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              DISTRICT OF COLUMBIA COURT OF APPEALS

                                     No. 13-CO-746

                      BRIAN LAMONT COPELAND, APPELLANT,

                                          V.

                            UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                  (CF1-3817-08)

                      (Hon. Anthony C. Epstein, Trial Judge)

(Argued January 6, 2015                                 Decided March 12, 2015)

      Jenifer Wicks for appellant.

      Elizabeth H. Danello, with whom Ronald C. Machen Jr., United States
Attorney, and Elizabeth Trosman and T. Anthony Quinn, Assistant United States
Attorneys, were on the brief, for appellee.

      Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and FERREN,
Senior Judge.

      FISHER, Associate Judge: A jury convicted appellant Brian Copeland of one

count of first-degree sexual abuse with force.1 Appellant later filed a motion for


      1
          D.C. Code § 22-3002 (a)(1) (2001).
                                          2


relief under D.C. Code § 23-110 (2001), alleging that he was denied the effective

assistance of counsel.    Judge Epstein denied the motion without a hearing. 2

Because appellant failed to show that he suffered prejudice from counsel’s

allegedly deficient performance, we affirm.



                                I.     Background



      On April 22, 2008, appellant was charged by indictment with one count of

first-degree sexual abuse. He was found guilty after a jury trial, and his conviction

was affirmed in an unpublished memorandum opinion. Copeland v. United States,

No. 08-CF-1610, Mem. Op. & J. (D.C. Mar. 15, 2011). On September 26, 2011,

appellant, represented by new counsel, filed a motion for relief under D.C. Code

§ 23-110. The motion contended that appellant was denied the effective assistance

of counsel because his trial attorney performed deficiently during jury selection.



      Jury selection proceeded in the following manner. After the potential jurors

were sworn, the trial court asked them a series of yes-or-no questions pertinent to

the case. This inquiry occurred on the record in an open courtroom. The jurors

      2
         Judge Boasberg, who presided over appellant’s trial, had been appointed
to the United States District Court. Judge Epstein was assigned to decide this § 23-
110 motion and other matters previously assigned to Judge Boasberg.
                                          3


were instructed to write on an index card the number of any question to which they

had an affirmative answer. The court then turned on the “husher”3 and brought

each individual member of the venire to the bench to discuss his or her responses.

Defense counsel participated in the voir dire at sidebar, but appellant did not.



       During the individual voir dire, the court struck twenty-three jurors for cause

and denied defense counsel’s request to strike an additional four jurors. Following

voir dire, the parties exercised peremptory challenges on seventeen jurors and one

alternate.4



                             II.   Standard of Review



       “‘We review the trial court’s denial of appellant’s D.C. Code § 23-110

motion without a hearing for an abuse of discretion.’” Patterson v. United States,

37 A.3d 230, 243, amended on reh’g, 56 A.3d 1152 (D.C. 2012) (per curiam)

(quoting Freeman v. United States, 971 A.2d 188, 201 (D.C. 2009)). “‘When a


       3
        “A ‘husher’ is a mechanical, white noise device intended to foster the
confidentiality of conversations at the bench . . . .” Barrows v. United States,
15 A.3d 673, 681 n.13 (D.C. 2011).
       4
         Appellant exhausted his ten peremptory challenges. See Super. Ct. Crim.
R. 24 (b). He “passed” when challenges were exercised against the alternates.
                                          4


defendant in a § 23-110 motion raises a claim of ineffective assistance of counsel,

there is a presumption that the trial court should conduct a hearing.’” Jones v.

United States, 918 A.2d 389, 402-03 (D.C. 2007) (quoting Lane v. United States,

737 A.2d 541, 548 (D.C. 1999)). However, “[w]here the existing record provides

an adequate basis for disposing of the motion, the trial court may rule on the

motion without holding an evidentiary hearing.” Ready v. United States, 620 A.2d

233, 234 (D.C. 1993).



      “‘An appellant alleging the constitutional ineffectiveness of his trial counsel

must demonstrate both deficient performance and prejudice in order to merit relief

under D.C. Code § 23-110.’” Patterson, 37 A.3d at 243 (quoting Freeman, 971

A.2d at 201). In other words, appellant must establish (1) “that counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment”; and (2) “that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland v. Washington, 466 U.S. 668, 687, 694 (1984);

see also Jones, 918 A.2d at 402.



                                   III.   Analysis
                                          5


                             A.     Right to Be Present



      Appellant primarily contends that his trial counsel was ineffective because

she failed to inform him of his right to be present at the bench during the voir dire

of individual jurors. Super. Ct. Crim. R. 43 (a) provides, in pertinent part, that

“[t]he defendant shall be present . . . at every stage of the trial including the

impaneling of the jury . . . .”   “A defendant’s Rule 43 (a) rights derive from his

constitutional rights to be present at his own criminal proceedings under the Fifth

and Sixth Amendments.” Hager v. United States, 79 A.3d 296, 301 (D.C. 2013).



      Rule 43 (a) encompasses “the right of the defendant to be present, upon

request, at the bench as voir dire is proceeding.” Id. His presence during these

colloquies enables the defendant to assist his lawyer in effectively exercising

peremptory strikes and challenges for cause. Kleinbart v. United States, 553 A.2d

1236, 1239 (D.C. 1989). This is an important right, to be sure, but a defendant

must claim it in order to enjoy it. Indeed, defendants often choose not to invoke

the right for fear that their close physical proximity will make potential jurors

uncomfortable. See id. at 1242 (reporting that the right to be present at bench

voir dire is “rarely invoked” because “the defendant’s presence at the bench

inhibits eliciting candid answers from the prospective jurors” and because
                                         6


exercising the right “may be prejudicial to the defendant’s personal interest”)

(Gallagher, J., dissenting).



      Even when a defendant wishes to exercise the right, the failure “to make a

timely and adequate request for his or her presence at the bench where voir dire is

being conducted . . . constitutes a waiver of that right and forecloses the

opportunity to be heard on appeal.” Hager, 79 A.3d at 301 (internal quotation

marks omitted). In this case, appellant, allegedly not informed by counsel of his

right, made no request to be present at the bench during individual voir dire, nor

did he object to the manner in which this portion of jury selection was conducted.



      We will assume for the purposes of argument that counsel’s performance

was deficient, but agree with the motion judge’s finding that appellant failed to

show that he was prejudiced. See Brown v. United States, 934 A.2d 930, 943 (D.C.

2007) (“The reviewing court need not address both prongs of the Strickland test if

appellant does not meet the burden of one or the other showing.”).5 In his post-


      5
         Judge Epstein also found that trial counsel did not perform deficiently, but
that finding rested in part on the mistaken belief that appellant had not submitted
an affidavit providing evidence of deficient performance. Because we base our
decision solely on appellant’s failure to satisfy the prejudice prong of Strickland,
and appellant made no attempt to demonstrate prejudice in his affidavit, the motion
judge’s oversight has no impact on our decision. See Brown, 934 A.2d at 943.
                                          7


trial affidavit, appellant did not claim that he would have exercised his right to be

present at the bench during individual voir dire. See Strozier v. United States, 991

A.2d 778, 786 (D.C. 2010) (rejecting ineffective-assistance claim for failure to

provide affidavit showing prejudice). Furthermore, even with the benefit of a

transcript, he has not asserted that his counsel should have conducted voir dire

differently or that he would have urged her to strike any other jurors, either

peremptorily or for cause, if he had been present at the bench. Cf. United States v.

Rolle, 204 F.3d 133, 140 (4th Cir. 2000) (on plain error review, considering

whether a defendant who was excluded from voir dire must, to show actual

prejudice, demonstrate either “that the verdict would have been different,” or “that

the jury might have been constituted in a meaningfully different way,” but

declining to choose between the standards because defendant could not make the

lesser showing). Appellant therefore has not shown that he was prejudiced by his

counsel’s alleged failure to discuss with him his right to be present at the bench

during individual voir dire.



                               B.     Right to a Public Trial



      The failure of a defendant to prove prejudice is ordinarily enough to dispose

of an ineffective-assistance claim.     See Brown, 934 A.2d at 943.        Appellant
                                         8


contends that he should be relieved of this burden, however, because the trial court

effectively closed a portion of voir dire to the public when it questioned

prospective jurors at the bench with the “husher” on. He argues that this procedure

violated his Sixth Amendment right to a public trial because members of the

audience were not able to hear the discussion at the bench. Appellant also argues

that, under this court’s decision in Littlejohn v. United States, 73 A.3d 1034 (D.C.

2013), a violation of the right to a public trial is structural error and Strickland

prejudice is presumed.



      The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial . . . .” U.S. Const.

amend. VI. The Supreme Court has deemed it “well settled” that the right to a

public trial extends to jury voir dire. Presley v. Georgia, 558 U.S. 209, 213

(2010); see also Barrows v. United States, 15 A.3d 673, 679 (D.C. 2011)

(discussing Presley). A trial court must make specific findings on the record

before it may exclude members of the public from jury selection. Barrows, 15

A.3d at 679 (citing Waller v. Georgia, 467 U.S. 39, 48 (1984)).



      In Littlejohn, hostility arose between the defendant’s supporters and the

victim’s supporters, apparently causing “a huge melee in front of the courthouse.”
                                           9


73 A.3d at 1036 (internal quotation marks omitted). The trial court staggered the

departure times of the two groups to minimize their contact with one another inside

and around the courthouse, ordering the defendant’s supporters to leave about forty

minutes before the end of each trial day while allowing the victim’s supporters to

stay. Id. On direct appeal, we affirmed the defendant’s conviction, holding that

his attorney had waived any objection to the closure of the courtroom to his

supporters because counsel “actively supported (and may even have proposed) the

concept of staggering the departure times of the two groups in order to minimize

the risk of a fracas.” Id. at 1037 (internal quotation marks omitted).



      While his appeal was still pending, Littlejohn filed a § 23-110 motion

claiming he had been denied the effective assistance of counsel because his right to

a public trial was violated when his supporters were excluded from the courtroom.

Id. at 1037. This court held that if the courtroom is closed in violation of the

defendant’s public trial right, and trial counsel’s waiver of that right constitutes

deficient performance, “no further showing of prejudice is required” to obtain

relief on a claim of ineffective assistance of counsel. Id. at 1044. In doing so, we

said that the violation of the right to a public trial is a structural error, or one that

has “per se prejudicial impact” because its “precise effects are unmeasurable.” Id.

at 1043 (internal quotation marks omitted). The court concluded that prejudice
                                           10


under Strickland is presumed “when counsel’s deficient performance causes a

structural error.”   Id.   The case was remanded for an evidentiary hearing to

determine whether the defendant’s counsel had performed deficiently. Id. at 1044.



      We decline to extend the holding in Littlejohn to the circumstances

presented here. Even when the defendant has requested and been denied the right

to be present at the bench during voir dire, this court has rejected arguments for

per se reversal. See Young v. United States, 478 A.2d 287, 290 (D.C. 1984);

Robinson v. United States, 448 A.2d 853, 856 (D.C. 1982). Instead, “we are

wedded to examining the cases on an ad hoc basis.” Robinson, 448 A.2d at 856.

We have therefore consistently reviewed a trial court’s decision to exclude the

defendant from the bench during individual voir dire, despite a timely request,

under the harmless constitutional error standard of Chapman v. California, 386

U.S. 18 (1967). E.g., Hager, 79 A.3d at 302; Kleinbart, 553 A.2d at 1240; Gary v.

United States, 499 A.2d 815, 835 (D.C. 1985) (en banc). Such case-by-case

review is incompatible with the concept of structural error, and the Supreme

Court’s decision in Presley has neither explicitly nor implicitly overruled our prior

decisions rejecting a rule of per se reversal.
                                         11


      Moreover, we are not persuaded by the argument that appellant’s right to a

public trial was violated by the procedures used during the selection of his jury.

No one objected to conducting a portion of voir dire at the bench. The courtroom

was not closed, no one was excluded from observing voir dire, and a transcript of

the proceeding is available. Appellant cites no authority, and we can find none,

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.6 Instead,

the cases discuss the closure (or partial closure) of a proceeding caused by

excluding one or more members of the public from the courtroom during voir dire,

see Presley, 558 U.S. at 210; Barrows, 15 A.3d at 676, or by moving portions of

jury selection from the courtroom to a location not observable by the public, such

as a jury room, see Williams v. United States, 51 A.3d 1273, 1282-84 (D.C. 2012)

(conducting portion of voir dire in jury room violated Sixth Amendment, but

defendant, who was present in the jury room, was not entitled to relief under plain

error review).


      6
          Courts in this jurisdiction have, for many years, “usually conduct[ed]
individual voir dire at the bench with the ‘husher’ activated.” Williams v. United
States, 51 A.3d 1273, 1284 (D.C. 2012); see also Barrows, 15 A.3d at 681
(denying defendant relief under plain error review for excluding members of the
public from the courtroom during voir dire and noting that “given the (unobjected-
to) use of the husher during the individual juror interviews, we cannot say that
allowing the courtroom to remain open during the relatively short voir dire would
have contributed appreciably to” the goals of the right to a public trial).
                                          12




      The lack of authority supporting appellant’s argument is unsurprising given

the purposes of the right to a public trial. Criminal trials are open to the public

“primarily ‘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.’” Littlejohn, 73 A.3d at 1039 (quoting Tinsley v.

United States, 868 A.2d 867, 873 (D.C. 2005)). “[P]ublic proceedings [also]

vindicate the concerns of the victims and the community in knowing that offenders

are being brought to account for their criminal conduct by jurors fairly and openly

selected.” Press-Enter. Co. v. Superior Court of Cal., Riverside Cnty., 464 U.S.

501, 509 (1984). “The undoubted value of an open courtroom is that it ‘gives

assurance that established procedures are being followed and that deviations will

become known’ and thereby ‘enhances both the basic fairness of the criminal trial

and the appearance of fairness so essential to public confidence in the system.’”

Barrows, 15 A.3d at 681 (quoting Press-Enter., 464 U.S. at 508).



      Sometimes, however, there are “competing considerations,” Boone v. United

States, 483 A.2d 1135, 1141 (D.C. 1984) (en banc), which justify limited

questioning of jurors at the bench. The practice was adopted in this jurisdiction
                                         13


over forty years ago to prevent a potential juror’s answers to voir dire questions

from prejudicing other members of the venire. See Boone, 483 A.2d at 1141.7

Such questions might include prior contact with the criminal justice system,

knowledge of the crime, or exposure to pretrial publicity. The procedure is also

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.8


      7
         The practice of holding individual voir dire at the bench has been traced to
the D.C. Circuit’s decision in United States v. Ridley, 134 U.S. App. D.C. 79, 412
F.2d 1126 (1969). See Boone, 483 A.2d at 1141 (citing United States v.
Washington, 227 U.S. App. D.C. 184, 191, 705 F.2d 489, 496 (1983)). In Ridley,
the defendant argued that he was prejudiced because the prospective jurors were
examined openly about their past experiences as victims of crime. 134 U.S. App.
D.C. at 81, 412 F.2d at 1128. The Ridley court affirmed the defendant’s
conviction, but suggested that trial courts explore alternative ways to conduct voir
dire to prevent possible prejudice that could arise if prospective jurors heard one
another’s answers. Id. The D.C. Circuit later approved of the practice whereby
prospective jurors who indicate that they have had prior contact with the criminal
justice system are examined at the bench out of the hearing of the rest of the
venire. See Washington, 227 U.S. App. D.C. at 191, 705 F.2d at 496 (citing United
States v. Caldwell, 178 U.S. App. D.C. 20, 32 n.42, 543 F.2d 1333, 1345 n.42
(1974), and United States v. Bryant, 153 U.S. App. D.C. 72, 76-77, 471 F.2d 1040,
1044-45 (1972)).
      8
         Our reasoning is supported by the American Bar Association standards for
voir dire, which recognize that “[j]uror interest in privacy must be balanced against
party and public interest in court proceedings.” ABA Standards for Criminal
Justice, Principles for Juries and Jury Trials § 7 (A) (2005), available at
http://www.americanbar.org/content/dam/aba/migrated/2011_build/american_jury/
principles.authcheckdam.pdf. They recommend that “[j]urors should be examined
outside the presence of other jurors on sensitive matters or prior exposure to
                                                                        (continued…)
                                           14




      When questioning occurs at the bench, the public can still observe the

proceedings and, as in this case, hear the general questions posed to the jury panel.

See Commonwealth v. Cohen, 921 N.E.2d 906, 925 (Mass. 2010) (“Even though

the public cannot hear what is being said [during individual voir dire at sidebar],

the ability to observe itself furthers the values that the public trial right is designed

to protect.”). Individual voir dire at the bench is recorded, and a transcript can be

made available.



      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




(…continued)
potentially prejudicial material.” ABA Standards for Criminal Justice, Discovery
and Trial by Jury § 15-2.4 (e) (3d ed. 1996). “Sensitive matters are those matters
which might be potentially embarrassing or intrusive into the juror’s private life,
feelings or beliefs, or those matters which, if discussed in the presence of the jury
panel, might prejudice or influence the panel by exposing other potential jurors to
improper information.” Id. § 15-2.4 (e)(1). A trial court should also “consider
juror privacy concerns when choosing the method of voir dire (open questioning in
court, private questioning at the bench, or a jury questionnaire) to be used to
inquire about sensitive matters.” ABA Standards for Criminal Justice, Principles
for Juries and Jury Trials § 7 (A)(5).
                                          15


public, is not a structural error. 9 Our holding in Littlejohn does not excuse

appellant from satisfying the prejudice prong of the Strickland standard.



                                    IV.    Conclusion



      Appellant’s failure to show prejudice is fatal to his claim of ineffective

assistance of counsel. The judgment of the Superior Court is hereby



                                               Affirmed.




      9
          Appellant also contends that defense counsel was ineffective because she
declined the court’s offer to dismiss thirty-two prospective jurors who came into
the courtroom before appellant was present. The jurors were removed from the
courtroom, but defense counsel suggested that when they reentered and saw
appellant seated at counsel table, they would infer that he had come from the
holding cell behind the courtroom. After defense counsel raised this possibility,
the trial court explained, “I don’t think it’s terribly prejudicial,” and commented
that the jurors “may not put two and two together.” Nevertheless, the court offered
to replace the thirty-two jurors. Counsel declined the offer after conferring with
her client. We therefore do not consider this claim of ineffective assistance
because appellant “affirmatively acquiesced” to retaining the jurors. King v.
United States, 75 A.3d 113, 117 (D.C. 2013); see also id. (“We have repeatedly
held that a defendant may not take one position at trial and a contradictory position
on appeal.” (internal quotation marks omitted)). Moreover, any claim of prejudice
attributable to counsel’s decision is entirely speculative.
