Lead Opinion
delivered the Opinion of the Court.
¶1 Williаm John Matt appeals from his conviction of deliberate homicide in the Fourth Judicial District Court, Missoula County. We reverse and remand for a new trial.
ISSUES
¶2 Matt raises three issues on appeal:
1. Did the District Court err in limiting Matt’s cross-examination of one of the State’s witnesses?
2. Did Matt’s trial counsel provide constitutionally ineffective assistance of counsel?
3. Was Matt’s constitutional right to be present at all critical stages of his trial violated and, if so, was the violation harmless error?
¶3 Because we conclude that Matt’s conviction must be reversed under Issue 3, we do not address Issues 1 and 2. Moreover, since this case is being remanded for a new trial, we do not provide substantial details regarding the facts underlying the charged offense.
BACKGROUND
¶4 The State of Montana filed an information, and subsequently an amended information, charging Matt with deliberate homicide, a felony, in violation of § 45-5-102(1)(b), MCA (commonly known as “felony murder”). As alleged in the State’s probable-cause affidavit, the body of Steven Rodriguez wаs found the morning of June 22, 2004, submerged in an irrigation canal near the Clark Fork River in Missoula, Montana. The medical examiner determined that the cause of death was drowning and that Rodriguez had nonlethal injuries consistent with having been in a fight. Following an investigation, the State developed the theory that Matt, Rodriguez, Andrew Greybull, and Kevin Oldhorn had been drinking together under the Madison Street Bridge and that Matt, Greybull, and Oldhorn had taken turns beating up Rodriguez, who was “too drunk to defend himself.” Allegedly, Matt, Greybull, and Oldhorn threw Rodriguez in the canal several times, and Greybull and Oldhorn took turns holding Rodriguez’s head underwater for ten to fifteen seconds at a time. They eventually left Rodriguez’s body floating in the canal. According to the State, Greybull removed Rodriguez’s boots during the course of these events and later sold them at a local pawnshop, and Matt then used the money obtained from selling the boots to purchase vodka.
¶5 The State charged that Matt, with the purpose to promote оi facilitate the offense of robbery, aided, abetted, or attempted to aid Greybull and/or Oldhorn in the planning or commission of the robberj of Rodriguez, and that in the course of said robbery, Matt or othei persons legally accountable for the robbery caused the death oi Rodriguez. Matt pleaded not guilty to this offense, and the case proceeded to trial in April 2005.
¶6 At the close of the State’s case-in-chief, the trial judge, the prosecutor, and defense counsel met in the judge’s chambers. Matt was not present. At the outset, the judge inquired of defense counsel, “Do you have Mr. Matt coming?” to which defense counsel responded, “I don’t mind if he’s not here.” A discussion took place off the record, and then, back on the record, defense counsel added, “I don’t need my client here. This is legal. He doesn’t get any of this anyway.”
¶7 Four matters were addressed during the in-chambers conference. First, defense counsel renewed аn objection to testimony by a police detective concerning Matt’s interview with authorities. She noted that the court had reserved ruling on this objection, and she argued that the detective’s testimony was cumulative of the auditory recording played to the jury and that the prejudicial effect of the testimony outweighed any probative value it might have. The prosecutor responded that he had elicited the testimony in question for the purpose of clarifying certain inconsistencies in Matt’s statements. The court overruled the objection.
¶9 Third, defense counsel requested permission to present the testimony of a police officer who was in possession of a note which (according to counsel) Oldhorn had written to Matt while in jail and jail staff had intercepted. The prosecutor objected, arguing that the note constituted hearsay and that defense counsel could not lay a proper foundation for it. The court ruled that the note was inadmissible.
¶10 Fourth, defense counsel moved to dismiss the charge for insufficient evidence. She argued that the prosecutor had failed to prove the elements of the underlying felony of robbery beyond a reasonable doubt, as required to satisfy the felony-murder rule under § 45-5-102(1)(b), MCA. Moreover, she argued that the prosecutor had failed to establish a “causal connection” between the felonious act and Rodriguez’s death. Lastly, she argued that the accomplice testimony presented by the prosecution during its case was insufficient because it was uncorroborated. The court denied the motion.
¶11 The jury ultimately found Matt guilty of felony homicide, and the District Court sentenced him to 100 years in the Montana State Prison without the possibility of parole. Matt now appeals his conviction.
STANDARD OF REVIEW
¶12 Whether a criminal defendant’s right to be present at a critical stage of his trial has been violated is a question of constitutional law. Price v. State,
DISCUSSION
¶13 Was Matt’s constitutional right to be present at all critical stages of his trial violated and, if so, was the violation harmless error?
¶ 14 Matt contends that his state and federal constitutional rights were violated because he was not included at the conference held at the close of the State’s case in the trial judge’s chambers. Specifically, Matt relies on his rights of confrontation and due process under the Sixth and Fourteenth Amendments to the United States Constitution and his rights to appear and defend in person and to meet the witnesses against him face to face under Article II, Section 24 of the Montana Constitution. Matt argues that the in-chambers conference was a “critical stage” of his trial and that he did not effectively waive his right to be present at this conference. Matt further argues that the violation of his constitutional right to be present cannot be deemed harmless, and he therefore concludes that his conviction must be reversed.
¶ 15 In response, the State argues that the in-chambers conference was not a “critical stage” of Matt’s trial because “[n]o witnesses were questioned” and “the issues discussed were purely legal.” The State also contends that a violation of a defendant’s right to be present at a critical stage of the trial is not necessarily a “structural” violation. Thus, the State asserts that we must affirm Matt’s conviction.
The Right to be Present
¶16 The federal constitutional right to be present at all criminal proceedings is one of the most basic rights contained in the Confrontation Clause of the Sixth Amendment to the United States Constitution. State v. Tapson,
¶17 Separate and independent of this federal right, “the right to appear and defend in person” is contained in the Declaration of Eights of Montana’s 1972 Constitution. See Mont. Const, art. II, § 24. As such, it is a fundamental right. Tapson, ¶ 15. In State v. Reed,
¶18 With these principles in mind, we conclude below that (1) the in-chambers conference was a critical stage of Matt’s trial, (2) Matt did not waive his right to be present at the conference, and (3) the violation of Matt’s right to be present is not harmless error.
Critical Stage
¶19 This Court has not directly addressed whether an in-chambers conference where evidentiary issues and a motion to dismiss for insufficient evidence are argued by counsel and ruled on by the trial judge constitutes a “critical stage” of the trial. We observe, however, that the District Court’s consideration of Matt’s motion to dismiss for insufficient evidence was clearly a step in the proceedings where there was “potential for substantial prejudice” to Matt. Ranta, ¶ 17. At that point, the charge of felony homicide could have been dismissed and Matt set free. The fact that his motion was denied and his trial on the charge accordingly resumed most certainly “affect[ed] his right.” Reed,
¶20 Similarly, the District Court’s consideration of and ruling on the evidentiary issues raised by defense counsel constituted a critical stage of Matt’s trial. See e.g. Talton v. Warden,
¶21 Finally, we do not agree with the State’s suggestion that the in-chambers conference was not a critical stage of Matt’s trial because the issues discussed were “purely legal.” Even assuming, for the sake of argument, that Matt would not have fully grasped the legal aspects of the issues being discussed, there are other reasons why the conference constituted a critical stage of his trial. Perhaps most obvious is the fact that every criminal defendant in this state has the constitutional right to appear and defend “in person.” Mont. Const. art. II, § 24. In this connection, Matt could have participated in the preservation of his rights at the conference. See Kennedy, ¶ 16 (“[B]y his or her physical presence, a defendant can hear and see the proceedings, and can participate in the preservation of his or her rights.”). He could have observed whether his attorney was advocating for him zealously and professionally. He could have observed the demeanor of the trial judge and the prosecutor. He could have heard their arguments, statements, and rulings regarding the evidentiary issues and his motion to dismiss for insufficient evidence. He could have provided information bearing on the matters being discussed. Based on his observations, he could have decided to change his plea in the hope of a more lenient sentence. His observations also could have informed his decision to pursue an ineffective assistance of counsel claim. Ultimately, it was Matt who bore the consequences of the District Court’s rulings on the matters raised by defense counsel-matters which, as stated above, had the potential to prejudice Matt’s defense substantially.
¶22 For these reasons, we hold that under Article II, Section 24, the in-chambers conference at which the District Court heаrd arguments on evidentiary issues and ruled on Matt’s motion to dismiss for insufficient evidence constituted a critical stage of his trial, for which Matt had a constitutional right to be present.
Waiver
¶23 The State contends that even if the in-chambers conference was a critical stage of Matt’s trial, defense counsel “validly waived her client’s presence” when she told the trial judge on the record: “I don’t need my client here. This is legal. He doesn’t get any of this anyway.” Matt, however, argues that any purported waiver of his right to be present was not valid. We agree with Matt.
¶24 “Waiver” is defined as “the voluntary abandonment of a known right.” State v. Bird, 2001 (2002
¶25 Here, because the in-chambers conference constituted a critical stage of Matt’s trial, any decision to waive his right to be present had to be voluntarily, intelligently, and knowingly made by Matt himself. McCarthy, ¶ 32; Bird, ¶ 38; Aceto, ¶¶ 45-46. There is nothing in the record, however, amounting to an on-the-record personal waiver by Matt of his right to appear in person at the conference. For that matter, nothing in the record establishes that Matt was fully apprised of this right. Cf. Tapson, ¶ 27 (‘While Tapson’s counsel professed to waive these rights, there is nothing in the record to indicate that Tapson himself was apprised of these rights, nor is there anything in the record indicating that he personally made a knowing, intelligent аnd voluntary waiver of these rights.”).
¶26 In this regard, and contrary to the State’s argument, defense counsel’s remarks regarding Matt’s absence are not sufficient to establish a valid waiver. Defense counsel's statements that “I don’t mind if he’s not here” and “I don’t need my client here” do not suggest that Matt, himself, had made an informed and voluntary decision to waive his right. Rather, they suggest that defense counsel personally did not see the need for Matt’s presence. Of course, that perspective misses the mark, since the right at issue here is not defense counsel’s to waive if she does not “need” her client present. Rather, the right and the decision to waive it are personal to the defendant. See State v. Martin,
¶27 The premise underlying the State’s argument is that defense counsel may, on the defendant’s behalf, effectively waive his fundamental right to be present. The State cites no authority in support of this proposition. More importantly, because Article II, Section 24 guarantees the defendant’s fundamental right to appear and defend “in person,” we are not persuaded that this right may, as here, be summarily waived by counsel absent an on-the-record personal acknowledgment by the defendant that he has been advised of the right to be present and, after consultation with counsel, has voluntarily, intelligently, and knowingly given counsel his proxy to waive that right. McCarthy, ¶ 32; Bird, ¶ 38. Such a waiver by Matt is not established here.
¶28 In sum, defense counsel’s statements do not constitute an effective waiver of Matt’s right to be present at the in-chambers conference, and the record does not contain a voluntary, intelligent, and knowing waiver of this right by Matt personally. For these reasons, we reject the State’s contention that Matt waived his right of presence.
Harmless Error
¶29 Having determined that Matt was not present at a critical stage of his trial and that he did not waive his right to be present, we turn to the final inquiry: whether this constitutional violation was harmless.
¶30 The Supreme Court has said that “there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” Chapman v. California,
¶31 At the same time, the Supreme Court has recognized that “[s]ome constitutional violations ... by their very nature cast so much doubt on the fairness of the trial process that, as a matter of law, they can never be considered harmless.” Satterwhite v. Texas,
¶32 These sorts of constitutional violations (listed in the preceding paragraph) require automatic reversal because they are “structural defects” in the constitution of the trial mechanism, Fulminante,
¶33 For purposes of analyzing whether the violation of Matt’s right of presence under Article II, Section 24 constitutes harmless error, we will аpply the Supreme Court’s harmless-error framework, with one modification, as summarized below. In so doing, we acknowledge that we must “guarantee the minimum rights established by the United States Constitution” but that we otherwise “are not compelled to march lock-step with pronouncements of the United States Supreme Court,” State v. Martinez,
¶34 We have long recognized the proposition that not all constitutional violations amount to reversible error.
¶35 Thus, the first question is whether, under the circumstances of the particular case, the violation of the right to be present constitutes a “structural defect”-i.e., whether it contaminated the framework within which the trial proceeded or casts so much doubt on the fairness of the trial that it cannot be treated as harmless-thus requiring automatic reversal. If the violation does not fall in this category, the second question is whether the violation is harmless. In this connection, the Supreme Court has made it clear that “[t]he State bears the burden of proving that an error passes muster under [the harmless-error] standard.” Brecht,
¶36 We note that the foregoing analytical approach is similar to, but distinguishable from, the framework set forth in Van Kirk. In Van Kirk, we articulated a two-step analysis for determining whether an alleged error prejudiced a criminal defendant’s right to a fair trial and, therefore, is reversible. As here, the first step is to determine whether the claimed error is “structural,” i.e., whether it affects the framework within which the trial proceeds. See Van Kirk, ¶ 38. We noted that structural error “is presumptively prejudicial and is not subject to harmless error review.” Van Kirk, ¶ 38. At this juncture, however, the Van Kirk analysis diverges from the approach set out above for analyzing right-of-presence violations. In Van Kirk, we explained that, in contrast to “structural” error, “trial” error “typically occurs during the presentation of a case to the jury” and “is amenable to qualitative assessment by a reviewing court for prejudicial impact relative to the other evidence introduced at trial.” Van Kirk, ¶ 40. We held that, “in order to prove that trial error was harmless, the State must demonstrate that there is no reasonable possibility that the inadmissible evidеnce might have contributed to the conviction.” Van Kirk, ¶ 47. “To do this,” we explained, “the State must demonstrate that the fact-finder was presented with admissible evidence that proved the same facts as the tainted evidence and, qualitatively, by comparison,
¶37 Notably, this “trial error” test also places the burden on the State to demonstrate that the error was harmless. But the substantive inquiries under the test, which focus on admissible and inadmissible evidence (see Van Kirk, ¶¶ 40-47), are unsuitable for determining whether a nonstructural, right-of-presence violation is harmless. For one thing, the right to be present at a critical-stage proceeding serves a broader range of interests than simply ensuring that inadmissible evidence is properly excluded at trial. As explained above, the right more generally guarantees the defendant the ability to appear and defend in person and to participate in the presentation and preservation of his or her rights. Moreover, violation of the right to be present is not necessarily harmless just because there is no reasonable possibility inadmissible evidence contributed to the conviction. If the trial judge communicates with a deliberating jury in the defendant’s absence (see e.g. State v. Tapson, discussed below), a qualitative assessment of the evidence introduced at trial does not reveal whether this violation is harmless. For these reasons, we conclude that Van Kirk’s “trial error” test is inapt here and that the State must demonstrate harmlessness in light of the interests the right of presence was designed to protect.
¶38 To summarize, therefore, we hold that once it has been established that the defendant’s fundamental right to be present has been violated, prejudice is presumed. If the violation constitutes a “structural defect,” then the presumption of prejudice is conclusive, since the error is not amenable to harmless-error analysis. If the violation is not structural, then the State has the burden to rebut the presumption by demonstrating there is no reasonable possibility the violation prejudiced the defendant in light of the interests the right of presence was designed to protect.
¶39 Although this approach has not been articulated in this manner in our recent right-of-presence cases, the approach is nevertheless consistent with our resolutions of those cases. In State v. Tapson,
¶40 Similarly, in State v. Bird, 2001 (2002) MT 2,
¶41 In State v. Kennedy,
¶42 Lastly, in State v. Mann,
¶43 Turning now to the case at hand, the first question we must answer is whether, under the circumstances of this case, the violation of Matt’s right to be present at the in-chambers conference constituted a “structural defect.” Cf. Rushen v. Spain,
¶44 Having determined that the constitutional violation here was not structural, the second question is whether the State has demonstrated that there is no reasonable possibility the violation prejudiced Matt in light of the interests the right of presence was designed to protect. In this regard, we note that the State does not provide a harmless-error analysis in its appellate brief. Rather, the State’s analysis under Issue 3 focuses on two matters: whether the in-chambers conference was a critical-stage proceeding, and whether defense counsel validly waived Matt’s right to be present at the conference. The State does assert that Matt has failed to demonstrate how his absence “made the in-chambers conference unfair” and how his presence “may have made a differеnce.” These assertions, however, reflect an incorrect assumption that Matt has the burden to demonstrate prejudice flowing from the violation of his right to be present. Apparently in the State’s view, if the right of presence is violated, then the violation is presumed harmless and the defendant has to demonstrate the contrary in order to obtain relief. We reject this approach, not only because it is directly contrary to Supreme Court precedent, see Brecht,
¶45 Accordingly, because the State has not met its burden of demonstrating that there is no reasonable possibility Matt was prejudiced by the violation his right to be present at the in-chambers conference, we hold that this constitutional error cannot be deemed harmless.
CONCLUSION
¶46 The in-chambers hearing held in Matt’s absence at the close of the State’s case-in-chief was a critical stage of his trial, Matt did not validly waive his right to be present at the hearing, and failing to include him at the hearing violated his right under Article II, Section 24 of the Montana Constitution to appear and defend in person. The State has not met its burden of demonstrating that this error was harmless. Accordingly, we reverse Matt’s conviction of deliberate homicide (felony murder), vacate the District Court’s judgment, and remand this case for a new trial.
¶47 Reversed and remanded for a new trial.
Notes
Bird was decided January 15, 2002, and, thus, should have been given a 2002 designation. Due to a typographical error, however, it was published with a 2001 “MT” number.
Dissenting Opinion
dissents.
¶48 I dissent. The Court invents a burden on the State to somehow show beyond a reasonable doubt there is no reasonable possibility that Matt’s absence from the hearing at the close of the State’s evidence prejudiced him. The Court then ignores the record as well as § 46-20-701(1), MCA, and concludes the judgment must be reversed-not because Matt was prejudiced, but because the State did not present a sufficient response to an argument that Matt did not make.
¶49 Today, the Court sneaks up on the State by creating a new burden it must satisfy if prejudice is alleged. The Court’s holding today contravenes our holding in State v. Peters,
¶50 No previous Montana precedent concerning the right to be present requires the State to satisfy a “burden.” See Mann, ¶¶ 12-17; State v. Riggs,
¶52 In Riggs, the Court determined the district court’s error was harmless because “the defendant ... made no persuasive claim of prejudice arising” from his absence when the court spoke to two jurors outside of his presence. Riggs, ¶ 54. The Court recently reiterated the Riggs language in DuBray. DuBray, ¶¶ 36-38. From this language in Riggs and DuBray, it is obvious a defendant must make a persuasive claim to the appellate court that he was prejudiced.
¶53 The Court today posits the State “incorrectfly] assum[ed]” Matt has the burden to demonstrаte prejudice. Opinion, ¶ 44. However, there is no indication the State assumed anything. It responded in the only way it could to an unsupported assertion of prejudice-by pointing out that the record showed no prejudice. Riggs and DuBray stand for the proposition that a defendant who wishes his conviction reversed on appeal because he was absent from a hearing must point to something in the record indicating he might have been prejudiced. Matt did not do so. His real argument is that his absence constitutes structural error and reversal is automatic.
¶54 At the appellate level, parties do not present evidence to carry a “burden” of “persuading a fact-finder to view the facts in a way that favors that party.” Black’s Law Dictionary 190 (Bryan A. Garner ed., 7th ed., West 1999). They make arguments. This Court’s job is to consider the arguments, review the record, and then determine which party’s argument is more persuasive. By statute and applicable precedent, our appellate review of the record is not to be conducted in terms of burdens of proof. Rather, the decision is to be made by a review of the record to determine if the error resulted in prejudice, as required by § 46-20-701(1), MCA:
Whenever the record on appeal contains any order, ruling, or proceeding of the trial court against the convicted person affecting the convicted person’s substantial rights on the appeal of the cause, together with any required objection of the convicted person, the supreme court on that appeal shall consider the orders, rulings, or proceedings and the objections thereto and shall reverse or affirm the cause on the appeal according to the substantial rights of the respective parties, as shown upon the record. A cause may not be reversed by reason of any error committed by the trial court against the convicted person unless the rеcord shows that the error was prejudicial.
Section 46-20-701(1), MCA. This approach is consistent with our analysis in Mann and Kennedy where, at the prejudice phase of the analysis, there are no discussions of burdens or standards of proof. Mann, ¶¶ 19-21; Kennedy, ¶ 34.
¶55 The Court quotes Mann, saying: “[o]n the question of whether this violation required reversal, we first noted that, ‘we consider the effect the violation has on the defendant to determine whether the defendant suffered any conceivable prejudice.’ ” Opinion, ¶ 42. Mann does not place a burden on the State. The language quoted by the Court does not limit this Court’s ability to consider the entire record.
¶56 The Court’s statement in ¶ 14-that Matt argues the violation of his constitutional right to be present at the hearing at the close of the State’s evidence cannot be deemed harmless-is misleading. In the issues Matt presents for appellate review, he first recites a portion of what happened at the hearing, and then states, as a fact, his constitutional right to be present was violated. The thrust of Matt’s argument concerning this appeal issue is simply that this Court, in Bird and in
¶57 In an offhand assertion, without even attempting a harmless error analysis, Matt’s brief states in a conclusory fashion that it is “easy to conceive” how his absence created prejudice. Matt does not make any argument supported by authorities that any of the rulings of the District Court at the hearing in question were erroneous, that things would have been different had he been there, or that he was in any way led astray. He only states in a conclusory fashion he was prejudiced.
¶58 In ¶ 15, the Court mentions that the State argued the in-chambers hearing was not a critical stage of the trial. The Court decides this was a critical stage of the trial. The Court then notes the State argued that a violation of a defendant’s right to be present is not necessarily a structural error. The Court agrees that Matt’s absence was not a structural error. The Court then reverses Matt’s conviction by overlooking that the State responded in the only way it could to Matt’s ofihand, unsupported claim he was somehow prejudiced by his absence at a critical stage of his trial. As Matt did not say how he was prejudiced, the State pointed out in its response brief that Matt failed to demonstrate how his absence prejudiced him.
¶59 Matt made no attempt to point out any error in the District Court’s rulings at the in-chambers hearing. He did not make a cogent argument how his presence would have made any substantial difference. Nor did he make any intelligible argument conсerning how he suffered prejudice because of his absence. The Court has ignored its oft repeated rule that it will not consider unsupported arguments in support of positions taken on appeal. State v. Humphrey,
¶60 The record affirmatively shows that Matt’s presence at the hearings would have been useless, as the District Court’s rulings were all correct. The United States Constitution and the Montana Constitution do not assure “‘the privilege of presence when presence would be useless, or the benefit but a shadow.’” State v. Schenk,
¶61 Matt and his counsel will be thrilled that the Court has taken this opportunity to reverse his conviction by creating a new appellate burden that he neither thought of nor argued for, and that the State had no inkling that it was required to satisfy. However, I dissent.
Concurrence Opinion
specially concurring.
¶62 I concur in the Court’s Opinion. I write separately to address the foregoing Dissent’s reliance on State v. Riggs,
¶63 The United States Supreme Court has held that, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” See Chapman v. California,
¶64 This Court is not required to march lockstep with pronouncements of the United States Supreme Court if Montana’s Constitution provides greater protection than is guaranteed by the United States Constitution. We are required, however, to guarantee the minimum rights established by the United States Constitution. See State v. Martinez,
¶65 Finally, the Dissent’s concern over the burden placed on the State here is, in my view, somewhat excessive. The “burden” being plaсed in this case is, first, on defense counsel to stop purporting to waive the rights of the accused being represented and, instead, to insist on the presence of the client. The burden is placed, secondarily, on the trial court to stop allowing such nonchalant waivers. If counsel for the accused and for the State work to ensure that criminal defendants are present at critical stages, the State will not face any additional burden at all.
Dissenting Opinion
dissenting.
¶66 I cannot conclude there is reversible error when a trial judge, dining a mid-trial conference, inquires of defense counsel concerning the presence of the defendant and receives defense counsel's assurance that the defendant’s presence is not necessary, and then conducts the conference without the defendant. I agree with the State that we should affirm on waiver grounds, as I believe dеfense counsel's actions constitute invited error and that reversal on such grounds -undermines our legal system.
¶67 Of course, no objection was made with regard to Matt’s presence in the conference at issue here. Just the opposite, in response to the District Court’s inquiry, defense counsel assured the court that the conference could continue without the Defendant. In Williams v. Fla.,
¶68 Here, the District Court gave defense counsel the explicit opportunity to correct the error, but counsel did not do so. Under these circumstances, defense cоunsel's waiver of the defendant’s right to appear should be affirmed to protect the integrity of the trial process from invited error. A trial judge must be able to rely upon the assurances given by defense counsel in response to issues raised by the judge during the course of the trial if the legal system is to properly function. We should not burden the judge
¶69 I would affirm on the basis of this invited error. The Defendant, if he chose, could pursue the recourse of challenging his counsel’s actions within a post-conviction proceeding as ineffective.