Bradshaw v. StateBradshaw v. State
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- Veasey
In this appeal from the Superior Court we consider whether there was plain error when the defendant was absent from the courtroom both at the time his counsel, without authority, agreed to allow the trial court to give an
Allen
charge
1
to a deadlocked jury and also when the charge was actually given. We hold that the absence of the defendant was a violation of the right granted by Rule 43 of the Delaware Superior Court Rules of Criminal Procedure to be рresent “at every stage of the
The defendant was prejudiced by this error. First, he could well have had valuable input into the decision whether to give the Allen charge. Second, the fact that the jury was able to view his empty chair at this critical moment in their deliberations was inherently prejudicial. Accordingly, we reverse the judgment of the Superior Court and remand for a new trial.
Facts
The State charged Terrence Bradshaw, defendant below and appellant, with two counts of third degree rape 3 and one count of second degree unlawful sexual contact 4 for an incident involving Cassandra Winthrop, 5 the 12-year-old victim in this case. The State tried Bradshaw before a jury in Superior Court on May 1 and 2 of 2001.
Winthrop testified that in January of 2000 she went to the Days Inn hotel in New Castle with a group of people, onе of whom was Bradshaw. They went to a room on the third floor. When they entered the room, Winthrop testified that she lay on one of the beds and Bradshaw lay on top of her. She testified that he took off her clothes and touched her vagina; that he removed his pants, put on a condom, and engaged in vaginal intercourse with her; and that he put his penis in her mouth. A manager at the Days Inn hotel testified that business records showed that Bradshaw had registered for Roоm 308 on January 28, 2000.
On cross-examination, Bradshaw’s counsel elicited the fact that Winthrop had told the police that they had not engaged in oral sex. He also elicited the fact that she had initially told her mother about the incident because she had become symptomatic for genital herpes.
Bradshaw testified in his defense. He denied having registered at the Days Inn hotel on January 28, 2000. He testified that the address listed on the Days Inn receipt was outdatеd and from an old identification card that he had lost. He also denied knowing or having had sexual intercourse with Winthrop. He testified that he had tested negative for genital herpes since the alleged encounter with Winthrop.
The jury retired for deliberations at 4:05 P.M. on May 2 and went home at 5:24 P.M. Before they left for the evening, the jury asked the Superior Court three questions about whether there was any other evidence that Bradshaw was at the hotel that evening, including, “Is there a signature from January 28th, 2000, that could have been checked?” The court responded, “The Court cannot comment on the evidence.” The jury returned to the court to continue their deliberations at 9:30 A.M. the following morning. At 3:10 P.M., the Superior Court received a note from the jury stating, “Dear Judge: We are unable to make a decision. Thanks.” At 3:17 P.M., the court convened the parties, with the exception of Bradshaw himself, who apparently was not immediаtely to be
The State requested an Allen charge. This is a request from a trial court to the jury to attempt to come to a decision in the case without abandoning any firmly held beliefs. 6 The trial judge then observed that this was a two-day trial and “not a murder trial,” and that “it’s my experience that in such cases, an Allen Charge is probably not going to be fruitful.”
The trial judge asked whether there was a “request for an Allen Charge.” Bradshaw’s counsel responded to this question, voicing his discomfort at proceeding without his client, who could not be immediately located. His counsel claimed that Bradshaw had been at the courthouse all day, and that he had seen him an hour before. Bradshaw’s counsel speculated that he could have gone out “to get a bite to eat....”
Both Bradshaw’s counsel and the bailiff looked for Bradshaw unsuccessfully. After a very brief search for Bradshaw, his counsel made an “independent decision to join the prosecutor’s request for an Allen Charge.... ” He stated, “I can’t imagine that the case would, from the defense persрective, go any better than it did on the occasion of this trial.” The jury then entered the courtroom at 8:25 P.M., fifteen minutes after the jury’s note to the trial judge and eight minutes after the Superior Court reconvened. The trial judge then polled the jury to see whether further deliberations might be fruitful. A number of people indicated that it would not. Some, however, did not respond. The trial judge then gave an Allen charge to the jury. Bradshaw was not present for the reading of the Allen charge to the jury. At 1:50 P.M. on May 4, the jury reconvened and returned a verdict of not guilty on one of the rape counts and guilty on the other two charges.
The Right to be Present Under Rule 43
A defendant’s right to be present at his own trial has two dimensions: a constitutional one and one based on the Delaware Superior Court Rules of Criminal Procedure. The United States Supreme Court has ruled that due process guarantees a defendant’s right to be personally present “whenever [the defendant’s] рresence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” 7 In applying this test, courts ask whether the defendant could personally “give advice or suggestion or even [decide] to supersede his lawyers altogether and conduct the trial himself.” 8 Thus, a defendant’s constitutional right to be present wanes when pure questions of law are discussed and waxes when his or her personal knowledge becomes germane. 9
This Court need not decide whether Bradshaw’s absence was a constitutional violation, however, because it was a violation of Superior Court rules. Rule 43 of the Delaware Superior Court Rules of Criminal Procedure requires a defendant to be present “at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and
The giving of an
Allen
charge to a jury is a “stage of the trial,” a stage wherein a trial court encourages the jury to continue deliberations. An
Allen
charge takes place after “the impaneling of the jury” but before “the return of the verdict.”
13
These are the two examples set forth in
Moreover, Bradshaw was not in the courtroom when the trial judge actually gave the
Allen
charge to the jury. This, quite apart from the decision to give the
Allen
charge, certainly did not implicate the
Waiver of the Right to be Present
A defendant may normally wаive a right either personally or through his or her counsel. The common law exhibited a strong presumption against the waiver of the right to be present in criminal cases.
17
“It was thought ‘contrary to the dictates of humanity to let a prisoner “waive that advantage to which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defence with indulgence.” ’ ”
18
Both the federal
We will first address whether Bradshaw waived his right tо be present personally. Waiver is the intentional relinquishment of a known right
19
and it can
We cannot say on this record that Bradshaw’s absence was voluntary in the sense that it constituted a knowing waiver оf his right to be present at trial. In the
Furthermore, we cannot say that Bradshaw’s absence prevented “[t]he further progress of the trial....” 24 When a defendant is voluntarily absent, federal courts havе considered a list of factors in determining whether the trial should proceed without a defendant, including “the likelihood that the trial could soon take place with the defendant present; the difficulty of rescheduling; ... [and] the burden on the Government.” 25 There was no evidence that the trial judge or counsel on either side even touched upon these commonsense considerations.
Here, the jury had already been deliberating most of the day. The court could have waited longer for Bradshaw that afternoon, or it could have continued proceedings until the next day. Indeed, the jury deliberated into the following afternoon in any event. Then the proceedings could have taken place with Bradshaw, and both the burden on the State and the difficulties of rescheduling would have been minimal. Cases finding implied waiver upon voluntary absence usually involve absences of a whole day or more,
26
or where the defendant can be said to have
Bradshaw’s counsel affirmatively joined the State’s request for an Allen charge. But he had no authority to do so. When counsel for a defendant expressly waives an objection, instead of merely not making one, this Court generally may not exercise review. 29 Action by a defendant’s counsel, however, may not constitute waiver when a defendant must persоnally waive a right. 30 The general rule is that the right to be present is a right that is personal to a defendant, and may not be waived by that defendant’s counsel. 31
Some courts hold that counsel may waive this right in misdemeanor cases, 32 while others hold that such waivers are effective only in misdemeanor cases that do not involve possible imprisonment. 33 All three of Bradshaw’s charges were felonies. The State has not pointed out, and this Court has not discovered, аny case that would permit counsel to waive a defendant’s right to be present under the circumstances of this case.
In
Crosby v. United States,
34
the United
The Delaware Lawyers’ Rules of Professional Conduct also suggest that Bradshaw’s counsel did not have the authority to waive this right. Rule 1.2(a) states, “A lawyer shall abide by a client’s decisions concerning the objectives of representation ... and shall consult with the client as to the means by which they are to be pursued.” 38 In a criminal case, Rule 1.2(a) states that a lawyer “shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.” 39 In distinguishing between “objectives” and “means,” the Annotated Model Rules of Professional Conduct distinguish between certain fundamental rights in a criminal case and “decisions that involve tactics and trial strategy.” 40 These fundamental rights may include the rights specified in Rule 1.2(a) as well as others, including the decision to forego other appeals and accept the death penalty, 41 whether to waive counsel, 42 and whether to appeal. 43 Given the strong common law presumption against waiver of the right to be present, it would seem that this is such a right as well. The decision to deny the jury “a view of the defendant’s sad plight,” 44 or to choose to encourage this jury to come to a decision rather than to prefer a new trial, seems as fundamental as the decision whether to waive a jury trial. Moreover, a lawyer has a duty to reasonably consult with his or her client even as to trial tactics and strategy 45 Here, the State conceded at oral argument in this Court that there was no valid reason why Bradshaw’s counsel could not have waited to consult with his client before proceeding.
Prejudice and a Defendant’s Absence from an Allen Charge
The next question is whether Bradshaw was prejudiced by the violation
Before a discussion of the former, it is instructive to consider the Allen charge itself. This is a request from a trial court to the jury to attempt to come to a decision in the case without abandoning any firmly held beliefs. 46 This charge is often helpful in persuading the jury to come to a unanimous verdict, and is sometimes controversial. 47 Delaware follows the majority rule in permitting trial courts to give Allen charges. 48 It is hard to believe that Bradshaw’s presence, as distinct from that of his counsel, would have influenced the wording of Allen charges. That is indeed a “question of law.” 49 In the circumstances of this case, however, there was a significant possibility that the trial judge might have refused to give the instruction altogether in the face of a reasoned objection by the defendant. The trial judge apparently doubted that an Allen charge would do any good. Furthermore, even after the State had expressed a desire to give one, the trial judge asked Brаdshaw’s counsel whether there was “any request” for one, and Bradshaw’s counsel eventually made that request.
Also, when the trial judge asked the jurors whether further deliberations would be helpful, none answered that they would. If Bradshaw’s counsel had argued that this was an unambiguous indication that the jury was hopelessly deadlocked, it is also possible that the trial judge would have accepted that argument. Had the jury continued to be deadlocked and a mistrial declared, a new trial could well have produced a different outcome. It is at least possible, given the victim’s credibility issues and Bradshaw’s testimony, that a jury in any new trial would have concluded that there was reasonable doubt of Bradshaw’s guilt and acquitted him.
This decision is one on which a defendant’s input would be helpful to his counsel.
50
From a defendant’s perspective, whether to give an
Allen
charge is a basic, fundamental choice between a verdict on this trial or a new trial. A defendant may well be in as good a position as his lawyer to know whether his case might go better at a second trial. He would know how likely it is that he might discover additional evidence. He might have input into how he and all the witnesses came across to the
There is a second and independent reason why Bradshaw was prejudicеd. Bradshaw was not .present when the trial judge read the Allen charge to the jury. After deliberating for more than a day on Bradshaw’s fate, the jury re-entered the courtroom only to see Bradshaw’s chair empty. Instead of observing “a view of his sad plight” at this critical phase in their deliberations, 51 the jurors might have concluded that Bradshaw did not care enough about the outcome of his case to be present, or that he thought the result to be a foregone conclusion because he was guilty, or both. This also might have influenced their decision to find him guilty on two of the three charges. Accordingly, we conclude that his absence at this stage was inherently prejudicial.
Conclusion
We conclude that Bradshaw’s
Notes
. See Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896) (authorizing a supplemental instruction encouraging a deadlocked jury to tiy to reach a verdict).
. Super.Ct.Crim.R. 43(a).
.
.
. This Court has sua sponte assigned a pseudonym to protect this underage victim’s true identity. See Supr.Ct.R. 7(d) (“[T]he Court may order the use of pseudonyms sua sponte.”); Trump v. State, 753 A.2d 963, 965 n. 1 (Del.2000) (assigning a pseudonym to protect an underage victim’s true identity in an unlawful sexual intercourse case).
. See Holland v. State, 744 A.2d 980, 981-82 (Del.2000) (calling it “a supplemental instruction encouraging the jury to reach a verdict”) (citing Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896)).
. Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934).
. Id. at 106, 54 S.Ct. 330.
. See United States v. Graves, 669 F.2d 964, 972 (5th Cir.1982) (holding that defendants do not have the right to attend proceedings concerning a “purely legal matter” such as “jury instructions”).
. Super.Ct.Crim.R. 43(a).
. Super.Ct.Crim.R. 43(c)(3).
.
. Super.Ct.Crim.R. 43(a).
.
United States v. Giacalone,
588 F.2d 1158, 1165 (6th Cir.1978) (concluding that it was “technically in error” for the judge to give an
Allen
instruction when neither defendant nor defense counsel were present, but concluding that there was no prejudiсe);
United States v. Wilburn,
549 F.2d 734, 737-38 (10th Cir.1977) (concluding implicitly that
. Super.Ct.Crim.R. 43(a)(3).
. Infra notes 46-50 and text accompanying.
. See Crosby v. United States, 506 U.S. 255, 259, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993) (“The right generally was considered unwaivable in felony cases.”).
. Id. (quoting F. Wharton, Criminal Pleading and Practice 388 (9th ed. 1889) (quoting Prine v. Commonwealth, 18 Pa. 103, 104 (Pa.1851))).
.
Warner v. State,
787 A.2d 101, 2001 WL 1512985 at *1-2, 2001 Del. LEXIS 489, at *3-4 (Del.Supr.) (requiring the “intentional relinquishment or abandonment of a known
. Super.Ct.Crim.R. 43(c)(2).
. Super.Ct.Crim.R. 43(b).
. United States v. Benavides, 596 F.2d 137, 139 (5th Cir.1979).
. United States v. Taylor, 478 F.2d 689, 691 (1st Cir.1973).
. Super.Ct.Crim.R. 43(b).
. United States v. Tortora, 464 F.2d 1202, 1210 (2d Cir.1972).
. See, e.g., United States v. Martinez, 604 F.2d 361, 365 (5th Cir.1979) (finding waiver when the defendant was absent between a luncheon and afternoon recess, the trial court lectured him on the importance of his presence, and thеn he disappeared again from the following morning until the end of trial).
. See Taylor v. United States, 414 U.S. 17, 20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973) (finding waiver when a defendant fled his trial after the morning session).
. See United States v. Warme, 572 F.2d 57, 60-61 (2d Cir.1978) (finding waiver when defendant was several hours late even when counsel explained that the defendant had rushed his wife, who was having medical problems, to the hospital); United States v. Davis, 486 F.2d 725, 726-27 (7th Cir.1973) (finding waiver when a defendant was 25 minutes late for the presentation portion of his trial when he got “caught by a train”).
. Bullock v. State, 775 A.2d 1043, 1061 (Del.2001) (Walsh, J., dissenting). But see Shelton v. State, 744 A.2d 465, 497 (Del.2000) (deciding to “waive the waiver rule”).
. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (observing that whether a defendant must personally participate in the waiver depends on “the right at stake”).
. See Garcia v. State, 492 So.2d 360, 363 (Fla.1986) (“It is also true that counsel’s waiver of a defendant’s absence at a crucial stage of a trial, without acquiescence or ratification by the defendant, is error.”); Midgett v. State, 216 Md. 26, 139 A.2d 209, 214-15 (1958) (“[T]he right to be present is personal to the accused and cannot be waived by his counsel.“); Scott v. State, 113 Neb. 657, 204 N.W. 381, 381 (1925) (“Defendant has a right to be present at all times when any proceeding is taken during the trial, from the impaneling of the jury to the rеndition of the verdict, inclusive, unless he has waived such right; and, it being a personal right to the defendant, the waiver thereof, if permitted, must be by him personally, and not by his attorneys.”); 21A Am.Jur.2d Criminal Law § 1136 (1998) (“According to some authorities, the right to be present at his trial ... can be waived only by a defendant personally .... [while] [o]ther courts hold that although waiver by counsel is not absolutely precluded, it is not binding on the defendant unless made in his presence or by his express authority or unless subsequently acquiesced in by him.”)
. See Harriet Cotton Mills v. Textile Workers Union, 251 N.C. 218, 111 S.E.2d 457, 463-64 (1959) (“In this jurisdiction, the more important privilege of being present in person, so as to confront one‘s accusers on trial for a criminal offense, may, in felonies other than capital, be waived by defendant himself, but not by his counsel, while in misdemeanors such waiver may be made through counsel with the consent of the court.”).
. See Cole v. State, 35 Okla.Crim. 50, 248 P. 347, 348 (1926) (“In a misdemeanor case, as here, where the punishment may be imprisonment as well as a fine, the accused may waive the right to be present, but the right to waive is personal and can be exercised only by accused.”).
. 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993)
.
Id.
at 258-59, 113 S.Ct. 748 (“The list of situations in which the trial may proceed without the defendant is marked as exclusive ... by the express use of a limiting phrase.“) (citing
. Super.Ct.Crim.R. 43(a).
. Super.Ct.Crim.R. 43(c)(2).
. Prof.Cond.R. 1.2(a).
. Id.
. Ann. Model Rules of Prof’l Conduct R. 1.2 cmt. at 19-20 (3d ed.1996).
. Red Dog v. State, 625 A.2d 245, 247-48 (Del.1993).
. Faretta v. California, 422 U.S. 806, 814-15, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
. Fay v. Noia, 372 U.S. 391, 439-40, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).
. Crosby v. United States, 506 U.S. 255, 259, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993).
. See Prof.Cond.R. 1.2(a) (providing that a lawyer “shall consult with the client as to the means by which [the objectives of representation] are to be pursued”); Ann. Model Rules of Prof‘I Conduct R. 1.2 cmt. at 20 (3d ed. 1996) (“[Deсisions that involve tactics and trial strategy are reserved for the professional judgment of the lawyer after consultation with the client.”).
. Supra note 6.
. See generally Ralls v. Manson, 375 F.Supp. 1271, 1294-96 (D.Conn.1974) (noting that it is often called the “dynamite” charge because of its effectiveness in dislodging minority viewpoints among jurors, and noting criticism of the charge), rev’d, 503 F.2d 491, 498-99 (2d Cir.1974).
. Fensterer v. State, 493 A.2d 959, 967 (Del.1985).
. See Super.Ct.Crim.R. 43(c)(3) (failing to require a defendant‘s presence for a “conference or argument upon a question of law”); cf. Krische v. Smith, 662 F.2d 177, 179-80 (2d Cir.1981) (holding that the denial of the right to presеnce of the defendant and his counsel was prejudicial when the judge instructed a jury to continue deliberations as “It’s not soon enough” because “[t]he opportunity to participate in the drafting of a proper form of Allen charge was lost”).
. See Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (“Again, defense may be made easier if the accused is permitted to be present ... for it will be in his power, if present, to give advice or suggestion....”).
. Crosby v. United States, 506 U.S. 255, 259, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993).
. Although Bradshaw has appealed requesting a new trial, the jury acquitted him of one charge, one of the counts of third degree rape. A defendant’ convicted of one charge but acquitted on another who then procures a new trial may not be tried again on the count of which he was acquitted. Benton v. Maryland, 395 U.S. 784, 796, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). “[C]onditioning an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy.” Green v. United States, 355 U.S. 184, 193-94, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Thus, Bradshaw may not be retried on the one count of third degree rape of which he was acquitted.