State v. Carver

• Decision Date: 27 April 1972
• Docket Number: No. 10555,10555
• Citation: 496 P.2d 676,94 Idaho 677
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Earl S. CARVER et al., Defendants-Appellants.
• Court: Idaho Supreme Court

Page 676

496 P.2d 676

94 Idaho 677

STATE of Idaho, Plaintiff-Respondent, v. Earl S. CARVER et al., Defendants-Appellants.

No. 10555.

Supreme Court of Idaho.

April 27, 1972.

Rudolf D. Barchas of Rayborn, Rayborn, Webb & Pike, Twin Falls, for defendants-appellants.

W. Anthony Park, Atty. Gen., Martin R. Ward, Deputy Atty. Gen., and John F. Croner, Asst. Atty. Gen., Boise, for plaintiff-respondent.

McFADDEN, Justice.

Defendants-appellants were prosecuted by information for burglary in the first degree, a felony. The cause was tried to a jury which returned a verdict of guilty against each man and the district court entered judgments of conviction accordingly. Defendants appeal from the judgments of conviction. ¹

The crime alleged in the information was the forcible break-in on June 9, 1969, of a building housing a pro-shop and snack bar located at the Twin Falls Municipal Golf Course. Twin Falls city police officers testified they observed the three defendants inside the building at 2:00 a. m. on the above date, and that apparently the building had been entered after a window was broken. A pro shop employee testified the window was unbroken and the whole building was locked securely when he closed on June 8. He also testified that the snack bar was neatly arranged and the food stored away in cupboards and in the refrigerator.

When arrested at the scene the defendants had in their possession certain food items which were shown to have been taken from the snack bar. The evidence showed the refrigerator door was ajar and that the intruders had helped themselves to a snack. Additionally, two screwdrivers, a metal pry bar, and a length of reinforcing steel were found on the person of defendants when they were thoroughly searched at the police station.

Appellants assign eight errors, the first of which we deem determinative of their appeal. Appellants claim their trial was procedurally defective because they were not personally present during the impaneling of the jury. They point to the reporter's transcript which indicates that at the commencement of the trial the three defendants were not in the courtroom but rather were in the custody of the sheriff. At the beginning of the voir dire the prosecuting attorney asked the presiding judge whether the defendants could be brought in and the court answered that they could come in anytime. Thereupon the case was explained to the prospective jurors and respective counsel introduced. The jurors were then examined, the defense exercising five peremptory challenges, the state four, before a panel of twelve was duly sworn. Only after that time did the court ask the prosecuting attorney to have the defendants brought into the courtroom.

While the reporter's transcript clearly reflects the defendants' absence, the clerk's minutes pose a conflict. Those minutes purport to show that the prosecuting attorney was present along with defense counsel and defendants at the time voir dire began. Despite this conflict the State concedes the accuracy of the reporter's transcript which seems the only reasonable stance in light of the recorded remarks of the participants.

The State takes the position that while the record shows the defendants did not voluntarily waive their right to be present and were outside the courtroom in the sheriff's custody and that this was improper, the error was nevertheless not so prejudicial as to warrant a new trial. Appellants' position is that the error was fundamental and vitiates the trial. The issue for resolution, one of first impression in Idaho, is the character of the protected right to be personally present at one's trial and the effect on the result when the right is disregarded.

The right to be personally present at one's trial for a felony or serious offense is embodied in Amendments Six and Fourteen of the United States Constitution, Idaho Const. art. 1, § 7 and § 13, and I.C. § 19-1903 which provides, 'Presence of defendant.-If the indictment is for a felony, the defendant must be personally present at the trial * * *.' Broadly speaking, a defendant's right to be present in the courtroom at each stage of his trial has been denominated a 'basic right' guaranteed by the Sixth Amendment and the due process clause of the Fourteenth Amendment. Lewis v. U. S., 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). (See also Duncan v. State of Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), declaring the right to jury trial in serious criminal cases a fundamental right which the states must extend to all persons.) Cf. State v. McGinnis, 12 Idaho 336, 85 P. 1089 (1906).

That the impaneling process is part of the trial is a matter of settled law. Specific questions concerning a defendant's absence during the impaneling of the jury have been dealt with in other jurisdictions. See Annotation, 26 A.L.R.2d 762. The Supreme Court of the United States has passed on the specific question on two occasions, in Lewis v. U. S., supra, and in Hopt v. People of the Terr. of Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884). ² Clear holdings are found in the recent decisions of United States v. Crutcher, 405 F.2d 239 (2d Cir. 1968), cert. den. 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969), and Knight v. State, 273 Ala. 480, 142 So.2d 899 (Ala.1962).

The rationale of those decisions is that the defendant's presence during voir dire may well be helpful to his defense. The defendant may wish to challenge a particular prospective juror for any one of several valid reasons, one of which may be a negative visceral reaction. That is his long recognized privilege and one which is important to the trial process. In Snyder v. Commonwealth of Mass, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), the general test for determining when a defendant's personal presence is required is stated as follows:

'* * * whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge. * * * Again, defense may be made easier if the accused is permitted to be present at the examination of jurors or the summing up of counsel, for it will be in his power, if present, to give advice or suggestion or even to supersede his lawyers altogether and conduct the trial himself. * * *.' 291 U.S. at 105-106, 54 S.Ct. at 332, 78 L.Ed. at 678.

We add that an important aspect of any trial is its openness and fairness. The purpose of having an accused present is to insure that he has first hand knowledge of the actions taken which lead to the eventual outcome of the trial and particularly that he knows how the jurors who decide the facts were selected. Where part of the court proceedings are held outside his presence, an accused will automatically be suspicious. From the practical standpoint, an accused's presence during voir dire examination would be important in determining which jurors may be acquainted in some way with defendant, and vice versa. Impartiality and objectivity would be aided by the defendant's presence.

We turn now to the question whether the error here must result in a new trial. The ordinary test for determining if the constitutional error warrants a new trial is whether it is harmless or prejudicial. Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). It appears, however, that we are faced with a denial of a fundamental personal right where the record plainly shows the error was not cured, see Evans v. United States, 284 F.2d 393 (6th Cir. 1960), expressly or impliedly waived by the defendants themselves, State v. McGinnis, supra, Brister v. State, 231 Miss. 722, 97 So.2d 654 (Miss.1957), and see Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), subsequently ratified by defendants, State v. Melendez, 244 So.2d 137 (Fla.1971), or waived by obstreperous courtroom conduct, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Furthermore the Court in Chapman v. United States made it clear that there are errors affecting fundamental constitutional rights 'so basic to a fair trial that their infraction can never be treated as harmless error.' 386 U.S. at 23, 87 S.Ct. at 827, 17 L.Ed.2d at 710.

The record before us makes any comment regarding possible prejudice to defendants here due to denial of their right useless. There are no reasonable inferences that may be drawn concerning the jury picked and the quality of its decision. The error goes to the procedure, not the result, and if this right is to be upheld the only alternative is a retrial. This reasoning was adopted by the Court of Appeals for the Second Circuit in United States v Crutcher, supra, as it was by the Supreme Court of Michigan in People v. Medcoff, 344 Mich. 108, 73 N.W.2d 537 (1955). In the latter opinion the court discussed a procedure whereby defendants had been excluded from the courtroom during an examination of jurors as to asserted misconduct of one juror. In ordering a new trial the court rejected both a burden of showing prejudice (or lack thereof) test and a harmless error test. Instead they adopted a per se rule:

'We recognize that all that transpired between judge and jurors as well as the court's conclusion that there had been no misconduct is in the record before us. Therefore, it is argued that defendants have shown no prejudice. However, the abrogation of defendants' right to be present is not determined from the result and review thereof of the court's inquiry but rather from the mere fact that during the inquiry defendants were not given an opportunity to exercise those privileges which their right to be present affords them. Where such fundamental rights are denied, the guilt or innocence of the accused is not concerned and neither party is put to the burden of showing actual injury or prejudice or the...