In re Cardinal

IN_RE_CARDINAL.93-292; 162 Vt. 418; 649 A.2d 227

[Opinion Filed July 1, 1994]

[Motion for Reargument Denied July 27, 1994]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 93-292


 In re Anthony Cardinal                       Supreme Court

                                              On Appeal from
                                              Washington Superior Court

                                              February Term, 1994



 Alan W. Cheever, J.

 Robert Appel, Defender General, and Seth Lipschutz, Prisoners' Rights
    Office, Montpelier, for petitioner-appellee

 Scot Kline, Chittenden County State's Attorney, and Pamela Hall Johnson,
    Deputy State's Attorney, Burlington, for respondent-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      ALLEN, C.J.    The State appeals the grant of post-conviction relief to
 petitioner Anthony Cardinal, which the superior court granted on the ground
 that petitioner's lack of meaningful participation in the individual voir
 dire process during jury selection denied him a fair trial.  We reverse.
      Petitioner was charged with sexually assaulting his 17-year-old
 daughter.  His first trial resulted in a mistrial because the jury was
 unable to reach a verdict; petitioner was retried and convicted on the same
 charges, and the conviction was affirmed.  See State v. Cardinal, 155 Vt.
 411, 584 A.2d 1152 (1990).  This petition, filed in superior court pursuant
 to 13 V.S.A. { 7131, was based on allegations that petitioner could not see
 and hear the individual voir dire proceedings because of his distance from

 

 the bench, where the questioning was conducted.  He alleges violations of
 his constitutional rights under the Sixth and Fourteenth Amendments to the
 United States Constitution and analogous protections under the Vermont
 Constitution, and violation of V.R.Cr.P. 43(a).
      The superior court made the following findings.  Petitioner was seated
 at counsel table with his attorneys during the general voir dire portion of
 jury selection, and had no problem seeing or hearing the venire members.
 When it came time for individual voir dire, the proceedings took place at
 the bench due to the sensitive nature of the questions.  Petitioner had
 started to follow his attorneys to the bench for the questioning, but one of
 his attorneys told him to "wait there."  The venire members were seated
 twenty-five feet from petitioner and the four attorneys stood close by,
 their backs to petitioner.  Because of this, petitioner could not hear most
 of the responses or see the potential jurors' reactions very well.  He never
 told his attorneys or the court that he did not want to observe the
 individual voir dire, but he also did not let his attorneys or the court
 know that he was having difficulty seeing and hearing.  The court concluded
 that the State had not demonstrated a knowing and voluntary waiver of
 petitioner's right to participate in jury selection.  Finding the State had
 also failed to demonstrate a lack of prejudice from the error, the superior
 court granted petitioner the requested relief.
      Both Vermont and federal constitutional law give a criminal defendant
 the right to a jury trial and the concomitant right to be present during
 trial.  The right is rooted in the confrontation clause of the Sixth
 Amendment, Dowdell v. United States, 221 U.S. 325, 330 (1911), the due
 process clause of the Fourteenth Amendment, and the common law, Snyder v.

 

 Massachusetts, 291 U.S. 97, 107-08 (1934).  Though the right to be present
 is not absolute, Illinois v. Allen, 397 U.S. 337, 342-43 (1970), a
 defendant's right to be present is fundamental to the basic legitimacy of
 the criminal process.  In Vermont that right is codified in V.R.Cr.P. 43(a),
 which states:
           The defendant shall be present at the arraignment, at
         any subsequent time at which a plea is offered, at every
         stage of the trial including the impaneling of the jury
         and the return of the verdict, and at the imposition of
         sentence, except as otherwise provided by this rule.
      Petitioner argues that the right to presence at trial may be waived
 only by a knowing and voluntary, affirmative statement of waiver
 communicated by petitioner, or by counsel with petitioner's authorization.
 In granting petitioner relief, the superior court relied on cases in which
 the courts had proceeded with jury selection knowing that the defendant was
 absent, without the defendant's knowing and voluntary waiver of the right to
 attend.  See United States v. Crutcher, 405 F.2d 239, 242-43 (2d Cir. 1968)
 (trial court directed selection and impaneling of jury despite knowledge
 that defendant had been arrested and was held in another state), cert.
 denied, 394 U.S. 908 (1969); United States v. Mackey, 915 F.2d 69, 71 (2d
 Cir. 1990) (jury impaneled despite call from defendant that he would be late
 due to transportation problems).  The only case cited by petitioner in which
 the defendant was physically present in the courtroom at the start of the
 voir dire, as in this case, is State v. Antommarchi, 604 N.E.2d 95, 590 N.Y.S.2d 33 (1992).  In Antommarchi, the court invited several prospective
 jurors to go to the bench "to speak about matters they did not wish to
 discuss publicly.  The discussions were held on the record and in the

 

 presence of counsel, but without defendant."  Id. at 97, 590 N.Y.S.2d  at
 35.  In reversing the conviction, the court explained:
             By questioning the prospective jurors' ability to
           weigh evidence objectively and to hear testimony
           impartially, the court violated defendant's right to be
           present during a material part of the trial.  Moreover,
           because defendant had a fundamental right to be present,
           his failure to object to being excluded from the side-
           bar discussions is not fatal to his claim.
 Id. (emphasis added).  Thus, although Antommarchi is similar to the present
 case with respect to the presence of the defendant in one part of the
 courtroom while proceedings occurred which the defendant could not
 effectively observe, it is clear that in Antommarchi the court made an
 explicit decision to conduct proceedings that it knew were inaccessible to
 the defendant's hearing or vision.  See also Robinson v. United States, 448 A.2d 853, 855-56 (D.C. 1982) (defendant's rights violated where much of
 voir dire was conducted at bench while defendant remained seated at counsel
 table, over objections of defense counsel).
      In the present case, the superior court found that "[t]he judge
 purposely tried to keep the individual voir dire quiet because of its
 sensitive nature" and that "[p]etitioner was not able to hear much of the
 individual voir dire because of his distance from the bench and the lowered
 voices of the participants."  (Emphasis added.)  These findings address
 petitioner's physical inability to see and hear the individual voir dire,
 but the court does not indicate that the lowered voice levels were intended
 to exclude petitioner, or that the trial court was aware that petitioner
 could not see and hear.  Moreover, the record does not reflect that
 petitioner ever advised the court or counsel that he could not see or hear

 

 the proceedings.  Consequently, his absence from the bench was not the
 result of any exclusionary action by the trial court or the State.
      Petitioner did not voluntarily absent himself physically, was not
 excluded from voir dire proceedings, and could hear and see some of those
 proceedings.  Under these circumstances, a failure to advise the court of an
 inability to hear and see all will be taken as a waiver of his Rule 43
 rights.  See United States v. Gagnon, 470 U.S. 522, 528 (1985) (knowing of
 in camera conference, "defendant must assert whatever right he may have
 under [F.R.Cr.P.] 43 to be present"); United States v. McClendon, 782 F.2d 785, 788-89 (9th Cir. 1986) (defendants' failure to object to in-chambers
 voir dire constituted waiver, citing United States v. Gagnon).
      If petitioner wanted to be present at the bench to participate
 meaningfully in the voir dire, he could have informed the court of his wish.
 Such action would have put the court on notice of the difficulty he was
 having in seeing and hearing.  Not having done so, petitioner waived his
 right to presence.  See United States v. Willis, 759 F.2d 1486, 1500 (11th
 Cir. 1985) (defendants waived right to participate in individual voir dire
 held in judge's chambers, without objection of defense counsel, where court
 took no action to exclude defendants), cert. denied, 474 U.S. 849 (1985).(FN1)
 A rule permitting invalidation of the results of a voir dire because of a
 defendant's inability to see and hear proceedings, based purely on
 defendant's after-the-fact testimony, would create great potential for

 

 sandbagging the trial court.  See id.; cf. In re Mecier, 143 Vt. 23, 28,
 460 A.2d 472, 475 (1983) (if defendant acquiesced in advice of attorney not
 to take stand at or before trial, he is deemed to have waived right).  We
 decline to adopt such a rule in Vermont.
      Our conclusion is not altered by the court's findings with respect to
 the advice and actions of petitioner's trial attorneys.  The trial court
 found that "[p]etitioner's attorneys explained to him in a general manner
 the process, purposes of and reasons for individual voir dire, but not that
 he had a right to see and hear the individual voir dire."  There is no doubt
 that attorneys should advise clients fully of the right to participate in
 all stages of a trial, but the court's decision here was not based on the
 ineffective assistance of counsel, nor are grounds for such a conclusion
 evident on the record.  With or without advice of counsel, petitioner was,
 in fact, present in court at all stages of the trial.
      The court also found that when it was time for individual voir dire and
 petitioner got out of his chair to go with his attorney to the bench, "[o]ne
 of his attorneys told him to wait there."  But even if we assume that
 petitioner's subsequent inability to see and hear the individual voir dire
 proceedings resulted from his attorney's in-court advice, he still fails to
 state grounds for relief, since a court considering a petition for post-
 conviction relief may not second-guess an attorney's strategic choices with
 respect to an in-court client, so long as such choices do not amount to
 ineffective advice of counsel.  Williams v. State, 438 A.2d 1301, 1310 (Md.
 1981) (overruling earlier case and holding that in future cases counsel
 could waive defendant's right to hear bench conference during impaneling of
 jury); see also Tatum v. United States, 330 A.2d 522, 524 (D.C. 1974)

 

 (counsel's exercise of peremptory challenges at bench did not violate
 rights of defendant who was in court but not at bench); People v. Carroll,
 240 N.W.2d 722, 725 (Mich. 1976) (in absence of objection, counsel properly
 represented defendant in chambers conference raising question of juror's
 impartiality); State v. Nevels, 223 N.W.2d 668, 669 (Neb. 1974)
 (defendant's absence from chambers conference concerning juror not
 prejudicial where counsel was present).
      Apart from an absence of findings on the point, there is no hint of
 ineffective assistance of counsel on this record.  In testimony at the
 post-conviction relief hearing, the attorney explained his reasons for not
 including some defendants in the voir dire process:
           There are a number of reasons.  Most importantly, a
           concern that the close proximity of my client to an
           individual during the type of sensitive questioning that
           occurs in an individual voir dire in a sexual assault
           case is going to have more of a detrimental and
           potentially prejudicial effect, both regarding the
           individual being questioned and the larger venire
           panel.
 The court also found that the same attorney expressed the "belief that a
 defendant should not be close to venire persons when they are being asked
 sensitive questions."
      In sum, both jurisprudence and reality suggest that courts should not
 question the strategic decisions of attorneys during the course of a trial
 where a defendant is present in the courtroom.  As the Maryland Court of
         Appeals put it in Williams v. State, 438 A.2d at 1309:
         Today, with the complexity of many criminal trials and
         the absolute right of counsel if there is a danger of
         incarceration, our system proceeds upon the assumption
         that it is primarily counsel's function to assert or
         waive most "rights" of the defendant.  Unless a
         defendant speaks out, normally he must be bound by the
         trial decisions, actions and inactions of counsel.

 

         Otherwise, the system simply would not work.  Estelle v.
         Williams, 425 U.S. 501, 512 (1976).
 Petitioner has not demonstrated why this proposition should not apply in the
 present case.
      We conclude the trial court committed no error in the conduct of the
 voir dire process.
      Reversed.
                                     FOR THE COURT:



                                     _________________________________
                                     Chief Justice



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                                Footnotes


FN1.    The holding in Willis relies on Federal Rule of Criminal Procedure
 43(b)(1), which states that a defendant "shall be considered to have waived
 the right to be present whenever a defendant, initially present, is
 voluntarily absent after the trial has commenced."  The Vermont rule does
 not differ significantly in its effect, despite the lack of such specific
 waiver language.  See V.R.Cr.P. 43.