Crutchfield v. Wainwright

• Decision Date: 10 November 1986
• Docket Number: No. 84-3508,84-3508
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: Barney Earl CRUTCHFIELD, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Jim Smith, Respondents-Appellants.

Page 1103

803 F.2d 1103

Barney Earl CRUTCHFIELD, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Jim Smith, Respondents-Appellants.

No. 84-3508.

United States Court of Appeals, Eleventh Circuit.

Nov. 10, 1986.

Thomas H. Bateman, III, Dept. of Legal Affairs, Tallahassee, Fla., for respondents-appellants.

Gwendolyn Spivey, Tallahassee, Fla., for petitioner-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before RONEY, Chief Judge, and GODBOLD, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK and EDMONDSON, Circuit Judges.

HATCHETT, Circuit Judge:

In this case, the en banc court decides the extent to which a trial court may instruct a criminal defendant not to confer with counsel during a recess which occurs during the defendant's testimony.

During Barney Earl Crutchfield's trial for armed robbery with a deadly weapon, the Florida trial judge instructed Crutchfield's counsel not to talk with him about his testimony:

THE COURT: All right. We're going to take a little break, Ladies and Gentlemen. We've been at it a little bit. And I see there's a sigh of relief on some faces? Over here. Do not discuss this case, please, while you're in the jury room. All right.

[WHEREUPON, THE JURY WAS REMOVED FROM THE JURY BOX.]

THE COURT: All right. Gentlemen, in view of the fact that this is going to be a very brief break, I direct that the lawyers for Mr. Crutchfield not to discuss his testimony with him during the course of this break.

After receiving this instruction, Crutchfield's counsel did not object, move for a mistrial, or ask to discuss with him non-testimonial aspects of the case. Crutchfield, who was on the witness stand at the time of the admonition, contends that this admonition constituted the first violation of his right to the assistance of counsel.

The length of the recess, which occurred near the end of Crutchfield's direct examination, is in dispute. The government contends that it was brief and routine. Crutchfield contends that it extended into a After the recess direct examination continued for a short period of time. During cross-examination, Crutchfield made statements which indicated that he had no reason to rob or steal because his father supplied his financial needs. ¹ After soliciting this testimony, the trial court sent the jury out of the courtroom and the prosecutor sought permission to impeach Crutchfield through presentation of evidence that he had been convicted for burglary five years before. Holding that Crutchfield "opened the door" for this impeachment evidence, the trial court granted the prosecutor permission to impeach Crutchfield using the prior conviction evidence. Crutchfield, apparently realizing that the impeaching evidence would be presented to the jury, asked the court to speak with his counsel.

two-hour lunch break. Because of the manner in which we resolve the issue, the length of the recess is rendered unimportant.

THE COURT: All right. Bring the jury in. Son, don't direct any statements to me. If you have anything, you speak to your lawyer.

CRUTCHFIELD: Can--can I speak with him?

THE COURT: But don't direct statements to me.

Later, just before the jury was returned to the jury box, the following colloquy occurred:

CRUTCHFIELD: Can I speak with him for a minute?

THE COURT: What did I just tell you?

CRUTCHFIELD: Yes sir.

Immediately following the jury's return to the courtroom, through cross-examination, the prosecution presented the damaging impeachment evidence. The jury convicted Crutchfield of the charges, and the judge sentenced him to forty-five years in prison, with jurisdiction retained over the first one-third of the term. Crutchfield contends that the court's statements, above quoted, constitute a second violation of his right to the assistance of counsel.

In a Per Curiam order, dated June 17, 1982, Florida's First District Court of Appeals affirmed Crutchfield's conviction. The state trial court denied Crutchfield's motion for collateral relief (3.850, Fla.R.Crim.P.), and the Florida appellate court affirmed the denial of rule 3.850 relief. Crutchfield v. State, 431 So.2d 244 (Fla. 1st DCA 1983). Petition for Rehearing was denied on June 3, 1983. In the rule 3.850 motion for collateral relief, Crutchfield raised the denial of assistance of counsel claim. ² After exhausting state remedies, Crutchfield filed a Petition for Writ of Habeas Corpus in the United States District Court for the Northern District of Florida. Relying on United States v. Conway, 632 F.2d 641 (5th Cir. Unit B 1980), the district court granted the writ of habeas corpus based on the denial of assistance of counsel claim.

On appeal, a panel of this court held that Conway had been implicitly overruled; therefore, it reversed and remanded the case to the district court for a hearing on whether the constitutional violation amounted to harmless error. Crutchfield v. Wainwright, 772 F.2d 839 (11th Cir.1985).

We took this case for full court consideration to determine the circumstances, if any, in which a prohibition against a criminal defendant/witness consulting with counsel during a recess constitutes a denial of assistance of counsel to the extent that the defendant is entitled to a new trial.

CONTENTIONS

The appellant, state of Florida, contends that the district court erred in relying on Conway 's rule of per se reversal, and that the prejudice rules of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), state the correct standard of review.

Crutchfield contends that the district court correctly relied on Conway because Strickland and Cronic are not applicable to this situation, which involves a denial of assistance of counsel claim as opposed to the ineffective assistance of counsel claims presented in Strickland and Cronic. Crutchfield emphasizes that the case law of this circuit, the majority of circuits in the United States, and many of the states, mandates a per se reversal rule when assistance of counsel is denied at a critical stage of criminal proceedings.

DISCUSSION

In resolving the issues presented in this case, it is helpful to review the law presently binding in the circuit. Our review begins with Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976). In Geders, the Supreme Court held that a trial court's order preventing a defendant from consulting with his counsel during a seventeen hour overnight recess between defendant's direct and cross-examination, based on the trial judge's conclusion that the order was necessary to avoid improper influence on defendant's testimony, deprived the defendant of his right to assistance of counsel guaranteed by the sixth amendment to the Constitution of the United States.

The Court was careful, however, to limit its holding:

United States v. Leighton, 386 F.2d 822 (C.A.2 1967), on which the Court of Appeals relied, involved an embargo order preventing a defendant from consulting his attorney during a brief routine recess during the trial day, a matter we emphasize is not before us in this case.

Geders, 425 U.S. at 89 n. 2, 96 S.Ct. at 1336 n. 2, 47 L.Ed.2d at 600 n. 2 (citations omitted). Thus, the Court left undecided whether denial of the right of consultation between a criminal defendant and his counsel during a brief routine recess constitutes a violation of the defendant's sixth amendment rights.

Courts were quickly called upon to decide the issue left open in Geders. In Conway, our predecessor circuit, the former Fifth Circuit, held that to the extent that the goal of preventing improper coaching conflicts with a defendant's right to freely consult with counsel, the conflict must be resolved in favor of the right to assistance and guidance of counsel. ³ Thus, after Conway, ordering a criminal defendant not to consult with counsel during court recesses, no matter how brief, violated the constitutional right to assistance of counsel guaranteed by the sixth amendment, and required reversal. Conway, 632 F.2d at 645.

In 1984, the Conway issue was first presented to the Eleventh Circuit in United States v. Romano, 736 F.2d 1432 (11th Cir.1984). Following Conway, we held that a district court's order that a defendant refrain from consulting with his counsel concerning testimony during an overnight recess, which extended for several days due to the defendant's hospitalization, constituted reversible error. In discussing controlling precedent, we stated:

Contrary to the language in some of these cases from other circuits, this court appeared to conclude in United States v. Conway, that the Geders violation was reversible error without any reference to possible prejudice. At least no inquiry along the lines outlined above was made in the opinion in that case.

Romano, 736 F.2d at 1438. Thus, the latest case in this circuit followed Conway 's per se reversible error rule. Unfortunately, in dicta, we went on to state:

We need not decide whether the government might be able to demonstrate a lack of prejudice to the point of harmlessness in a given case. Our review of the record before us indicates that the error in this case cannot be deemed harmless. [Emphasis supplied.]

Romano, 736 F.2d at 1438. The Romano court did not intend to suggest that a harmless error inquiry would always be required after finding a violation of the defendant's right to assistance of counsel. The court simply noted that the defendant in Romano was entitled to a new trial regardless of the standard employed. Consequently, at the time the panel decided this case, this circuit followed Conway 's per se reversal rule.

The Crutchfield panel, in holding that Conway had been implicitly overruled, relied on United States v. Cronic and Strickland v. Washington. In Strickland, the Supreme Court identified two components for a successful ineffective assistance of coun...