*1 MONTANA, STATE OF Respondent, Plaintiff and TAPSON, FLOYD Appellant. Defendant No. 00-010. Argued September 2001. September 2001. Submitted Decided December 2001.
For Respondent: Attorney Hon. Mike Montana General, General, Jim Wheelis (argued), Assistant Montana Attorney Helena; Paxinos, County Dennis Attorney, Yellowstone Billings.
JUSTICE NELSON delivered Opinion of the Court. Floyd Tapson by jury ¶1 was convicted in the Thirteenth Judicial Court, District County, attempted Yellowstone deliberate homicide and sentenced to life in prison. He his appeals judgment and conviction. We reverse remand for further consistent with this opinion. Tapson raises on appeal
¶2 two issues which we have restated for clarity follows: 1. Whether defense counsel performance
¶3 rendered deficient during voir not questioning challenging dire for two prospective daughters violently raped whose had Tapson been and whether prejudiced was prospective jurors because these served on the final jury panel. 2. Whether the District Court committed reversible error alone, without or Tapson present, counsel present.
without a waiver do address dispositive, conclude that Issue Because we Issue 1. Background
Factual and Procedural felony three 14,1998, charged Tapson the State with On October consent, 45-5-503, in violation of § counts: sexual intercourse without MCA; MCA; 45-5-303(l)(c), aggravated kidnaping, violation of § homicide, in violation of 45-4-103 and 45-5- attempted deliberate §§ from an incident that occurred on charges MCA. The stemmed Star, involving Josephine developmentally October Red disabled woman. alleged Tapson duped coming her into his house Red Star her, her and locked her gun,
where he threatened handcuffed seven or Red Star knew eight in his basement for hours. boyfriend he where her former group because worked home Tapson finally released her alleged lived. Red Star further that when basement, sexually where from the he took her to his bedroom he He her to a area outside of town assaulted her. then drove secluded twice-striking her once in the cheek and once where he shot her managed get away neighboring and rim to a house hand-before she help. *3 he questioned Tapson, told them When law enforcement officers ¶8 August and that he had been that he had not seen Red Star since late changed He later allegedly at work when the incident occurred. own, at his on her story alleged that Red Star had arrived house watching movies, and that drank beer while they pizza ate afterwards, they went they sex. He also stated had consensual shot either shooting at Red and that she was target request Star’s shot herself. accident or that she 26,1999. Since the case had The to trial on March proceeded case
¶9 publicity, the State and defense counsel pre-trial received considerable individual voir including agreed jury extended selection process dire, jurors revealed day prospective the of voir several dire. On second had been family members who had either close friends against One charged Tapson. to those victims of crimes similar raped and murdered. juror kidnaped, prospective had friend that was daughter they each had a prospective jurors revealed that Two other challenge did not rape. a violent Defense counsel who was victim of cause, any peremptory nor did he use jurors prospective these prospective Both these individuals. of challenges to remove daughters final raped up serving jury panel. whose were ended 8, 1999, deliberations, day jury On full of April second with notify District Court met counsel the record to them that the of jury had a verdict on one the three counts but was unable to reach Tapson a verdict on the two counts. The court until recessed present. parties could be Neither the court nor the knew which charge jury charge. had decided or how it had decided that Tapson Once was present, suggested substituting the State existing charges, verdict form that listed three six verdict form “guilty” guilty” forms-one and one “not form for each of the three charges. The substituting State maintained that verdict forms would problem jury avoid the its switching current verdict on the one charge sort compromise. for some of last minute The State also suggested Judge that the take the forms into the room rather than handling the matter in Since court. defense counsel voiced no opposition suggestions, these Judge took the forms the jury into room. Neither Tapson present. counsel nor were The did not return to the courtroom until eleven minutes later. There was no the Judge spent record whether the entire eleven minutes with the jury or only portion of that time. any Nor was record made of what the Judge jury, told the questions, whether had any gave any whether the Judge responses. The returned a of “guilty” verdict on the charge attempted
deliberate homicide. The foreperson stated that the jury was opinion “unanimous could not reach a verdict others.” The court then dismissed set time for 10, 1999, sentencing. August On the court sentenced to life imprisonment. Tapson appeals his conviction and sentence.
Discussion
¶13 Whether the District Court
committed reversible error
alone,
without counsel or
present, and without a
by Tapson
present.
his constitutional
federal constitutional
at all criminal
one
most basic
contained in Confrontation Clause of the Sixth Amendment.
Illinois Allen
397 U.S.
90 S.Ct.
432 at Montana, defendant right of a criminal be Constitution: “In all guaranteed by his is the Montana expressly trial prosecutions right appear the accused shall have the criminal II, 24, in Art. Sec. Mont.Const. Since person defend counsel....” defend in is found within Montana’s right appear person A is right. right is fundamental Rights, Declaration of is if the either “fundamental” under Montana’s Constitution Rights “without which other found in the Declaration of meaning.” guaranteed rights would have little Butte constitutionally 1309, (1986), 426, 430, 219 Mont. Community Union v. Lewis 1922, interpreting as recognized early This when Constitution, “the provision identical of the 1889 Montana trial.” Reed present throughout must the entire State v. defendant added). 756, (emphasis The Court 65 Mont. 210 P. 757 stated in Reed: law, principle relating procedure, to criminal better
No cases, nothing in done in the felony than should be settled unquestioned right “to be prisoner. absence of the It is his legal He has the with his accusers and witnesses.” confronted case, at all jury hearing when the are trial, during anything when is done proceeding times right. ... any which in manner affects his (citation omitted). Reed, P. 758 no cases in Montana where a reported There are other jury instructed the off the record. jury entered the room alone and intended this case While we do believe made it clear any way, jurisdictions jury influence the any remain free of extraneous that to insure that deliberations influences, judges. See room door must remain closed to (“[T]he (7th 1994), 469, 471 31 F.3d v. Smith Cir. United States privately speak practice judge entering unusual of a right to be afoul a defendant’s is almost certain run (Mass. Patry proceedings.”); Commonwealth present during 2000), (“[J]udges should not enter 722 N.E.2d App. Ct. business, with the court’s even any time to conduct the rooms (Ala. v. State jury.”); Graves parties’ consent or at invitation (“No communication, 1979), 377 So.2d App. Crim. after whatever, and the place take between should them, court with all unless has cause been submitted sanctity room must attorneys present. parties and their
433
inviolate,
it
judge’s responsibility
remain
and
is the trial
to maintain
judicial
less
sanctity. Anything
is
abdication of his
(Okla.
1942),
responsibility.”);
v. State
Crim.
App.
Graham
(“To
308,
persons,
another,
under one
to
permit
pretext
311
various
in
jury
open
grave
with the
its deliberations is to
the door to
abuse
system.”);
directly
and to strike
at the heart of the
v.
State Wroth
(Wash. 1896),
106, 107,
part by
47 P.
overruled in
State
Caliguri
v.
(Wash.
(“In
1983),
discharge
Any parte meeting ex judge communication between the the foreman of deliberating jury pregnant a with possibilities for error. amply This record demonstrates even an experienced judge cannot pitfalls be certain to avoid all the inherent in such an enterprise. First, contain, it is difficult to much anticipate, less to the direction the conversation will take a meeting. at such Unexpected questions or comments can generate unintended and misleading impressions of the judge’s subjective personal place views which have no in his instruction the jury-all to the more so when counsel are not present challenge statements.
In Gypsum,
meeting
held that
this unrecorded
judge
juror
between
warranted reversal
impossible
because was
gauge
meeting
jury’s
Gypsum,
how the
affected the
verdict.
438 U.S.
462,
yet signed the verdict and the verdict had been returned to 46-16-603(1), MCA. pronounced open § court. See Furthermore, indicating sort of verdict does not note some poll had the guarantee a unanimous verdict. still regard of mind jurors in court about their state 16-17, 25, 16-17, 300 MT Mont. Pyatt, the verdict. State v. ¶¶ ¶¶ Moreover, could have directed P.3d 16-17. been ¶¶ of lack of discharged to farther deliberate or could have been because 46-16-604, MCA. unanimity on all counts. See § criminal fundamental In addition to defendant’s trial, a stages at all critical criminal defendant has II, A fundamental trial. Art. Sec. Mont.Const. proving has the means for public trial ensures that the defendant *6 his her and to see that procedural necessary protect rights facts (1916), “unjustly v. 52 the defendant is not condemned.” State Keeler 218, 1080, 205, P. Mont. 156 1083. right public including The to a trial extends the entire trial
¶22 (Mass. App. judge’s jury. Patry instructions to the Commonwealth v. 2000), 979, met with the Patry, judge Ct. 722 N.E.2d 982-83. times in the room supplemental instructions three give being for Both defense purposes. because the courtroom was used accompanied prosecutor agreed procedure counsel and the to this reporter. appeal, into the room with the court On along holding conviction even with Patty’s the court reversed reporter, giving supplemental and a court presence of counsel in the room violated the defendant’s Sixth instructions to the Patry, N.E.2d at 982-83. Unlike right public Amendment to a trial. 722 in the room with the Patry, present counsel was not Tapson’s meeting to record what reporter and no court attended the occurred. Tapson’s right The that defense counsel waived State contends The attorney. is bound the actions of
be and that 288, 28, 20 LaDue, 2001 MT 304 Mont. ¶ cites State v. ¶ State concerning objection jurisdictional idea that “an P.3d ¶ court, unless matters must be raised before the or constitutional 46-20-701(2), MCA, and if the apply under specific exceptions § appeal.” heard on is not made will be objection criminal at all federal right Gypsum, Since 43(a), While this codified at Rule Fed.R.Crim.P. proceedings has been at waived, by failing appear can occur can be waiver right by the defendant. United express personal through trial or
435 (9th (citations 1994), 964, 22 Felix-Rodriguez States v. Cir. F.3d 967 omitted). voluntary 25 is defined as the known
¶ “Waiver abandonment of a (1978), 170, right.” Musgrove 162, 1246, State v. 178 Mont. 582 P.2d added). (1984), 1251 (emphasis See also Welsh v. 212 Mont. Great Falls 403, 406, 411, 690 engage P.2d This will not waiver; any presumptions waiver of one’s constitutional must rights voluntarily, be specifically, knowingly. made Park v. Sixth Jud. Court, 164, 367, 36, 36, 1267, Dist. 1998 MT Mont. P.2d ¶ ¶ ¶ (1938), 464, 36 (citing 458, 1019, Johnson v. Zerbst 304 U.S. 58 S.Ct. 1023, 1461; (1968), 538, 82 L.Ed. 531, State v. Lucero 151 Mont. 735). 731, P.2d Moreover, before defendant can right, waive fundamental waiver, courts,
“such recognized by be must informed and intelligent for there can one be no waiver who does not know his rights he waiving.” 352, what State Allison holding 145. In that the defendant in Allison had not expressly silent, waived his to remain this Court stated: rights guaranteed by the apply Constitution to all alike-the
well-informed who know their ignorant well as to the rights. who never heard of such There the right stands like the rock of Gibraltar and it so protecting liberty remains the fife and every person particular person whether the knows about it or not.
Allison,
personally appear criminal and the to a *7 trial. Tapson’s While counsel professed rights, to waive these there nothing in the to Tapson record indicate that himself was of apprised these rights, anything nor is there indicating the record that he personally knowing, intelligent voluntary made a waiver these of rights. contrary, On the judge explained the that he going was to personally enter the jury room with the new verdict forms and instruct jury the way process. because it was the easiest to handle Tapson this fully could not have been option proceed informed when the to private presented or in court was as a of matter convenience. future, Consequently, ¶28 [3] we hold that in some the when there is arguably necessary circumstance enter making it the trial to must, the room jury jury present, while the a trial court defendant, record, explain the the the contemporaneously, to stages at all critical of right defendant’s constitutional to be If a public the and the to a trial. defendant chooses to waive rights, personal these the court must obtain an on-the-record voluntarily, that defendant acknowledging the defendant the intelligently knowingly rights. waives these argues further when prejudiced State that was the the room verdict forms. The State Judge jury exchange entered Judge, it is that the in the maintains that unreasonable believe subtle, so, unspoken a or some sort of space “through of minute communication, changed people the of who had reached minds twelve days two and said a verdict on one count after deliberation Moreover, that Tapson the others.” the State contends could decide any jury the in the room had Judge’s appearance cannot show that or charges. effect on the verdict the undecided hand, a points out, space on the other in the so, charge lesser jury questions could have asked about a minute homicide; opposed aid to attempted of failure render deliberate inquired charge into carries the maximum could have which forged compromise punishment; could have a allowable impossible it Judge’s response. The deficit in record makes no beyond prejudice a reasonable doubt that there was say Tapson. Although important the most factor here is actual intrusion deliberations, a during the lack of into doubt, a impossible say beyond
record reasonable “makes defendant, no and therefore harmless error.” prejudice there was (Ariz. Therefore, 1982), App. Ct. State v. Hilliard the rule that “it is reversible error for adopted the court Hilliard deliberate, has retired to judge to enter the room after communication, and any ensuing intent regardless or content of thereof, Hilliard, 651 resulting.” regardless prejudice, lack P.2d at 898. premise of Hilliard agree underlying While we with any almost
a avoid room under judge should can, circumstance, proper also determine that defendant at all critical advice, or her waive his Hence, adopt trial. we now stages of the trial and the voluntary, personal, knowing, contemporaneous, rule absent *8 defendant,1 intelligent by and on-the-record waiver the if a counsel, present enters the room while the and without defendant, and the court will be reporter, reversal automatic. Accordingly, we hold that the District Court committed by reversible error in this case with the present counsel, without Tapson reporter but and the court and contemporaneous, without a personal, knowing, voluntary, intelligent by Tapson on-the-record rights of his constitutional to a public trial and stages to be critical of trial. said, That the dissent raised has several contentions that deserve First,
response. reviewing Tapson’s dissent takes issue with our constitutional claim on appeal, arguing that he did not first raise that issue in the following trial court. The dissent faults us for not precedent set statutory forth inLaDue and our law at 46-20-104 and §§ 701, MCA, provide that that a claim alleging affecting an error jurisdictional or rights may constitutional not be on if appeal noticed the alleged objected during error was not trial. rule, general 46-20-701(2), MCA,
¶35 While that is the requires the § to, among things, defendant establish that the claimed error was prejudicial. Since, And that is the problem. already we pointed have out, no record was made of jurors what trial said to the or transpired what in the eleven minutes that he was absent from room, court no way Tapson prove there is for prejudice. The record reflects that a recess was called “to the proceed.” advise of how to Again, are implying on the part misconduct of the court. However, the advice, fact remains that could nob show what if any, Judge gave jurors that might how have affected their verdict; questions, any, deliberations or he could not show if what jurors might answered; have asked how those were neither he nor his counsel could gauge subtleties of facial expression body language or the might court provided grounds objection. We decline to hoist a criminal on defendant the horns of two this sort dilemma where fundamental highly protected involved-i.e., rights constitutional are requiring him to prove prejudicially affecting error jurisdictional rights where the means meet burden-the by court preserved record-was not reason of the commission already voluntary knowing, ¶ As noted at for the defendant waiver to s be preceded intelligent, and defendant, the waiver must the trial to the explaining court record, stages his or her at all critical and to a trial. error itself. Moreover, ground argument appeal its on the the State did not effectively
premise failing waived his appeal Rather, object vigorously argued in the the State court below. *9 only Tapson’s incidentally claim mentioned the threshold merits of preserved matter for our properly issue of whether had the Indeed, totality argument respect the of the State’s in this review. are, paragraph 39-page contained in one-half of a out of a brief. We any more accordingly, give importance disinclined to this contention did. apparently than the State Second, Gagnon relies United States mistakenly the dissent on 522, 105 1482, 84 the
(1985), 470 S.Ct. L.Ed.2d idea U.S. his or her to be expressly a defendant need waive that a failure assert that during stages critical the reviewing appeal. Court from the error on precludes at the time this personally Gagnon did not involve a defendant’s stage Gagnon, the trial held during a critical of the trial. counsel, juror’s hearing, by Gagnon’s attended to assess a in-camera jury. The observing Gagnon sketching portraits concern on the a “minor occurrence” and inquiry Court characterized by his Gagnon’s rights held that had not been violated Gagnon, nonappearance stage proceedings. at a non-crucial the 527,105 U.S. at S.Ct. 1484-85. Third, allowing it is that defense counsel consented while true the jurors the room converse with the off Judge enter to convenience the State
record, that this situation occurred at was jurors prosecutor allowing was worried that because the verdict he jeopardize would continue with their deliberations The the three counts. thought they already had reached on one of jurors into Judge bring did want the back prosecutor Rather, prosecutor the alternate verdict forms. court to receive having without their give the forms Judge wanted following colloquy: The leave the room. record discloses It to have the my THE PROSECUTOR: was not intent maybe have I we would thought from the room. removed you, whichever one signed submit the verdict form back them was, we assemble them. and then would Okay. THE COURT: think make is, I want to point
THE we PROSECUTOR: germane or relevant Allen instruction would clear that the to with nothing It has do that have been decided. to those counts they already on. one have reached verdict Right. THE COURT: Let them return a verdict and then- THE PROSECUTOR: your “Go back deliberate on two counts.” Well,
THE we proceed, COURT: however what we need to do is have they They first them return the verdict that do can have. they do that on the form If got. back, we send them could we send them back separate verdict forms the other two. is,
THE I guess my point PROSECUTOR: whole didn’t we them negotiating want or determining deciding anything except two counts have.
Again, believe that highly-protected, fundamental constitutional safeguard deserve more than to be off-handedly waived as a matter of convenience to counsel. Furthermore, contrary to suggestion the dissent’s rule we
set forth in this case “potentially impose would itself on each sidebar conference,” our opinion error-i.e., here deals with discrete while present, presence without the defendant, counsel and the court reporter, and without a contemporaneous, personal, knowing, voluntary intelligent, on- *10 by the-record waiver the defendant of his to at a rights stage critical of the trial and If to a trial. this is to be rule expanded cover rights, fears, to other errors and other as the dissent then case-by-case it will be on a briefing after and basis argument. Finally, we have not effectively
¶40 overruled our decisions in LaDue Harris, 115, 397, 881, and State v. 1999 Mont 294 Mont. 983 P.2d suggests. Rather, dissent we have determined that rules in those two cases do not for the apply explained reasons above. ¶41 Reversed remanded for further consistent with this opinion. GRAY, TRIEWEILER, COTTER,
CHIEF JUSTICE JUSTICES REGNIER and LEAPHART concur
JUSTICE RICE dissents. I respectfully dissent. Nine ago, panel months an Court unanimous this decided State LaDue, 47, 288, v. 2001 MT 304 Mont. 20 P.3d wherein the rights Defendant contended that his constitutional trial were violated when District request Court denied his to call additional witnesses in issue, his In addressing defense. this constitutional the Court 46-20-104, MCA, acknowledged that the matter governed was § 46-20-701, MCA, requires alleging claim an error “[a] which § may on jurisdictional constitutional not be noticed affecting held as follows: appeal alleged objected if the error was not to ...” and objection concerning These make clear that an statutes jurisdictional or matters must be raised before constitutional if is made it not be heard objection trial court... and the not will appeal. on requiring timely objection, a we have held that
In addition to rule, authority, objection specify must what statute provision might be violated the court’s decision an objector in order to the issue for has preserve appeal; so obligation objection to make the for the clear to court basis to itself. opportunity that the district court has correct State (1997), 483, 493. Huerta raises LaDue did not raise at trial the constitutional issue he to our appeal, preserve and has therefore failed the matter for trial, did raise issue he has waived his review. As he right to this issue. appeal
LaDue, LaDue passing 27-30. While the Court makes reference to ¶¶ holding this acknowledge the relevance of its fails ¶ Court, appears to Although by the LaDue have been matter. unstated further, overruled, upon relied holdings the statutes and which it which not first longer appeal will no bar constitutional claims were claim The raised in the district court. Court does review Thus, by issuing doctrine. pursuant plain issue here error statutes, directly which conflicts with LaDue decision disarray. leaves the law founded, is well and consistent policy behind the statutes grounds, United policy. On similar States federal 522,105 Court, Gagnon 470 U.S. S.Ct. United States v. curiam), object failure 2d held that defendant’s (per 84 L.Ed. a waiver of present during phases to his ofthe appeal the issue. to the failing object, than here the Defendant consented More bring the trial who wanted challenged procedure. It was *11 for to arrive so waiting After the Defendant jury into the courtroom. meeting, for the in-chambers that he could be jury. new to the providing verdict forms procedure discussed the enlightening: of the discussion are transcript from the Excerpts verdict, we take that then Why THE don’t we COURT: if give dynamite them and them want to instruction send on the two counts wouldn’t separate back with verdicts on, include the count that returned a verdict that would-if way you suggested, bring we would we do it first then have courtroom, give them into the them these other three sets of verdicts, send fill those them back have them out one of bring just shuffling them back. This would make less back and forth. my
[THE STATE]:It was not intent to have the moved I thought maybe room. we would have them from signed was, verdict one it you, submit the form back to whichever and then we would assemble them. that, anybody objection
THE COURT: Does if I do an you prefer would on the done record courtroom, case, in which bring will do them in and send back the verdict forms-
[DEFENSE objection your COUNSEL]: We have no proposition. objection
[THE STATE]: State has no to the Court administering them personally jury. to the added.) (Emphasis defense, Clearly, personally with the Defendant attendance, participated in the regarding proposed discussion verdict form then exchange, specifically consented it. “We will put a district court in error for an appealing action which the party Harris, acquiesced actively participated.” State v. 1999 MT 32. ¶ P.2d The rule Harris ¶ ¶ is, no apparently, more. The Court finds actions of defense here do not valid
constitute a waiver of the Defendant’s because was knowing, not “an voluntary, intelligent on-the-record waiver” a fully-advised defendant. ¶ Gagnon, rejected United States a claim that juror,
contact between a trial had to which defense counsel acquiesced, object. had been waived the defendant’s failure to Although Procedure, requires Rule Federal Rules Criminal trial, presence of all stages the defendant at the Court held: disagree object Appeals We with the Court of that failure to voluntarily irrelevant to whether defendant has absented himself under an which Rule 43 from in camera conference of he get court “on the express aware. district need not *12 trial every
record” waiver from the defendant may to attend. conference which a defendant added). 528,105 United Gagnon, (emphasis U.S. at S.Ct. 1482 recognized requiring impracticality States Court thus on-the- right through the defendant to be advised of each an awkward procedure record each time a trial is encountered. While impose procedure does such a waiver on other Court herein other, I why equally important fail to see rights, rule rights, logically incorporated would not be the Court’s waiver trial, the under In the of a criminal expressed the rationale here. flow than protected defendant’s are to be defense counsel. Rather may potentially itself impose impose an unworkable waiver rule that conference, job. I their There are on each sidebar would let counsel do remedies if fail so. to do I acknowledge regarding judges appearing the concern However,
rooms. that the Defendant waived his constitutional finding I appeal, also the issue for present, preserve failed to affirm. would