Cardinal v. Gorczyk

• Decision Date: 16 March 1995
• Docket Number: Civ. A. No. 5:94-CV-200.
• Parties: Anthony CARDINAL v. John GORCZYK and Jeffrey Amestoy.
• Court: U.S. District Court — District of Vermont

880 F. Supp. 261

Anthony CARDINAL v. John GORCZYK and Jeffrey Amestoy.

Civ. A. No. 5:94-CV-200.

United States District Court, D. Vermont.

March 16, 1995.

COPYRIGHT MATERIAL OMITTED

Seth E. Lipschutz, Office of the Defender Gen., Montpelier, VT, for plaintiff.

Pamela Hall Johnson, State's Attys. Office, Burlington, VT, for defendants.

OPINION AND ORDER

BILLINGS, Senior District Judge.

On December 9, 1994, Magistrate Judge Jerome J. Niedermeier issued a Report and Recommendation advising the Court to deny Petitioner Anthony Cardinal's request for a writ of habeas corpus under 28 U.S.C. § 2254.¹ The Magistrate rejected Cardinal's claim that his state conviction was obtained in violation of his right to be present during jury selection, as secured by the Sixth and Fourteenth Amendments. Cardinal has filed an objection. For the reasons stated herein, we decline to accept the Magistrate's recommendation and hold that Cardinal's petition should be granted.

Factual Background

The State of Vermont charged Petitioner Cardinal with sexual assault against his seventeen year-old daughter. Cardinal had two jury trials. At each trial, the court conducted both a general and an individual voir dire. At the first trial, Cardinal was present during the individual voir dire. The jury was unable to reach a verdict. At the second trial, Cardinal was not present at the individual voir dire. The jury returned a guilty verdict on April 28, 1988. Cardinal asserts that the conviction must be overturned because he was not allowed to be present for individual jury voir dire, despite not having waived that right.

Procedural History

After Cardinal's conviction, he appealed the matter to the Vermont Supreme Court. The conviction was affirmed. State v. Cardinal, 155 Vt. 411, 584 A.2d 1152 (1990). On July 16, 1992, Cardinal filed a pro se petition for post-conviction relief in state court, but he did not allege that he was denied the right to be present at the voir dire. On March 19, 1993, the petition was voluntarily dismissed by Cardinal's counsel due to jurisdictional requirements. On March 23, 1993, Cardinal filed another petition in the proper court with the help of counsel, raising the grounds that are asserted here.

Cardinal's request for post-conviction relief was first heard by the Washington Superior Court. The court made findings of fact and conclusions of law. The findings of fact of the state trial and appellate courts are entitled to a presumption of correctness by this Court. 28 U.S.C. § 2254(d); Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983). These findings may only be set aside if they "lack even fair support in the record." Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1982).

After the post-conviction hearing, the Washington Superior Court found as follows.² The jury in the second trial was impaneled on April 25, 1988. For each set of venirepersons, the court first held a general voir dire. During this voir dire, Cardinal was seated at counsel's table and had no problem either seeing or hearing the proceedings. Because of the sensitive nature of the trial, the court then proceeded to conduct individual voir dire at the bench. The state court found that when it was time for individual voir dire, Cardinal got out of his chair and started to go with his attorneys to the bench. One of his attorneys told him to "wait there." Cardinal remained seated at counsel table during the individual voir dire.

The venirepersons were seated 25 feet from Cardinal, to the right of the judge and 8 inches above the floor. Because of the sensitive nature of the questions asked of the potential jurors, the judge purposely tried to keep the voir dire quiet. Cardinal was not able to hear much of the individual voir dire because of his distance from the bench and the lowered voices of the participants. Cardinal's view of the venirepersons was insufficient to provide him an opportunity to observe their demeanor and visceral reactions to the questions asked of them.

Petitioner's attorneys explained to him in a general manner the process, purposes of and reasons for individual voir dire, but not that he had a right to see and hear the individual voir dire. Cardinal never told his attorneys that he did not wish to observe the individual voir dire, nor did he make any such statement to the trial court. Cardinal's attorneys, however, have no recollection of him making a request to hear and see the individual voir dire, and they said they are certain that no such request was made.

The Washington Superior Court concluded that Cardinal was not afforded an opportunity to meaningfully participate in the process and that he did not knowingly and voluntarily waive this right. The state appealed the grant of post-conviction relief to the Vermont Supreme Court, which reversed. In re Cardinal, 649 A.2d 227, 230 (Vt.1994). The Vermont Supreme Court determined that Cardinal had not been intentionally excluded from the individual voir dire proceedings. The court thus concluded that the onus had been on Cardinal to advise the court that he could neither see nor hear the proceedings, and that his failure to do so constituted a waiver.

Cardinal then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, for which the Magistrate Judge recommends dismissal. With respect to the issue of the jury impaneling,³ the Magistrate concluded that Cardinal never asserted his right to be present at the bench, and had thus waived the right. See United States v. Gagnon, 470 U.S. 522, 529, 105 S.Ct. 1482, 1485, 84 L.Ed.2d 486 (1985). The Magistrate "did not consider Cardinal's attempt to approach the bench as a request to stand at the bench during voir dire." Cardinal v. Gorczyk, No. 5:94-CV-200, slip. op. at 11 n. 2 (D.Vt. Dec. 9, 1994). It is to this conclusion that Cardinal has taken exception. Cardinal argues that his attempt to approach the bench during individual voir dire was an assertion of his right to be present for that stage of the proceeding.

The Magistrate Judge also noted that although Cardinal consulted with his attorneys after the completion of individual voir dire for each panel of jurors, there is no evidence that he mentioned at the time that he could neither hear nor see the proceedings. As Cardinal has pointed out, however, this conclusion is not necessarily supported by the record.⁴ Finally, the Magistrate noted that Cardinal did not adequately explain his failure to raise this contention earlier. Again, Cardinal points to the transcript of the postconviction hearing where he testified that he had previously advised his attorneys that he had not attended the individual voir dire.⁵

Pursuant to Fed.R.Civ.P. 72 and 28 U.S.C. § 636(b)(1), we make a de novo determination upon the record before the Magistrate.

Discussion

That Cardinal had a fundamental right to be present at the individual voir dire is not in dispute. This right is rooted in the Sixth Amendment's Confrontation Clause, the Fourteenth Amendment's due process guarantee and a common law right to presence at trial. Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484; Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934); United States v. Washington, 705 F.2d 489, 496 (D.C.Cir.1983). See also Fed. R.Crim.P. 43(a).⁶ The right is considered fundamental because it is only by his presence during jury impaneling that a defendant can assist his attorney in the selection of an impartial jury. A defendant may form distinct impressions and prejudices "conceived upon the bare looks and gestures" of proposed jury members. United States v. Crutcher, 405 F.2d 239, 244 (2d Cir.1968) (quoting Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892)), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969). See also 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). Only by his presence, therefore, may a defendant effectively exercise his peremptory challenges. United States v. Camacho, 955 F.2d 950, 953 (4th Cir.1992).

I. Waiver

Like any constitutional guarantee, however, the right to be present at trial may be waived. United States v. Mackey, 915 F.2d 69, 72 (2d Cir.1990) (quoting Snyder, 291 U.S. at 106, 54 S.Ct. at 332). This waiver may be express or it may be implied by the defendant's conduct. Gagnon, 470 U.S. at 529, 105 S.Ct. at 1485; Taylor v. United States, 414 U.S. 17, 20, 94 S.Ct. 194, 196, 38 L.Ed.2d 174 (1973). In Gagnon, for example, the United States Supreme Court ruled that the defendant's failure to invoke his right to be present at an in camera meeting held by the judge to determine whether an individual juror had been tainted constituted a valid waiver of that right. 470 U.S. at 529, 105 S.Ct. at 1485.⁷ Defendant's counsel was present at the meeting. The Court concluded that defendant had waived his right to be present through his failure to assert a right to attend, to lodge any type of objection, or to make a post-trial motion. The Court reasoned that a district court "need not get an express `on the record' waiver from the defendant for every trial conference which a defendant may have a right to attend." Id. at 528, 105 S.Ct. at 1485.⁸

A defendant's waiver of his right to be present at trial, however, is only valid if it is found to be "knowing and voluntary." Polizzi v. United States, 926 F.2d 1311, 1319 (2d Cir.1991); United States v. Hernandez, 873 F.2d 516, 519 (2d Cir.1989). In considering whether Cardinal made a knowing and voluntary waiver of his right to presence, this Court must "indulge every reasonable presumption against the loss of constitutional rights." Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1060, 25 L.Ed.2d 353 (1970); Camacho, 955 F.2d at 955; Crutcher, 405 F.2d at 243.

In the instant case, it is clear...