Wallace v. State

• Decision Date: 02 July 2003
• Docket Number: No. 3D02-2630.,3D02-2630.
• Citation: 851 So.2d 216
• Parties: Jeffrey Wade WALLACE, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

851 So.2d 216

Jeffrey Wade WALLACE, Appellant, v. The STATE of Florida, Appellee.

No. 3D02-2630.

District Court of Appeal of Florida, Third District.

July 2, 2003.

Rehearing Denied August 1, 2003.

Bennett H. Brummer, Public Defender and Howard K. Blumberg, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General and Frank J. Ingrassia (Fort Lauderdale), Assistant Attorney General, for appellee.

Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ. SCHWARTZ, Chief Judge.

After a jury, on overwhelming, essentially undisputed evidence, and over a rather specious defense of insanity, found Wallace guilty of one count of first degree murder and four counts of attempted first degree murder and his convictions and consecutive life sentences were affirmed in Wallace v. State, 766 So.2d 364 (Fla. 3d DCA 2000), review denied, 786 So.2d 581 (Fla. 2001), the defendant filed the present 3.850 motion for post conviction relief. The trial court, in an extensive opinion, denied the motion and we affirm.

Although Wallace asserted numerous grounds, mostly related to alleged ineffective assistance of trial counsel, only one set of contentions deserves analysis and discussion. It is the claim, raised for the first time in the post-conviction motion, that a statement of the trial court that Wallace and counsel could not confer during a lunch recess taken while he was on the witness stand amounted to a deprivation of his sixth amendment right to counsel which, even in the admitted absence of any cognizable prejudice, constituted an irremediable defect in the trial requiring a new one. Essentially because neither the record of the trial¹ nor any other showing made by the defendant establishes or even intimates that either counsel or the defendant had any desire to consult during the critical time, so that his sixth amendment rights were not affected, much less diminished by the court's observation, we disagree.

The defendant's primary reliance is on the Supreme Court's decision in Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989), which indeed stated that a trial court's unjustified interference with the right to confer with counsel during a constitutionally recognized period² during trial constituted a so called "structural defect" which required reversal even though no prejudice, stemming either from the contents of the forbidden consultation or the ultimate outcome of the trial had resulted. We are inclined to believe, moreover, unlike Perry, in which a fifteen minute recess during the course of the defendant's examination was held not to reach constitutional dimensions, that the lunch recess in this case did so qualify. See Bova v. State, 410 So.2d 1343 (Fla. 1982); Amos v. State, 618 So.2d 157 (Fla. 1993). Neither of these conclusions however even comes into play in this case in the absence of any demonstration that anything that the trial court did affected anything, including the exercise of sixth amendment rights, that Wallace or his counsel did or wanted to do.

This court expressed just this holding in Recinos v. State, 420 So.2d 95 (Fla. 3d DCA 1982)(rehearing en banc), which involved the same circumstances and contentions:

[i]n this case, the erroneous statement of the law was not shown to have constituted or led even to the sine qua non of any kind of error, harmless or otherwise: the existence of an allegedly adverse "ruling." This is because ... there is no indication that counsel or Recinos had any desire further to speak to the other which was precluded by the court's announcement. Under these circumstances, the remark in question was no more than an academically incorrect observation about the law. We know of no instance in which a statement, however textually erroneous, which has no causative impact on what actually happened or did not happen below, can justify a reversal. We ... believe that, in this context, the answer to Bishop Berkeley's conundrum about the tree and the forest is that the court's incorrect comment meant nothing.

Recinos, 420 So.2d at 98. Accord Stubbs v. Bordenkircher, 689 F.2d 1205, 1206-1207 (4th Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983)³Bailey v. Redman, 657 F.2d 21, 24 (3d Cir.1981)(affirming Bailey v. Redman, 502 F.Supp. 313 (D.Del.1980)), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310 (1982)⁴; see also People v. Stewart, 161 Ill.App.3d 99, 103, 112 Ill.Dec. 655, 514 N.E.2d 51, 54 (1987)("[T]here is no suggestion in the record that defendant desired, attempted, or was prevented from contacting counsel by the authorities at the jail. Under these circumstances, defendant's sixth amendment claim must fail because there is no showing defendant was deprived of his right to the assistance of counsel."), appeal denied, 118 Ill.2d 550, 117 Ill.Dec. 230, 520 N.E.2d 391 (1988); Annot., 95 A.L.R. Fed. 601, 619 (1989).

Although these cases predate Perry, it is clear that the application of the principle they enunciate is unaffected by that decision. It is vitally important first to observe that in the Perry case itself, in direct contrast to the cited cases and to this one, the issue was directly raised by defense counsel who unsuccessfully moved for a mistrial on the ground that the court's instruction erroneously interfered with his client's rights. See Perry, 488 U.S. at 274, 109 S.Ct. at 596. That Perry does not affect cases in which the issue was not presented is conclusively demonstrated by several post Perry cases which squarely so hold. Thus, in State v. Baldridge, 857 S.W.2d 243 (Mo.App. W.D.1993) the court said:

Defendant argues that she was denied her right to assistance of counsel when the trial court prohibited her consulting with her attorney during an overnight recess. After Defendant testified on direct examination, the following exchange transpired concerning Defendant's cross-examination:

(Proceedings held at bench.)

THE COURT: What do you propose:

[prosecutor]: I think we have to finish in the morning because I am going to be awhile, and I think everybody is tired. I will take at least a half an hour.

THE COURT: If we took a break, we could go until later.

[prosecutor]: Judge, I am going to be a while. It is an awful important part of the case, and we have worked a long time today. I feel like we should wait and finish off first thing in the morning.

THE COURT: That means she can't talk to you now.

[defense counsel]: That's fine.

THE COURT: It will be just like I told Driskill. Is that what you want to do?

[prosecutor]: That's fine.

THE COURT: Is that what you want to do?

[defense counsel]: Sure.

The trial judge then addressed Defendant, instructing her that she would not be able to talk to her attorney overnight, in response to which she stated, "Okay."

Defendant argues that the trial court's action in denying her contact with counsel for the sixteen hour overnight recess violated the principles set forth in the United States Supreme Court's decision of Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976). The Court in Geders held that a trial court's order directing a defendant not to consult with his or her attorney during a regular overnight recess deprived the Defendant of the constitutionally protected right to assistance of counsel in violation of the sixth amendment to the United States Constitution. Id. Defendant properly cites the holding contained in Geders, but that case is distinguishable from the instant case. In Geders, the Defendant's counsel forcefully resisted the trial court's action of prohibiting contact with his client, making several objections to the ruling. The trial court overruled the objections, disregarding counsel's evident desire to consult with his client during the recess. Id. at 83 n. 1, 96 S.Ct. at 1333 n. 1. Thus, in Geders there was an indication that absent the court's instruction, Defendant would have met with his counsel.

In the instant case, counsel failed to make any objection to the denial of contact, and in fact he orally acceded to the trial court's action. Defendant has failed to present any evidence which demonstrates that she would have met with counsel absent the ruling. Defendant correctly points out that she is not required to demonstrate prejudice to prevail on this point. See Perry v. Leeke, 488 U.S. 272, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989). However, she is required to demonstrate that she was deprived her right to consult with her attorney, which she has failed to do in this case. See Bailey v. Redman, 657 F.2d 21, 24 (3d Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310 (1982)(court found no deprivation of right to counsel where Defendant was barred from discussing ongoing testimony with anyone overnight because no objection was made and there was no showing that Defendant would have conferred with counsel but for the order).

Baldridge, 857 S.W.2d at 252; accord Commonwealth v. Glashauser, 8 Pa. D. & C. 4th 325, 336-337 (Pa.Com.Pl.1990)("Essentially [Commonwealth v.] Scoleri [432 Pa. 571, 248 A.2d 295 (1968)] and Redman support the view that there can be no violation of the right to counsel where the record fails to demonstrate an actual deprivation.... Defense counsel takes the position that prejudice is to be assumed solely from the fact that the instruction was given. It is obvious that such an absolute position is not in keeping with current legal thought as set forth in Perry and Bailey.... Where a trial court instructs a defendant not to discuss his testimony with anyone during an overnight recess, and such instruction is not objected to, nor is there any indication that counsel wanted to speak to the defendant, there can be no impermissible infringement on the right to counsel."); see also Haney v. State, 603 So.2d 368, 378 (Ala.Crim.App. 1991)(no sixth amendment deprivation occurred when counsel was incarcerated for contempt during overnight break in defendant's...