Bradshaw v. State

• Citation: 806 A.2d 131
• Decision Date: 13 June 2002
• Docket Number: No. 345, 2001.,345, 2001.
• Court: United States State Supreme Court of Delaware
• Parties: Terrence BRADSHAW, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

806 A.2d 131

Terrence BRADSHAW, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 345, 2001.

Supreme Court of Delaware.

Submitted: May 14, 2002.

Decided: June 13, 2002.

Robert M. Goff, Jr., Office of the Public Defender, Wilmington, Delaware, for appellant.

Thomas E. Brown, Department of Justice, Wilmington, Delaware, for appellee.

BEFORE: VEASEY, Chief Justice, HOLLAND and STEELE, Justices. VEASEY, Chief J.

In this appeal from the Superior Court we consider whether there was plain error when the defendant was absent from the courtroom both at the time his counsel, without authority, agreed to allow the trial court to give an Allen charge¹ to a deadlocked jury and also when the charge was actually given. We hold that the absence of the defendant was a violation of the right granted by Rule 43 of the Delaware Superior Court Rules of Criminal Procedure to be present "at every stage of the trial...."² Furthermore, the defendant's counsel was incapable of waiving this right for him, and the defendant's absence for fifteen minutes at the end of a full day of jury deliberation does not constitute a personal waiver of this right.

The defendant was prejudiced by this error. First, he could well have had valuable input into the decision whether to give the Allen charge. Second, the fact that the jury was able to view his empty chair at this critical moment in their deliberations was inherently prejudicial. Accordingly, we reverse the judgment of the Superior Court and remand for a new trial.

Facts

The State charged Terrence Bradshaw, defendant below and appellant, with two counts of third degree rape³ and one count of second degree unlawful sexual contact⁴ for an incident involving Cassandra Winthrop,⁵ the 12-year-old victim in this case. The State tried Bradshaw before a jury in Superior Court on May 1 and 2 of 2001.

Winthrop testified that in January of 2000 she went to the Days Inn hotel in New Castle with a group of people, one of whom was Bradshaw. They went to a room on the third floor. When they entered the room, Winthrop testified that she lay on one of the beds and Bradshaw lay on top of her. She testified that he took off her clothes and touched her vagina; that he removed his pants, put on a condom, and engaged in vaginal intercourse with her; and that he put his penis in her mouth. A manager at the Days Inn hotel testified that business records showed that Bradshaw had registered for Room 308 on January 28, 2000.

On cross-examination, Bradshaw's counsel elicited the fact that Winthrop had told the police that they had not engaged in oral sex. He also elicited the fact that she had initially told her mother about the incident because she had become symptomatic for genital herpes.

Bradshaw testified in his defense. He denied having registered at the Days Inn hotel on January 28, 2000. He testified that the address listed on the Days Inn receipt was outdated and from an old identification card that he had lost. He also denied knowing or having had sexual intercourse with Winthrop. He testified that he had tested negative for genital herpes since the alleged encounter with Winthrop.

The jury retired for deliberations at 4:05 P.M. on May 2 and went home at 5:24 P.M. Before they left for the evening, the jury asked the Superior Court three questions about whether there was any other evidence that Bradshaw was at the hotel that evening, including, "Is there a signature from January 28th, 2000, that could have been checked?" The court responded, "The Court cannot comment on the evidence." The jury returned to the court to continue their deliberations at 9:30 A.M. the following morning. At 3:10 P.M., the Superior Court received a note from the jury stating, "Dear Judge: We are unable to make a decision. Thanks." At 3:17 P.M., the court convened the parties, with the exception of Bradshaw himself, who apparently was not immediately to be found at that moment in the vicinity of the courtroom.

The State requested an Allen charge. This is a request from a trial court to the jury to attempt to come to a decision in the case without abandoning any firmly held beliefs.⁶ The trial judge then observed that this was a two-day trial and "not a murder trial," and that "it's my experience that in such cases, an Allen Charge is probably not going to be fruitful."

The trial judge asked whether there was a "request for an Allen Charge." Bradshaw's counsel responded to this question, voicing his discomfort at proceeding without his client, who could not be immediately located. His counsel claimed that Bradshaw had been at the courthouse all day, and that he had seen him an hour before. Bradshaw's counsel speculated that he could have gone out "to get a bite to eat...."

Both Bradshaw's counsel and the bailiff looked for Bradshaw unsuccessfully. After a very brief search for Bradshaw, his counsel made an "independent decision to join the prosecutor's request for an Allen Charge...." He stated, "I can't imagine that the case would, from the defense perspective, go any better than it did on the occasion of this trial." The jury then entered the courtroom at 3:25 P.M., fifteen minutes after the jury's note to the trial judge and eight minutes after the Superior Court reconvened. The trial judge then polled the jury to see whether further deliberations might be fruitful. A number of people indicated that it would not. Some, however, did not respond. The trial judge then gave an Allen charge to the jury. Bradshaw was not present for the reading of the Allen charge to the jury. At 1:50 P.M. on May 4, the jury reconvened and returned a verdict of not guilty on one of the rape counts and guilty on the other two charges.

The Right to be Present Under Rule 43

A defendant's right to be present at his own trial has two dimensions: a constitutional one and one based on the Delaware Superior Court Rules of Criminal Procedure. The United States Supreme Court has ruled that due process guarantees a defendant's right to be personally present "whenever [the defendant's] presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge."⁷ In applying this test, courts ask whether the defendant could personally "give advice or suggestion or even [decide] to supersede his lawyers altogether and conduct the trial himself."⁸ Thus, a defendant's constitutional right to be present wanes when pure questions of law are discussed and waxes when his or her personal knowledge becomes germane.⁹

This Court need not decide whether Bradshaw's absence was a constitutional violation, however, because it was a violation of Superior Court rules. Rule 43 of the Delaware Superior Court Rules of Criminal Procedure requires a defendant to be present "at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule."¹⁰ Rule 43 does not require a defendant's presence "[a]t a conference or argument upon a question of law."¹¹ This rule was modeled after Federal Rule of Criminal Procedure 43,¹² so precedent regarding that rule is germane.

The giving of an Allen charge to a jury is a "stage of the trial," a stage wherein a trial court encourages the jury to continue deliberations. An Allen charge takes place after "the impaneling of the jury" but before "the return of the verdict."¹³ These are the two examples set forth in Rule 43 to delineate the bounds of a defendant's right to be present. Federal courts have held that giving an Allen charge to a jury implicates the federal version of Rule 43.¹⁴ Furthermore, this was not "a conference or argument upon a question of law."¹⁵ As we discuss more fully below,¹⁶ the defendant's decision whether to agree to or resist the giving of an Allen charge implicates a choice whether a defendant likes his chances with this trial or with a new one. That is not an "argument on a question of law," but a basic question of trial objectives to which a defendant can reasonably be expected to contribute.

Moreover, Bradshaw was not in the courtroom when the trial judge actually gave the Allen charge to the jury. This, quite apart from the decision to give the Allen charge, certainly did not implicate the Rule 43 exceptions pertaining to conferences in chambers about the proper application of legal principles. Rather, the defendant's absence, observable by the jury during the giving of the Allen charge, is an operative fact that raises the issue of prejudice.

Waiver of the Right to be Present

A defendant may normally waive a right either personally or through his or her counsel. The common law exhibited a strong presumption against the waiver of the right to be present in criminal cases.¹⁷ "It was thought `contrary to the dictates of humanity to let a prisoner "waive that advantage to which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defence with indulgence."'"¹⁸ Both the federal Rule 43 and its Delaware equivalent have, however, since modified this rule.

We will first address whether Bradshaw waived his right to be present personally. Waiver is the intentional relinquishment of a known right¹⁹ and it can either be express or implied. Rule 43(c)(2) addresses express waiver, and allows it if the consent is "written" and if the potential punishment does not exceed one year in prison.²⁰ There is no evidence here that Bradshaw expressly waived his right to be present. Rule 43(b) addresses implied waiver, providing, "The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived the right to be present whenever a defendant, initially present ... [i]s voluntarily absent after the trial has commenced...."²¹ Federal courts have interpreted the comparable federal...