Porter v. State
| Decision Date | 19 January 1981 |
| Docket Number | No. 74,74 |
| Citation | 289 Md. 349,424 A.2d 371 |
| Parties | Orville Joseph PORTER and Wayne Preston Morris v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Michael R. Malloy, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellants.
Stephen B. Caplis, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.
Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
The principal issue in this criminal case is whether, during the jury selection phase of the case, conversations at the bench between the trial judge and certain prospective jurors regarding the ability of those jurors to serve beyond their scheduled term constituted a "stage of the trial" at which the defendants had a right to be present.
The defendants, Orville Joseph Porter and Wayne Preston Morris, were each charged with a sexual offense in the first degree and were tried jointly in the Criminal Court of Baltimore. At the beginning of the jury selection process, the trial court advised the panel of prospective jurors that the trial would likely extend two days beyond the end of their scheduled term of service. The court then asked:
Twenty-nine members of the panel answered affirmatively. Before questioning these prospective jurors, the following took place at a bench conference between the court and defendants' counsel:
Thereafter, at a bench conference attended by the defendants' attorneys but not the defendants. the court individually questioned the prospective jurors who had responded affirmatively as to why it would be impossible for them to serve the extra two days. 1 The court excused fifteen of them and refused the request to be excused of the other fourteen. The bench conference was then concluded.
Thereafter the attorney for one of the defendants made a motion to excuse, for cause the fourteen who had not been excused by the trial court. He argued:
The voir dire questioning of individual prospective jurors then took place; the jury was selected and sworn, and the trial commenced. Each defendant was found guilty by the jury and, after sentencing, appealed, challenging the convictions on several grounds. The Court of Special Appeals affirmed in an unreported opinion.
This Court then granted the defendants' petition for a writ of certiorari, in which the defendants primarily argued that the questioning of the twenty-nine prospective jurors concerning their ability to serve beyond their scheduled term was a stage of the trial at which the defendants had a right to be present.
Recently in Hughes v. State, 288 Md. 216, 221-227, 421 A.2d 69, 72-75 (1980), and Bunch v. State, 281 Md. 680, 381 A.2d 1142 (1978), we reviewed the law concerning a criminal defendant's right to be present at every stage of the trial. It was pointed out that the right to be present is a common law right, is to some extent protected by the Fourteenth Amendment to the United States Constitution, and is guaranteed by Maryland Rule 724. 2 As recognized in this State, the right is deemed "absolute," and a judgment of conviction ordinarily cannot be upheld if the record discloses a violation of the right. The right to be present is personal to the defendant and may not be waived by his attorney. 3
The critical question in most cases involving a claimed denial of the right is whether the defendant's absence occurred during a "stage of the trial." Under our cases, whether a particular event occurred during a stage of the trial ordinarily involves a consideration of when the event occurred and what was involved. Normally, the right to be present does not attach until the process of impaneling the jury for a specific case begins, although there occasionally may be occurrences before that time during which there is a right to be present. Hughes v. State, supra, 288 Md. at 224-225, 421 A.2d 69. 4
On the other hand, not everything which happens during and after the impaneling of the jury is deemed a stage of the trial requiring the defendant's presence. Hughes v. State supra, 288 Md. at 225-226, 421 A.2d 69; Bunch v. State, supra, 281 Md. at 684-685, 381 A.2d 1142, and cases there cited. The substance of what is involved must also be taken into account. Certain events, because of the nature of what occurs, are viewed as interruptions in the stages of the trial. For example, as pointed out in Hughes, 288 Md. at 225, 421 A.2d 69, periods when the court attends to administrative or "housekeeping" duties in connection with the trial are not ordinarily deemed "stages of the trial" for purposes of the right to be present. Discussions and an agreement during a trial recess, between the trial judge and counsel concerning procedures for the introduction of photographic evidence, were held not to be a stage of the trial in Brown v. State, 272 Md. 450, 325 A.2d 557 (1974). Rule 724 itself delineates certain occurrences which are not deemed stages of the trial requiring the defendant's presence. Other occurrences which have not been considered stages of the trial, as well as some of those which have been held to be stages of the trial, are discussed in the Hughes and Bunch opinions.
The Bunch case involved a bench conference during the trial at which the judge and counsel discussed a note from a juror stating that the juror was biased, and the judge then decided whether the juror should be excused on the ground of bias. The defendant was not present during this discussion or the court's ruling at the bench conference. This Court reversed the conviction on the ground that, under the circumstances, the bench conference was a trial stage at which the defendant had a right to be present. Pointing to the language of Rule 724 which expressly includes "the impaneling of the jury" as a stage of the trial, we held that an occurrence during the impaneling of the jury or subsequent thereto "involving a determination of whether a juror should be excused for bias," was a stage of the trial requiring the defendant's presence. 281 Md. at 687, 381 A.2d 1142, emphasis added. 5
In reaching our conclusion in Bunch regarding the disqualification of a juror for bias, we traced the history of the clause in Rule 724 which provides that "the impaneling of the jury" is a stage of the trial. We pointed out (281 Md. at 686-687, 381 A.2d 1142) that the clause was ultimately based upon Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), and was intended to embody the holding of that case. In Hopt, the Supreme Court held that proceedings during the impaneling of the jury, involving challenges to prospective jurors on the ground of bias, constituted a stage of the trial requiring the defendant to be personally present. The Supreme Court's decision that case was based on the defendant's right to a jury which was not biased or prejudiced. The Court reasoned (110 U.S. at 578, 4 S.Ct. at 204, emphasis supplied):
As indicated by the Supreme Court in Hopt, the right to be personally present during the selection of jurors is designed to implement the right to "an impartial jury composed of persons not disqualified." The defendant may be able to aid his counsel and the court in the selection of impartial jurors. The purpose of the right to be present, in the context of juror selection, relates solely to jury impartiality and the disqualification of prospective jurors. It would not further this purpose to extend the right to communications involving the personal hardship of a juror to serve. The question of a prospective juror's ability to serve because of personal hardship has no direct relation to his impartiality or whether he should be disqualified in that case.
Moreover, unlike the matter of juror disqualification as analyzed in Hopt v. Utah, supra, the personal presence of the defendant can add little or nothing to the determination of whether a prospective juror should be excused for personal hardship. This question does not implicate the interests of the defendant. Instead, the interests to be balanced are those of the prospective juror and the administration of the court system. The trial judge must weigh the degree of hardship or inconvenience, as well as any other circumstances relating to the prospective juror's personal reasons for wanting to be excused,...
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..."stages of trial," and that right could neither be waived by counsel nor by the defendant's mere acquiescence. Porter v. State, 289 Md. 349, 352-53, 424 A.2d 371, 374 (1981). Because a criminal defendant's absence during a "stage of trial" ordinarily warranted reversal, earlier cases usuall......
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