Ganyard v. State, 95-1536

• Decision Date: 30 December 1996
• Docket Number: No. 95-1536,95-1536
• Citation: 686 So.2d 1361
• Parties: 22 Fla. L. Weekly D92 James D. GANYARD, Appellant, v. STATE of Florida, Appellee. First District
• Court: Florida District Court of Appeals

Page 1361

686 So.2d 1361

22 Fla. L. Weekly D92

James D. GANYARD, Appellant, v. STATE of Florida, Appellee.

No. 95-1536.

District Court of Appeal of Florida,

First District.

Dec. 30, 1996.

Rehearing Denied Feb. 7, 1997.

Nancy A. Daniels, Public Defender, and Raymond Dix, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General, and Douglas Gurnic, Assistant Attorney General, Tallahassee, for Appellee.

CRIMINAL DIVISION EN BANC

ALLEN, Judge.

Having considered the various arguments presented by the appellant in this direct criminal appeal, we affirm his conviction. Only his argument pursuant to Coney v. State, 653 So.2d 1009 (Fla.), cert. denied, --- U.S. ----, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995), requires discussion. We conclude that although error was committed when the appellant was not present during the prosecution's exercise of challenges for cause, the error was harmless. We further conclude that there was no error by virtue of the fact that the appellant was absent when his counsel might have exercised peremptory challenges but failed to do so.

In Coney, the supreme court clarified the intent behind Florida Rule of Criminal Procedure 3.180(a)(4), which states that "[i]n all prosecutions for crime the defendant shall be present ... at the beginning of the trial during the examination, challenging, impanelling, and swearing of the jury." The court held that unless the defendant waives his presence or ratifies the strikes made outside his presence, he has the right to be physically present at the immediate site where pretrial juror challenges are exercised. The court held further that a violation of the rule as interpreted is subject to a harmless error analysis.

The appellant was not physically present at the bench conference during which jury challenges were exercised in the present case, and he never waived his presence or ratified the strikes made outside his presence. The rule, as interpreted in Coney, was therefore violated. Nevertheless, the error was harmless.

Only the prosecution exercised peremptory challenges in the present case. The appellant was not prejudiced by his absence from the bench when these challenges were exercised because the challenges were within the discretion of the prosecutor.

The appellant argues, however, that there was harmful error because of his absence when his counsel might have exercised peremptory challenges. But there was no error at all in this regard because the court in Coney did not hold that a defendant has a right to be physically present whenever peremptory challenges might be exercised. The court held that a defendant has a right to be present only when peremptory challenges "are exercised."

The Coney court indicated that a defendant's absence from a bench conference at which peremptories are exercised is permissible where the defendant has expressed his "approval of the strikes" and willingness to "ratify strikes." The court made no mention of any obligation to secure a defendant's ratification of a decision not to exercise available peremptories, thus indicating that a defendant has no right to be present when defense counsel declines to exercise available peremptories.

Further, the Coney court found no basis for reversal due to Coney's absence from the bench conference therein where only challenges for cause were exercised. Peremptories presumably could have been exercised during the bench conference, but, observing that none were actually exercised, the court concluded that there was no basis for reversal.

Because the defense exercised no peremptories in the present case, there is no basis for reversal. However, we certify to the supreme court the following question of great public importance:

DOES CONEY V. STATE, 653 So.2d 1009 (Fla.), CERT. DENIED, --- U.S. ----, 116 S.CT. 315, 133 L.ED.2D 218 (1995), PROVIDE A BASIS FOR REVERSAL OF A CONVICTION WHEN THE DEFENDANT'S

COUNSEL EXERCISED NO PEREMPTORY CHALLANGES?

The appellant's conviction is affirmed.

MINER, J., concurs.

LAWRENCE, J., specially concurs with written opinion.

WEBSTER, J., dissents with written opinion.

MICKLE, J., joins in WEBSTER, J.'s dissent.

LAWRENCE, Judge, specially concurring.

I concur with the majority opinion affirming Ganyard's conviction for sexual battery. I write only to address any suggestion in the dissenting opinion that Florida Rule of Criminal Procedure 3.180(a)(4) is the only significant safeguard to a defendant's meaningful participation in jury selection.

It has long been the obligation of counsel for a criminal defendant to consult with and inform his client regarding the right to meaningful input in the jury-selection process. See R. Regulating Fla. Bar 4-1.2(a) ("A lawyer shall abide by a client's decisions concerning the objectives of representation ... and shall consult with the client as to the means by which they are to be pursued."); R. Regulating Fla. Bar 4-1.4(b) ("Duty to Explain Matters to Client. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."). If an attorney fails to do so during the course of the trial, a defendant may call such failure to the attention of the trial judge for redress. If a defendant is unaware of his right in this regard, he also may obtain relief in postconviction proceedings. Fla. R.Crim. P. 3.850. Apparently these lesser safeguards worked remarkably well during the fifteen-year pre-Coney period ¹--claims for relief on this issue during this period were uncommon, both during trial and in postconviction proceedings. The position taken in the dissent would unduly narrow the supreme court's harmless error analysis, beyond what is required to safeguard a defendant's right to have meaningful participation in jury selection.

I accordingly conclude that the Coney court wisely adopted a more liberal harmless error standard than the narrow approach urged by the dissent. I concur with the majority for this reason, as well as for the reasons expressed in its opinion.

WEBSTER, Judge, dissenting.

The majority holds that a Coney ² error occurred only because appellant was not physically present at the immediate site where the state exercised peremptory challenges, and he did not waive his presence. However, that error was harmless because appellant could not have provided any meaningful input regarding the exercise of those challenges by the state. I agree that any Coney error that occurred because of appellant's absence during the exercise of challenges by the state was harmless. Nevertheless, I would reverse and remand for a new trial because I do not believe that the rule announced in Coney requires that peremptory challenges actually be exercised by a defendant's counsel as a condition to its applicability, and I am unable to conclude that appellant's absence when his counsel decided not to exercise any peremptory challenges was harmless beyond a reasonable doubt. Accordingly, respectfully, I dissent.

As noted by the majority, in Coney, the supreme court purported to "clarify" the intent behind Florida Rule of Criminal Procedure 3.180(a)(4), which states that, "[i]n all prosecutions for crime[,] the defendant shall be present ... at the beginning of the trial during the examination, challenging, impanelling, and swearing of the jury"; and its previous decision in Francis v. State, 413 So.2d 1175 (Fla.1982). In Coney, the court held:

The defendant has a right to be physically present at the immediate site where pretrial juror challenges are exercised. See Francis. Where this is impractical, such as where a bench conference is required, the defendant can waive this right and exercise constructive presence through counsel. In such a case, the court must certify through proper inquiry that the waiver is knowing, intelligent, and voluntary. Alternatively, the defendant can ratify strikes made outside his presence by acquiescing in the strikes after they are made. See State v. Melendez, 244 So.2d 137 (Fla.1971). Again, the court must certify the defendant's approval of the strikes through proper inquiry.

653 So.2d at 1013. The court held, further, that a violation of rule 3.180(a)(4), as interpreted, is subject to a harmless error analysis. Id.

In Mr. Coney's case, "[j]uror challenges ... were exercised on two occasions: first, during a brief bench conference after prospective jurors had been polled concerning their willingness to impose death, and second, during a lengthy proceeding at the conclusion of voir dire." Id. Coney was absent only on the former occasion, when challenges for cause were exercised by the state and Coney's counsel. Id. Because Coney neither waived his presence at the bench conference nor ratified the challenges for cause exercised by his counsel, the court concluded that error had occurred. Id. However, because the challenges " 'involved a legal issue toward which [Coney] would have had no basis for input,' i.e., the death qualifying of prospective jurors," the court concluded, further, that the error was harmless. Id. (citation omitted). From this, it seems to me relatively clear that Coney was absent only when Witherspoon ³ challenges were being exercised by counsel--he was present at the immediate site where peremptory challenges (and, perhaps, cause challenges based on grounds other than views regarding the death penalty) were exercised. It seems to me, further, that the court concluded that Coney's absence from the site of the exercise of the Witherspoon challenges was harmless solely because it assumed that Coney could not have had any input regarding whether a particular Witherspoon challenge should be exercised. While one...