State v. Reyes

• Decision Date: 12 September 1989
• Docket Number: No. 5510,5510
• Citation: 19 Conn.App. 695,564 A.2d 309
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Ruben REYES.

Page 309

564 A.2d 309

19 Conn.App. 695

STATE of Connecticut v.Ruben REYES.

No. 5510.

Appellate Court of Connecticut.

Argued Oct. 11, 1989.

Decided Sept. 12, 1989.

Suzanne Zitser, Asst. Public Defender, for appellant(defendant).

Mitchell S. Brody, DeputyAsst. State's Atty., with whom, on the brief, was Kevin McMahon, Asst. State's Atty., for appellee(State).

Before BORDEN, DALY and EDWARD Y. O'CONNELL, JJ.

EDWARD Y. O'CONNELL, Judge.

The defendant appeals from a judgment of conviction, after a jury trial, of two counts of the crime of robbery in the first degree, in violation of General Statutes § 53a-134(a)(4).He claims that the trial court erred (1) in removing him from the courtroom during his trial, and (2) in its instructions to the jury.We find no error.

The jury could reasonably have found that on June 23, 1985, at approximately 11:30 p.m., the defendant, carrying a sawed-off shotgun, entered a cafe in Hartford with an unarmed man and announced, "This is a robbery."The defendant pointed the gun at Gloria Echevarria, who was sitting behind the bar, and told her to open the cash register.She complied and the unarmed man removed approximately $325 from the cash register.At that point the defendant grabbed the bartender who was emerging from the rear of the cafe and pointed the gun at his neck.He then pushed the bartender against the bar and took approximately $180 from his pockets and wallet.Both robbers then fled and the bartender called the police who later arrested the defendant.

The defendant first claims that the trial court erred in removing him from the courtroom during argument on the state's objection to a question posed to him on direct examination by defense counsel.

The defendant had taken the witness stand on his own behalf when defense counsel inquired, "And, to your knowledge, what is the community right where the Friendship Cafe is, if you know?"The state objected to the question on relevancy grounds and the court excused the jury.Before defense counsel could respond to the objection, the state's attorney sought removal of the defendant, in order to prevent him from tailoring his testimony to the argument.Over defense counsel's objection and exception, the court agreed, ordering the defendant to leave the courtroom, justifying the expulsion on the ground that no testimony was to be taken during his absence.

The defendant claims that the trial court violated his right to be present at his trial pursuant to the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.He also argues that the court violated Practice Book§§ 967 and 968.

By contrast, the state argues that neither the stateconstitution nor the federal constitution mandates that the defendant be present, where, as here, a legal question concerning the admissibility of testimony was discussed.

It is well established that a case will not be decided on constitutional grounds if there is some other ground on which it can be decided.State v. Williams, 200 Conn. 310, 322, 511 A.2d 1000(1986).While both our Supreme Court and this court have addressed the defendant's right to be present at his trial under the federal constitution no case has been found that addresses this right in relation to our rules of practice.Because those rules furnish an adequate basis for determining the issue before us, we will address it accordingly.

Three rules of practice are pertinent to the defendant's claim.Practice Book§ 967 provides that a "defendant has the right to be present at the arraignment, at the time of the plea, at evidentiary hearings, at the trial, and at the sentencing hearing...."(Emphasis added.)Practice Book§ 968 reinforces the defendant's right to be present by stating that he"must be present at the trial "(emphasis added) unless the trial court finds that he is represented by counsel and that he has waived his right to be present.Finally, Practice Book§ 970(3) provides that the "defendant need not be present ... [a]t any argument on a question of law or at any conference...."(Emphasis added.)

Although we are determining this issue on rules of practice grounds, an examination of cases discussing the constitutional right to presence at trial is helpful.Our Supreme Court has held that "[a] criminal defendant has a constitutional right to be present at all critical stages of his trial."State v. Simino, 200 Conn. 113, 125, 509 A.2d 1039(1986);Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267(1983);seeIllinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353(1970).When a situation arises in which the defendant is not present during some portion of his trial, the reviewing court must determine whether he was absent during a critical stage and whether he effectively waived his right to be present by his unexcused absence.State v. Simino, supra, 200 Conn. at 126, 509 A.2d 1039.The latter question need not be addressed here because both parties agree that the defendant did not waive his right.

Relying on State v. Simino, supra, at 128, 509 A.2d 1039, andState v. Olds, 171 Conn. 395, 405-406, 370 A.2d 969(1976), the state asserts that a defendant has no absolute right to be present during discussions of law.Our reading of those cases, however, indicates that such a right would arise if it is determined that his presence bears a reasonably substantial relation to his opportunity to defend.State v. Olds, supra, at 406, 370 A.2d 969;seeSnyder v Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674(1934).

In upholding the trial court's denial of the defendant's request to be present, the court, in Olds, examined the record and held that the discussion of law at issue involved pretrial motions, such as motions for production, to quash, to reduce bond and for a jury of twelve and that "there would have been no 'advantage' to having the defendant present...."State v. Olds, supra.

The right to be present during a discussion of law after the trial has commenced, however, arose in State v. Simino, supra.In Simino, the court held that the defendant's presence was constitutionally mandated when the court was charging the jury because during that time the " 'court is required to state the fundamental legal principles applicable to criminal cases generally, as well as the material legal principles applicable to a particular case and the application of the law to the facts....' "Id., 200 Conn. at 128, 509 A.2d 1039, quotingPeople v. Ciaccio, 47 N.Y.2d 431, 436, 391 N.E.2d 1347, 418 N.Y.S.2d 371(1979).Despite the holding that the defendant had a right to be present during the jury charge, the Simino court concluded that the defendant had waived that right by failing to attend court that day, through no fault of the state.State v. Simino, supra.

In the present case, during the enforced absence of the defendant, the trial court sustained the state's objection to defense counsel's question to the defendant.It stated that it had previously prohibited him from inquiring into the existence of high crime and drug trafficking in and around the cafe through earlier witnesses he had subpoenaed because such evidence was irrelevant to the case.The court added that defense counsel had failed to interview those witnesses prior to their taking the stand despite the fact that they had been waiting at the courthouse to testify for approximately two days.Consequently, he did not know how those witnesses would respond to his questions and the court would not now permit him to elicit the desired but still irrelevant answers from the defendant.Defense counsel did not respond to those remarks.

On the basis of the foregoing, we conclude that the defendant's enforced absence bore a reasonably substantial relation to his opportunity to defend himself because he was precluded from hearing the court's remarks reflecting upon his counsel's preparation of his case.

Because we interpret Practice Book§§ 967 and 968 as implementing the defendant's constitutional right to be present at trial under the circumstances of the present case, we conclude that the trial court's order evicting him from the courtroom violated his right to be present at the trial pursuant to Practice Book§ 967.Although the language in Practice Book§ 970(3) appears to grant the trial court discretion in removing the defendant during questions of law, the facts here clearly demonstrate that a court acts at its peril when it elects to do so during the trial, as opposed to during arguments of pretrial motions.

The defendant urges us to adopt a per se rule of error in any case in which a defendant is ordered to leave the courtroom during the trial, except for reasons of misconduct as provided in Practice Book§§ 891 and 892.Because we strongly favor the defendant's presence at all times during the trial, the establishment of a per se rule is appealing.On the other hand, because we can envision a situation involving a purely technical violation, we conclude that the better course is a case-by-case analysis, determining harm in the light of the circumstances of each case.

Here, the colloquy that occurred in the defendant's absence involved the state's objection to a proposed question which the court sustained on relevancy grounds.The defendant does not challenge that ruling on appeal.¹ Rather, the defendant claims that his absence was harmful because he was precluded from learning of and investigating the court's remarks concerning his counsel's preparation of his defense.

An inquiry into this type of claim is more suited to a habeas corpus proceeding and would therefore be inappropriate in this appeal.² State v. Williamson, 206 Conn. 685, 706-707, 539 A.2d 561(1988).Hence, we conclude that the trial court's error was harmless.

The defendant's remaining claims challenge the court's charge to the jury.He argues (1) that...