Jackson v. United States

• Decision Date: 26 June 1979
• Docket Number: No. 9712.,9712.
• Citation: 420 A.2d 1202
• Parties: Reginald A. JACKSON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1202

420 A.2d 1202

Reginald A. JACKSON, Appellant, v. UNITED STATES, Appellee.

No. 9712.

District of Columbia Court of Appeals.

Argued En Banc November 27, 1978.

Decided June 26, 1979.

William J. Mertens, Public Defender Service, Washington, D.C., for appellant.

Thomas J. Tourish, Jr., Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., John A. Terry, William D. Pease and Barry L. Leibowitz, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, KELLY, KERN, GALLAGHER, NEBEKER, HARRIS, MACK and FERREN, Associate Judges, and YEAGLEY, Associate Judge, Retired.^*

GALLAGHER, Associate Judge:

We granted appellant's petition for rehearing en banc to consider (1) whether a trial court order preventing appellant from consulting his attorney during a luncheon recess deprived him of the assistance of counsel guaranteed by the Sixth Amendment; and (2) whether the trial judge (a) erroneously denied without a hearing an oral motion to suppress lineup identification evidence and (b) improperly injected his own views when instructing the jury.¹ We reverse appellant's conviction and remand for a new trial.²

Appellant was convicted by a jury of armed robbery, robbery, and assault with a dangerous weapon.³ The charges arose out of a holdup at gunpoint of a Safeway supermarket cashier. Appellant, who admitted that he had been in the Safeway that day, was identified by the cashier and store security officer from photographic arrays, in a lineup, and at trial.

Appellant's trial commenced in late April of 1975. After appellant testified on direct examination, a luncheon recess was called. The trial court instructed appellant as follows:

THE COURT: Since you're under oath, sir, at this point, you discuss nothing with anyone, not even with your lawyer because he's finished with you. As of now, you don't discuss your testimony with anybody, you understand?

MR. JACKSON: Yes, sir, I understand.[⁴]

It is our view that the trial court deprived appellant of his constitutional right to assistance of counsel at a critical stage of the criminal proceedings against him, a right "so basic to a fair trial that [its] infraction can never be treated as harmless error." Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967).

The crux of this appeal, therefore, is the proper standard for appellate review of the erroneous trial court action in this case.⁵ In Chapman v. California, supra, the Supreme Court held that a federal harmless error rule should apply to some errors of constitutional magnitude while others are reversible automatically. See generally Note, Harmless Constitutional Error: A Reappraisal, 83 Harv.L.Rev. 814 (1970); Mause, Harmless Constitutional Error: The Implications of Chapman v. California, 53 Minn.L.Rev. 519 (1969). The right to counsel was particularized in Chapman as one of the "substantial rights" to which the harmless error rule cannot be applied. Chapman, supra at 23 n. 8, 87 S.Ct. at 828 n. 8. It had been established long before Chapman, however, that "[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial." Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). When a violation of the right to counsel is alleged, the degree of prejudice suffered by the accused, and the impact on jury deliberations often cannot be assessed on the record; in contrast, "in the normal case where a harmless error rule is applied, the error occurs at trial and its scope is readily identifiable." Holloway v. Arkansas, 435 U.S. 475, 490, 98 S.Ct. 1173, 1182, 55 L.Ed.2d 426 (1978). Thus, reversal is required, without regard to a showing of prejudice and without regard to the strength of the other evidence, when a defendant is deprived of counsel's guiding hand during a critical stage of the proceedings. See Holloway v. Arkansas, supra at 489, 98 S.Ct. at 1181; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Hamilton v. Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961).

In Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), the Supreme Court recently set aside a conviction where the trial court prohibited communication between defendant and his attorney during an overnight recess. The Court held that the order impinged upon defendant's right to the assistance of counsel guaranteed by the Sixth Amendment. Id. at 91, 96 S.Ct. at 1336. By reversing Geders' conviction, the Court necessarily rejected the Fifth Circuit's holding below that defendant's failure to claim any prejudice was fatal to his appeal, and implicitly accepted the reasoning typified in United States v. Venuto, 182 F.2d 579 (3d Cir. 1950),i. e., an order barring overnight communication is inherently prejudical. 425 U.S. at 86, 96 S.Ct. at 1334. Implicit in the Court's opinion, as the concurring opinion observed, was that "a defendant who claims that an order prohibiting communication with his lawyer impinges upon his Sixth Amendment right to counsel need not make a preliminary showing of prejudice." Geders, supra, 425 U.S. at 92, 96 S.Ct. at 1337 (Marshall, J., concurring).

Although the Court in Geders dealt with an overnight recess, reserving the question of embargo orders imposed during "brief routine recesses," we perceive no reason to distinguish constitutionally on the basis of the order's duration. We agree with Mr. Justice Marshall, concurring in Geders, supra, 425 U.S. at 92, 96 S.Ct. at 1337, that

the general principles adopted by the Court [in Geders] are fully applicable to the analysis of any order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial. [Emphasis in original.] Both federal and state courts have applied Geders to routine recess situations. See, e. g., United States v. Bryant, 545 F.2d 1035 (6th Cir. 1976); United States v. Allen, 542 F.2d 630 (4th Cir. 1976); Stripling v. State, 349 So.2d 187 (Fla.App.1977).

In United States v. Bryant, supra, the Sixth Circuit extended Geders to a trial court order forbidding consultation between defendant and her attorney during a luncheon recess, reversing the conviction. See also Stripling, supra (applying Geders to luncheon recess gag order). Since a criminal defendant is entitled to the advice of counsel throughout the trial, the court stated, an order barring communication is an abuse of discretion and a violation of defendant's Sixth Amendment right to counsel. Bryant, supra at 1036. Relying on Geders, the Fourth Circuit similarly concluded in Allen, supra at 633, the right to counsel is "so fundamental that there should never occur any interference with it for any length of time, however brief, absent some compelling reason." As the court stated, the Sixth Amendment right to counsel must prevail over the extremely limited value of circumscribing that right for 20 to 40 minutes during the course of a trial day.

The government does not dispute that this court's opinion in Thompson v. Atlantic Building Corp., D.C.Mun.App., 107 A.2d 784 (1954), precludes any attempt in this jurisdiction to limit Geders on the basis of the order's duration or timing.⁶ In Thompson, this court set aside a verdict where the trial court prohibited plaintiff, a civil litigant, from consulting with his attorney during the luncheon recess, stating:

Every trial lawyer will appreciate the handicap which would result if he were prohibited from conferring with his client during a trial recess. The handicap would be greater or less under differing circumstances, but it would always be a handicap, and we do not agree with appellee that it is incumbent on appellant to show how and to what extent he was prejudiced by the court's ruling. [Id. at 785.]

Nonetheless, the government contends that Geders is distinguishable because the order in this case only prohibited defendant from discussing his testimony and did not, as in Geders prevent him from consulting his counsel "about anything." However, the trial judge's warning that appellant was not to discuss his testimony was preceded by an admonition to "discuss nothing with anyone." Even assuming the order was limited to discussion of testimony (as opposed to trial strategy), it would not survive constitutional challenge. Appellant had the right to discuss the entire case, including his own testimony, with his attorney. "It is not the function of the trial judge to decide . . . how much consultation between a defendant and his retained counsel is necessary to adequately cope with changing trial situations. That is the function of counsel." Commonwealth v. Werner, 206 Pa.Super. 498, 214 A.2d 276, 278 (1965) (reversible error for trial judge to direct defendant not to discuss testimony with attorney during overnight recess).

The government further argues that the trial court sought to prevent collaboration and agreement among the defense witnesses, including appellant, on the substance of their testimony. Assuming the order was intended to prevent collusion, the trial court's instructions to the non-party witnesses would have achieved that limited purpose. In addition, improper coaching of the defendant was deemed as insufficient justification for barring attorney-client communication in Geders, supra, 425 U.S. at 89-90, 96 S.Ct. at 1335, 1336, and in Allen, supra at 633. While one might be able to conjure a compelling reason for temporarily sealing off communication with the attorney, the record before us fails to reveal such extraordinary circumstances.

We also find unpersuasive the government argument that appellant's failure to object to the trial court order renders his Sixth Amendment claim unreachable on appeal. See, e. g., Watts v. United States, D.C.App., ...