111 A.3d 627
D.C.2015Background
- Brian Copeland was convicted by a jury of first-degree sexual abuse; his conviction was previously affirmed on direct appeal.
- Copeland filed a D.C. Code § 23-110 motion alleging ineffective assistance of trial counsel based on counsel’s conduct during jury selection (voir dire).
- During voir dire, the court asked general questions in open court; individual juror follow-up occurred at the bench with a mechanical “husher” to mask conversation; defense counsel participated at sidebar but Copeland was not present at the bench and made no request to be present.
- The court struck 23 jurors for cause, denied four cause strikes requested by defense, and the parties used peremptories on 17 jurors and an alternate; defense exhausted ten peremptories.
- Copeland claimed counsel failed to inform him of his Rule 43(a) right to be present at bench voir dire and argued the bench questioning with the husher on effectively closed voir dire to the public, invoking public-trial structural-error principles.
- The trial court denied the § 23-110 motion without an evidentiary hearing; the appellate court assumed deficient performance but found Copeland had not shown Strickland prejudice and rejected treating bench voir dire with a husher as structural error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for not informing Copeland of his right to be present at individual bench voir dire | Copeland: counsel failed to inform him of Rule 43(a) right; had counsel informed him he would have attended and affected juror strikes | Government: Copeland never requested presence, made no contemporaneous objection, and offered no affidavit showing he would have acted differently | Assumed deficiency for argument’s sake but denied relief for lack of Strickland prejudice (no showing verdict or jury composition would differ) |
| Whether bench voir dire with a “husher” violated the Sixth Amendment public-trial right and is structural error | Copeland: bench questioning outside audible range of the public effectively closed voir dire; under Littlejohn, public-trial violations are structural so prejudice is presumed | Government: courtroom remained open, no one was excluded, transcript exists; the practice serves juror privacy and prevents prejudice to the venire | Court declined to extend Littlejohn; bench voir dire with husher is not per se structural error and public-trial claim requires case-by-case harmless-error review; no presumptive prejudice here |
| Whether a public-trial violation relieves Copeland of Strickland’s prejudice requirement | Copeland: public-trial violations are structural so Strickland prejudice is presumed | Government: D.C. precedent reviews exclusion from bench under Chapman/harmless-error; Presley does not mandate structural-error treatment here | Court held Littlejohn’s structural-error presumption does not apply; prejudice still required and not shown |
| Whether counsel erred by declining to replace 32 jurors who entered before defendant arrived | Copeland: counsel should have accepted the court’s offer to replace them | Government: defense counsel conferred with Copeland and declined; defendant acquiesced; any prejudice speculative | Waived by Copeland’s affirmative acquiescence at trial; claim not considered further |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance standard: deficiency and prejudice)
- Presley v. Georgia, 558 U.S. 209 (public-trial right extends to voir dire)
- Littlejohn v. United States, 73 A.3d 1034 (D.C. Ct. App. 2013) (held courtroom closure to supporters was structural error and prejudice presumed when counsel’s waiver caused closure)
- Hager v. United States, 79 A.3d 296 (discusses defendant’s Rule 43(a) right to be present at bench voir dire and waiver rules)
- Barrows v. United States, 15 A.3d 673 (addresses requirements for excluding public and use of husher during individual juror interviews)
- Kleinbart v. United States, 553 A.2d 1236 (noting defendant’s presence at bench voir dire can inhibit candid juror answers and is rarely invoked)
- Robinson v. United States, 448 A.2d 853 (endorses case-by-case harmless-error review for exclusion from bench voir dire)