# Luu v. People

> Supreme Court of Colorado · November 16, 1992 · 16 Brief Times Rptr. 1783

URL: https://www.frixlaw.com/law-library/cases/9575911

## Case

- **Full name:** Minh LUU, Petitioner, v. the PEOPLE of the State of Colorado, Respondent
- **Court:** Supreme Court of Colorado
- **Decided:** November 16, 1992
- **Citations:** 16 Brief Times Rptr. 1783; 841 P.2d 271; 1992 Colo. LEXIS 1033; 1992 WL 332781
- **Precedential status:** Published
- **Opinion:** Dissent by Lohr
- **Judges:** Vollack, Quinn, Lohr, Kirshbaum
- **Cited by:** 43 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9575911

## How later opinions describe it (automated extraction)

- stating that both the Sixth Amendment and the Due Process Clause of the federal Constitution give an accused a right to be present at trial
- holding that defendant's interpreter's absence during closing arguments and the giving of jury instructions was harmless
- holding that deprivation of the right to be present was a "trial error"
- noting that allegations of a denial of the right to be present are scrutinized under the harmless error standard

## Opinion text

Justice LOHR
dissenting:
The majority affirms the holding of the Colorado Court of Appeals in People v. Luu, 813 P.2d 826 (Colo.App.1991), that Minh Luu’s federal constitutional right to be present at his trial was not violated by the absence of an interpreter during closing arguments and the giving of jury instructions. In so doing, the majority holds that under Arizona v. Fulminante, _ U.S. _, 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991), it is compelled to find that allegations of denial of the right to be present at trial are subject to harmless error analysis. Maj. op. at 274. Because I conclude, on the contrary, that the basic principles articulated in Fulminante lend greater support to the view that the denial of a defendant’s right to be present during closing arguments and the giving of jury instructions is not subject to harmless error analysis, and because I believe that Luu was denied his constitutional right to be present at his trial, I respectfully dissent.
I
Luu, who is Vietnamese, was charged with several serious crimes, and the majority concedes that he did not understand or speak English at the time of trial. A Vietnamese interpreter was appointed by the court to translate the proceedings for Luu and to help him communicate with his attorneys. In December of 1987, a jury trial commenced and continued for several days. Luu was present throughout the trial, and his interpreter was present during pre-trial motions, voir dire, opening arguments and the presentation of evidence. Luu’s interpreter, however, was not present in the courtroom during instructions to the jury, closing arguments, and the return of the jury’s verdicts. Before closing arguments and outside the presence of the jury, Luu’s attorney expressed some concern to the court that Luu’s interpreter was not present, but stated:
Very briefly, Judge. Mr. Luu’s interpreter is not present. However, we are prepared to proceed. I would just maybe ask the court to indicate that, you know, I don’t want the jury sitting in there. I don’t think the interpreter is necessary for me to make my closing argument. I could be wrong about that. I think we prefer that we get this thing to the jury. I don’t think it’s going to affect Mr. Luu’s right in this case. That is my *277 personal opinion but I would perhaps ask the court to explain why the interpreter isn’t here because I think if the jury sees they are not here there may be problems.
Shortly thereafter, he added “I don’t want the jury speculating why someone [i.e., Luu’s interpreter] isn’t present when they have seen him throughout the trial.” Accordingly, just before closing arguments, the court told the jury “I want to indicate that the gentleman who had been seated at the defense table during part of the trial, Mr. Nguyen, is for reasons that we’ve not been informed of not able to be here. So he’s not here at this time.” The jury subsequently returned its verdicts that Luu was guilty of two counts of second-degree kidnapping, two counts of aggravated robbery, and one count each of first-degree burglary, second-degree burglary, conspiracy, and theft. The jury was not polled, and the court later sentenced Luu to a total of 120 years imprisonment based on the imposition of consecutive sentences for some of the various individual convictions.
The court of appeals affirmed the judgment of conviction, but in a modified opinion it set aside the sentence and remanded the case for resentencing. Luu, 813 P.2d at 829 . Luu filed a petition for certiorari, and we granted certiorari on the issue of whether the court of appeals erred in applying harmless error analysis to determine whether the defendant’s conviction should be reversed because the defendant’s interpreter was not present during closing arguments and the reading of jury instructions.
II
Whether the majority is correct that “[u]nder Fulminante , federal law is clear:
harmless error analysis applies to allegations of error regarding denial of the federal constitutional right to be present at trial,” maj. op. at 275, depends upon how much it is appropriate to read into a parenthetical description of a case contained in a string citation of sixteen cases. That is, the Court in Fulminante never states: “Harmless error analysis applies to all cases in which the issue is the denial of a defendant’s right to be present at trial.” Instead, the Court states that “the Court has applied harmless error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless. See, e.g., ... Rushen v. Spain, 464 U.S. 114, 117-118 , and n. 2 [ 104 S.Ct. 453, 454-455 , and n. 2, 78 L.Ed.2d 267 ] ... (1983) (denial of a defendant’s right to be present at trial)....” Fulminante , _ U.S. at _, 111 S.Ct. at 1263 (citations and parenthetical descriptions of fifteen cases omitted). 1 It is thus debatable, to say the least, whether the Court meant that the error involved in Rushen is one example of an error that can be harmless, or that any violation of the right to be present at trial is subject to harmless error analysis. If the Court meant the former, then the specific facts of Rushen are material, 2 but if the Court meant the latter, then the specific facts of Rushen are immaterial, and all that matters is that the defendant in this case alleges that his right to be present at trial has been violated. The correct meaning emerges, however, when we look beyond the string citation in Ful-minante and apply the basic principles thereafter articulated in Fulminante for determining in a given case whether a defendant’s alleged denial of his constitution *278 al right is properly subject to harmless error analysis.
According to the Court in Fulminante , “[t]he common thread connecting these cases [which include Rushen as one of sixteen cases included in the immediately preceding string citation] is that each involved ‘trial error’ — error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” Fulminante , _ U.S. at _, 111 S.Ct. at 1264 . In addition, the Court’s clear example of “a classic ‘trial error,’ ” id, was the admission of an involuntary confession, because such an improper admission of evidence is
similar in both degree and kind to the erroneous admission of other types of evidence ... [and w]hen reviewing the erroneous admission of an involuntary confession, the appellate court, as it does with the admission of other forms of improperly admitted evidence, simply reviews the remainder of the evidence against the defendant to determine whether the admission of the confession was harmless beyond a reasonable doubt.
Id. at _, 111 S.Ct. at 1265 .
In contrast to this classic type of trial error, where the court has the ability quantitatively to assess the effect on the jury of certain evidence presented to it in relation to other evidence also presented, a court has no way of quantitatively assessing the effect on the jury or the court of what was not presented to it, but perhaps might have been, if the defendant’s rights had not been violated. Thus, the Ninth Circuit Court of Appeals has held that because “an accurate assessment of the prejudice resulting from unconstitutional in absentia sentencing is impossible,” Hays v. Arave, 977 F.2d 475, 480 (9th Cir.1992), the denial of a defendant's right to be present at sentencing cannot be subject to harmless error analysis under the principles articulated in Ful-minante. Id. Similarly, the Tenth Circuit Court of Appeals has held that the denial of a defendant’s right to be present during closing arguments and jury instructions could not be harmless error because “[the] defendant was competent to stand trial ... [and the] defendant’s presence might have allowed him to provide assistance to his counsel.” Larson v. Tansy, 911 F.2d 392, 395 (10th Cir.1990).
In contrast also to Fulminante’s classic type of trial error the effects of which can be quantitatively assessed, a court has no way of quantitatively assessing the effect on the jury of less tangible and more subtle phenomena, such as the psychological influence on the jury of the absence of the defendant, as well as the possibility that the jury speculated about the defendant’s absence in a way prejudicial to him. Thus, in Larson , the court also held that “aside from any assistance defendant could have given to his counsel, [the defendant’s mere presence] would have been useful and would have provided more than a shadow of benefit,” id., and that, therefore, “[the] defendant was deprived of his due process right to exert a psychological influence upon the jury, completely aside from any assistance he might have provided to his counsel.” Id. at 396 (stating also that there was a “ ‘reasonable possibility that the jury speculated adversely to the defendant about his absence from the courtroom’ ”) (quoting Wade v. United States, 441 F.2d 1046, 1050 (D.C.Cir.1971)). 3
*279 In the case before us, I see no way of “quantitatively assessing],” Fulminante , _ U.S. at _, 111 S.Ct. at 1264 , the difference between, on the one hand, the psychological influence on a jury of a trial procedure that, because of the absence of an interpreter, indicates it is of no or little importance whether the defendant can understand what is being said by counsel and the court, and on the other hand, the psychological influence on the jury of a trial procedure that, because of the physical absence of the defendant, indicates that it is of no or little importance whether the defendant is able to hear what is being said. Nor do I see any way of quantitatively assessing either the impact on the jury of statements Luu’s attorney might have made in closing argument at Luu’s suggestion if Luu’s interpreter had been there, or the negative impact on the jury of seeing that it did not matter that Luu could not understand the closing arguments and the jury instructions. Accordingly, the denial of a defendant’s right to have an interpreter present during closing arguments and jury instructions is significantly different from the classic sort of trial error envisioned by the Court in Fulminante in that it is not susceptible to the sort of quantitative assessment envisioned by the Court as the hallmark of harmless error analysis. I would therefore hold that the denial of the defendant’s right to be present during jury instructions and closing arguments is more closely akin to a “structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself,” id. _ U.S. at _, 111 S.Ct. at 1265 ; see Arave, 977 F.2d at 480 (holding that one “reason why unconstitutional in absentia sentencing constitutes ‘structural error’ [under Fulmi- nante] is our inability to determine accurately the impact of the error on the outcome of the proceeding”), and that, therefore, the denial of the defendant’s right to be present during jury instructions and closing arguments is not properly subject to harmless error analysis. 4
Ill
Having determined under Fulminante that a denial of a defendant’s right to be present during closing arguments and jury instructions is not subject to harmless error analysis, I turn to the issue of whether Luu’s constitutional right to be present at his trial was violated in this case.
First, it is well settled in federal law that an accused enjoys a constitutional right to be present at trial. See United States v. Gagnon, 470 U.S. 522, 526 , 105 S.Ct. 1482, 1484 , 84 L.Ed.2d 486 (1985) (per curiam) (recognizing that the constitutional right to be present at trial is rooted in both the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment); Illinois v. Allen, 397 U.S. 337, 338 , 90 S.Ct. 1057, 1058 , 25 L.Ed.2d 353 (1970) (“One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial.”). More specifically, federal courts have recognized that a defendant has a constitutional right to be present at summations, jury instructions, and the return of the jury verdict. See Larson, 911 F.2d at 394 (recognizing that “a defendant [has] a constitutional right to be present at summations, jury instructions, and the return of the jury verdict”); United States v. Fontanez, 878 F.2d 33, 34, 35 (2nd Cir.1989) (stating that "[t]he right to be present at all stages of one’s trial constitutes a foundational principle underpinning the entire law of criminal procedure,” and holding that “every criminal defendant ... [is] entitled to be present at all stages of his *280 trial,” including merely the reading back of testimony to a jury during their deliberations); Burrell v. Aaron, 560 F.2d 988, 989 (10th Cir.1977) (per curiam) (stating that a defendant who was absent from summation, instructions, and return of a verdict “obviously had a constitutionally protected right to be present if he wished”), cert. denied, 434 U.S. 1018 , 98 S.Ct. 740 , 54 L.Ed.2d 765 (1978).
Second, the court of appeals held, and I agree, that “although the defendant was present during closing arguments and the reading of jury instructions, ... the absence of his interpreter was tantamount to his not being present at all.” Luu, 813 P.2d at 828 . The only unresolved issue, therefore, is whether Luu effectively waived his constitutional right to have an interpreter present during closing arguments and jury instructions.
Federal courts have held that a defendant’s right to be present at trial is a personal right that cannot be waived by the defendant’s attorney without the defendant’s knowing and voluntary consent, United States v. Crutcher, 405 F.2d 239, 243-44 (2nd Cir.1968), cert. denied, 394 U.S. 908 , 89 S.Ct. 1018 , 22 L.Ed.2d 219 (1969), that a defendant’s right to be present at trial is a personal right that cannot be waived by the defendant’s attorney, United States v. Gordon, 829 F.2d 119, 124-25 (D.C.Cir.1987), and, more specifically, that defense counsel cannot waive a defendant’s right to be present at closing arguments and jury instructions. See Larson, 911 F.2d at 396 . I am therefore led to agree with the court of appeals in this case that Luu’s defense counsel did not have authority effectively to waive Luu’s right to an interpreter during closing arguments and jury instructions. See Luu, 813 P.2d at 828 . Furthermore, because there is no evidence in the record to suggest that Luu himself, rather than his attorney, acquiesced in the absence of an interpreter, 5 I would hold that Luu did not effectively waive his right to be present during trial. Cf. Larson, 911 F.2d at 396 (holding that the defendant’s silent acquiescence to his removal from the courtroom did not constitute a personal waiver of his right to be present at trial, and that “we indulge every reasonable presumption against waiver of fundamental constitutional rights and will not presume acquiescence in the loss of such rights”). Luu’s constitutional right to be present during closing arguments and jury instructions was therefore violated, and he is entitled to a new trial.
. A similar parenthetical description capsulizing Rushen appears in Rose v. Clark, 478 U.S. 570, 576 , 106 S.Ct. 3101, 3105 , 92 L.Ed.2d 460 (1986) ("Rushen v. Spain, 464 U.S. 114, 118 , 104 S.Ct. 453, 455 , 78 L.Ed.2d 267 (1983) (per curiam) (denial of right to be present at trial)") in a six-case string citation in support of the proposition that the harmless error principle "has been applied to a wide variety of constitutional errors.” Id.
. In Rushen , the Court disagreed with a Ninth Circuit Court of Appeals’ conclusion that "an unrecorded ex parte communication between trial judge and juror can never be harmless error,” Rushen v. Spain, 464 U.S. 114, 117 , 104 S.Ct. 453, 455 , 78 L.Ed.2d 267 (1983) (per curiam), while, at the same time, it assumed (without deciding) that an undisclosed and off-the-record ex parte communication between a trial judge and a juror during trial implicates a defendant’s constitutional right to be represented by counsel and his right to be present at trial. Id. at 117 n. 2, 104 S.Ct. at 455 n. 2.
. The court of appeals dealt only with the absence of Luu’s interpreter during closing arguments and jury instructions, and we granted certiorari only on that issue. However, the record also reflects that Luu’s interpreter was absent when the jury returned its verdicts against him, and the jury was not polled. The impact on the jury of being able to render verdicts that were not comprehensible to Luu may have been substantial. See Lee v. State, 509 P.2d 1088, 1094 (Alaska 1973) ("A substantial right was affected by Lee’s being absent when the jury returned its verdict. Had he been present he could have insisted on a poll of the jury being taken. While the judge did ask the jury generally if this was their verdict, the members were not polled individually. Lee was deprived of the right personally to confront the jury.... The psychological distinction between a general poll in his absence, and an individual poll requiring each juror to assume the burden of his decision and affirm it in the defendant’s presence is not a minor one.”).
. For very similar reasons, I recently expressed the view in dissent that violations of a defendant’s right to testify are also not subject to harmless error analysis. See People v. Naranjo, 840 P.2d 319 , 329 n. 7 (Colo.1992) (Lohr, J., dissenting). That is, in contrast to the wrongful admission of a piece of evidence, a court has no way of quantitatively assessing the impact upon the jury of the failure of the jury to hear what the defendant might have said had he testified. Furthermore, because the issue in Rushen was the impact on the juror of ex parte communications between the judge and the juror, the trial court was in a good position to assess the impact of what was said to the juror, and it is for this reason that the Court in Fulminante properly conceptualized Rushen as a case involving trial error capable of quantitative assessment.
. On the contrary, when Luu's attorney informed the court that Luu’s interpreter was not present, Luu’s attorney stated that he "could be wrong” about whether the interpreter was necessary and it was only his “personal opinion" that it would not affect his client’s rights.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9575911. Public record. Not legal advice.