Shewfelt v. Alaska

¶1concurring.

¶2I concur in the judgment. However, I write separately to address the issue that the majority declines to reach: whether a defendant’s right to attend a playback constitutes “clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). In my opinion, the failure to recognize the right to be present during a playback or readback would be an “unreasonable application” of the larger body of Supreme Court precedent establishing the right of defendants to attend all essential phases of their own trial. See Rushen v. Spain, 464 U.S. 114, 117, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983); Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Accordingly, I would affirm this aspect of the Aaska Supreme Court’s holding and find that for a state court to hold otherwise would violate even the deferential, AEDPA-amended language of § 2254(d)(1).

¶3In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court explained that a state court makes an “unreasonable application” of clearly established federal law “if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s ease.” 529 U.S. at 412, 120 S.Ct. at 1523. A state-court decision also involves an “unreasonable application” of Supreme Court precedent if it “unreasonably refuses to extend [a legal principle] to a new context where it should apply.” 529 U.S. at 407, 120 S.Ct. at 1520. A number of post-Williams opinions issued by this circuit provide further guidance for putting these dictates into practice. Hence, as we held in Patterson v. Gomez, 223 F.3d 959 (9th Cir.2000), “[t]he Supreme Court need not have addressed a factually identical case; § 2254(d) only requires that the Supreme Court clearly determine the law.” Id. at 962. Furthermore, as we stated in Van Tran v. Lindsey, 212 F.3d 1143 (9th Cir.2000), “the clearly established federal law, the application of which must be determined to be reasonable or unreasonable, is ordinarily to be found at the level of generality of a general rule.” Id. at 1157 (internal quotations omitted). Finally, rather than proceeding directly to the question of whether relief should be granted under § 2254(d)(l)’s deferential criteria, “we must first consider whether the state court erred; only after we have made that determination may we then consider whether any error involved an unreasonable application of clearly established law within the special meaning of § 2254(d).” Id. at 1155.

¶4The right of a criminal defendant to be present at his own trial is a bedrock principle of our constitutional jurisprudence. See, e.g., Rushen, 464 U.S. at 117, 104 S.Ct. 453; Allen, 397 U.S. at 338; United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985). Hence, I believe that the Aaska Supreme Court correctly held that the trial court’s failure to provide Shewfelt with the opportunity to be present at the playback of trial testimony violated his rights under the Sixth and Fourteenth Amendments of the federal constitution as well as the Aaska state constitution. See State v. Shewfelt, 948 P.2d 470, 471-72 (Aaska 1997); State v. *331Hannagan, 559 P.2d 1059, 1063 & n. 12 (Alaska 1977) (citing Allen, 397 U.S. at 338; Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Dowdell v. United States, 221 U.S. 325, 331, 31 S.Ct. 590, 55 L.Ed. 753 (1911); Lewis v. United States, 146 U.S. 370, 373, 13 S.Ct. 136, 36 L.Ed. 1011 (1892); Hopt v. Utah, 110 U.S. 574, 578, 4 S.Ct. 202, 28 L.Ed. 262 (1884)). It follows a fortiori from the legal correctness of the state court’s holding that it also does not constitute a decision “contrary to, or involv[ing] an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.”2

¶5Given the incontrovertible nature of the general right of defendants to attend their own trial proceedings, we should not then have to parse out every aspect of the trial to determine whether the general principle applies to it (e.g., to impaneling the jury, polling the jury, opening and closing arguments, etc.). Our safety valve is harmless error analysis, not a refusal to recognize that the constitutional right has been established and violated. However, because I conclude that the error in Shewfelt’s case was harmless, I concur in the judgment of the court.