Raffel, Gary David

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Casenotes: Criminal Procedure — Defendant\u27s Absence from a Stage of the Trial Can Constitute Harmless Error despite Maryland Rule Requiring Presence. Noble v. State, 293 Md. 549, 446 A.2d 844 (1982)

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University of Baltimore Law ReviewVolume 12Issue 2 Winter 1983 Article 121983Casenotes: Criminal Procedure — Defendant'sAbsence from a Stage of the Trial Can ConstituteHarmless Error despite Maryland Rule RequiringPresence. Noble v. State, 293 Md. 549, 446 A.2d844 (1982)Gary David RaffelUniversity of Baltimore School of LawFollow this and additional works at: http://scholarworks.law.ubalt.edu/ublrPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Review by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information,please contact snolan@ubalt.edu.Recommended CitationRaffel, Gary David (1983) "Casenotes: Criminal Procedure — Defendant's Absence from a Stage of the Trial Can ConstituteHarmless Error despite Maryland Rule Requiring Presence. Noble v. State, 293 Md. 549, 446 A.2d 844 (1982)," University of BaltimoreLaw Review: Vol. 12: Iss. 2, Article 12.Available at: http://scholarworks.law.ubalt.edu/ublr/vol12/iss2/12CRIMINAL PROCEDURE - DEFENDANT'S ABSENCE FROMA STAGE OF THE TRIAL CAN CONSTITUTE HARMLESS ER-ROR DESPITE MARYLAND RULE REQUIRING PRESENCE.Noble v. State, 293 Md. 549, 446 A.2d 844 (1982).During the voir dire of prospective jurors at Liston G. Noble'strial, one venireman asked to approach the bench with the prosecutorand the defense attorney.' In essence, the prospective juror admitted topossible prejudice against the defendant because members of his familyhad been the victims of an unsolved violent crime.2 Accordingly, thejudge excused that venireman from serving on the jury.3 The benchconference took place in the defendant's absence. Noble was subse-quently convicted on all counts.4Three years later, the defendant filed a petition in criminal courtunder the Uniform Post Conviction Procedure Act5 attacking his con-viction on several grounds.6 Noble argued that his right to be presentat every stage of the trial, as guaranteed by the Maryland Rules of Pro-cedure,7 was violated during the voir dire of a prospective juror at abench conference at which the defendant was not present.' The post-conviction court found that any violation of the defendant's right to be1. Noble v. State, 293 Md. 549, 570, 446 A.2d 844, 854 (1982). The defendant wastried on charges of felony murder, attempted armed robbery, and use of a hand-gun in the commission of a violent crime. Id at 551, 446 A.2d at 845.2. The following colloquy occurred at the bench:THE JUROR: Part Four, I'm Mr. Roy. My father and brother wereboth murdered in the city, no arrests have been made in the case.THE COURT: Well I have a feeling that probably would make itpretty difficult for you to sit on a jury of this kind. I'm going to excuseyou.MR. ROY: All right, thank you.(END OF BENCH CONFERENCE)Id at 570, 446 A.2d at 854.3. Id4. Id at 551, 446 A.2d at 845. Noble appealed his conviction on issues concerningthe sufficiency of the evidence, jury instructions, and the prosecutor's closing ar-gument. The Court of Special Appeals of Maryland affirmed the conviction in anunreported opinion. The defendant's petition for a writ of certiorari to the Courtof Appeals of Maryland was subsequently denied. Id; see also Noble v. State, 281Md. 741 (1977).5. MD. ANN. CODE art. 27, § 645A-J (1982 & Supp. 1982).6. One of those grounds concerned whether the defendant had waived his right to bepresent at the bench conference. The court noted that a recent decision, Williamsv. State, 292 Md. 201, 438 A.2d 1301 (1981), held that waiver could be found fromthe defendant's failure to be present and by failing to object to the exclusion froma bench conference. However, since Williams was rendered after Noble's originaltrial, the court was bound by the former waiver rule which provided that the de-fendant must personally and expressly waive his right to be present. Noble v.State, 293 Md. 549, 556, 446 A.2d 844, 847 (1982).7. Rule 724 of the Maryland Rules of Procedure states in pertinent part: "The de-fendant shall be present at every stage of the trial including the impaneling of thejury and the return of the verdict, and at the imposition of sentence, except asprovided by these rules." MD. R. P. 724.8. The defendant testified that he was unfamiliar with the jury process, that the pro-cess had not been explained to him, and that had he known of his right to bepresent was harmless error because the potentially biased juror hadbeen excused.'On appeal, the Court of Special Appeals of Maryland found it dif-ficult to understand how the defendant could have been injured by hisabsence from the conference; nevertheless, the court reversed the appli-cation of the harmless error doctrine because "the cases are legion thatthe Maryland Rules are precise rubrics to be read and followed."'" InNoble v. State, " I the Court of Appeals of Maryland held that the doc-trine of harmless error can apply to the Maryland Rules of Procedure,and that a procedural error, such as failing to include a defendant at abench conference, does not necessarily require the reversal of a defend-ant's conviction.' 2 The Noble court found harmless error present inthis case because a defendant would not normally suffer prejudice frombeing absent from a bench conference which results in the dismissal ofa potentially biased juror.'3 Because the conversation occurred at thebench, the court further reasoned that the other prospective jurors werenot tainted with prejudice against the defendant.' 4 Thus, the courtfound beyond a reasonable doubt that Noble was not harmed by hisabsence from the voir dire bench conference. ' 5The dissenting judge in Noble feared that the application of theharmless error principle to a denial of a defendant's right to be presentresulted in an evisceration of that right.' 6 Furthermore, the dissent de-clared that the majority was changing the harmless error standard frombeyond a reasonable doubt to "bald speculation as to what the defend-ant may or may not have done had he been present."' 7Although all jurisdictions generally endorse the use of the harm-present he would have asserted it. Noble v. State, 293 Md. 549, 552-53, 446 A.2d844, 845-46 (1982).9. Id at 552 n.5,446 A.2d at 849 n.5. The test for harmless error in Maryland crimi-nal cases was set forth in Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976) asfollows:[When an appellant, in a criminal case, establishes error, unless a re-viewing court, upon its own independent review of the record, is able todeclare a belief, beyond a reasonable doubt, that the error in no wayinfluenced the verdict, such error cannot be deemed 'harmless' and areversal is mandated. Id at 659, 350 A.2d at 678.10. Noble v. State, 46 Md. App. 154, 156, 416 A.2d 757, 759 (1980), rev'd, 293 Md.549, 446 A.2d 844 (1982).11. 293 Md. 549, 446 A.2d 844 (1982).12. Id at 558, 446 A.2d at 848. However, the court did note that violations of certainprocedural rules could rarely be classified as harmless error. These rules in-cluded: rule 723(c), (d), (e) (waiver of right to counsel); rule 731(c) (acceptance ofguilty plea); rule 735(d) (waiver of right to jury trial); and rule 746 (speedy trial).Id13. Id at 571, 446 A.2d at 855.14. Id at 573, 446 A.2d at 856.15. Id16. Noble v. State, 293 Md. 549, 574, 446 A.2d 844, 856 (1982) (Cole, J., dissenting).17. Id19831 Noble P. StateBaltimore Law Reviewless error doctrine,' 8 it appears that a majority of jurisdictions specifi-cally apply it to violations of the defendant's right of presence deemingthis to be a substantial right.' 9 Thus errors which deprive the accusedof a substantial right require reversal. 20 For example, denial of a sub-stantial right occurs when there is a change in the composition of thejury in the absence of the defendant and his counsel.2 ' However, adeprivation of a substantial right would not occur when the accusedwas temporarily absent during voir dire and the judge deferred the juryselection until the defendant returned.22 A small minority of courtsrefuse to apply harmless error to situations where the defendant is de-nied his right to be present, finding it too difficult to determine theamount of prejudice suffered by him.23Maryland courts have on occasion followed both the majority andminority views in applying harmless error. The earliest Maryland caseon the subject, Duffy v. State,24 held that the Maryland Constitutiongave the defendant the right to be present at all stages of the trial andtherefore courts could not speculate as to whether the defendant wasinjured.25 If the record was unclear, prejudice to the defendant waspresumed.26 Subsequent cases accepted that reasoning in part, but heldthat if the record affirmatively indicated that a violation of the defend-ant's right to be present was not prejudicial and had no tendency toinfluence the verdict then the error would be deemed harmless and noreversal would be required.27In order to reconcile the defendant's right to be present with the18. See Note, Harmless Constitutional Error.- A Reappraisal, 83 HARV. L. REV. 814(1970) (all fifty states and the federal government have a harmless error rule man-dated by either constitution, statute, judicial rule or decision); see also Chapmanv. California, 386 U.S. 18, 22 (1967) (all fifty states have harmless error statutes orrules).i9. See, e.g., Noble v. State 293 Md. 549, 564 n.7, 446 A.2d 844, 851 n.7 (1982) (citingto Duffy v. State, 151 Md. 456, 473-75, 135 A. 189, 195-96 (1926)); see also Bryanv. State, 141 Fla. 676, 194 So. 385 (1940); State v. Bryant, 281 N.W.2d 712 (Minn.1979); People v. Ganett, 68 A.D.2d 81, 416 N.Y.S.2d 914 (1979).20. See, e.g., 28 U.S.C. § 2111 (1976) (on appeal or writ of certiorari, the court givesjudgment after an examination of the record, without regard to errors which donot affect substantial rights of the parties).21. United States v. Gay, 522 F.2d 429 (6th Cir. 1975).22. State v. Isaac, 261 La. 487, 260 So.2d 302 (1972).23. See, e.g., United States v. Crutcher, 405 F.2d 239 (2d Cir. 1968) (remand is man-dated when there is no way to assess the prejudice that may have occurred to thedefendant), cert. denied, 394 U.S. 908 (1969). But cf. United States v. Dioguardi,428 F.2d 1033 (2d Cir.) (harmless error applied when defendants sat fifteen totwenty feet away from the side bar where soir dire occurred), cert. denied, 400 U.S.825 (1970).24. 151 Md. 456, 135 A. 189 (1926).25. "[I]n dealing with an absolute constitutional right, the accused should not be atthe mercy of speculation as to whether the violation of it did or did not injurehim." Id at 476, 135 A. at 196.26. Id27. See, e.g., Midgett v. State, 216 Md. 26, 36-37, 139 A.2d 209, 214 (1958); LaGuar-dia v. State, 190 Md. 450, 458, 58 A.2d 913, 917 (1948).368 [Vol. 12Noble v. Stateapplication of the doctrine of harmless error, some Maryland courtsfocused on whether the defendant's absence during a stage of the trialhad a tendency to influence the verdict. In Midgett v. State, 28 a defend-ant was ruled to have the absolute right to be present when the courtanswered a supplemental jury question in writing because such actionconstituted a stage of the trial.29 However, the Midgett court also heldthat a violation of the right to be present would be harmless if the errordid not tend to influence the verdict.3° The court of special appeals inYoung v. State3 attempted to clarify Midgett's application of harmlesserror. Young viewed the written answering of supplemental jury ques-tions as mere "communications" and not as a stage in the defendant'strial.32 Thus, Young limited the defendant's right to be present to only"instructions" or charges from the court to the jury in regard to thefacts, law, or form of the verdict.33In Noble v. State, 34 the Court of Appeals of Maryland held that aviolation of the defendant's right to be present at all stages of the trialcould constitute harmless error, if a reviewing court determined beyonda reasonable doubt that the error did not influence the verdict.35 Adecisive factor in the Noble decision was the court of appeals' view thatYoung had erroneously interpreted Midgett by distinguishing between"communications" and "instructions. '36 Based on Midgett, Young heldthat a jury "instruction" was a stage of the trial and harmless error wastherefore inapplicable. 37 Young further held that a mere "communica-tion" with the jury was not a stage of the trial and thus the harmlesserror doctrine would be applicable. 38 The Noble court held that itwould be illogical to apply harmless error to events which did not con-stitute a stage of the trial because a criminal defendant would have noright to be present; thus, the defendant's absence would normally notbe error.3 9 Furthermore, the court of appeals noted that Midgett haddealt with events constituting stages of the trial.4"The Noble court's approach to applying harmless error is logi-cal and exemplifies judicial common sense. The decision now brings28. 216 Md. 26, 139 A.2d 209 (1958).29. Id at 36-37, 139 A.2d at 214.30. Id In reaching its holding, the Midgett court relied on LaGuardia v. State, 190Md. 450, 58 A.2d 913 (1948). Midgett v. State, 216 Md. 26, 36-37, 139 A.2d 209,214-15 (1958).31. 5 Md. App. 383, 247 A.2d 751 (1968).32. Id at 390, 391, 247 A.2d at 755, 756.33. Id34. 293 Md. 549, 446 A.2d 844 (1982).35. Id. at 568-69, 446 A.2d at 854.36. Id. at 567-68, 446 A.2d at 853. The Noble court did not overrule Young becausethere were alternative grounds for its decision. Id at 569 n.9, 446 A.2d at 854 n.9.37. Young v. State, 5 Md. App. 383, 390, 391, 247 A.2d 751, 755, 756 (1968).38. Id.39. Noble v. State, 293 Md. 549, 568, 446 A.2d 844, 853 (1982).40. Id. at 567-68, 446 A.2d at 853.19831Baltimore Law ReviewMaryland into line with the majority of jurisdictions.4 It is essentialthat the doctrine of harmless error be applicable to violations of someprocedural rules. The cost in terms of judicial resources, time, money,and basic fairness would be too high if reversal was mandated for everytechnical violation.42 Furthermore, the fear expressed by the Nobledissent is not likely to be realized because the defendant will alwayshave the right to appeal and the reviewing court will carefully reviewthe record to determine whether harmless error is indicated or a rever-sal mandated.43The Noble decision clears up a great deal of confusion and pro-tects the courts from frivolous grounds for appeal. However, as greatas the need is for efficiency in the courts, it is not as great as are therights of the accused. Thus, the application of harmless error to viola-tions of the defendant's rights must be exercised with great and sensi-tive discretion in order to guard against the possibility of prejudicingthe defendant.Gary David Raffel41. The majority of jurisdictions apply the harmless error principle to violations ofprocedural rules. See Note, Harmless Constitutional Error.- A Reappraisal, 83HARV. L. REV. 814 (1970). The federal system in particular embraces this view bycodifying the harmless error rule in the Federal Rules of Criminal Procedure. SeeFED. R. CRIM. P. 52(a).42. See United States v. Alessandrello, 637 F.2d 131 (3d Cir. 1980), cert. denied, 451U.S. 949 (1981) where the Third Circuit stated:By automatically requiring a new trial every time there was a minis-cule infraction of the rule requiring presence at jury impaneling, evenwhen the defendant presented only the most speculative claim of poten-tial prejudice, we would be sacrificing considerable judicial resourceswithout a corresponding increase in the actual fairness of trial.637 F.2d at 143 n.22.43. The Noble decision has already been followed by the court of special appeals inCouser v. State, 52 Md. App. 81, 447 A.2d 105 (1982). Couser held that Noble'sapplication of harmless error to those situations where a defendant was excludedfrom a bench conference would apply and for that reason the case was remandedto the hearing court to determine whether Couser's absence from a bench confer-ence was indeed harmless. Couser identified a trilogy of questions, based onMaryland case law, which should guide post-conviction courts when reversal ofconvictions are sought due to the defendant's absence at a stage of the trial:(1) Did the defendant validly waive his right to be present?; (2) Was the violationof the defendant's right of presence harmless error?; and (3) Were the violations ofthe defendant's rights corrected? Id at 83-84, 447 A.2d at 107.[Vol. 12

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Casenotes: Criminal Procedure — Defendant\u27s Absence from a Stage of the Trial Can Constitute Harmless Error despite Maryland Rule Requiring Presence. Noble v. State, 293 Md. 549, 446 A.2d 844 (1982)

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