Kleinbart v. U.S., 11932.

• Decision Date: 15 February 1989
• Docket Number: No. 11932.,11932.
• Citation: 553 A.2d 1236
• Parties: Michael N. KLEINBART, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

553 A.2d 1236

Michael N. KLEINBART, Appellant, v. UNITED STATES, Appellee.

No. 11932.

District of Columbia Court of Appeals.

Argued November 13, 1987.

Decided February 15, 1989.

R. Kenneth Mundy, Washington, D.C., for appellant.

Mary Ellen Abrecht, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., at the time the brief was filed, and Michael W. Farrell, Asst. U.S. Atty, Washington, D.C., were on the brief, for appellee.

Before MACK and NEWMAN, Associate Judges, and GALLAGHER, Senior Judge.

MACK, Associate Judge:

On appellant's motion, and with the government's agreement that it would be appropriate, a division of this court has recalled its prior mandate remanding the case to the trial court for a new trial on appellant's insanity defense, and a hearing on claims that the government withheld Brady¹ materials² from him. See Kleinbart v. United States (Kleinbart II), 426 A.2d 343 (1981). This division, while concerned with the nonfinality of a cause of action which has moved back and forth between the trial and appellate courts, nevertheless concludes that the mandate of Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), requiring the retroactive application of new rules to nonfinal cases, dictates that appellant's conviction be reversed, and a new trial ordered, because of the trial court's refusal to permit appellant to be present at voir dire pursuant to Super.Ct.Crim.R. 43(a) (1981).³ See Robinson v. United States, 448 A.2d 853 (D.C. 1982), reh'g en banc denied, 456 A.2d 848 (D.C. 1983).

I

Appellant was indicted on July 1, 1975, for first-degree murder while armed, first-degree murder, and carrying a pistol without a license. Appellant's first trial ended in a mistrial on the murder charges, and his conviction of the weapons charge was reversed because his constitutional right to a public trial had been abridged. Kleinbart v. United States (Kleinbart I), 388 A.2d 878, 879 (D.C. 1978). In a second trial, appellant appeared pro se, assisted by court-appointed stand-by counsel, and upon being found guilty of first-degree murder while armed, was sentenced to a prison term of twenty years to life. On a second appeal, in Kleinbart II, supra, appellant argued, among other things, that he had been denied the right to conduct his own defense pro se, in part because the trial court refused to allow him to participate in voir dire conferences conducted at the bench, preferring stand-by counsel to be present in his stead. We answered the narrow argument by noting that the trial judge conducted the entire voir dire and gave stand-by counsel time to relate the prospective jurors' answers to appellant. We expressly rejected most of the other issues on appeal, but remanded for a hearing on whether there had been government suppression of Brady materials, and, in view of the trial court's denial of bifurcation, for a new trial on the insanity defense. However, while those proceedings were still pending, we decided in Robinson v. United States, supra, 448 A.2d at 856, that it was error to exclude a criminal defendant from bench voir dire. Accordingly, appellant petitioned this court to recall its mandate in Kleinbart II, and now seeks reversal and a new trial by reason of the trial court's violation of the principles later announced in Robinson.

II

In Griffith v. Kentucky, supra, a case involving the retroactive application of the Batson⁴ decision to a state conviction pending on direct review, the Supreme Court held in sweeping and all-inclusive language that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a `clear break' with the past." Griffith v. Kentucky, supra, 107 S.Ct. at 716; see also United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). The government has argued in the instant case that Griffith, addressing the retroactivity of constitutional rules, is inapplicable to the rule announced in our Robinson case. Robinson, says the government, concerned itself only with a procedural rule violation, and moreover, "appellant's ability to conduct his defense during jury selection was not impaired by his brief exclusion." We reject this contention. We conclude that the violation of Rule 43(a) in this case is of constitutional magnitude, see Boone v. United States, 483 A.2d 1135, 1143 (D.C. 1984) (en banc) (Belson, J., concurring), and that, under the instant circumstances, the error could not be harmless beyond a reasonable doubt. See Beard v. United States, 535 A.2d 1373, 1376 (D.C. 1988). This is so notwithstanding dissenting Judge Gallagher's concerns about time.⁵

Appellant's request pursuant to Super.Ct.Crim.R. 43(a) to be present at bench conferences during voir dire implicated rights guaranteed under the Fifth and Sixth Amendments. See Beard, supra, 535 A.2d at 1373; Boone v. United States, supra, 483 A.2d at 1139; Robinson v. United States, supra, 448 A.2d at 856. We have long held that "[t]here is scarcely any right more fundamental to a criminal defendant than to be present in court while his trial is in progress." Miller v. United States, 250 A.2d 573, 574 (D.C. 1969). Further, the constitutional status of the right to be present at one's own trial is of antique vintage. Id. at 574-75; Hopt v. Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 204, 28 L.Ed. 262 (1884) (abridgement of statutory right to be present at all stages of trial violates due process). As the Supreme Court held in Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892), "A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner." This principle embraces the right to be present at the selection of jurors, since the prisoner's "life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court and triers, in the selection of jurors. The necessities of the defense may not be met by the presence of his counsel only." Id. at 373, 13 S.Ct. at 137. See also Boone, supra, 483 A.2d at 1137 ("The importance of [appellant's] presence at voir dire cannot be overemphasized."). Indeed, "[b]ecause there is only one voir dire process for eliciting peremptory challenges and challenges for cause, a defendant's right to be present at voir dire for either purpose necessarily embraces the right to be present for the other." Id. at 1142 (Ferren, J., concurring). By excluding appellant from all bench conferences, and in particular voir dire, the court did not afford appellant "`an opportunity beyond the minimum requirements of fair selection to express an arbitrary preference . . .' which the peremptory challenge is designed to ensure, . . . and [appellant] was `[un]able to assist [his] counsel in the selection of jurors.'" Robinson, supra, 448 A.2d at 856 (citations omitted). We conclude, as we did in Boone, that "[e]xcluding the [appellant] from voir dire questioning at the bench may have impaired his ability to exercise his strikes for cause and may therefore have deprived him of his fundamental constitutional rights." Id. at 1144 (Belson, J., concurring, with whom Newman, then Chief Judge, Mack, Ferren, Pryor and Rogers, Associate Judges, joined). Here, appellant's "inability to participate implicates due process rights and deprives the proceeding of fundamental fairness." Id. at 1143.

Further, where a constitutional deprivation is involved, the government has the burden of proving the harmlessness of the error beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Miller v. United States, supra, 250 A.2d at 575. In determining whether the error was harmless, the question "is not whether the accused was actually prejudiced, but whether there is any reasonable possibility of prejudice." Wade v. United States, 142 U.S. App.D.C. 356, 360, 441 F.2d 1046, 1050 (1971). While we recognize that the reasonable doubt test does not require conclusive or absolute proof or harmlessness, see Winestock v. United States, 429 A.2d 519, 529 (D.C. 1981), it requires more than a showing that the alleged prejudice may not have occurred. The government must show convincingly that the alleged prejudice was highly unlikely, and that reversal on the grounds of such prejudice would be unreasonable.

We conclude that the constitutional error alleged here was not harmless beyond a reasonable doubt. Appellant, who exercised his Sixth Amendment right to conduct his own defense at trial, see Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), contends that he was prejudiced "because not having attended the portion of the voir dire that took place at the bench . . . he was without necessary information about the jurors, which would have permitted him to make an informed and intelligent use of his peremptory challenges."⁶ We agree. Here three jurors⁷ questioned at the bench became sitting jurors. Each of the three jurors either had a family member who had been victimized by violent crime, or was a victim himself. In representing himself, appellant was deprived of this information (i.e., whether or not these jurors were impartial given their experiences with violent crime), which the court had elicited at voir dire. Indeed, the government concedes in its brief that "appellant did not hear each oral response."

It is not enough that appellant's stand-by counsel could convey the information from the bench voir dire to him. This court, sitting en banc, has concluded that "[n]o matter how extensive or involved were prior discussions with his lawyer, what may be irrelevant when heard or seen by his lawyer may tap a memory or association of the defendant's which in turn may be of use to his defense." Boone v. United States, ...