In re Harris

In re Harris  (94-658); 164 Vt 628; 671 A.2d 1278

[Filed 22-Dec-1995]


                               ENTRY ORDER
                      SUPREME COURT DOCKET NO. 94-658
                            SEPTEMBER TERM, 1995





In re Donald Harris                  }     APPEALED FROM:
                                     }
                                     }
                                     }     Chittenden Superior Court
                                     }
                                     }
                                     }     DOCKET NO. S980CnC



                    In the above-entitled cause, the Clerk will enter:

       Petitioner appeals the Chittenden Superior Court's denial of his
  petition for post-conviction relief, arguing that the court erred in
  concluding that he waived his right to be present for jury voir dire.  We
  affirm.

       Petitioner was charged with sexual assault upon, and lewd and
  lascivious conduct with, a minor.  He was convicted, and the conviction was
  affirmed.  He then filed this petition for post-conviction relief alleging
  that he was absent from a portion of the jury voir dire at his trial.

       On the first day of petitioner's trial, jury voir dire was conducted
  in open court with petitioner present.  On the following morning,
  petitioner's attorney moved for a mistrial, asserting as grounds media
  reports that an investigator for defense counsel had threatened or
  intimidated a witness.  The trial court heard arguments on the motion at an
  in-chambers hearing. The transcript of the in-chambers proceeding is
  missing, but petitioner's attorney testified that the court then proceeded
  to conduct individual voir dire concerning the media reports.


       Petitioner had informed his attorney of his desire to be present at
  all stages of his trial whenever permissible but understood that such
  involvement did not include chambers conferences involving strictly legal
  matters.  He indicated his desire to be present at the hearing on the
  motion for a mistrial but was told by his attorney to wait in the hallway. 
  When the court proceeded to conduct individual voir dire, petitioner's
  attorney did not ask the court if petitioner could be present, or object
  because of his absence, or inform petitioner that the voir dire would be
  conducted.  Although the transcripts are ambiguous, petitioner's attorney
  testified that she exercised petitioner's peremptory challenges in open
  court after first discussing them with him.

       We do not address whether petitioner waived his right to be present
  for jury voir dire because the facts of this case do not support
  post-conviction relief.  To obtain post-conviction relief, the petitioner
  must establish by a preponderance of the evidence that fundamental errors
  rendered his conviction defective.  State v. Bristol, 159 Vt. 334, 337, 618 A.2d 1290, 1291 (1992).  We have also said that petitioner must prove he
  was prejudiced by the trial court's action.  In re Kivela, 145 Vt. 454,
  458, 494 A.2d 126, 129 (1985).  We conclude that petitioner's absence from
  the in-chambers voir dire did not render his conviction defective or result
  in prejudice against him.

       A defendant's right to be present during jury voir dire facilitates
  his statutory right, under

 

  12 V.S.A. § 1941, to exercise peremptory challenges.  It is also an
  essential element of his right to a jury trial.  State v. Mercier, 98 Vt.
  368, 371, 127 A. 715, 716 (1925).  Here, petitioner's absence from
  in-chambers voir dire did not impair his right to exercise peremptory
  challenges.

       The in-chambers voir dire involved questioning venire members about
  exposure to the media reports that appeared the morning of May 25.  Later,
  in open court and in petitioner's presence, the court and petitioner's
  attorney again questioned the same venire members about their exposure to
  media reports.  In petitioner's presence, they were asked:

          Do any of you people of your own knowledge know anything at all
          about the facts of this case? . . . Do you remember having read or
          heard or seen anything about this case? . . . Did anyone read the
          newspaper today of [sic] this new group of witnesses? . . . Did
          anyone else see the Burlington Free Press or listen to any news
          there might have been about this case on your way into court?

  Further, petitioner's attorney took notes during the in-chambers voir dire,
  and reviewed those notes with petitioner prior to exercising any of his
  peremptory challenges.  Petitioner was not prejudiced by his absence from
  the in-chamber voir dire, and the superior court's denial of his motion for
  post-conviction relief was not error.

       Affirmed.


----------------------------------------------------------------------------
                                 Concurring



       MORSE, J., concurring.  The trial court's findings can be summed up
  simply: Petitioner's defense counsel did not know her client could be
  present "in chambers" during voir dire and consequently did not make
  arrangements for him to be present in person.  Ordinarily, counsel's
  procedural choices are binding on defendant, and when counsel's
  representation is "ineffective" because of ignorance of criminal procedure,
  the only relief post conviction is a claim for ineffective assistance of
  counsel.  That claim was not made in this case, and we should affirm on
  that basis.

       Had defense counsel made a "strategic choice" to absent her client
  from "in chambers" voir dire, In re Cardinal would have governed.      Vt.    
  ,    , 649 A.2d 227, 230 (1994) (court may not second-guess attorney's
  strategic choices).  Here, the defendant-client was not out of touch with
  his defense counsel, and the trial court had no reason to know they were
  not effectively communicating.

       Because the Court is not presented with a claim of ineffective
  assistance of counsel, an issue about the standard of review becomes
  apparent.  No objection to defendant not being present "in chambers" was
  made at the criminal trial, and even if it had been, no issue on appeal was
  raised.  Ordinarily, the issue addressed today would have been unpreserved
  and not subject to collateral attack.

       The Court frames the standard of review in post-conviction relief as
  involving "fundamental" error resulting in "prejudice" against petitioner. 
  A fundamental error goes to the fairness of the proceedings and results in
  "a complete miscarriage of justice" or disregards "the rudimentary demands
  of fair procedure."  Hill v. United States, 368 U.S. 424, 428 (1962).  The
  standard "fundamental error," when the error is unpreserved at trial and
  could have been raised on appeal only as plain error, needs some
  explanation.  Relief in terms of fundamental error must be based on a
  measure at least as great as "plain error."  Otherwise, defendants could
  bypass unpreserved issues on appeal and have an easier time of it under a
  more relaxed standard of review in post-conviction relief.  The standard in
  this case, I submit, is that the error must 

 

  be "plain," that is, it should have been obvious to the court when made,
  and prejudicial, that is, so serious as to dictate the outcome of the
  trial.

       I agree that the error complained of was not so serious as to be
  "fundamental," largely because defendant was not particularly prejudiced by
  it.  I would simply say, however, that the error complained of was not
  "obvious," because the criminal trial court had no way of knowing that
  defendant's absence was due to his lawyer's ignorance of a procedure
  governing defendant's presence "in chambers."

       Justice Dooley joins in this concurrence.



                              BY THE COURT:

                              _______________________________________

                              Frederic W. Allen, Chief Justice

                              _______________________________________

                              Ernest W. Gibson III, Associate Justice

                              _______________________________________

                              James L. Morse, Associate Justice

                              _______________________________________

                              Denise R. Johnson, Associate Justice