Monroe v. Kuhlman, Docket No. 03-3703.

• Citation: 433 F.3d 236
• Decision Date: 03 January 2006
• Docket Number: Docket No. 03-3703.
• Parties: Victor MONROE, Petitioner-Appellant, v. Robert H. KUHLMAN, Superintendent, Sullivan Correctional Facility, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

433 F.3d 236

Victor MONROE, Petitioner-Appellant, v. Robert H. KUHLMAN, Superintendent, Sullivan Correctional Facility, Respondent-Appellee.

Docket No. 03-3703.

United States Court of Appeals, Second Circuit.

Argued: October 6, 2005.

Decided: January 3, 2006.

Robin C. Smith, Brooklyn, NY, for Petitioner-Appellant.

Leonard Joblove, Assistant District Attorney (Charles J. Hynes, District Attorney, Kings County, on the brief; Thomas M. Ross, Assistant District Attorney, of counsel), Brooklyn, NY, for Respondent-Appellee.

Before: WALKER, Chief Judge, FEINBERG and STRAUB, Circuit Judges.

STRAUB, Circuit Judge.

This is an appeal from an October 28, 2003, judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge) denying the habeas petition of Petitioner-Appellant Victor Monroe ("Monroe"). In the petition for review of his state criminal conviction, Monroe claimed that his right to be present during his jury trial and his right to judicial supervision of his trial were violated when the trial judge allowed the jury to view evidence outside the presence of the judge and the parties while the trial was adjourned. For the reasons stated below, we agree with the District Court that the New York Court of Appeals' rejection of Monroe's right-to-be-present claim was not an unreasonable application of Supreme Court precedent. We vacate the District Court's decision as to Monroe's judicial supervision claim, however, as we hold that the Court of Appeals' application of the contemporaneous objection rule to the instant circumstances — absence of the trial judge during the jury's viewing of evidence — is inadequate to preclude federal habeas review of this claim. We remand the case to the District Court to consider the merits of Monroe's judicial supervision claim.

FACTS AND PROCEDURAL BACKGROUND

In 1994, Monroe was convicted in New York state court of second-degree murder. Trial Tr. Apr. 19, 1994 at 1028-29. On several occasions during the three-week trial that led to his conviction, the state trial court received certain exhibits in evidence but did not contemporaneously pass such exhibits to the jury for review. Rather, the trial court allowed the jury to review the exhibits on breaks in the jury room, outside the presence of the court and the parties. Trial Tr. Apr. 6, 1994 at 95-96; Apr. 7, 1994 at 347, 400, 458, 579. Before several of the viewings, the trial court warned the jury not to discuss the evidence or the case during the viewings. See id. Among the exhibits were police sketches of the crime scene, ballistics evidence, medical records of one of the victims, and photographs, including photographs of the crime scene, photographs of a lineup that included Monroe, and, apparently, a photograph of Monroe's brother.¹ See id. This practice of the trial court occurred several times without objection from defense counsel. Trial Tr. Apr. 6, 1994 at 95-96; Apr. 7, 1994 at 347, 400, 458, 579. Prior to the viewing that was scheduled to occur on April 15, 1994, see Trial Tr. Apr. 13, 1994 at 756, defense counsel objected on the ground that Monroe would be absent from court, Trial Tr. Apr. 14, 1994 at 3. The trial court, surprised at the new objection, stated: "You understand that all the exhibits have been shown to the jurors in the jury room without them coming into the courtroom. So they don't know that your client is not here." Defense counsel responded: "I don't know that and I object to that happening." Id. The court sustained the objection and did not allow the jury to view any exhibits outside the courtroom for the remainder of the trial. Id. at 3-4.

On direct appeal, Monroe claimed, inter alia, that the jury's examination of trial exhibits without judicial supervision and outside his presence constituted reversible error. The Appellate Division affirmed his conviction, finding that Monroe "did not initially object to, and in effect, acquiesced in the procedure followed by the court." People v. Monroe, 234 A.D.2d 320, 651 N.Y.S.2d 536 (2d Dept. 1996). The court further reached the merits of the claim finding that Monroe's "belated claim that he was prejudiced" by the trial court's actions was "purely speculative," and that "[t]here is no indication in the record that [Monroe's] ability to defend against the charges was in any way affected by the court's action." Id. at 320, 651 N.Y.S.2d 536.

The New York Court of Appeals granted leave to appeal. People v. Monroe, 90 N.Y.2d 982, 688 N.E.2d 491, 665 N.Y.S.2d 617 (N.Y.1997). Over a dissent, the court concluded that the trial judge's absence from the jury's viewings did not affect "the organization of the court or the mode of proceedings proscribed [sic] by law" and therefore could not be reviewed on appeal absent a timely objection in the trial court. Id. at 983-84, 665 N.Y.S.2d at 618, 688 N.E.2d at 492. The court noted that the jury examined the exhibits only after they had been received in evidence and that the trial judge had warned the jury not to discuss the evidence or the case, "which was sufficient to dispel the possibility of premature deliberation during the viewings." Id. The court found further that "the viewings did not require any rulings or instructions and did not implicate any of the Judge's substantive roles in conducting the trial." Id. In light of the foregoing, the court held that "[t]he alleged error therefore does not fall within that narrowly drawn class of fundamental defects immune from the preservation requirement." Id. The Court of Appeals also rejected Monroe's claim that he was denied his right to be present at the viewings, concluding that the viewings were "an ancillary proceeding" insofar as the exhibits had already been received in evidence and that Monroe's "potential contribution to the viewings was minimal" and his absence did not compromise his ability to advance his position or counter the state's theory. Id.

The dissenting judge, Judge Titone, believed that the trial court's allowing the jury to view exhibits outside the presence of the court and parties "was an unwarranted departure from acceptable trial practice that, in both form and substance, deprived defendant of his constitutional and statutory right to be present at all material stages of trial." Id. at 984-85, 655 N.Y.S.2d at 618, 688 N.E.2d at 492, (Titone, J., dissenting). Judge Titone found further that such right "must be enforced by the appellate courts even in the absence of a timely and specific objection or a showing of actual prejudice." Id. at 985, 665 N.Y.S.2d at 618-19, 688 N.E.2d at 492-93. He reasoned:

It is beyond dispute that the reception of evidence is a material stage of trial at which the defendant's presence is required. It is clearly a "core" stage of the criminal proceeding as to which the right to be present "serves a symbolic function" as well as affording the defendant an opportunity for meaningful participation.

The majority does not take issue with this principle, but instead attempts to circumvent it by relying on the fact that "the jury examined the exhibits only after they had been received in evidence." This analytical disposition, however, represents an overly formalistic—and entirely unrealistic—view of trial practice.

The formal reception of evidentiary exhibits occurs when they are tendered by counsel and determined to be legally admissible by the court. At that point, the exhibits are technically available for review and inspection by the jury. However, depending on their size and nature, the exhibits may not actually be examined by the jurors at that time. Instead, they may be passed around for close viewing immediately after the formalities of admission are completed or the viewing may be postponed for some later, more convenient time in the trial. In this case, for example, the record makes clear that on at least two occasions, the exhibits were admitted but were not actually seen by the jurors until the unsupervised viewings that are the subject of this appeal.

Given that the critical event for purposes of the fact-finding process is the jury's actual exposure to the exhibits rather than the time when they are technically deemed "admitted" by the court, it follows that the defendant's due process and statutory right to be present attaches at the former, as well as the latter, time. Indeed, it seems illogical and unreasonable to suggest that the defendant must be present during the formal tender and acceptance of exhibits for admission, but that his presence may be dispensed with when those exhibits are actually shown to the jury. Certainly, the jurors' examination of the exhibits presents an occasion for meaningful participation by the accused, since their reactions are observable events that may well affect the defense's trial strategy. For example, a defendant may notice a particular juror lingering for an unusually long time over a particular exhibit and, as a consequence, may suggest to his trial counsel that further exploration of the exhibit's significance is required.

Id. at 985-96, 665 N.Y.S.2d at 619, 688 N.E.2d at 493, (internal citations and quotation marks omitted).

In February 2001, Monroe, pro se and incarcerated, filed a habeas petition, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Eastern District of New York. In his petition, Monroe argued that (1) his right to judicial supervision of the jury was abridged; and (2) he was denied his right to be present at all material stages of the proceeding. The District Court denied the petition. Monroe v. Kuhlman, Nos. 01-CV-0654(JBW), 03-MISC-0066(JBW), 2003 WL 22952845 (E.D.N.Y. Oct.28, 2003). According to the District Court, the New York Court of Appeals' decision that Monroe's judicial supervision claim was not preserved was an adequate procedural ground, and therefore judicial review of this claim on habeas was barred. Id. at *4-5. As to Monroe's right to be present claim, ...