserted his right to stand at the bench. The denial of appellant's request under SUPER.CT.CRIM.R. 43(a) implicates rights guaranteed under the fifth and sixth amendments. Boone, supra, 483 A.2d at 1139; Robinson v. United States, 448 A.2d 853 (D.C. 1982). Here, where appellant approached the bench with his attorney, unequivocally asserted his right, and then retired to counsel table after the judge's response, if the trial judge was not denying the motion, it was his responsibility to determine whether appellant mistakenly interpreted his comment as a denial or was intentionally relinquishing the right he had clearly asserted only seconds before. Accordingly, whether the trial judge in fact intended to deny the motion, which is the fairest reading of the transcript, or failed to determine whether appellant understood he was not denying the motion, we hold error was committed here.

The question remains whether the error was harmless. Boone, supra, 483 A.2d at 1140; Robinson, supra, 448 A.2d at 856. Almost all of the voir dire questions were posed to the prospective jurors either as a group, in which case answers were presumed from silence, or to individual jurors at the bench. Thus appellant had practically no opportunity to hear any juror speak in open court. The bulk of the voir dire (forty-five pages of the transcript) occurred when twenty-three jurors approached the bench individually to answer questions regarding their ability to be impartial despite experiences as victims of, suspects of, or witnesses to crimes. Six persons who participated in these bench conferences eventually sat on the jury panel. Appellant's attorney exercised all ten of his peremptory strikes for jurors, and one of his two strikes for alternates.

Since virtually all of the voir dire was conducted at the bench, this case is governed by Boone and Robinson, and the error requires reversal of appellant's convictions. None of the factors which this court has relied on in other cases to find this error harmless³ are present here since the bulk of voir dire was conducted at the bench, half of the actual jury panel had been questioned in this manner, and defense counsel used all of his challenges for jurors. Accordingly we reverse and remand for a new trial.

II.

Because several of the other issues raised by appellant will inevitably arise at the new trial, we address them now.⁴ To do so we first summarize the relevant evidence.

According to the government's evidence, appellant was the instigator of an armed robbery of a laundromat on July 21, 1983. Appellant first tried to convince Joseph Wright to do the robbery, but when he refused appellant convinced Darryl Smith to do it. Appellant told other members of his group of friends to act as though they were doing their laundry at the time, and promised to give them drugs and some of the money if they participated.⁵ Appellant gave Smith his pistol, told him how to grab the manager and to put a gun to his head, told Smith that once he was inside of the laundromat he should tell the people there that this was a holdup and to lie down, and told him where the money was located in the laundromat. Smith entered the shop with the gun drawn and announced the holdup, but the owner of the laundromat did not comply with Smith's order to lie down, and Smith ducked behind a machine, fired the gun and ran out of the shop. Two weeks later Smith told Detective Lyddane about the robbery, turned himself in and gave a written statement.

Smith entered into a plea agreement with the government, and, based on the information he provided, appellant was arrested on August 18, 1983. After his arrest, appellant began offering to pay people to hurt Smith to prevent him from testifying against appellant. Wright told Detective Lyddane that appellant was trying to keep Smith from testifying, and, in order to investigate, Lyddane instructed Wright to introduce appellant to undercover officer Alonzo Jacobs, who would pose as a hit man. Appellant met with Jacobs on August 6, 7 and 10, 1984. Appellant thereafter contracted with Jacobs to kill Smith for $150 before appellant's trial. When Jacobs showed appellant two photographs of Smith lying on the ground with stage blood on him as proof that the job was done, appellant acknowledged that the man in the pictures was the one he...