STATE of New Mexico, Plaintiff-Petitioner, v. Chris PADILLA, Defendant-Respondent.
No. 26,540.
Supreme Court of New Mexico.
May 10, 2002.
2002-NMSC-016 | 46 P.3d 1247
{41} As noted above, the majority relies on
{42} Finally, I am also concerned that bifurcation is constitutionally impermissible because it treats insurance companies differently from other parties.
In other types of cases, disclosure of the joinder of the real party in interest has never been an issue. For reasons that may never have been valid, insurance has been an exception. Once properly joined, a party should not be given a special nondisclosure status. Nevertheless, the majority allows the fact of the insurer‘s joinder to remain unknown to the jury. It is time we recognize that an insurance company is no different and should be treated no differently. Safeco, 101 N.M. at 153, 679 P.2d at 821 (Stowers, J., dissenting).
{43} I would hold that a joined insurance company should be disclosed to the jury. The majority concluding otherwise, I respectfully dissent.
I CONCUR: PETRA JIMENEZ MAES, Justice.
David Henderson, Santa Fe, NM, for Respondent.
OPINION
FRANCHINI, Justice.
{1} Following a jury trial, Defendant Chris Padilla was convicted of two counts of aggravated battery with a deadly weapon under
I. FACTUAL AND PROCEDURAL BACKGROUND
{2} Defendant and a co-defendant attacked two employees of a bar which resulted in their being indicted for multiple counts of aggravated battery with a deadly weapon. The two men were set for a joint trial; the record does not indicate that either of the defendants objected to the joinder. On July 6, 1998, a jury pool was summoned to district court to select jury panels for Defendant‘s trial and another upcoming trial. Defendant‘s attorney was in court, but Defendant was not present. The trial court then issued a bench warrant for Defendant for failure to appear. Shortly thereafter, the co-defendant‘s attorney arrived with a signed statement from the co-defendant waiving his right to be present for jury selection. In the waiver, the co-defendant stated that he had been advised of his right to be present for jury selection and confirmed that his waiver of the right to be present was being made with the advice and consent of his attorney. Jury selection had not yet begun for the trial of Defendant and the co-defendant which was set for July 27, 1998. The co-defendant‘s waiver was read into the record by the trial court at the beginning of jury selection.
{3} When Defendant did not appear for jury selection, his attorney left and did not participate in jury selection. Because at that point neither Defendant nor his attorney was present, the trial court severed the trial so that the court could proceed with voir dire in the co-defendant‘s trial. After a lunch recess, Defendant came to the trial court but
{4} At the bench warrant hearing the following morning, the trial court explained to Defendant and his attorney that the trials had been severed and a jury had been selected for the co-defendant‘s trial. Defendant‘s attorney told the court that Defendant had been absent from jury selection because he was confused about the trial date. The original scheduling order issued by the trial court had listed the date for jury selection as July 7, 1998. After clarifying some procedural details regarding the bench warrant, Defendant‘s attorney then asked the trial court to reconsider its decision to sever the trial. He stated that he and Defendant would be willing to waive the jury selection “irregularities” and proceed with a joint trial before the jury selected by the co-defendant‘s attorney. The trial court cautioned that if the defenses diverged at trial, Defendant would find himself in the position of being tried by a jury that had been picked by the co-defendant‘s attorney. At that point, Defendant‘s attorney offered to waive the jury selection issue “permanently.” The trial court then agreed to the waiver and told the attorney that it would have to be filed before 5:00 p.m. that day. The entire hearing lasted seven minutes; the discussion about obtaining and filing the bench warrant occupied two-thirds of the time.
{5} Defendant‘s attorney prepared the following statement which he signed and Defendant co-signed:
WAIVER OF JURY SELECTION IRREGULARITIES
COMES NOW Defendant CHRIS PADILLA and files this Waiver of Jury Irregularities, and in support of said waiver hereby states:
1) Defendant was not present for jury selection due to his uncertainty about the date of jury selection.
2) Defendant‘s counsel appeared initially for jury selection but did not return for completion of jury selection when Defendant failed to appear;
3) Co-defendant‘s attorney ... completed jury selection on behalf of his client;
4) Defendant Chris Padilla hereby waives his and his counsel‘s appearance at jury selection and requests to proceed to the evidentiary phase of trial with the jury as selected by co-defendant‘s counsel. Defendant Chris Padilla also waives any issue on appeal regarding this irregularity in the selection of the jury in his case.
Trial counsel submitted the statement to the court; no further hearings were held. An order was issued approving the waiver and permitting Defendant to “proceed to the evidentiary phase of the trial with the jury selected by his co-defendant‘s counsel.” It is undisputed that both Defendant and his co-defendant were present on July 27, 1998, for the evidentiary phase of the trial. Defendant and the co-defendant were found guilty at that trial.
II. DISCUSSION
A. Presence at Jury Selection.
{6} On appeal, the State asks this Court to affirm Defendant‘s conviction, arguing that the Court of Appeals misconstrued
A. Presence required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impanelling of the jury and the return of the verdict and imposition of any sentence, except as otherwise provided by the this rule.
B. Continued presence not required. The further progress of the trial, including the return of the verdict, shall not be prevented and the defendant shall be considered to have waived his right to be present whenever a defendant, initially present:
(1) voluntarily absents himself after the trial has commenced (whether or not he has been informed by the court of his obligation to remain during the trial); or
(2) engages in conduct which is such as to justify his being excluded from the courtroom.
{8} In arriving at its conclusion that Defendant could not waive his right to be present at jury selection because he had not been initially present, the Court of Appeals relied on Crosby v. United States, 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993), and the common law. In Crosby, the Supreme Court had analyzed the language of
{9} The Court of Appeals found the factual differences between what occurred in Crosby and in this case to be immaterial and concluded that because Defendant was not initially present at jury selection,
{10} After reviewing the record and the law, we do not agree that the factual differences between this case and those in Crosby are immaterial. In this case, unlike Crosby, we are called upon to address an express waiver, not a waiver inferred from conduct. The Court in Crosby addressed only the circumstances of a defendant who fled before trial; it declined to express an opinion on whether the “right [of presence] constitutionally may be waived in other circumstances.” Crosby, 506 U.S. at 261. Defendant asserts that the only waivers permissible under
{11} There is no dispute that a criminal defendant charged with a felony has a constitutional right to be present and to have the assistance of an attorney at all critical stages of a trial.
{12} “The fact that a defendant has a right to be present does not answer the question of whether he [or she] may waive that right.” Campbell v. Blodgett, 978 F.2d 1502, 1508 (9th Cir.1992) (per curiam). It is well settled that “[f]undamental rights, including constitutional rights, can be waived.” State v. Singleton, 2001-NMCA-054, ¶ 11, 130 N.M. 583, 28 P.3d 1124, cert. denied, 130 N.M. 558, 28 P.3d 1099; accord Peretz v. United States, 501 U.S. 923, 936-37, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) (listing cases). New Mexico courts have recognized a defendant‘s presence at trial may be waived. See, e.g., Hovey v. State, 104 N.M. 667, 670, 726 P.2d 344, 347 (1986) (stating that “defendant need not be present in court in order to waive his right to be present“); State v. Corriz, 86 N.M. 246, 248, 522 P.2d 793, 795 (1974) (holding that defendant had waived his right of presence in capital case by conduct); Clements, 108 N.M. at 18, 765 P.2d at 1200 (observing that “an accused may either expressly or by implication waive his right to be present by being voluntarily absent“).
{13} Further, the Supreme Court has characterized the provisions of the Federal Rules of Criminal Procedure as being “presumptively waivable.” United States v. Mezzanatto, 513 U.S. 196, 201-02, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995) (analyzing another rule of criminal procedure, the Court limited Crosby to its facts and observed that criminal defendants “may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution“). Other courts, for example, have held that a defendant can waive his or her right to be present at trial by being voluntarily absent from trial after it has begun, see Taylor v. United States, 414 U.S. 17, 18-20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973) (per curiam), by obtaining the court‘s permission to be absent, see United States v. Jones, 514 F.2d 1331, 1332 (D.C.Cir.1975), or by failing to make a timely objection to the holding of proceedings in his or her absence, see United States v. Brown, 571 F.2d 980, 987 (6th Cir.1978). “If defendants can waive fundamental constitutional rights, surely they are not precluded from waiving procedural rights granted by statute.” United States v. Rutan, 956 F.2d 827, 829 (8th Cir.1992). This Court has taken a similar approach to
{14} We conclude that the Court of Appeals’ construction of
{15} We are also not in accord with the notion that the common law rule of nonwaiver of appearance at felony trials should be resurrected. We find the discussion in the special concurrence in Hovey to be sound. Hovey, 104 N.M. at 671-72, 726 P.2d at 348-49. Justice Walters observed that this Court had “modified [the] early and intractable position” articulated in Lopez. Id. at 671, 726 P.2d at 348 (relying upon Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and Diaz). The modification of the nonwaiver of presence rule is reflected in Clements, 108 N.M. at 17, 765 P.2d at 1199, and Corriz, 86 N.M. at 247, 522 P.2d at 794. See generally, Illinois v. Allen, 397 U.S. 337, 342-43, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Snyder v. Massachusetts, 291 U.S. 97, 106-07, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Frank v. Mangum, 237 U.S. 309, 340-41, 35 S.Ct. 582, 59 L.Ed. 969 (1915).
{16} After concluding that
{17} We conclude, therefore, that absence from jury selection is not a structural error requiring automatic reversal1 and agree with the following language from Riddle:
To create an automatic reversal rule for voir dire absences would be to risk interference with the choices made by counsel and defendant for the defendant‘s benefit.... We decline to expand the limited list of structural rights whose violation constitutes per se error by adding the defendant‘s right to presence at voir dire.
Riddle, 249 F.3d at 535. A more reasoned approach to resolving these questions is contained in the following language: “It seems clear that neither the Constitution nor the first sentence of Rule 43 [or Rule 5-612] precludes a waiver by an accused of his [or her] right to be present at his [or her] trial. The question in each case must be whether fair procedures have been followed, and the interests of substantial justice adequately served.” Cross v. United States, 325 F.2d 629, 633 (D.C.Cir.1963) (Washington, J., concurring). Because we conclude that
B. Waiver.
{18} The State argues that Defendant waived his and his attorney‘s presence at jury selection and then waived his right to challenge those issues on appeal. “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege” which must be made in a knowing and voluntary manner. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). To determine the validity of a waiver, a reviewing court must consider “the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Id. To be valid waivers “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Whether a defendant made a valid knowing, intelligent, and voluntary waiver of his constitutional rights ” is a question of law which we review de novo.” State v. Martinez, 1999-NMSC-018, ¶ 15, 127 N.M. 207, 979 P.2d 718 (quoting United States v. Toro-Pelaez, 107 F.3d 819, 826 (10th Cir.1997)).
{19} The duty to protect fundamental rights “imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.” Zerbst, 304 U.S. at 465, 58 S.Ct. 1019. “[T]he court‘s obligation to make sure that the waiver is valid, and is predicated upon a meaningful decision of the accused, does not require any particular ritual or form of questioning.” State v. Gilbert, 78 N.M. 437, 440, 432 P.2d 402, 405 (1967). Although no particular litany of questions may be required, there must be a sufficient colloquy to satisfy the trial court‘s responsibilities; a knowing and voluntary waiver cannot be inferred from a silent record. See Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962) (“Presuming waiver from a silent record is impermissible.“); People v. Callahan, 80 N.Y.2d 273, 590 N.Y.S.2d 46, 604 N.E.2d 108, 114 (1992). In this case, however, there was no record discussion between the trial court and Defendant concerning the waiver to determine whether Defendant understood the implications of the waiver and whether he, in fact, voluntarily agreed to it. There was no inquiry by the trial court to ensure that Defendant understood the nature of the constitutional and rule-based rights to establish that Defendant had conferred with his attorney about the waiver. In particular, a more careful examination was required in this case because Defendant‘s waiver was being made retroactively. In terms of a trial before this jury, his rights to presence and counsel had been lost. Because he was being asked to subsequently ratify that loss, it was incumbent upon the trial court to ensure that Defendant‘s waiver was knowingly and voluntarily made.
{20} Furthermore, there was no discussion at the hearing of the right to appeal. We have stated that a defendant may waive his or her right to appeal if the waiver is knowing, voluntary, and intelligent, and made with full knowledge of his or her rights. See State v. Clark, 1999-NMSC-035, ¶ 37, 128 N.M. 119, 990 P.2d 793. At the hearing, however, the word “appeal” was never spoken, much less discussed as a right of Defendant. Although there seems to have been an under-
{21} After considering the record concerning Defendant‘s waiver, the written waiver itself, and the circumstances surrounding it, we hold that the waiver was not voluntary, knowing, and intelligent. There was an insufficient inquiry to afford the trial court a basis for deciding the issue of waiver. We conclude that Defendant did not effectively waive his right of presence at jury selection, his right to representation, or his right to appeal. Although this Court recognizes a trial court‘s scheduling concerns or the expectations of an attorney who had planned for a joint trial, a defendant‘s rights may not be bargained away in such a manner. The trial court erred when it accepted Defendant‘s waiver of his rights and rejoined his trial with that of the co-defendant.
C. Harmless Error.
{22} Having determined that the trial court erred, we now determine the effect of that error. The Rules of Criminal Procedure contain the appropriate standard for reviewing trial error:
A. Harmless error. Error in either the admission or the exclusion of evidence and error or defect in any ruling, order, act or omission by the court or by any of the parties is not grounds for granting a new trial or for setting aside a verdict, ... unless refusal to take any such action appears to the court inconsistent with substantial justice.
III. CONCLUSION
{23} We hold that
{24} IT IS SO ORDERED.
WE CONCUR: PATRICIO M. SERNA, Chief Justice, and PETRA JIMENEZ MAES, Justice.
JOSEPH F. BACA, Justice (concurring in part and dissenting in part).
PAMELA B. MINZNER, Justice (specially concurring).
MINZNER, Justice (specially concurring).
{25} I concur in the result of the majority opinion. I believe, however, that the issue is “not whether the requirement of the defendant‘s initial presence ought to be subject to waiver like many other trial rights; but rather, whether, given the language of
{26} Section (A) of
{27} I understand that defendants also have a constitutional right to be present at trial and that, as a general matter, constitutional rights can be waived. I do not think the question of whether, and in what circumstances, constitutional rights can be waived is relevant to this appeal. We are called upon to decide whether
{28} I accept that
{29} I agree with the majority of the Court of Appeals when they wrote,
In our view, the requirement of the defendant‘s initial presence at trial is largely symbolic, reflecting our society‘s traditional distrust of in absentia proceedings. Justice Stevens has suggested that harmless-error is inappropriate where the procedural right determined to have been violated serves “an independent value besides reliability of the outcome.” United States v. Lane, 474 U.S. 438, 474, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) (Stevens, J., concurring in part, dissenting in part). The requirement of the defendant‘s initial presence at trial serves ‘an independent value besides reliability of the outcome’ and is akin to a structural defect.
Padilla, 2000-NMCA-090, ¶ 20, 129 N.M. 625, 11 P.3d 589.
{30} As
{31} I respectfully conclude that
BACA, Justice (concurring in part and dissenting in part).
{32} I concur in part and dissent in part. I agree with the Majority that
{33} In this case, the appellate record contains an affirmative waiver signed by Defendant and his attorney. As such, I believe that Defendant‘s more appropriate remedy in this case is through habeas corpus proceedings, as suggested by Judge Pickard of the Court of Appeals. See Padilla, 2000-NMCA-090, ¶¶ 23, 28, 129 N.M. 625, 11 P.3d 589 (Pickard, C.J., dissenting); State v. Arellano, 1998-NMSC-026, ¶ 19 n. 2, 125 N.M. 709, 965 P.2d 293; Duncan v. Kerby, 115 N.M. 344, 346-47, 851 P.2d 466, 468-69 (1993).
{34} Nonetheless, on the record before us, I can only conclude Defendant‘s waiver ap-pears voluntary, knowing, and intelligent. No one disputes that a defendant can waive his or her fundamental rights. See Hovey, 104 N.M. at 670, 726 P.2d at 347; Singleton, 2001-NMCA-054, ¶ 11, 130 N.M. 583, 28 P.3d 1124. In Arellano, a decision by defense counsel based on trial strategy was sufficient for this Court to find waiver of defendant‘s right to a sworn jury. 1998-NMSC-026, ¶¶ 15-19, 125 N.M. 709, 965 P.2d 293. Defendant had failed to object to the fact that the jury was unsworn, even though defense counsel readily admitted to knowledge of this defect and characterized his decision not to alert the court as tactical. Id. On appeal, defendant argued that he did not voluntarily and intelligently waive his right to a sworn jury. Id. This Court rejected defendant‘s argument as defense counsel knew of the defect and decided for matters of strategy to go forward with trial and, thus, sufficiently waived the error. Id.
{35} Unlike Arellano, we do not need to infer a waiver from Defendant‘s actions or lack thereof in this case. Here, Defendant and his attorney both signed a written waiver of Defendant‘s right to presence at jury selection, his right to his counsel‘s presence at jury selection, and his right to appeal any issue arising from that jury selection. The Majority looks at these facts and sees Defendant‘s rights as “bargained away.” Majority ¶ 21. I look at these facts and see an affirmative, signed waiver which clearly enumerates the irregularities that occurred during this jury selection. Defendant and his attorney made a strategic decision to request that Defendant‘s trial be rejoined with his prior co-defendant‘s and to go forward with a jury chosen by his prior co-defendant‘s attorney and, thus, invited the error of which Defendant now complains. See State v. Handa, 120 N.M. 38, 45-46, 897 P.2d 225, 232-33 (Ct.App.1995) (“[T]o allow a defendant to invite error and to subsequently complain about that very error would subvert the orderly and equitable administration of justice.” (internal quotation marks omitted)). While I appreciate the Majority‘s concern that Defendant was waiving multiple rights in one fell swoop as it were, Defense counsel and Defendant both came into court the day
{36} Accordingly, based on this record, I cannot concur with the Majority that Defendant‘s waiver was not voluntary, knowing and intelligent. Moreover, I believe that this issue is more properly reviewed through the writ of habeas corpus and not on direct appeal. Thus, I respectfully dissent.