Evans v. United States
Decision Date | 23 November 1960 |
Docket Number | No. 14177.,14177. |
Parties | Robert Lee EVANS, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee. |
Court | U.S. Court of Appeals — Sixth Circuit |
Philip J. Kennedy, Jr. (appointed by court), Cincinnati, Ohio, for appellant.
Jerome A. Moore, Asst. U. S. Atty., Detroit, Mich. (George E. Woods, Jr., U. S. Atty., Detroit, Mich., on the brief), for appellee.
Before McALLISTER, Chief Judge, and MARTIN and WEICK, Circuit Judges.
Appellant was tried and convicted by a jury in the District Court on a two count indictment charging him with violation of the narcotic laws. Title 21 U.S.C. § 174, and Title 26 U.S.C. § 4705(a). He was sentenced to 12 years imprisonment on each count which he is serving concurrently. He was allowed to appeal in forma pauperis and counsel was assigned to represent him by this Court.
After the Trial Judge had given his instructions to the jury and while the jury was deliberating, the jury sent a note to the Judge asking for additional instructions on five different matters relating to the evidence in the case. The Judge called in the jury and instructed them in open court on each of the matters requested. This was done in the presence of counsel for the defendant, but not in the presence of the defendant who was at this time in the custody of the United States Marshal. The following then took place:
It is claimed by the defendant that the Trial Judge erred (a) in instructing the jury in the absence of the defendant and (b) in not being present in court when the instructions were read to the jury by the Court Reporter. No claim is made that the instructions given by the court were erroneous in any respect.
In a felony case, the defendant is required to be present at every stage of the trial except where he voluntarily absents himself. Rule 43, Federal Rules of Criminal Procedure, 18 U.S.C.A.; Hopt v. People of Territory of Utah, 1884, 110 U.S. 574, 578, 579, 4 S.Ct. 202, 28 L.Ed. 262; Lewis v. United States, 1892, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011; Crowe v. United States, 6 Cir., 1952, 200 F.2d 526.
In the present case the defendant did not voluntarily absent himself. He was in the custody of the United States Marshal when the additional instructions were given to the jury by the Judge.
It was error for the Trial Judge to instruct the jury in the absence of the defendant even though his counsel was present. Cf. Shields v. United States, 1927, 273 U.S. 583, 588, 47 S.Ct. 478, 71 L.Ed. 787; Sandusky Cement Co. v. A. R. Hamilton Co., 6 Cir., 1923, 287 F. 609; Fina v. United States, 10 Cir., 1931, 46 F.2d 643; United States v. Noble, 3 Cir., 1946, 155 F.2d 315; Jones v. State, 1875, 26 Ohio St. 208; State v. Grisafulli, 1939, 135 Ohio St. 87, 19 N.E.2d 645.
Defendant was entitled to be present in the courtroom when the additional instructions were given to the jury by the court. He had the right to see and observe the manner in which the proceedings were being conducted and to consult with his counsel. Had defendant been present he could have objected to any part of the instructions and the Judge would then have had the opportunity of correcting the instructions if he deemed it advisable to do so. Fillippon v. Albion Vein Slate Co., 1919, 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 853.
The Government urges that defendant waived his right to be present in court when the instructions were given because defendant's counsel, in his presence, later stated to the court that he was satisfied with what had been done. It may be questioned whether this amounted to a waiver of what had previously happened. The defendant did not know of the jury's request for additional instructions until after the court had instructed the jury in his absence. The record does not show that defendant knew or was advised of his rights. In order to constitute a waiver, there must be a voluntary...
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