USA. v. Rolle
| Citation | 204 F.3d 133 |
| Decision Date | 29 October 1999 |
| Docket Number | CR-97-608,No. 98-4212,98-4212 |
| Parties | (4th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TROY ROLLE, a/k/a Robert Stan Marks, Defendant-Appellant. (). . Argued: |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Appeal from the United States District Court for the District of South Carolina, at Spartanburg.
[Copyrighted Material Omitted] ARGUED: Linda S. Sheffield, Decatur, Georgia, for Appellant. Harold Watson Gowdy, III, Assistant United States Attorney, Greenville, South Carolina, for Appellee. ON BRIEF: J. Rene Josey, United States Attorney, Greenville, South Carolina, for Appellee.
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in which Judge Motz and Judge Traxler joined.
On August 26, 1997, appellant Troy Rolle was charged in the District of South Carolina with conspiracy to traffic in cocaine and cocaine base, and possession of the same with intent to distribute.1
Rolle's trial on these charges was conducted in the district court in Spartanburg on March 3 and 4, 1998, at the conclusion of which the jury returned a verdict of guilty on both counts. Following his sentencing to life in prison on each count, Rolle appeals his convictions and sentences.
In his appeal, Rolle asserts numerous errors, specifically that: (1) he was denied his right to be present during the district court's questioning of prospective jurors; (2) the district court erred in striking some prospective jurors for cause and failing to strike others; (3) the Government exercised its peremptory strikes in a racially discriminatory fashion; (4) the evidence was insufficient to support his conspiracy conviction; (5) the prosecutor improperly vouched for the credibility of a crucial witness; and (6) the district court erroneously calculated the amount of cocaine attributable to him for sentencing purposes. Finally, Rolle asserts ineffective assistance of counsel at trial. For the reasons enunciated below, we find no reversible error and affirm Rolle's convictions and sentences.
Jury selection for Rolle's trial began on March 3, 1998. As is a common practice, potential jurors completed questionnaires prior to trial for use of the parties and the court. The questionnaires were designed to determine each juror's ability to be fair and impartial, and to otherwise assist in the jury selection process. Based on responses to these questionnaires, the Government and Rolle's trial counsel identified approximately sixteen potentially biased jurors to the court. The court determined that individual voir dire of these jurors was necessary, so it summoned them singly into chambers, together with the attorneys.2 The court and the attorneys then closely questioned the jurors to assess their impartiality. This process consumed two to three hours, occupying substantially the entire morning of the first day of trial.3
As the identified jurors were being called into chambers, Rolle remained in the custody of the Marshal in the courtroom, and he was not physically present for any of the individual voir dire. No objection was made to any of these procedures, by either Rolle's counsel or by the Government attorneys. Subsequent to the individual voir dire of these prospective jurors, the proceedings reconvened in open court. The exercise of peremptory strikes by the parties, and completion of other jury selection procedures, occurred in Rolle's presence.
Rolle asserts on appeal that his exclusion from the individual voir dire proceedings requires reversal of his convictions. As we explain below, we are unable to find reversible error.
The Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fifth Amendment together guarantee a defendant charged with a felony the right to be present at all critical stages of his trial. As a constitutional matter, a defendant thus has the right "to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings." Faretta v. California, 422 U.S. 806, 819 n.15 (1975) (citation omitted). We have recognized that an accused's absence during the jury selection process can potentially frustrate the fairness of a trial by denying the defendant an opportunity to "give advice or suggestions to his lawyer concerning potential jurors". United States v. Camacho, 955 F.2d 950, 953 (4th Cir. 1992) (citation omitted). Furthermore, an accused's absence from portions of voir dire may also prevent him from effectively exercising his peremptory challenges, a "process that is essential to an impartial trial." Id. (citing Lewis v. United States, 146 U.S. 370, 378 (1892)).
Rule 43(a) of the Federal Rules of Criminal Procedure, deriving from these constitutional guarantees and the even broader common law privilege,4 explicitly confers the more expansive right to "be present . . . at every stage of the trial, including the impaneling of the jury . . ." Fed. R. Crim. P. 43(a). Rule 43 was originally intended to be "a restatement of existing law." Fed. R. Crim. P. 43, 1944 Advisory Committee Note, Para. 1 (citations omitted). As we noted in Camacho, Rule 43 has Camacho, 955 F.2d at 953 (citations omitted).5
Included within the expansive scope of a criminal defendant's Rule 43(a) right of presence is the right to be present at the voir dire of prospective jurors. United States v. Tipton, 90 F.3d 861, 872 (4th C0ir. 1996) (citations omitted). As we recognized in Camacho, a defendant's presence at voir dire is of utmost importance:
[T]he defendant has unique knowledge which is important at all stages of the trial, including voir dire. At the voir dire he may, for example, identify prospective jurors that he knows. He may also have knowledge of facts about himself or the alleged crime which may not have seemed relevant to him in the tranquility of his lawyer's office, and thus may not have been disclosed, but which may become important as the individual prejudices or inclinations of the jurors are revealed. He may also be a member of the community in which he will be tried and might be sensitive to particular local prejudices his lawyer does not know about.
Although it earlier asserted a contrary position, the Government now concedes that Rolle had a right to be present during the individual voir dire in the court's chambers.6 Here, the judge and counsel privately questioned twelve prospective jurors while Rolle was in the Marshal's custody in the courtroom. At no time did anyone suggest or assert that Rolle should be present during this stage of trial. However, at oral argument, the Government conceded that an error occurred and acknowledged that, pursuant to its responsibilities to the justice system, it should have drawn the court's attention to Rolle's absence during the proceedings in question.7
Our analysis of Rolle's claim is informed by our Tipton decision, where we addressed a similar violation of a defendant's right of presence. There, we examined whether the exclusion of the defendants from in camera individualized examinations of prospective jurors, designed to explore the jurors' attitudes on the death penalty and reveal potential racial biases, constituted reversible error. We assumed in Tipton, without deciding, that error had occurred "in the form of a `deviation' from the constitutionally-grounded legal rule that presence was required throughout the proceedings at issue." 90 F.3d at 874. We assumed further that any such error was "plain." Id.
Like the defendants in Tipton, neither Rolle nor his counsel made any contemporaneous challenge to the voir dire proceedings being conducted in Rolle's absence; thus, we are required to examine Rolle's exclusion from these proceedings under the"plain error" analysis. Fed. R. Crim. P. 52(b).8 While Rolle's failure to object does not necessarily extinguish any error caused thereby, it imposes stringent limitations on our ability to correct any such error.
The Supreme Court's holding in United States v. Olano, 507 U.S. 725 (1993), guides our analysis on the proper application of Rule 52(b)'s "plain error" limitation on appellate notice of forfeited errors. Under Olano, four conditions must be met to notice plain error under Rule 52(b): (1) there must be error, i.e., a deviation from a legal rule; (2) the error must be plain under current law; (3) the plain error must affect substantial rights, which typically means that the defendant is prejudiced by the error in that it "affected the outcome" of the proceedings; and (4) the error must seriously affect"the fairness, integrity or public reputation of judicial proceedings." Id. at 733-36. As the Supreme Court's holding in Olano indicates, we may correct forfeited error only if it is "plain" and "affects substantial rights." Even then we are "not required to do so" unless the error is one that "causes the conviction or sentencing of an actually innocent defendant," or otherwise "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Id. at 735-36 (citations omitted).
Our application of the relevant authorities to these facts compels us to hold that Rolle's absence from the individual voir dire proceedings conducted in his trial violated his right to be present during the critical stage of jury selection. Having demonstrated a plain deviation from the constitutionally-grounded strictures of Rule 43(a), Rolle has,...
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