Boone v. United States

• Decision Date: 02 October 1984
• Docket Number: No. 82-1584.,82-1584.
• Parties: Lee P. BOONE, a/k/a Lee P. Walker, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

483 A.2d 1135

Lee P. BOONE, a/k/a Lee P. Walker, Appellant, v. UNITED STATES, Appellee.

No. 82-1584.

District of Columbia Court of Appeals.

Argued En Banc April 30, 1984.

Decided October 2, 1984.

Vincent A. Jankoski, Washington, D.C., appointed by the court, for appellant.

Mary Ellen Abrecht, Asst. U.S. Atty., Washington, D.C., for appellee. Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the briefs were filed, Michael W. Farrell, John R. Fisher, James F. Rutherford, and Amy S. Berman, Asst. U.S. Attys., Washington, D.C., were on briefs for appellee.

Before NEWMAN, Chief Judge, NEBEKER, MACK, FERREN, PRYOR, BELSON, and ROGERS, Associate Judges, and YEAGLEY and KERN,^* Associate Judges, Retired.

MACK, Associate Judge:

On May 12, 1982, appellant was charged with assault with intent to kill while armed (D.C.Code §§ 22-501, -3202 (1981)), mayhem and malicious disfigurement while armed (D.C.Code §§ 22-506, — 3202 (1981)), and possession of a prohibited weapon (D.C.Code § 22-3214(b) (1981)). The government dismissed the mayhem count on August 6, 1982. Appellant's jury trial began that same day. On August 9, 1982, the jury returned a verdict of not guilty on the charge of assault with intent to kill, and verdicts of guilty on the lesser-included offense of assault with a dangerous weapon (D.C.Code § 22-502 (1981)) and on the charge of possession of a prohibited weapon. Appellant was sentenced pursuant to the Federal Youth Corrections Act, 18 U.S.C. § 5010(c) (1976), to concurrent terms of up to ten years on each count.

Appellant raises three issues on appeal before this court, but in light of our disposition, we choose to address only one: whether the trial court's refusal to allow appellant to approach the bench, where prospective jurors were being examined on voir dire, violated appellant's right to be present at all stages of his trial.¹ We find that the trial court's ruling did deny appellant a right to be present at trial and that this error requires reversal of appellant's conviction.

The facts leading to appellant's conviction may be briefly summarized as follows. On October 27, 1981, at about 9:00 p.m., complainant met appellant and took him to an apartment in the 1500 block of S Street, Northwest. Complainant, then a fifty-six year-old man, and appellant, a seventeen-year-old man, had known one another since June of 1981. According to complainant, the two men ate dinner, had drinks, listened to stereo music and watched television before retiring. Complainant further testified that appellant arose at approximately 8:00 a.m. the next morning, began drinking and suddenly, without provocation or cause, attacked complainant with a razor blade and cut his throat. A struggle ensued, complainant attempted to flee, and appellant, voicing a threat, thereafter left the apartment. (Complainant was treated for his injuries at a local hospital.)

Appellant, testifying on his own behalf, narrated a substantially different account of the incident. According to appellant, he and complainant had engaged in sexual relations on the evening of October 27, 1981, as they had done on previous occasions. On the morning of the incident, complainant asked appellant to perform oral sodomy and when the latter refused and sought to leave, complainant blocked his egress. Complainant then forced appellant back to the bed. As complainant reclined on the bed, appellant, seated on the side thereof, saw a razor blade on a nearby table, cut complainant with it, and escaped.

Appellant contends that his right to be present during all stages of his trial, a right embodied in Super.Ct.Crim.R 43(a)(2),² was violated by the trial court's refusal to permit him to be present during that portion of the voir dire examinations of prospective jurors conducted at the bench. Prior to commencement of the voir dire, appellant, in reliance on this court's decision in Robinson v. United States, 448 A.2d 853 (D.C.1982), reh'g en banc denied, 456 A.2d 848 (D.C.1983), made a clear and timely request to be present at the bench conferences with any prospective jurors. The record indicates that the denial of that request appears to have been made in direct contravention of our decision in Robinson where we held that adherence to Super.Ct.Crim.R. 43(a) requires that a defendant, upon request, be allowed to be present at all stages of voir dire.³ 448 A.2d at 855. Nevertheless, we will look closely at the instant case to determine if there are factual or legal considerations that might place it beyond the rationale or holding of Robinson.

Since our decision in Robinson, we have had two opportunities to elaborate upon the ramifications of a defendant's right to be present at the bench under such circumstances. In Welch v. United States, 466 A.2d 829, 838-39 (D.C.1983), we held that a defendant's failure to request to be present or to object to his exclusion therefrom constituted a waiver of his right to be present. And, more recently in Brodis v. United States, 468 A.2d 1335, 1336-37 (D.C.1983), we held that our ruling in Robinson is not to be given retroactive effect. Under the facts at bar, appellant's trial was commenced after Robinson was decided and a timely request to participate was voiced and then denied. Thus, on the surface, we are confronted with a case in a similar posture to that of Robinson.

In view of the trial court's expression of confusion, it is instructive to review the underpinnings and policies which precipitated our holding in Robinson. We stated in Robinson that upon request, Rule 43(a) requires a defendant to be permitted to participate at that portion of the voir dire conducted at the bench.⁴ Robinson, supra, 448 A.2d at 855-56. Our holding stemmed from the recognition that this portion of the voir dire constituted a stage of the trial. Id. The overriding concern embraced by Rule 43 is that "after indictment . . . nothing shall be done in the absence of the prisoner." Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892); see Robinson, supra, 448 A.2d at 855; Washington, supra note 4, 227 U.S.App.D.C. at 191-92, 705 F.2d at 496-97. To implement this stricture and to facilitate the defendant's participation in the jury selection process, we determined in Robinson that first hand observations of prospective jurors at the bench are to be permitted.

The importance of the defendant's presence at voir dire cannot be overemphasized. The defendant alone has peculiar knowledge about the facts of the alleged incident which brings him before his peers for judgment, about himself, and possibly about any participants or victims. No matter how extensive or involved were prior discussions with his lawyer, 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. As Justice Cardozo writing for the Court in Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) said, the "defense may be made easier if the accused is permitted to be present at the examination of jurors . . . for it will be in his power, if present, to give advice or suggestion or even to supersede his lawyers altogether and conduct the trial himself." See United States v. Alessandrello, 637 F.2d 131, 151 (3d Cir.1980) (Higginbotham, J., dissenting), cert. denied, 451 U.S. 949, 101 S.Ct. 2031, 68 L.Ed.2d 334 (1981).⁵

Concomitant to the importance of defendant's presence at voir dire so that he may assist his lawyer, is the necessity that the defendant be present so that he may effectively exercise his peremptory challenges. Though the peremptory challenge has never been held to be constitutionally mandated by the Supreme Court, Alessandrello, supra, 637 F.2d at 151-52 (Higginbotham, J., dissenting), the Supreme Court has often noted its significance. See, e.g., Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965) ("a necessary part of a trial by jury"); Frazier v. United States, 335 U.S. 497, 506, 69 S.Ct. 201, 206, 93 L.Ed. 187 (1948) ("an opportunity beyond the minimum requirements of fair selection"); Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894) ("one of the most important of the rights secured to the accused"). Indeed, the trial's impartiality is, in part, secured by the exercise of the peremptory challenge. See Lewis, supra, 146 U.S. at 378, 13 S.Ct. at 139. It is difficult to articulate what constitutes the basis prompting an exercise of a peremptory challenge. But, it is precisely the vagueness of an impression or intuitive feeling, or the desire "to express an arbitrary preference," Frazier, supra, 335 U.S. at 506, 69 S.Ct. at 206, which serves to illustrate the need for the defendant to be present when a prospective juror is being examined so that his impressions may be gained first hand. See Robinson, supra, 448 A.2d at 855; Washington, supra, 227 U.S.App.D.C. at 192, 705 F.2d at 497. Surely, just as it is difficult to articulate what induces the exercise of a peremptory challenge, it is improbable to expect a lawyer to be able to relate those impressions gained at the bench to his client. Each impression is, at bottom, a personal one. In this context, we point out that, as a general matter, the only vocal response given by many jurors is to inquiries to which they are directed to respond at the bench where the defendant is unable to hear and to observe their reactions.⁶ The Supreme Court in Lewis, supra, quoting Blackstone stated:

"As every one must be sensible, what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another . . . the law wills not that he should be tried by any one man against whom he has conceived a prejudice even without being able to assign a reason for such his dislike."

146 U.S. at 376, 13 S.Ct. at 138 (quoting 4 W. BLACKSTONE, COMMENTARIES 353). And yet an...