stating that defendant "did not, indeed could not, waive his right to be present in the courtroom at trial"
How later courts described this case
- stating that defendant "did not, indeed could not, waive his right to be present in the courtroom at trial"
- defendant's absence meant he could not waive right to be present in courtroom at trial
- the presence of counsel alone at trial can never be harmless per 13 se
- requiring an evidentiary hearing to determine if a replay of jury instructions outside defendant’s presence constituted harmless error
Written by the judges who cited it.
The opinion
DUNIWAY, Circuit Judge
(concurring) :
I concur. The holding in this case is a narrow one. As I understand Judge Ferguson’s opinion, it does two things. The first is to hold that, as a matter of federal constitutional law, a defendant in a state trial for a capital offense has a right to be present at every stage of the trial. I do not understand Judge Trask to dispute this proposition. Second, Judge Ferguson holds that without a record of what happened when the tape recording of the jury instructions was played back to the jury in the absence of the defendant, it is not possible to say that the error was harmless beyond a reasonable doubt. If the District Judge, on remand, gets a record of what happened at the proceeding in question, it will still be open to him, on the basis of that record, to decide whether the error was harmless beyond a reasonable doubt. We merely hold that the court could not make that determination without a complete record.
I find it difficult to accept Judge Trask’s statement that there is nothing to indicate that the record here is not complete. All that the court had before it was the Clerk’s minutes, which do not purport to be a transcript. The District Court had asked for and the state had refused to provide a reporter’s transcript of what was said and done. I see nothing startling in requiring that the record be produced for evaluation on the harmless error question by the District Judge.