Wilson v. State

• Decision Date: 26 July 2000
• Docket Number: No. 4D98-3758.,4D98-3758.
• Citation: 764 So.2d 813
• Parties: Milo WILSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

764 So.2d 813

Milo WILSON, Appellant, v. STATE of Florida, Appellee.

No. 4D98-3758.

District Court of Appeal of Florida, Fourth District.

July 26, 2000.

Rehearing Denied September 1, 2000.

Richard L. Jorandby, Public Defender, and David J. McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

Milo Wilson appeals his conviction of two counts of armed kidnapping. We affirm, and write to address one issue— whether reversible error occurred when trial counsel was absent during a portion of jury deliberations.

The trial in this case began on Tuesday, August 18, 1998. Jury selection began at 2:00 p.m. The jury was sworn in the same day at 4:48 p.m. The jury began deliberations on Thursday, August 20 at 2:22 p.m.

At the end of the day on Thursday, the trial judge discussed a scheduling issue with the attorneys. Defense counsel, Marshall Geisser, had business to attend to the next day in Washington, D.C. The trial court was reluctant to excuse the jurors for a three-day weekend. Geisser acknowledged that his "client prefers me to be here and ... that I should be here for this stuff." Geisser suggested that the deliberations might continue in his absence:

Let them deliberate and if no questions arise. There is no problem. If they reach a verdict maybe hold off on announcing the verdict until Monday. The verdict will be done.

The trial judge responded that the jury might have a question and asked Geisser if he could be reached by cellular phone. Geisser said that his cellular phone contract did not allow him to receive calls outside of Florida.

The trial judge then posed another option:

There is another option that we can try. It's one of the least satisfactory of the options is have the jury deliberate tomorrow. If the jury arrives or comes back with a question, your client can make a decision at that point if he want [sic] you there to answer the question or not. If he wants you to there [sic] to answer the question, then we are shut down for the weekend. And I will tell the jury that we are grounded until you return.

After consulting with appellant, Geisser informed the court that his client "indicated that he would prefer me to be present."

The judge voiced his concern that if he excused the jurors until Monday, they would forget the evidence and the instructions. To avoid creating an appellate issue, the judge sought to establish for the record that it was appellant's choice to excuse the jurors for a three-day weekend in the middle of deliberations.

In response, Geisser asked for "a minute or two" to talk to his client. A short while later, Geisser made the following proposal:

Okay. Judge, I think, basically, what I suggested is that, if it is okay with him... that it would seem foolish not to come back and at least try to deliberate and they could reach a verdict tomorrow without any questions, and that would alleviate any of the other problems.

If there is a question that is legally based, what I would suggest is that, we bring them back on Monday when I'm here. Obviously, whoever stands in for me, they don't know any of the facts of case [sic].

Geisser arranged for another attorney to sit with appellant while the jury was deliberating. The trial court determined that appellant agreed that another attorney could "sit in" in place of Geisser while the jury was deliberating and that if a verdict were returned, the judge could receive it, publish it, and poll the jurors. On Friday morning, the jury returned to deliberate at 8:17 a.m. That morning, the jury sent out a note asking: "How long must we stay in here if we cannot reach an agreement?" During the court proceedings in response to the note, the stand-in attorney took the position that appellant was not his client and that he could not give him legal advice. The trial judge discussed reading the deadlock instruction, either that day or on Monday. While the court was mulling over what course of action to take, the jury reached a verdict.¹ The verdict was published at 10:20 a.m. The judge had the clerk poll the members of the jury.

Wilson argues that reversible error occurred when he appeared at a critical stage of the trial without counsel. We agree with appellant that the stand-in lawyer did not function as the "counsel" contemplated by the constitutional guarantee. Although he was a warm body sitting in counsel's chair, he was not there to give Wilson legal advice. While Wilson waived his right to have Geisser present at the time the verdict was returned, the record does not establish Wilson's knowing and intelligent waiver of his right to counsel for everything that might have arisen during Friday's jury deliberations. The court's colloquy with the defendant was cursory, occurring at the very end of the day after the decision had already been made to bring the jury back on Friday in Geisser's absence.

It is well-settled that a criminal defendant facing incarceration has a right to counsel at every critical stage of the proceedings against him. See Fruetel v. State, 638 So.2d 966, 971 (Fla. 4th DCA 1994)

(citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). The presence of the attorney is essential, because the attorney is "the means through which the ... rights of the person on trial are secured." United States v. Cronic, 466 U.S. 648, 653, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). To establish a claim of denial of the right to counsel, a defendant "need only show that counsel was absent during a critical stage of the proceedings in order to establish the constitutional violation." Green v. Arn, 809 F.2d 1257, 1263 (6th Cir.1987),

cert. granted and judgment vacated on other grounds, 484 U.S. 806, 108 S.Ct. 52, 98 L.Ed.2d 17 (1987).

Trial, sentencing, and direct appeal are all critical stages at which a defendant is entitled to counsel. See Smith v. State, 590 So.2d 1078, 1078 (Fla. 2d DCA 1991)

(treating right to counsel at sentencing as a critical stage); Ford v. State, 575 So.2d 1335, 1337 (Fla. 1st DCA 1991) (recognizing the right to counsel on appeal) (citing Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)). We have previously held that the reading of jury instructions and discussions concerning evidence outside the presence of the jury are both critical stages of the trial requiring the presence of counsel. See Fruetel, 638 So.2d at 971; Vileenor v. State, 500 So.2d 713, 715 (Fla. 4th DCA 1987).

The return of a verdict is also a critical stage of a trial. See United States v. Osterbrock, 891 F.2d 1216, 1218 (6th Cir.1989)

(discussing United States v. Smith, 411 F.2d 733 (6th Cir.1969)); Siverson v. O'Leary, 764 F.2d 1208, 1214 (7th Cir.1985); Headen v. United States, 373 A.2d 599, 600 (D.C.1977); Fla. R.Crim. P. 3.180(a)(8). Discussing and responding to a jury's question during deliberations obviously constitute a critical stage, coming so close to the time when the jury will render a verdict; a court's violation of Florida Rule of Criminal Procedure 3.410 regarding a jury request to review evidence or for additional instructions has long been held to be serious error. See Williams v. State, 488 So.2d 62, 64 (Fla.1986); Ivory v. State, 351 So.2d 26, 28 (Fla.1977). We hold that the in-court discussion in response to the jury's note on Friday was in violation of Wilson's constitutional right to counsel.

In Vileenor, we held that the absence of defense counsel during the reading of jury instructions was a type of constitutional error subject to the harmless error standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Vileenor, 500 So.2d at 715

. Under that standard, before a constitutional error can be found to be harmless, "the reviewing court must be satisfied beyond a reasonable doubt that the error did not contribute to the conviction." Id.; see Osterbrock, 891 F.2d at 1218; Siverson, 764 F.2d at 1217; Headen, 373 A.2d at 601; Fruetel, 638 So.2d at 971-72 (citing Vileenor).

Wilson argues that the constitutional error in this case "requires reversal without regard to the harmless error doctrine." To support that contention, Wilson cites Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), which contains the following language:

Trial error "occur[s] during the presentation of the case to the jury," and is amenable to harmless-error analysis because it "may ... be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial]." At the other end of the spectrum of constitutional errors lie "structural defects in the constitution of the trial mechanism, which defy analysis by `harmless-error' standards." The existence of such defects— deprivation of the right to counsel,² for example—requires automatic reversal of the conviction because they infect the entire trial process. Since our landmark decision in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), we have applied the harmless-beyond-a-reasonable-doubt standard in reviewing claims of constitutional error of the trial type.

(Internal citations omitted) (emphasis supplied).

For the reasons that follow, we do not read Brecht as classifying every right to counsel violation as a structural defect in the trial requiring automatic reversal. By the citation to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), in the above-quoted passage in Brecht, we believe that the Supreme Court was referring to a case involving total deprivation of the right to counsel at trial as an example of a structural defect amounting to per se reversible error.

A strong presumption exists that any constitutional error is subject to harmless error analysis. See Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 1833, 144 L.Ed.2d...