Berness v. State
Citation | 263 Ala. 641,83 So.2d 613 |
Decision Date | 16 June 1955 |
Docket Number | 8 Div. 742 |
Parties | Francis Louis BERNESS v. STATE. |
Court | Supreme Court of Alabama |
John Patterson, Atty. Gen., and L. E. Barton and Owen Bridges, Asst. Attys. Gen., for petitioner.
T. Eugene Burts, Jr., Florence, opposed.
The defendant, Berness, was convicted of murder in the second degree. The Court of Appeals reversed and remanded this judgment. The State, through its Attorney General, petitioned this court for certiorari to review and revise the judgment of the Court of Appeals. The reversal by the Court of Appeals was based on admonitions and instructions given to certain members of the jury, outside of the court house, during the noon recess, in the absence of the defendant. The pertinent interchanges between the judge and members of the jury were reported in the opinion which we here review:
'After the hearing and arguments had been completed, but before the court had instructed the jury, the court declared a noon recess. The jury were permitted to separate, but cautioned by the court not to discuss the case either among themselves or with anyone else.
'As appellant's attorney was returning to the court house after lunch, accompanied by another attorney, they observed on a corner near the court house several of the jurors in conversation with one of the State's main witnesses.
There was also in the group Mr. Luther Tays, a distant relative of the deceased girl.
'As the two attorneys passed the group one of them remarked 'There goes Berness' lawyer.' The two attorneys passed on down the street, and after discussing for a few minutes what they had seen, they proceeded to the chambers of the trial judge. Judge Hill was then in the Register's Office, which adjoins his private office, reading decisions in preparation for his oral charge. As to what occurred from this point we quote the following excerpt from Judge Hill's statement read into the record on the hearing on the motion for a new trial:
We granted certiorari to consider the State's contention that the Court of Appeals erred in holding 'that any communication between the trial court and a member or members of the jury during recess and outside the courtroom negates the court's jurisdiction to render judgment'. As a basis for the above pronouncement, the Court of Appeals relied on Neal v. State, 257 Ala. 496, 497, 59 So.2d 797, 798, wherein this court held:
'It is settled that the continuous presence of the defendant from arraignment to sentence is an essential part of the process provided for the trial of the defendant and without which the court has no jurisdiction to pronounce judgment against him. * * *'
Neal v. State, above, was a criminal prosecution for a capital felony and this fact must be borne in mind when we consider the applicability of the above statement to the present factual situation.
We view the determinative questions here presented as: (1) Whether the strict and inflexible rule above quoted from Neal v. State has applicability in non-capital felony cases. (2) And, whether or not, the rule if applicable, should be applied to the case at bar. We are cited no cases wherein these precise questions have been decided by this court.
It is fundamental that a defendant has the right to be present at every stage of his trial for the commission of a felony. His presence is in fact essential to the validity of his trial and conviction unless there has been a clear and unequivocal waiver of this right by the defendant. Frost v. State, 225 Ala. 232, 142 So. 427. We are not here dealing with the absence of counsel from the courtroom during a part of the proceedings as was discussed in our very recent case of McCall v. State, Ala., 79 So.2d 51. Any re-examination and comment upon that opinion by this writer would be obiter dicta.
Without recourse to decisions of other jurisdictions, let it suffice to say that we are clear to the conclusion that the admonitions and instructions given by the trial judge to the jurors, during the noon recess, in the absence of the defendant constituted error unless such irregularity was properly waived by the defendant.
We hold the view here, as in the case of Lee v. State, 244 Ala. 401, 13 So.2d 590, 592, that the inflexible rule which prohibits the defendant from waiving his right to be present at any stage of his trial, should be limited to capital felony cases. This standard is the prevailing rule in most jurisdictions. In Lee v. State, supra, the following statements are found:
'The following is quoted * * * from 23 C.J.S., Criminal Law, § 975, pp. 309, 310: 'The right to be present during the trial of an indictment for felony cannot be waived by accused in a capital case.' That authority proceeds also to observe: 'In felony cases not capital, it is the rule in most jurisdictions, generally on the theory that the rule requiring accused to be present at the trial is essentially for his benefit * * * that accused may waive his right to be present.'
'Some of the strong statements to the effect that a defendant in any felony case cannot consent for any step in the proceeding to be conducted without his personal presence are in opinions based on a statute which is mandatory that in felony cases, as in Virginia, 'the defendant must be personally present at the trial.' * * *
* * *'
We now deal with the method by which the defendant's clear and unequivocal right to presence at every stage of the trial may be waived. The great weight of authority is summed up in the simple statement found in 23 C.J.S., Criminal Law, § 975, p. 311:
'It is generally held that a waiver of accused's right to be present during the trial, when permitted, must be made by him personally, and that the right cannot be waived by his counsel unless accused authorizes him so to do. * * *'
Our Alabama cases make it clear that the right of the defendant to be present when a felony verdict is returned cannot be waived, unless such waiver is made in the presence of the defendant, by his consent, or with his acquiescence. Consent or acquiescence cannot be presumed and must affirmatively appear from the record. Lee v. State, supra; Wells v. State, 147 Ala. 140, 41 So. 630; Cook v. State, 60 Ala. 39, 31 Am.Rep. 31. We...
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...motions hearings and pretrial motions hearings are not viewed by this Court as a 'critical stage' of the trial. Berness v. State, 263 Ala. 641, 83 So.2d 613. 23 C.J.S. § 974 states in pertinent 'The trial does not embrace every procedural and administrative step and judicial examination of ......
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