MCINTYRE v. THE STATE
S95A1096
Supreme Court of Georgia
November 6, 1995
Reconsideration Denied December 4, 1995
463 SE2d 476
CARLEY, Justice.
his appeal.”11 The majority has denied Morrow such a “fair opportunity” by reducing his right of appeal to a “meaningless ritual” by precluding him from effectively asserting his appellate arguments.12 By resolving the merits of arguments the majority has conjectured that Morrow could raise on appeal before Morrow has even had the opportunity to make his arguments himself, the majority has denied Morrow this basic right to assert his appellate arguments before they are decided, in violation of the Fourteenth Amendment‘s guarantees of due process and equal protection.
I am authorized to state that Presiding Justice Fletcher joins in this dissent.
DECIDED NOVEMBER 6, 1995 —
RECONSIDERATION DENIED DECEMBER 4, 1995.
David Wayne Morrow, pro se.
J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, Michael J. Bowers, Attorney General, for appellee.
S95A1096. MCINTYRE v. THE STATE.
(463 SE2d 476)
Robert McIntyre was tried before a jury and found guilty of murder. He appeals from the judgment of conviction and life sentence entered by the trial court on the jury‘s guilty verdict.1
1. When the evidence is construed most strongly in favor of the State and against McIntyre, the jury was authorized to find the following: McIntyre became a member of a satanic group of which Terry Chapman was the leader. Malisa Earnest and the victim were runaways who were given shelter by Chapman. The victim rejected McIntyre‘s sexual advances. Subsequently, McIntyre, Chapman and Ear-nest discussed killing the victim and agreed to strangle her with the lace from a boot. Earnest put the lace around the victim‘s neck and, when she began to struggle, Chapman took the lace and tightened it. McIntyre then took the lace and, placing his
This evidence was sufficient to authorize a rational trier of fact to find proof of McIntyre‘s guilt of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. During the trial, Judge Robert Noland initially presided, but had to leave during the State‘s presentation of evidence in order to attend the funeral of his infant grandson. Judge Robert James replaced Judge Noland over McIntyre‘s objection. McIntyre contends that the substitution of judges constituted a violation of his Sixth and Fourteenth Amendment rights. We assume, for purposes of this appeal only, that these rights are implicated by a midtrial substitution of judges. But see People v. Espinoza, 12 Cal. Rptr. 2d 682, 695 (1992).
It is the general rule that any error in the substitution of judges is subject to harmless error analysis. Jimenez v. State, 838 SW2d 661, 666 (Tex. App. 1992); United States v. Boswell, 565 F2d 1338, 1342 (5th Cir. 1978); Annot., 73 ALR Fed. 833, 839, § 4; 75 AmJur2d 444, Trial, § 222. The dissent has cited no authority for the proposition that certain substitutions of judges are “structural defects” which require automatic reversal. Indeed, many of the cases cited by the dissent have expressly recognized the possibility of harmless error. One of those cases was decided since Arizona v. Fulminante, 499 U. S. 279 (111 SC 1246, 113 LE2d 302) (1991) and dealt with a midtrial substitution of judges. Hood v. State, 637 A2d 1208, 1213, 1214 (Md. 1994). Although Hood held that the State must rebut a presumption of prejudice or demonstrate beyond a reasonable doubt that the error was harmless, it also recognized “that a number of courts have held to the contrary, and have required that a defendant demonstrate actual prejudice in order to obtain a new trial. . . .” Hood v. State, supra at 1213.
Similarly, in Georgia, the temporary absence of a trial judge without suspension of the trial is not a basis for reversal unless the complaining party shows prejudice resulting from the absence. Koza v. State, 158 Ga. App. 709, 710 (4) (282 SE2d 131) (1981). McIntyre has not shown that he was harmed by the substitution, and therefore, under the circumstances of this case, the procedure followed in the trial court does not require reversal of the judgment of conviction. Jimenez v. State, supra at 666.
3. McIntyre urges that the statement that he made to his mother should have been suppressed as the product of an illegal arrest and impermissible interrogation. However, once the officer in Louisiana determined that the van was reported as stolen and its occupants reported as runaways, he had probable cause to stop the van and arrest its occupants. After his lawful arrest in Louisiana, McIntyre gave valid consent to his return to Georgia in accordance with Article VI of
4. McIntyre requested a charge on impeachment “[b]y proof that the witness has been convicted of a crime of moral turpitude.” However, the trial court refused to give this requested charge, on the ground that no certified copy of the conviction of any of the State‘s witnesses had been introduced by McIntyre.
The requirement that a prior conviction be proved by a certified copy is an application of the “best evidence” rule and an objection to proof of a prior conviction by secondary evidence may be waived. Moret v. State, 246 Ga. 5, 6 (3) (268 SE2d 635) (1980). See also O‘Toole v. State, 258 Ga. 614, 616 (4), fn. 2 (373 SE2d 12) (1988); Williams v. State, 251 Ga. 749, 799 (12) (312 SE2d 40) (1983). Thus, in the absence of a “best evidence” objection, “a witness’ answer to the effect that he or she has been convicted of a crime is admissible to prove the crime, [cit.].” Williams, supra at 799 (12).
On direct examination, Chapman admitted his conviction for the murder and there was no objection raised by McIntyre. On cross-examination, Chapman again admitted his conviction for the murder and there was no objection raised by the State. Murder is a crime of moral turpitude. It follows that the “best evidence” objection was waived and that Chapman‘s prior conviction of a crime of moral turpitude was proved by secondary evidence. Compare O‘Toole, supra (no secondary evidence admitted without objection); Mincey v. State, 257 Ga. 500, 501 (1) (360 SE2d 578) (1987) (no secondary evidence admitted without objection); Kimbrough v. State, 254 Ga. 504, 505 (2) (330 SE2d 875) (1985) (no secondary evidence admitted without objection); Williams, supra (objection to secondary evidence raised); Ledesma v. State, 251 Ga. 885, 888 (4) (311 SE2d 427) (1984) (objection to secondary evidence erroneously overruled); Timberlake v. State, 246 Ga. 488, 499 (6) (271 SE2d 792) (1980) (objection to secondary evidence raised). Since Chapman‘s prior conviction of a crime of moral turpitude was proved by secondary evidence admitted without objection, it was error to refuse to give McIntyre‘s requested charge on impeachment.
However, harm as well as error must be shown for reversal. Wood v. State, 243 Ga. 273, 274 (5) (253 SE2d 751) (1979). The failure to give a requested charge which is authorized by the evidence can be harmless error. Duvall v. State, 259 Ga. 801, 802 (4) (387 SE2d 880) (1990). Even discounting Chapman‘s testimony, there was overwhelming evidence of McIntyre‘s guilt. Burnette v. State, 165 Ga. App. 768 (1) (302 SE2d 621) (1983). That evidence consists of the admissions of McIntyre, Chapman and Earnest which were heard by Earnest‘s cellmate, and McIntyre‘s admission to his mother. See Meeker v. State, 249 Ga. 780, 782 (5) (294 SE2d 479) (1982). This evidence was “unrefuted by any other evidence to the contrary.” White v. State, 163 Ga. App. 179, 182 (3) (292 SE2d 875) (1982). Since the evidence of McIntyre‘s guilt is overwhelming even when Chapman‘s testimony is discounted, it is highly probable that the erroneous failure to charge on impeachment by proof of a prior conviction for a crime of moral turpitude did not contribute to the jury verdict. “It was harmless and will not require a new trial. [Cit.]” Duvall v. State, supra at 803 (4). See also Shaaghir v. State, 264 Ga. 492, 493 (3) (448 SE2d 196) (1994).
5. Over McIntyre‘s relevancy objection, the trial court allowed the sheriff to testify that, when he attempted to question other purported members of the satanic group, they “took their rights” and refused to answer his questions.
However, McIntyre has failed to show any prejudice resulting from this passing reference to non-witnesses’ out-of-court invocation of their “rights.” Compare Lingerfelt v. State, 235 Ga. 139 (218 SE2d 752) (1975). Indeed, a witness’ in-court invocation
6. Evidence regarding satanism was properly admitted as relevant to the motive for the murder. Whitener v. State, 261 Ga. 567 (2) (407 SE2d 735) (1991).
7. The attack which McIntyre makes on the constitutionality of former
8. It was not error to fail to give McIntyre‘s written request to charge on voluntary manslaughter as a lesser included offense, since there was no evidence of provocation which would authorize a finding that the homicide was an act of voluntary manslaughter rather than murder. Duquette v. State, 265 Ga. 152, 153 (2) (454 SE2d 500) (1995).
9. McIntyre urges that the trial court erred in admitting hearsay testimony regarding statements made by Chapman after the termination of the conspiracy. However, the portions of the transcript wherein he contends that this occurred do not relate to the admission of any post-conspiracy statements attributed to Chapman. Instead, they relate to post-arrest drawings and writings attributed to McIntyre himself. Since this enumeration of error is not supported by the transcript, it is without merit.
Judgment affirmed. All the Justices concur, except Fletcher, P. J., and Sears, J., who concur in part and dissent in part.
HUNSTEIN, Justice, concurring.
There is a significant possibility that a criminal defendant‘s trial may be rendered fundamentally unfair by the replacement, after evidence has been introduced but before the verdict is rendered, of the judge originally hearing the trial. In light of the serious consequences of the substitution process on a criminal defendant‘s trial, it behooves this Court to set forth guidelines trial judges should follow to ensure against any fundamental unfairness in future criminal trials.
I agree with several of the safeguards detailed in the dissenting opinion that would serve to eliminate the possibility of a substitution rendering a criminal trial fundamentally unfair. I would have the departing judge set forth on the record the reasons for which the departure is necessary. Those reasons must be of sufficient magnitude to justify the departure. Furthermore, all other alternatives to substitution should be fully explored and, except in situations where alternatives are clearly not applicable, the reasons behind the decision not to utilize them should also be set forth in the record. Finally, I would have the replacement judge scrupulously review the prior proceedings and state on the record his or her familiarity therewith so as to establish that the replacement judge is fully prepared to render informed rulings on any matters that might arise and to instruct the jury thoroughly.
Although there was no requirement that the above matters be made of record at the time of McIntyre‘s trial, an application of these safeguards to this case reveals no reversible error. The record establishes that the original judge carried on with his duties notwithstanding the personal anxiety that must have resulted from knowing of his grandchild‘s critical illness and that it was only with the child‘s tragic passing and upon his son‘s request for his father‘s presence that the judge determined it was no longer possible for him to continue sitting on the bench during the remainder of McIntyre‘s trial. There is no question that the death of
As to the replacement judge‘s familiarity with the prior proceedings, I disagree with the dissent‘s intimation that the transcript re-flects any impropriety on the part of the replacement judge.2 The replacement judge did have available the transcripts of pre-trial motion hearings (which duplicated in large part the testimony adduced at trial before the original judge) and the replacement judge stated he would examine any portion of the trial transcript brought to his attention that defense counsel considered relevant to any ruling the court would be called upon to make. Because the record reflects that McIntyre failed to request any such examination, it is mere speculation whether or not the replacement judge‘s proposed method for rendering rulings would have been sufficient. Finally, while the record does not reflect affirmatively that the replacement judge was able to familiarize himself with the earlier trial proceedings, after a careful reading of the transcript, the objections raised and ruled upon, and the charge conference proceedings, I am convinced that, notwithstanding the absence of an affirmative statement on the record, McIntyre‘s right to a fair trial was not infringed upon by the substitution that occurred in this case.
Accordingly, because McIntyre has not shown reversible error and an independent examination of the record establishes that McIntyre‘s trial was not rendered fundamentally unfair by the substitution of the original judge, I can therefore concur with the majority‘s holding in Division 2. I fully concur in the remaining divisions.
SEARS, Justice, concurring in part and dissenting in part.
1. The majority opinion in Division 2 makes this the first State Supreme Court in the nation that has failed to acknowledge the established principle that the mid-trial substitution of a judge prejudices a criminal defendant‘s right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution. Despite the existence of an enormous body of instructive case and statutory law which establishes this principle, the majority opinion merely “as-sumes, for purposes of this appeal only” that the mid-trial substitution of the judge in this case “implicated” McIntyre‘s right to a fair trial. Moreover, in its perfunctory analysis of the impact of the substitution of the judge in this case upon McIntyre‘s right to a fair trial, the majority has both relied upon authority that is not applicable to this case, and omitted crucial facts from its analysis. Although I recognize that the crime McIntyre was convicted of was heinous, depraved, and revolting, I cannot countenance this sort of legal analysis or its unconstitutional conclusion. I therefore strongly dissent to Division 2 of the majority opinion.
2. First, Division 2 of the majority opinion lacks any authority to support its conclusion. People v. Espinoza, for example, is cited to support the inference that the mid-trial substitution of a trial judge may not
Moreover, the majority fails to note that the substitution of the trial judge in Espinoza was made pursuant to California Penal Code § 1053, which legislatively provides for the substitution of a trial judge who becomes incapacitated and cannot complete the trial.6 Similarly, the majority‘s citations to annotated legal compilations is misplaced, as they all concern Federal Rule of Criminal Procedure 25 (a), which prescribes constitutional safeguards to ensure that the right to a fair trial is not compromised when it becomes imperative that a judge in a criminal trial be substituted.7 In contrast, Georgia has no statutory provision that provides such safeguards to criminal defendants in this State. Finally, the trial judge in Espinoza was incapacitated and incapable of completing the trial due to chemotherapy treatments he was undergoing.8 The judge presiding over McIntyre‘s trial faced a family emergency that required his temporary absence, but he was not incapacitated, inasmuch as he indicated on the record that he was capable of completing the trial after a continuance.
The majority‘s reliance at p. 9 upon Koza v. State9 as support for its overbroad edict that “in Georgia, the temporary absence of a trial judge without suspension of the trial is not a basis for reversal unless the complaining party shows prejudice resulting from the absence” is also woefully misplaced. First, Koza dealt with the temporary absence of a judge during voir dire of the jury pool.10 Virtually every court to have considered this issue, including authority relied upon by the majority, has agreed that the substitution of the trial judge does not impact upon the right to a fair trial until the first introduction of evidence, a position that is entirely consistent with Koza.11 Second, the facts of this case do not involve the “temporary absence”
Nor does United States v. Boswell support the majority‘s conclusion that the mid-trial substitution of a judge is generally subject to harmless error analysis. Op. at 9. The defendant in Boswell consented to the substitution of the judge during closing arguments, after the close of evidence,13 and thus Boswell‘s finding of harmless error is entirely consistent with the law in Georgia and other jurisdictions.14 Fi-nally, it should be noted that while the Texas Court of Appeals ruling in Jimenez v. State15 appears to be an anomaly, this Court now enjoys the distinction of issuing the only majority opinion in the nation to cite that case. When considered against the volume of authority that is contrary to the majority opinion, which I discuss in Division 3 below, the vacuous authority cited by the majority thoroughly discredits the ruling that it purports to support.
3. While the question of whether different judges may preside over a criminal trial despite the objection of counsel is one of first impression for this Court, it has been addressed by other federal and state courts.16 The opinions of these courts establish that the substitution of a judge during a trial must (1) be rigorously governed, (2) only be permitted when absolutely necessary and imperative to the due administration of justice, and (3) only be allowed after stringent safeguards are put in place to ensure that the accused‘s right to a fair trial suffers no prejudice as a result of the substitution.17
Until quite recently, virtually all jurisdictions have subscribed to a general rule that prohibits entirely the substitution of a judge in a criminal trial after the introduction of evidence and before the verdict is rendered.18 The theory behind this general rule is that the only judge competent to instruct the jury and otherwise exercise his discretion is the judge who hears all of the testimony, observes the demeanor and forms opinions as to the credibility of all of the witnesses, and “knows something of the ‘atmosphere’ of the case.”19 It is, of course, axiomatic that jury instructions given by a judge must be tailored to the facts in evidence, and therefore necessarily require an application of the law to the particular facts of a case.20 The general
Some courts also have recognized that the right to a criminal trial by jury means a
trial by a tribunal consisting of at least one judge and twelve jurors, all of whom must remain identical from the beginning to the end. . . . The continuous presence of the same judge and jury is equally essential throughout the whole of the trial.22
Under the general rule, a criminal defendant‘s right to a fair and impartial trial is prejudiced, and a reversal of any conviction is mandated, when he is denied adjudication of his guilt or innocence before a presiding judge with first-hand knowledge of all of the trial‘s proceedings.23
I agree with the general rule against substitution of a judge over a party‘s objection insofar as it recognizes that the due process right to a fair and impartial trial requires that the judge who charges the jury, exercises judicial discretion, and presides over the adjudication of innocence or guilt must be thoroughly knowledgeable of what has transpired during the trial. However, I disagree with the general rule insofar as it reasons that these necessary components of a fair trial can only be provided by a judge who gained his knowledge of a trial‘s proceedings due to his actual presence in the courtroom.
As explained below, I believe that there may be some rare instances when it is absolutely imperative to the due administration of justice to allow the substitution of a judge, so long as procedural and substantive safeguards are put in place to protect the defendant‘s right to a fair trial. For example, it may be necessary to substitute a presiding judge who becomes completely incapacitated, and incapable of fulfilling his duty to preside over an entire trial, at a late stage of proceedings in a lengthy and complex criminal trial which has consumed an inordinate amount of the parties’ and court‘s time and resources. In that type of situation, the only alternative to substituting the incapacitated judge would be to declare a mistrial. However, depending upon the circumstances of the trial, the detrimental effect of a mistrial upon the court and the State may override the defendant‘s right to have the trial presided over by a single judge.
In those types of circumstances, with the aid of advanced techniques for recording trial proceedings, the procedures which are explained below would safeguard the right to a fair trial while simultaneously allowing the trial to continue before a substitute judge. Because the general rule‘s inflexibility does not provide for these types of rare instances, and cannot accommodate the few situations when judicial substitution should be allowed, I would reject the general rule‘s blanket prohibition against the substitution of a judge, and advocate the adoption of these procedural safeguards.
4. A number of States, as well as the federal government, have modified the general rule by establishing procedures to govern the exceptional instances when the substitution of a judge should be allowed over a party‘s objection.24 These procedures, together
First, it should be unequivocal that the substitution of a judge should never be permitted except in the most extraordinary circumstances.25 The exigency which necessitates the substitution should involve only the incapacitation of the presiding judge by either death or debilitating physical, psychological or emotional illness or trauma.26 In short, the presiding judge must be incapable of performing her duty to preside over the trial. It should not be sufficient that the presiding judge has other engagements, duties or personal obligations.27
Absent debilitating or incapacitating illness or trauma, substitution of a judge in a criminal trial should not be considered as an option.
Second, the substitution of a judge should be absolutely necessary.28 By this I mean that no alternatives less drastic than substitution can be available. Whenever less drastic alternatives are available, and can be reasonably implemented, they should be opted for in lieu of substituting a judge. The overriding preference whenever possible should be for the presiding judge to order a continuance of the trial for a reasonable time. It should never be sufficient to forego such a continuance in favor of substituting a judge merely because it will be difficult for the trial court, the parties, counsel, or witnesses to reschedule their affairs in order to accommodate the continuance. The presiding judge also should consider all other possible alternatives to substitution, including reordering the witnesses, changing the order of the trial, and ordering a recess. Only when all practical alternatives to substitution have been considered and rejected for legitimate reasons on the record should the presiding judge consider whether the circumstances of the particular trial warrant allowing substitution.
Third, substitution of a judge should be imperative to the due administration of justice.29 By this I mean that, on balance, the circumstances of the particular trial at the time of substitution should weigh in favor of allowing substitution rather than declaring a mistrial. Circumstances which should be weighed in making this determination include, but are not limited to, the number of witnesses who already have testified,30 the length of the trial transcript, the amount of time consumed by prior proceedings, the expected amount of time necessary to complete the trial, the expense of retrial, the anticipated amount of time required for a substitute judge to familiarize himself with the record, the complexity of the facts and evidentiary issues of the case, the functions that a substitute judge likely will be called upon to perform,31 and where the parties stand in their presentations of their cases.32 Substitution of a judge should only be allowed after the presiding judge has balanced on the record
Finally, in those rare instances when, after complying with the rules discussed above, it is determined that substitution of a judge should be allowed, before a substitute judge presides over the trial, she should be required to certify on the record that she has reviewed the trial transcript and thoroughly familiarized herself with the prior proceedings, and is prepared to proceed with and finish the trial.33 In order to accomplish this, a substitute judge ordinarily should read, or have read to her, a written transcript, listen to an audio recording, and/or listen to and watch a visual recording of the prior proceedings.34 Regardless of the method used, the end result should give a substitute judge a sufficient grasp of the prior testimony and proceedings to enable her fairly and effectively to exercise her discretion in issuing rulings, and properly to instruct the jury.35 A substitute judge‘s certification should specify the method used to gain familiarity with the record, and any objections to the method specified must be entered at the time of certification, as must be all other objections to the substitution of a judge.36
Absent compliance with the rules discussed above, it should be presumed that the substitution of a judge has prejudiced a criminal defendant‘s right to a fair and impartial trial, and a new trial should be awarded unless the presumption of prejudice is rebutted.37 However, when properly followed, these rules would adequately safeguard a criminal defendant‘s right to a fair and impartial trial, by ensuring that the judge who charges the jury, otherwise exercises his discretion, and presides over the adjudication of innocence or guilt is thoroughly knowledgeable of what has transpired during the trial.
5. In this case, Judge Noland‘s relinquishment of the bench to Judge James was not done in a manner which safeguarded McIntyre‘s right to a fair trial. First, the record fails to support a finding that Judge Noland was debilitated and incapable of presiding over McIntyre‘s trial. The loss of Judge Noland‘s grandchild was tragic and traumatic, and would have justified an extended temporary absence from the bench. However, nothing in the record supports a finding that his unfortunate loss constituted an incapacitating trauma. Contrary to the concurring opinion, I do not in any way mean to imply that the death of a family member cannot be an incapacitating or debilitating event; common sense and decency dictate otherwise.38 I merely note that the record in this case fails to support such a finding.
Second, it was not necessary to substitute the judge in this case because a continuance could and should have been ordered. Judge Noland left the bench on June 8, 1988, in order to attend a funeral held on the following morning. Allowing time to spend with his family, surely a priority under the circumstances, it would have been reasonable to expect Judge Noland to resume his position on the bench within seven days. Hence, a continuance of no more than one week, while slightly inconvenient, would have been eminently possible and certainly preferable to the drastic step of substituting the judge. The State‘s claim that a continuance would have been problematic because of its busy trial calendar and the scheduling of its witnesses was insufficient to preclude ordering a continuance. Under these circumstances,
Third, the trial court erred in failing to balance the circumstances of McIntyre‘s trial at the time of substitution and determine whether the due administration of justice favored allowing substitution rather than declaring a mistrial. Because the trial court failed to make this determination by balancing factors such as, inter alia, how much time McIntyre‘s trial had already consumed, the anticipated amount of time necessary to complete McIntyre‘s trial, the expense of retrial, whether rulings on any evidentiary issues were pending, and whether the State had nearly completed the presentation of its case against McIntyre, there is no record from which to determine whether the due administration of justice warranted permitting the substitution of Judge Noland.
Finally, despite defense counsel‘s request that he do so, Judge James expressed reluctance to review the transcript of prior proceedings, and before assuming the bench failed to certify for the record that he had reviewed the trial record and was prepared to preside over and complete the trial. Indeed, contrary to the concurring opinion, the only logical conclusion to be drawn is that Judge James did not review the record before taking the bench, as he became the presiding judge only 15 minutes after Judge Noland stepped down. I believe that Judge Noland‘s failure to comply with these rules governing the substitution of a judge, along with Judge James’ failure to familiarize himself with the prior proceedings before taking the bench, deprived McIntyre of a fair trial by (1) allowing the substitution of a judge when it was not absolutely necessary, and without first determining whether it was imperative to the due administration of justice; and (2) permitting a judge who was not knowledgeable of the entire trial‘s proceedings to preside over the adjudication of guilt or innocence, charge the jury, and otherwise exercise judicial discretion.
6. The majority opinion incorrectly states that the “general rule” is that the substitution of judges is subject to harmless error analysis. Not only do the cases cited by the majority fail to support this ruling, recent United States Supreme Court rulings lead me to conclude that the erroneous substitution of a judge and resulting denial of the right to a fair trial is one of the very limited class of errors that is not susceptible to harmless error analysis.
The current test for determining which errors are subject to harmless error analysis was established in Arizona v. Fulminante.39 In Fulminante, the Supreme Court divided errors into two types: trial errors and structural defects.40 Harmless error analysis applies to trial errors, while structural defects remain subject to automatic reversal.41 The plurality in Fulminante defined “trial errors” as errors in the trial process that occur in a party‘s presentation of its case, and can therefore be quantitatively assessed.42 On the other hand, “structural defects” are errors that affect the framework or the conduct of the trial.43 While there are few “structural defects,” the Supreme Court noted that they include, inter alia, the right to an impartial judge, the right to counsel, and the right to a public trial.44 Structural defects, it should be noted, cannot be harmless because they create a “serious risk of injustice which infects the trial itself.”45 Unlike the vast
The error of substituting a judge without the imposition of constitutional safeguards to ensure the preservation of the right to a fair trial is not capable of being qualitatively assessed with “other evidence” to determine whether “its admission” was harmless beyond a reasonable doubt.47 Rather, the error that occurred in this case when Judge Noland relinquished the bench effected a structural defect in the constitution of the trial mechanism itself, created a serious risk of injustice, and infected the integrity of McIntyre‘s criminal adjudication.48 Hence, it is not susceptible to harmless error analysis. I therefore would order that this matter be remanded to the trial court for a new trial.
7. I agree with Division 4 of the majority opinion that the trial court erred in failing to give McIntyre‘s requested jury charge regarding witness impeachment. I write separately in order to highlight the change in our precedent that this ruling represents.
The majority‘s ruling recognizes that, for purposes of a requested charge on witness impeachment, there is no basis for distinguishing between the State‘s failure to object to a line of testimony sought on cross-examination, and the State‘s elicitation of that same line of testimony on direct examination. If the former constitutes a waiver of the best evidence rule, then so must the latter. In this case, the State waived its best evidence objection for purposes of the witness impeachment charge sought by the defense when it elicited on direct examination its own witness‘s admission to a prior criminal conviction. Having elicited such an admission from its own witness, the State cannot complain that the conviction is not established for purposes of a jury charge on impeachment without a certified copy of the conviction.
I am authorized to state that Presiding Justice Fletcher joins in this partial concurrence and partial dissent.
DECIDED NOVEMBER 6, 1995 —
RECONSIDERATION DENIED DECEMBER 4, 1995.
J. M. Raffauf, for appellant.
David McDade, District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Paige R. Whitaker, Assistant Attorney General, for appellee.