Unpublished Disposition, 936 F.2d 581 (9th Cir. 1991)

MEMORANDUM^** 

Joe Lewis Valentine, Jr., a California state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction pursuant to 28 U.S.C. §§ 2253 and 1291. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and we affirm.

Valentine was convicted, following a jury trial, of conspiracy to commit murder and sentenced to 26 years to life in prison. Valentine contends he was deprived of due process and equal protection and denied a fair trial when two Los Angeles police officers were allowed to enter the jury room during deliberations and operate a video machine so that the jury could review a video tape played during the trial. Valentine was not present during this reviewing of the tape, nor was his counsel, the judge, a court reporter, or the bailiff.

The right of a criminal defendant to be present at every stage of his trial is guaranteed by the due process clause of the fifth amendment, the confrontation clause of the sixth amendment, and, in state cases, by the fourteenth amendment, or some combination thereof. See, e.g., Illinois v. Allen, 397 U.S. 337, 338 (1970) (confrontation clause); Snyder v. Massachusetts, 291 U.S. 97, 107-08 (1934) (due process clause); Bustamante v. Eyman, 456 F.2d 269, 272-73 (9th Cir. 1972) (Bustamante I) (confrontation clause and due process). Valentine had a right to be present when the video tape was being played, and this was a right which could not be waived by his counsel. United States v. Kupau, 781 F.2d 740, 743 (9th Cir.) (citing Bustamante I, 456 F.2d at 274), cert. denied, 479 U.S. 823 (1986). It was error to permit the playing of the tape without defendant's personal waiver of his right to be present, and it also was error to permit the replay without a court reporter present to make a record. See Kupau, 781 F.2d at 743.

Similar errors were, however, held harmless beyond a reasonable doubt in Bustamante v. Cardwell, 497 F.2d 556 (9th Cir. 1974) (Bustamante II) . The right to be present during a portion of the trial is not absolute, and even involuntary absence may be harmless error. Kupau, 781 F.2d at 743. In cases where the absence of the defendant constitutes a constitutional violation, such as a fifth amendment due process violation, the government is required to prove that the error was harmless beyond a reasonable doubt. Kupau, 781 F.2d at 743 (citation omitted).

Here, defense counsel was present when the two officers exited the jury room and immediately requested the trial court swear the officers in and take testimony regarding their presence in the jury room. The officers, who were dressed in plain clothes, were asked whether any communication of any type took place with the jury. Officer Bumpus responded that one of the male jurors asked him how often the police department repaired their video machine, and the officer responded that they did not repair it. The juror then told the officer that his machine was in the shop being repaired. Officer Bumpus stated that he had no further conversation with any of the jurors. Officer Jacobs, who was involved in the investigation of the murder and who testified at a pretrial hearing, testified that he did not have any conversation with any of the jurors. Thus, any error that may have occurred by allowing the police officers into the jury room during jury deliberations, was harmless beyond a reasonable doubt. See Kupau, 781 F.2d at 743; Bustamante II, 497 F.2d at 557-58.¹ 

AFFIRMED.