Larson v. Tansy

• Decision Date: 10 August 1990
• Docket Number: No. 88-2588,88-2588
• Citation: 911 F.2d 392
• Parties: George Earl LARSON, Petitioner-Appellant, v. Robert TANSY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 392

911 F.2d 392

George Earl LARSON, Petitioner-Appellant, v. Robert TANSY, Warden, Respondent-Appellee.

No. 88-2588.

United States Court of Appeals Tenth Circuit.

Aug. 10, 1990.

Ann Steinmetz, Asst. Federal Defender, Albuquerque, N.M., for petitioner-appellant.

Hal Stratton, Atty. Gen. (Anthony Tupler, Asst. Atty. Gen., with him on the brief), Santa Fe, N.M., for respondent-appellee.

Before McKAY and SEYMOUR, Circuit Judges, and KANE, ¹ District Judge.

McKAY, Circuit Judge.

Defendant challenges his absence from the final portions of his trial including the jury instructions conference, jury instructions, closing arguments, and the rendering of the verdict.

I. Facts

On May 2, 1979, defendant was charged with criminal sexual penetration by a Bernalillo County, New Mexico, grand jury. Defendant pleaded not guilty. On June 28, 1979, defendant was found competent to stand trial. Prior to the competency hearing, defendant tried to commit suicide while out on bond. Defendant was subsequently admitted to the psychiatric ward of a local hospital. During the competency hearing and the trial itself, the trial judge ordered defendant to be kept in the hospital or the jail. After refusing defendant's counsel's request that defendant not be required to attend trial, the judge remarked that defendant was technically in the custody of the state. Thus, the court ordered the state to provide transportation for defendant to the trial.

At the beginning of the trial, the judge asked defendant several questions concerning his competency. Defendant answered each question and satisfied the judge that he was still competent to stand trial. After this initial discussion, defendant spent the majority of the trial with his head on the table and he never talked to his counsel. On July 3, 1979, at the conclusion of all testimony, the judge told defendant's counsel that defendant could leave the courtroom if counsel would waive his presence. Counsel agreed, and defendant was escorted back to the hospital. On the record, counsel said that defendant was voluntarily absenting himself from the proceedings. Defendant claims that he was never asked if he wanted to leave, nor did defendant authorize his counsel to waive defendant's presence.

Defendant was absent from the remainder of his trial including the jury instruction conference, jury instructions, closing arguments, and the rendering of the verdict. The jury found defendant guilty, and he was sentenced to life imprisonment. After unsuccessfully filing a direct appeal and two state habeas corpus claims, defendant filed a petition for habeas corpus in the United States district court. The district court rejected all of defendant's claims on February 20, 1985. On December 22, 1986, this court rejected all of defendant's claims except the present claim for exclusion from part of his trial. We remanded the exclusion claim to the district court. On remand, the magistrate and the district court again rejected defendant's exclusion claim. Defendant now appeals the district court's finding.

II. Standard of Review

This appeal presents three questions for review. First, did defendant have a constitutional right to be present during the phases of his trial from which he was absent? Second, did defendant waive his right to be present? Third, was the alleged error simply harmless error? We review each of these questions de novo.

Both parties agree that the question of whether defendant had a right to be present at trial is an issue of law and as such is subject to de novo review. In re Ruti-Sweetwater, Inc., 836 F.2d 1263, 1266 (10th Cir.1988); United States v. Kilpatrick, 821 F.2d 1456, 1467 (10th Cir.1987), aff'd sub nom. Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988). The question of whether defendant waived his right to be present at trial involves application of the law to undisputed facts. The waiver issue fundamentally depends on whether the law allows defendant's attorney to waive his client's right without specific permission to do so. This is a question of law subject to de novo review. The harmless error issue is a mixed question of law and fact that we also review under the de novo standard. Graham v. Wilson, 828 F.2d 656, 659 (10th Cir.1987), cert. denied, 484 U.S. 1069, 108 S.Ct. 1035, 98 L.Ed.2d 999 (1988).

In conducting a de novo review, we make an independent determination of the issues. We give no special weight to the prior determination of the district court. Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir.1988).

III. Right to be Present Throughout Trial and Harmless Error

In his brief, respondent concedes that defendant had a right to be present for the entire trial if that were his wish. However, later in his brief respondent seems to argue that defendant could not have assisted his attorney in the trial and thus had no right to be present throughout trial. We conclude that defendant had a constitutional right to be present at the jury instructions, the closing statements, and the rendering of the verdict.

The Supreme Court has recognized a due process right for a defendant to be present at his trial "whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge." Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934). The Supreme Court went on to explain that "the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Id. at 107-08, 54 S.Ct. at 332-33. The Snyder Court also cautioned that due process does not require the defendant's presence "when [his] presence would be useless, or the benefit but a shadow." Id. at 106-07, 54 S.Ct. at 332-33. The Supreme Court continues to apply the Snyder standards in more recent cases. See Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987); United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985).

We interpret respondent's concession in his brief to acknowledge that the parts of the trial from which defendant was excluded were important and that a defendant whose presence would not be useless would have a right to attend those portions. We have previously stated without qualification that a defendant had a constitutional right to be present at summations, jury instructions, and the return of the jury verdict. Burrell v. Aaron, 560 F.2d 988, 989 (10th Cir.1977). Thus, we accept the concession that defendant had a right to be present throughout his trial, unless his presence would be useless or the benefit a shadow.

Initially, we hold that defendant was not deprived of due process by his absence from the jury instruction conference. The jury instruction conference traditionally encompasses purely legal issues and, as such, it will be a rare case where a defendant can establish that his presence was essential to his opportunity to present his defense. Typically, the jury instruction conference is attended only by the judge and counsel. Normally the parties are not present. In the instant appeal, petitioner's absence at the jury instruction conference did not violate due process. See Jones v. Dugger, 888 F.2d 1340, 1343 n. 3 (11th Cir.1989); United States v. Graves, 669 F.2d 964, 972 (5th Cir.1982); Root v. Cunningham, 344 F.2d 1, 3 (4th Cir.), cert. denied, 382 U.S. 866, 86 S.Ct. 135, 15 L.Ed.2d 104 (1965).

In contrast, we hold that defendant's presence in the courtroom during the instructing of the jury, closing arguments, and the rendering of the verdict would not have been useless. Respondent claims that because defendant had not participated in the trial or assisted his counsel prior to the jury instructions conference, defendant's presence would not have been of any benefit during the remainder of the trial. This argument conflicts with the trial court's conclusion that defendant was competent to stand trial. Since defendant was competent to stand trial, we must assume that he was capable of assisting counsel if he desired. We cannot assume that because the defendant had not assisted counsel during the trial he would continue to be of no assistance. Thus, we hold that defendant's presence might have allowed him to provide assistance to his counsel.

We also believe that defendant's mere presence, aside from any assistance defendant could have given to his counsel, would have been useful and would have provided more than a shadow of benefit. At least two circuit courts have held that a defendant was denied his due process right to be present throughout his trial when he was excluded from jury instructions in both cases and in one case the rendering of the verdict. United States v. Fontanez, 878 F.2d 33 (2d Cir.1989); Wade v. United States, 441 F.2d 1046 (D.C.Cir.1971). In Fontanez, the defendant was excluded from part of the jury instructions. The Fontanez court held that defendant's exclusion "deprived [Fontanez] of the 'psychological function' of his presence on the jury during a crucial phase of his trial." Fontanez, 878 F.2d at 38. In Wade, the defendant was absent from part of the jury instructions and the rendering of the verdict. The Wade court held that this was not harmless error because there was a reasonable possibility of prejudice.

[T]he Sixth Amendment guarantee of the right to confront adverse witnesses--is in good part a constitutional recognition of a psychological influence. Though perhaps to a less degree, the same influence pertains to the right of confrontation of defendant and jury, aside from the usefulness the accused may be to his counsel. This is especially so when as here a deadlocked jury is reinstructed at some length, is later given an Allen charge, and subsequently renders its verdicts. Moreover, there is the reasonable possibility that the jury speculated adversely...