Perry v. Leeke

• Decision Date: 10 January 1989
• Docket Number: No. 87-6325,87-6325
• Citation: 109 S.Ct. 594,102 L.Ed.2d 624,488 U.S. 272
• Parties: Donald Ray PERRY, Petitioner v. William D. LEEKE, Commissioner, South Carolina Department of Corrections, et al
• Court: U.S. Supreme Court

488 U.S. 272

109 S.Ct. 594

102 L.Ed.2d 624

Donald Ray PERRY, Petitioner

v William D. LEEKE, Commissioner, South Carolina Department of Corrections, et al.

No. 87-6325.

Argued Nov. 8, 1988.

Decided Jan. 10, 1989.

Syllabus

At the conclusion of petitioner's direct testimony in his state-court trial for murder and related offenses, the trial judge declared a 15-minute recess and ordered that petitioner not be allowed to talk to anyone, including his lawyer, during the break. In affirming petitioner's conviction, the South Carolina Supreme Court ruled that Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592—in which it was held that a trial court's order directing a defendant not to consult his attorney during an overnight recess, called while the defendant was on the witness stand, violated his Sixth Amendment right to the assistance of counsel—did not require reversal, since this Court had there emphasized the fact that a defendant would "normally confer" with counsel during an overnight recess and had explicitly disclaimed any intent to deal with limitations imposed in other circumstances. The state court declared that, normally, counsel is not permitted to confer with his client between direct and cross-examination. Subsequently, the Federal District Court granted petitioner a writ of habeas corpus, but the Court of Appeals reversed. Although agreeing with the District Court that Geders applied and that constitutional error had occurred, the court disagreed with the lower court's ruling that a defendant subjected to a Geders violation need not demonstrate prejudice in order to have his conviction set aside. The court concluded that petitioner's conviction should stand because the trial court's error was not prejudicial under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, in that the evidence against petitioner was overwhelming and there was no basis for believing that his testimony on cross-examination would have been different had he been given an opportunity to confer with his counsel during the recess.

Held:

1. A showing of prejudice is not an essential component of a violation of the Geders rule, in light of the fundamental importance of the criminal defendant's constitutional right to be represented by counsel. By citing Geders in distinguishing between direct governmental interference with that right and denial of the right by virtue of counsel's ineffective assistance, Strickland made clear that the complete denial of the right by the government is not subject to the kind of prejudice analysis that is appro- priate in determining whether the quality of a lawyer's performance itself has been constitutionally ineffective. Pp. 278-280.

2. However, the Federal Constitution does not compel a trial judge to allow a criminal defendant to confer with his attorney during a brief break in his testimony. It is an empirical predicate of our system of justice that, quite apart from any question of unethical "coaching," cross-examination of an uncounseled witness, whether the defendant or a nondefendant, following direct examination is more likely to lead to the discovery of truth than is cross-examination of a witness given time to pause and consult with his lawyer. Thus, although it may be appropriate to permit such consultation in individual cases, the trial judge must nevertheless be allowed the discretion to maintain the status quo during a brief recess in which there is a virtual certainty that any conversation between the witness and his lawyer would relate exclusively to his ongoing testimony. The long interruption in Geders was of a different character because the normal consultation between attorney and client that occurs during an overnight recess would encompass matters that the defendant does have a constitutional right to discuss with his lawyer—such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain—and the fact that such discussions will inevitably include some consideration of the defendant's ongoing testimony does not compromise that basic right in that instance. Pp. 280-285.

832 F.2d 837 (CA 4 1987) affirmed.

STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined, and in Parts I and III of which KENNEDY, J., joined. KENNEDY, J., filed an opinion concurring in part, post, p. 285. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 285.

W. Gaston Fairey, Columbia, S.C., for petitioner.

Donald J. Zelenka, Columbia, S.C., for respondents.

Justice STEVENS delivered the opinion of the Court.

In Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), we held that a trial court's order directing a defendant not to consult his attorney during an overnight recess, called while the defendant was on the witness stand, violated his Sixth Amendment right to the assistance of counsel. Today we consider whether the Geders rule applies to a similar order entered at the beginning of a 15-minute afternoon recess.

I

Petitioner was tried and convicted by a jury of participating in a brutal murder, kidnaping, and sexual assault. His defense was that he had not taken an active part in the abduction or the homicide and that his participation in the sexual assault was the product of duress. Evidence offered on his behalf indicated that he was mildly retarded and that he was a nonviolent person who could be easily influenced by others. He took the stand and began to testify in his own defense after a lunch recess.

At the conclusion of his direct testimony, the trial judge declared a 15-minute recess, and, without advance notice to counsel, ordered that petitioner not be allowed to talk to anyone, including his lawyer, during the break. When the trial resumed, counsel moved for a mistrial. The judge denied the motion, explaining that petitioner "was in a sense then a ward of the Court. He was not entitled to be cured or assisted or helped approaching his cross examination." App. 4-5.

The Supreme Court of South Carolina affirmed petitioner's conviction. State v. Perry, 278 S.C. 490, 299 S.E.2d 324 (1983). It concluded that Geders was not controlling because our opinion in that case had emphasized the fact that a defendant would normally confer with counsel during an overnight recess and that we had explicitly stated that "we do not deal with . . . limitations imposed in other circumstances." Geders v. United States, supra, 425 U.S., at 91, 96 S.Ct., at 1337. The state court explained:

"We attach significance to the words 'normally confer.' Normally, counsel is not permitted to confer with his defendant client between direct examination and cross examination. Should counsel for a defendant, after direct examination, request the judge to declare a recess so that he might talk with his client before cross examination begins, the judge would and should unhesitatingly deny the request." 278 S.C., at 491-494, 299 S.E.2d, at 325-326.

Justice Ness dissented. He pointed out that a defendant would normally confer with his lawyer during a short routine recess and therefore that Geders should apply. Moreover, in his opinion the importance of protecting the defendant's fundamental right to the assistance of counsel far outweighs the negligible value of preventing the lawyer from "coaching" his or her client during a brief recess.¹

Thereafter, petitioner sought and obtained a federal writ of habeas corpus. Applying settled law in the Fourth Circuit the District Court held that although a defendant has no right to be coached on cross-examination, he does have a right to counsel during a brief recess and he need not demonstrate prejudice from the denial of that right in order to have his conviction set aside. App. 17-19; see United States v. Allen, 542 F.2d 630, 633-634 (1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977); Stubbs v. Bordenkircher, 689 F.2d 1205, 1206-1207 (1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983).

The Court of Appeals, sitting en banc, reversed. 832 F.2d 837 (1987). It agreed with the District Court that Geders applied and that constitutional error had occurred, but it concluded that petitioner's conviction should stand because the error was not prejudicial. This conclusion rested on the court's view that our opinions in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), implied that trial errors of this kind do not pose such a fundamental threat to a fair trial that reversal of a conviction should be automatic. After a review of the record, the Court of Appeals found that the evidence against petitioner was "overwhelming," 832 F.2d, at 843, and that there was no basis for believing that his performance on cross-examination would have been different had he been given an opportunity to confer with his lawyer during the brief recess.

Four judges dissented. They argued that Geders had been properly interpreted in earlier Fourth Circuit cases to require automatic reversal and that the majority's reliance on Strickland was misplaced because the prejudice inquiry in that case was employed to determine whether a Sixth Amendment violation had occurred—not to determine the consequences of an acknowledged violation. Moreover, they reasoned that the prejudice inquiry was particularly inappropriate in this context because it would almost inevitably require a review of private discussions between client and lawyer.

Because the question presented by this case is not only important, but also one that frequently arises,² we granted certiorari, 485 U.S. 976, 108 S.Ct. 1269, 99 L.Ed.2d 480 (1988).

II

There is merit in petitioner's argument that a showing of prejudice is not an essential component of a violation of the rule announced...