Rice v. Wood

• Decision Date: 20 February 1996
• Docket Number: Nos. 93-99011,93-99012,s. 93-99011
• Citation: 77 F.3d 1138
• Parties: , 96 Cal. Daily Op. Serv. 1080, 96 Daily Journal D.A.R. 1842 David Lewis RICE, Petitioner-Appellee, v. Tana WOOD, Superintendent, Respondent-Appellant. David Lewis RICE, Petitioner-Appellant, v. Tana WOOD, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1138

77 F.3d 1138

64 USLW 2595, 96 Cal. Daily Op. Serv. 1080,

96 Daily Journal D.A.R. 1842

David Lewis RICE, Petitioner-Appellee, v. Tana WOOD, Superintendent, Respondent-Appellant.

David Lewis RICE, Petitioner-Appellant, v. Tana WOOD, Superintendent, Respondent-Appellee.

Nos. 93-99011, 93-99012.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 29, 1995.

Decided Feb. 20, 1996.

Appeal from the United States District Court for the Western District of Washington.

Robert S. Mahler, MacDonald, Hoague & Bayless, Seattle, Washington; Peter Offenbecher and Thomas Hillier, Office of Federal Public Defender, Seattle, Washington; and Montell E. Hester and Wayne Fricke, Tacoma, Washington, for petitioner-appellee/cross-appellant David Lewis Rice.

Thomas J. Young, Christine O'Grady Gregoire, and Paul D. Weisser, Office of Attorney General, Olympia, Washington, for respondent-appellant/cross-appellee Tana Wood.

Before: WALLACE, Chief Judge, JAMES R. BROWNING, SCHROEDER, FLETCHER, D.W. NELSON, CYNTHIA HOLCOMB HALL, KOZINSKI, DAVID R. THOMPSON, TROTT, T.G. NELSON and HAWKINS, Circuit Judges.

Opinion by Judge KOZINSKI; Concurrence by Judge HAWKINS; Dissent by Judge D.W. NELSON.

KOZINSKI, Circuit Judge.

David Lewis Rice was absent from the courtroom when the jury returned from its deliberations and sentenced him to death. After an unsuccessful direct appeal and personal restraint petition, see State v. Rice, 110 Wash.2d 577, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989) (Rice I ), Rice sought a writ of habeas corpus in the federal district court for the Western District of Washington. The district court stayed the habeas proceedings so Rice could bring a second personal restraint petition. After the Washington Supreme Court dismissed that petition, see In re Rice, 118 Wash.2d 876, 828 P.2d 1086 cert. denied, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 344 (1992) (Rice II ), the district judge granted Rice's petition and set aside the sentence, holding that Rice could not and did not validly waive his right to be present. A panel of this court affirmed, concluding that Rice had a constitutional right to be present when the jury rendered his sentence; that he had not waived this right; and that the error was structural and, therefore, not subject to harmless-error analysis. See Rice v. Wood, 44 F.3d 1396, 1400-02 (9th Cir.1995) (Rice III ). We ordered the case reheard en banc to examine the issues concerning Rice's absence.

I

The sad facts of this case have been set out in full elsewhere. See Rice I, 757 P.2d at 891-900; Rice II, 828 P.2d at 1089-91; Rice III, 44 F.3d at 1398-99. We summarize them briefly.

On Christmas Eve 1985, Charles and Annie Goldmark were at home preparing for a holiday dinner when petitioner came to their door posing as a taxicab driver delivering a package. Brandishing a toy gun, he forced his way into their home and used chloroform to render the couple and their two young boys unconscious. He then bludgeoned them with a steam iron and stabbed them with a knife. The Goldmarks were found by guests who arrived at their home a short time later. Annie was pronounced dead on the spot and Charles and the boys all died within five weeks.

Rice was eventually arrested and charged with four counts of aggravated first degree murder. His trial was bifurcated into separate guilt and sentencing phases, with the same jury sitting in both. At the completion of the guilt phase, the jury convicted Rice on all four counts. They then heard evidence pertaining to sentencing and retired to deliberate. Shortly before the jurors informed the bailiff that they had reached a decision, the judge learned that Rice had been taken to the hospital because he had ingested a nicotine drink brewed from cigarettes. The medical staff later informed the judge that Rice was unresponsive to communication and would have to have his stomach pumped.

The judge then asked the attorneys whether they believed Rice's presence was necessary. Defense counsel stated that he didn't think so and purported to waive Rice's right to be present; the prosecutor didn't object. The judge then proceeded to receive the sentence and poll the jury in Rice's absence. The jury found no mitigating circumstances that would merit leniency; no juror disagreed with the announced decision when polled. Pursuant to Wash.Rev.Code § 10.95.030, the court sentenced Rice to death. ¹

II

Whether or not Rice's absence from the courtroom when the jury announced his sentence amounts to constitutional error is not before us. As in Rushen v. Spain, 464 U.S. 114, 117 n. 2, 104 S.Ct. 453, 455 n. 2, 78 L.Ed.2d 267 (1983), the state has "conceded ... that [the petitioner's absence] established federal constitutional error.... [W]e assume, without deciding, that [petitioner's] constitutional right[ ] to presence ... [was] implicated in the circumstances of this case." ² We also agree, for the reasons stated by the panel, that the district court did not err in finding that Rice did not validly waive his right to be present. See Rice III, 44 F.3d at 1400-01. The only issue remaining is whether Rice's absence when the jury declared his sentence amounted to structural or trial error. ³

The Supreme Court has said very clearly that structural errors "are the exception and not the rule." Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). "Accordingly, if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis." Id. at 579, 106 S.Ct. at 3106. True to its word, the Court has been highly parsimonious in adding to the list of rights which, if violated, amount to structural error. The examples in Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 1264-65, 113 L.Ed.2d 302 (1991), the leading case on the subject, are few and concern some of the most important protections of our criminal justice system: Tumey v. Ohio, 273 U.S. 510, 511, 47 S.Ct. 437, 438, 71 L.Ed. 749 (1927) (denial of right to impartial judge); Gideon v. Wainwright, 372 U.S. 335, 342, 345, 83 S.Ct. 792, 797, 9 L.Ed.2d 799 (1963) (denial of right to counsel); McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122 (1984) (denial of right to represent oneself); Waller v. Georgia, 467 U.S. 39, 49 & n. 9, 104 S.Ct. 2210, 2217 & n. 9, 81 L.Ed.2d 31 (1984) (denial of right to public trial); Vasquez v. Hillery, 474 U.S. 254, 260, 263, 106 S.Ct. 617, 623, 88 L.Ed.2d 598 (1986) (unlawful exclusion of members of defendant's race from grand jury). As telling as the short list of defects that are structural is the much longer list the Court has held to be mere trial errors. See, e.g., Fulminante, 499 U.S. at 306-07, 111 S.Ct. at 1262-64 (listing trial errors).

The Supreme Court has explained that trial errors are those "which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." Id. at 307-08, 111 S.Ct. at 1264. Structural errors, on the other hand, are defects that permeate "[t]he entire conduct of the trial from beginning to end," id. at 309, 111 S.Ct. at 1265, or that "affect[ ] the framework within which the trial proceeds, rather than simply an error in the trial process itself," id. at 310, 111 S.Ct. at 1265.

Rice's absence when the jury announced his sentence simply does not fall within the narrow category of structural errors. Had he been present, he couldn't have pleaded with the jury or spoken to the judge. He had no active role to play; he was there only to hear the jury announce its decision. The error in this case does not, like the denial of an impartial judge or the assistance of counsel, affect the trial from beginning to end. Rather, like most trial errors, it can be quantitatively assessed in order to determine whether or not it was harmless. Cf. Rushen, 464 U.S. at 119, 104 S.Ct. at 456 (defendant's absence from conversation between judge and juror is subject to harmless-error analysis because effect of supposed error "can normally be determined by a post-trial hearing"); Hegler v. Borg, 50 F.3d 1472, 1474-75 (9th Cir.1995) (where defendant was absent from readback of testimony, district judge examined court reporter and four jurors from defendant's state trial to determine effect of his absence).

Our court, as well as the D.C. and Tenth Circuits, have applied harmless-error analysis to the defendant's absence at return of the verdict, while no circuit has held it to be structural error. See Larson v. Tansy, 911 F.2d 392, 396 (10th Cir.1990) (applying harmless-error analysis to defendant's absence from return of verdict); United States v. Friedman, 593 F.2d 109, 121 (9th Cir.1979) (defendant's "absence from [return of verdict and polling of jury] ... was harmless beyond a reasonable doubt"); Wade v. United States, 441 F.2d 1046, 1050 (D.C.Cir.1971) ("It is possible that defendant's absence [from return of verdict] made no difference in the result reached.").

A comparison between the error in this case and several classic trial errors supports our conclusion that Rice's absence was not structural error. Cf. Fulminante, 499 U.S. at 310-11, 111 S.Ct. at 1265-66 (comparing error in that case to other trial errors). Fulminante, for example, held that the admission of a coerced confession fully implicating defendant in the charged crime was merely a trial error. Id. at 310, 111 S.Ct. at 1265. All of the Justices in Fulminante agreed that a defendant's full confession is not just another piece of evidence; it is the one item that, alone, can form the basis of conviction by removing what otherwise would be a reasonable doubt. Id. at 296, 111 S.Ct. at 1257 (White, J., opinion of...