Norde v. Keane
| Decision Date | 29 March 2002 |
| Docket Number | Docket No. 01-2049. |
| Parties | Alfred NORDE, Petitioner-Appellant, v. John P. KEANE, Superintendent, Sing Sing Correctional Facility, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Sheryl Gross-Glaser, Takoma Park, MD, for Petitioner-Appellant.
Sachin S. Pandya, Assistant Solicitor General, Queens County, Kew Gardens, NY (Eliot Spitzer, Attorney General of the State of New York, New York, NY, Michael Belohlavek, Deputy Solicitor General, of counsel), for Respondent-Appellee.
Before: MINER, STRAUB, and B.D. PARKER, JR., Circuit Judges.
Petitioner-appellant Alfred Norde appeals from a judgment of the United States District Court for the Southern District of New York (Marrero, J.) dismissing his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. In 1988, Norde was sentenced in the New York State Supreme Court, New York County, to a prison term of twenty-five years to life after a jury found him guilty of first-degree burglary in violation of New York Penal Law section 140.30(2). In his pro se petition to the district court, Norde contended, inter alia, that the trial court (1) violated his Sixth Amendment rights when the state trial judge "remove[d][him] from [the courtroom during voir dire] without warning"; (2) "procured a waiver of [his] right to be present at [the] proceedings by improper delegation of a judicial function" to a court officer; and (3) denied him assistance of counsel when it failed to grant "[d]efense counsel's application for a brief adjournment." The district court denied the petition and declined to grant a certificate of appealability. We granted a certificate of appealability to consider the following issues: (1) whether Norde was denied the right to be present at voir dire and trial; (2) whether he waived that right; and (3) whether he was denied the assistance of counsel when the trial judge denied counsel's request for an adjournment. We conclude that the state court's denial of counsel's request for an adjournment to consult with her client upon Norde's removal from the courtroom and its communication with him through a court officer rather than counsel unconstitutionally deprived Norde of the assistance of counsel. We therefore reverse the judgment of the district court and remand the case with instructions to issue the writ unless within sixty days the State elects to retry Norde.
On October 14, 1987, Annick Vandermore arrived at the private home where she worked as the director of household management located at 5 East 74th Street. She entered the house and, as she turned to close the front door behind her, saw Norde standing in the doorway. Norde held the door open slightly, stated that he had a summons, and asked that Vandermore get the building superintendent. Vandermore informed him that there was no superintendent because the home was a private residence, but indicated that she would get someone to help him. Vandermore then attempted to close the door. Norde pushed the door open, shoved her aside, and closed the door. He then ordered her to hand over her purse and attempted to grab it from her. Vandermore resisted and screamed. Norde was able to wrest the purse from her and pulled her wallet out of the purse. Roger Sahli, the "project architect" at the residence, was inside the house at the time. Hearing Vandermore's screams, Sahli ran to the doorway and jumped on top of Norde, who dropped the wallet and struggled with Sahli. While the two were struggling, Vandermore's housekeeper also came to Vandermore's aid. Sahli instructed her to call the police. During the struggle, Norde freed himself from Sahli after biting his upper-left arm. Norde ran out of the house, and Sahli chased him down the street. In response to Sahli's requests for assistance, three men apprehended Norde and held him for about twenty minutes until the police arrived.
Norde was indicted on two counts of burglary in the first degree and two counts of robbery in the second degree in violation of New York Penal Law sections 160.10(2) and 140.30(2). Jury selection for his trial on the indictment began the morning of April 19, 1988 in the New York State Supreme Court, New York County (Rothwax, J.). Norde was represented at all times by his assigned counsel, Sarah Jones. Fifty prospective jurors were present in the courtroom and sworn for voir dire. Thereafter, fifteen were seated in the jury box and voir dire began. The court recessed for lunch before any jurors were selected. When court reconvened that afternoon, but before any prospective jurors were brought into the courtroom, Norde addressed the trial judge in the following words:
Your Honor, the defendant has a statement to make. Justice Rothwax, the defendant at this time asks the Court tha[t] counsel be removed from the case because of the opportunity she has [not] given the defendant for any situation for defense in the case.
And as the court record showed, on 4/8/88, the defendant appeared here for court in view of having these which he was not produced [sic]. Counsel made no representation as far as the date it would be held to any scheduled hearings or would be ready for trial.
Counsel did not provide defendant with any words or documents or records... of the defendant's statement that he would be ready to go to hearing and trial.
The defendant at this time has sent a letter to the attorney of record and the New York Bar Association asking for relief of counsel that represents defendant. That is already in the mail.
The defendant also now wishes to have privately retained counsel which his family is also in preparation to make. It is not in lieu to stall this trial. The defendant has not been adequately represented and does not have a chance to have the defendant represent himself at trial as Justice Rothwax already declined the fact that counsel made motions. It's been five or six months. She has not requested the appearance of the complaint.
My family has already been in the process of getting this retained counsel. And wishes to be assigned as counsel immediately.
The court ruled that "the application for re-assignment of counsel is denied." Norde then said: "I object to all further proceedings." The prospective jurors were then led back into the courtroom and voir dire continued. Soon thereafter, the People exercised four peremptory challenges and Norde's counsel exercised five. The trial judge inquired as to whether the remaining six prospective jurors were acceptable. Both the People and Norde's counsel responded that they were. At that point Norde again objected. The six jurors were sworn in and addressed by the court as follows:
Now ladies and gentlemen, you just heard the defendant yell out in the courtroom. He's been instructed by me not to do that. And I am going to instruct you to disregard any statements that the defendant makes in this courtroom[] other than if he should take the stand and testify. Just disregard it.
Immediately thereafter, the following exchange took place:
At this time ladies and gentlemen,.... since the defendant has brought up the issue of his not being represented by his own counsel, I think that it is important that I bring to your attention that the attorney who represented him has represented him from the outset of this case. And that until this afternoon he has never made any protest about being represented by this counsel.
[Norde is removed by a court officer.]
....
THE COURT: He has never protested having this counsel until the time when this case was moved to trial this afternoon. The defendant will be allowed to return to this courtroom under circumstances where he indicates that he will follow the Court's instructions. If he does not follow the Court's instructions he will be removed from the courtroom. It is just that simple.
Please do not allow his activity in any way to effect your judgment.... I don't want you to feel either sympathy for him or prejudice against him. I want you to base your decision solely on the evidence in the case. Please do that.
After being given instructions to return the following day, the six sworn jurors left the courtroom. Norde's counsel then stated, The court denied the request, and instructed Norde's counsel not to "make those applications in front of the [potential jurors]." Jury selection continued in Norde's absence. Fifteen of the remaining potential jurors were asked to sit in the jury box when their names were called. The court then stated: In addition, the court again instructed the potential jurors that their ultimate decision had to be based on the facts of the case and not on Norde's courtroom behavior. Voir dire then proceeded until six additional jurors and two alternates were chosen, at which point the following took place:
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