Peri v. State

Decision Date18 January 1983
Docket NumberNo. 81-2107,81-2107
Citation426 So.2d 1021
PartiesRobert PERI, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Bennett H. Brummer, Public Defender and Carl L. Masztal, Gerald Hubbart, Sp. Asst. Public Defenders, for appellant.

Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.

Before HENDRY and DANIEL S. PEARSON, JJ., and WOODROW M. MELVIN (Ret.), Associate Judge.


The questions presented by this case, ones of first impression in this state, 1 are whether a judge presiding in a criminal case may order, over the defendant's objection, that a portion of the voir dire of prospective jurors be conducted in the judge's absence; and, if not, does the judge's absence during this stage of the trial require reversal of the defendant's convictions where the defendant makes no showing that he was specifically prejudiced by the absence.

I. The Events Below

Peri was tried and convicted of burglary and battery. During the selection of the jury, the trial judge advised the parties that she wanted the voir dire to continue in her absence, since she was scheduled to preside over the swearing in of official court interpreters in another part of the courthouse. The defendant objected. The trial judge overruled his objection and stated:

"We are going to continue the picking of the jury outside of my presence and if a problem arises, I will be available, but I see no problems with the questions being asked outside of my presence."

Defense counsel advised the court:

"[T]he Defendant does not waive the Court's presence during the final [stages of the] selection of the jury and we regard any proceedings without the presence of the Court as a nullity."

The court responded:

"We are going to continue with jury selection. I am detained right next door in another matter. I cannot do two things at the same time."

Defense counsel again objected and advised that he did not acquiesce in the judge's absence and would partake in the further proceedings only because ordered to. Counsel then noted on the record that the trial judge left the proceedings at 2:43 p.m. Voir dire continued, and the record reflects that the trial judge returned to the courtroom at 3:17 p.m. The defendant exercised one further peremptory challenge and accepted the jury, simultaneously noting his objection to the absence of the judge.


The Presence of the Judge--A Constitutional Imperative

Article 1, Section 16 of the Florida Constitution and the Sixth Amendment to the United States Constitution secure to one accused of a crime a trial by an impartial jury. The presence of the trial judge is at the very core of this constitutional guarantee.

" 'Trial by jury,' in the primary and usual sense of the term at the common law and in the American Constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and impaneled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion.


"[A] jury, properly speaking, is an appendage of a court, a tribunal auxiliary to the administration of justice in a court, that a presiding law tribunal is implied, and that the conjunction of the two is the peculiar and valuable feature of the jury trial; and, as a necessary inference, that a mere commission, though composed of twelve men, can never be properly regarded as a jury. Upon the whole, after a careful examination of the subject, we are clearly of the opinion that the word 'jury' ... in the Constitution where it occurs, means a tribunal of twelve men, presided over by a court, and hearing the allegations, evidence, and arguments of the parties.


" 'The Constitution secures a trial by jury, without defining what that trial is. We are left to the common law to learn what it is that is secured. Now the trial by jury was, when the Constitution was adopted, and for generations before that time had been, here and in England, a trial of an issue of fact by twelve men, under the direction and superintendence of the court. This direction and superintendence was an essential part of the trial.' " Capital Traction Co. v. Hof, 174 U.S. 1, 13-16, 19 S.Ct. 580, 585-86, 43 L.Ed. 873, 877-78 (1898). 2

See Farese v. United States, 428 F.2d 178, 180 (5th Cir.1970) (the historical prerequisite of a fair trial "is that it be conducted before unprejudiced jurors under the superintendence of a judge who instructs them as to the law and advises them as to the facts.").

Thus, courts throughout this nation have been virtually unanimous in holding

"that it is the duty of the presiding judge at criminal trials ... to be visibly present every moment of their actual progress, so that he can both see and hear all that is being done. This is a right secured to the accused by the law of the land, of which he cannot be deprived. All the formalities of the trial should be scrupulously observed, so that the people present may see and know that everything is properly and rightfully done." State v. Smith, 49 Conn. 376, 383-84 (1881).

These same courts have, correspondingly, consistently condemned the act of a trial judge absenting himself during any stage of the trial proceedings. See Moore v. State, 46 Ohio App. 433, 188 N.E. 881 (1933); Tunnell v. State, 24 Okla.Cr. 176, 216 P. 951 (1923); Moore v. State, 29 Ga.App. 274, 115 S.E. 25 (1922); Slaughter v. United States, 5 Ind.T. 234, 82 S.W. 732 (1904); Graves v. People, 32 Colo. 127, 75 P. 412 (1904); State v. Carnagy, 106 Iowa 483, 76 N.W. 805 (1898); State v. Beuerman, 59 Kan. 586, 53 P. 874 (1898); Ellerbe v. State, 75 Miss. 522, 22 So. 950 (1898); Smith v. Sherwood, 95 Wis. 558, 70 N.W. 682 (1897); Palin v. State, 38 Neb. 862, 57 N.W. 743 (1894); Thompson v. People, 144 Ill. 378, 32 N.E. 968 (1893); O'Brien v. People, 17 Colo. 561, 31 P. 230 (1892). See also Heflin v. United States, 125 F.2d 700 (5th Cir.1942); State v. Smith, supra; Turbeville v. State, 56 Miss. 793 (1879). Neither the stage of the proceeding, the length of or reason for the departure, nor the judge's proximity to the courtroom has been viewed as a factor which mitigates the harm created by the judge's absence. Heflin v. United States, supra (judge in lavatory for two or three minutes during defense counsel's closing argument); Graves v. People, supra (judge in clerk's office adjoining courtroom for five and then ten minutes during prosecutor's opening and closing arguments); State v. Beuerman, supra (judge absent ten minutes during defense counsel's closing argument); Meredeth v. People, 84 Ill. 479, 482 (1877) ("It makes no difference [that] the judge was in another part of the same building. It is no less error than if he had been in another county.").

III. Voir Dire and Jury Selection--A Stage Like Any Other

We now address the question of whether the rule requiring the judge's presence is as applicable to voir dire proceedings as it is to any other stage of the trial. While we note that the rule requiring the judge's presence has been, at least implicitly, recognized to be applicable to voir dire and jury selection, see Haith v. United States, 342 F.2d 158 (3d Cir.1965) (rejecting defendant's collateral attack on conviction, where trial judge's presence during voir dire and jury selection had been waived by defense counsel); Stirone v. United States, 341 F.2d 253 (3d Cir.1965) (same); State v. Eberhardt, 32 Ohio Misc. 39, 282 N.E.2d 62 (1972); see also Moore v. State, supra, 115 S.E. at 25 (in dicta, noting that the presence of the judge is required during "the impaneling of a jury, the taking of evidence, the argument of the case, or any other thing which must take place in open court"), the vast number of the cited cases involve the judge's absence during segments of the trial other than voir dire and jury selection.

Beyond the fact that "[i]t is settled law that trial begins when the selection of a jury to try the case commences," State v. Melendez, 244 So.2d 137, 139 (Fla.1971), it is axiomatic that the selection of a jury in a criminal case is a critical stage of any trial. Francis v. State, 413 So.2d 1175 (Fla.1982). See also Frank v. Mangum, 237 U.S. 309, 338, 35 S.Ct. 582, 591, 59 L.Ed. 969, 984 (1915); Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 253, 56 L.Ed. 500, 505 (1912); Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884); Shaw v. State, 422 So.2d 20 (Fla. 2d DCA 1982) (for purposes of an accused's constitutional right to be present at all stages of a trial, the trial runs from the commencement of the selection of the jury through the discharge of the jury). As noted supra, Article 1, Section 16 of the Florida Constitution and the Sixth Amendment to the United States Constitution secure to one accused of a crime a trial by an "impartial jury." Imperfect as it may be, the process by which the "impartial jury" is obtained is through the examination of prospective jurors, historically called voir dire. Indeed, while counsel for both the State and defendant are participants in this process and have the right "to conduct an examination of each juror orally" to determine whether the juror is qualified to serve, see Fla.R.Crim.P. 3.300(b); Ritter v. Jimenez, 343 So.2d 659 (Fla. 3d DCA 1977), ultimately

"[t]he selection of a jury to try a case is a work which devolves upon the court. His purpose is to secure such jurors as are...

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