People v. Carroll

¶1I concur except as follows.

¶2In the People v Medcoff paragraph, the majority opinion states:

¶3"This is a test which does not involve defendant’s physical presence if his counsel is there representing him, for under those circumstances, there are no rights held by the defendant which his presence would have afforded him that his counsel cannot exercise in his absence.”

¶4Grammatically this suggests as long as defense counsel is present, the defendant’s presence is unnecessary. If the majority opinion means this, it is incorrect as this is obviously not the law.

¶5(concurring).

¶6*417"While in particular instances we may have affirmed the convictions, we have considered as bad practice, proceedings had in the absence of the accused.” People v Medcoff, 344 Mich 108, 116; 73 NW2d 537 (1955).

¶7My purpose in writing separately is to underscore that what occurred here is bad practice and to express my disagreement with my colleagues’ statement that "there are no rights held by the defendant which his presence would have afforded him that his counsel cannot exercise in his absence”.

¶8The issue on the first in-chambers inquiry was whether a conversation between a police officer and other persons was overheard by one or two jurors. During the second inquiry a juror disclosed that he was acquainted with a prosecution witness. Appellants concede that error cannot be assigned as to the third inquiry concerning a juror who did not participate in the verdict. People v Fountain, 392 Mich 395; 221 NW2d 375 (1974).

¶9Here, in contrast with Medcoff, the inquiries did not concern allegations of misconduct on the part of a juror during trial nor was there any interrogation of a juror.1

¶10"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.” Illinois v Allen, 397 US 337, 338; 90 S Ct 1057; 25 L Ed 2d 353 (1970).2

¶11This fundamental right cannot be defeated by conducting proceedings in chambers.

¶12*418The presence of defendant’s counsel does not supplant the need for defendant’s presence. "[H]is life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court and triers, in the selection of jurors. The necessities of the defence may not be met by the presence of his counsel only.” Hopt v Utah, 110 US 574, 578; 4 S Ct 202; 28 L Ed 262 (1884). "Again, defense may be made easier if the accused is permitted to be present at the examination of jurors or the summing up of counsel, for it will be in his power, if present, to give advice or suggestion or even to supersede his lawyers altogether and conduct the trial himself.” Snyder v Massachusetts, 291 US 97, 106; 54 S Ct 330; 78 L Ed 674 (1934).

¶13The United States Court of Appeals for the District of Columbia Circuit has stated the applicable standard for determining whether reversible error occurred: "It is possible that defendant’s absence made no difference in the result reached. The standard by which to determine whether reversible error occurred, however, is not whether the accused was actually prejudiced, but whether there is 'any reasonable possibility of prejudice’.” Wade v United States, 142 US App DC 356, 360; 441 F2d 1046, 1050 (1971).

¶14Defendants have not suggested any possible prejudice resulting from their absence. They have not claimed that if they had been present they would have requested that the jurors involved in the first inquiry be interrogated (as well as a participant in the conversation) or that such interrogation would have shown that the jurors in fact overheard discussion relevant to the case. Nor do defendants assert, for example, that they were not aware of the inquiries and, thus, denied the opportunity to *419request their counsel to challenge the jurors for cause or to exercise a peremptory challenge.

¶15Absent a claim and a showing of a reasonable possibility of prejudice because the proceedings might have been different had defendants been present, there is no reversible error.

¶19I dissent. The majority opinion’s statement that "there are no rights held by the defendant which his presence- would have afforded him that his counsel cannot exercise in his absence” does not comport with the requirements of the Sixth and Fourteenth Amendments of the United States Constitution nor with the applicable state statute. MCLA 768.3; MSA 28.1026.

¶20The Sixth and Fourteenth Amendments confer on the defendant the "right to be present” during the conduct of the prosecution. Illinois v Allen, 397 US 337, 342; 90 S Ct 1057; 25 L Ed 2d 353 (1970). This right to be present entitles the defendant "to give advice or suggestion or even to supersede his lawyers altogether and conduct the trial himself’. Snyder v Massachusetts, 291 US 97, 106; 54 S Ct 330; 78 L Ed 674 (1934).

¶21The right of a criminal defendant to be present personally at all stages of the proceedings may be waived or forfeited. Illinois v Allen, supra.However a valid waiver requires "an intentional relinquishment or abandonment of a known right or privilege,” Johnson v Zerbst, 304 US 458, 464; 58 S Ct 1019; 82 L Ed 1461 (1938), and the waiver of a constitutional right will not be presumed from a silent record. Carnley v Cochran, 369 US 506; 82 S Ct 884; 8 L Ed 2d 70 (1962). People v Grimmett, *420388 Mich 590; 202 NW2d 278 (1972). There was no valid waiver here.

¶22A defendant deprived of his constitutional right to be present at all stages of his trial is not required to prove prejudice.

¶23"[T]he abrogation of defendants’ right to be present is not determined from the result and review thereof of the court’s inquiry but rather from the mere fact that during the inquiry defendants were not given an opportunity to exercise those privileges which their right to be present affords them. Where such fundamental rights are denied, the guilt or innocence of the accused is not concerned and neither party is put to the burden of showing actual injury or prejudice or the lack of it. Injury is conclusively presumed.” People v Medcoff, 344 Mich 108, 117-118; 73 NW2d 537 (1955).

¶24The Legislature has recognized this rule of law in MCLA 768.3; MSA 28.1026:

¶25"No person indicted for a felony shall be tried unless personally present during the trial; persons indicted or complained against for misdemeanors may, at their own request, through an attorney, duly authorized for that purpose, by leave of the court, be put on trial in their absence.” (Emphasis added).

¶26This conviction should be set aside.