Opinion
No. CR07-241859
April 19, 2010
MEMORANDUM OF DECISION RE MOTION IN SUPPORT OF DEFENDANT'S RIGHT TO BE PRESENT AT JURY SELECTION
Most criminal defendants wish to attend jury selection in their cases, but Steven Hayes has decided that he does not. Hayes has been charged in an information consisting of eighteen felony counts, including six counts of capital felony in violation of Conn. Gen. Stat. § 53a-54b, arising out of a much-publicized triple homicide that occurred on July 23, 2007 in Cheshire. The State is seeking the death penalty. Jury selection began on January 19, 2010. The process is an extended one since twenty jurors (including alternates) must be selected for a lengthy trial. The process has been interrupted on several occasions.
On January 31, 2010, while in his prison cell, Hayes attempted to kill himself by overdosing on prescription medication. He did not succeed, but jury selection was suspended for six weeks during his recovery. Jury selection resumed on March 15, 2010, but on March 17, 2010, pursuant to Conn. Gen. Stat. § 54-56d(c), counsel for the defendant requested an examination to determine his competency. The court granted the request. Subsequently, on April 1, 2010, pursuant to § 54-56d(e), the defendant and his counsel waived a court hearing on the matter since the examiners, in their written report, had determined without qualification that the defendant was competent. Jury selection resumed, once again, on April 6, 2010.
On April 12, 2010, the defendant, through counsel, filed the motion now before the court, seeking to waive his presence at jury selection. The motion asserts the following factual claims:
The defendant has over recent times continuously pushed counsel to seek the Court's permission to excuse his presence in the courtroom during the jury selection process. He can no longer function in the courtroom . . . in any way [that] assists counsel in the selection process. He sits in the courtroom vacant with no affect, sometime rocking back and forth. He is often non-responsive to questions posed by counsel. He is not paying attention to what is going on in the courtroom most of the time. He no longer is concerned, nor does he have the energy to take care of his personal hygiene. We don't believe he has taken a shower in weeks, nor brushed his teeth in weeks, nor does he any longer groom his hair and beard. He is constantly yawning in the courtroom, rubs and pinches his hands and fingers constantly and rubs his face and head with both hands continuously throughout the court proceedings. Despite his counsel's request for his input none is forthcoming. Consequently, the decisions being made in regard to the acceptance or rejection of venire persons is being made exclusively by counsel.
Motion, at 2.
On April 16, 2010, the defendant, through counsel, filed a written Waiver of Presence for Jury Selection signed by himself. This waiver purports to waive his "constitutional right to be present in the courtroom during the continued jury selection process" and to further waive his "right to appeal this particular issue."
The motion was argued on April 16, 2010. For the reasons stated below, it must be denied.
Based on the court's personal observations, although the harrowing factual assertions set forth in the motion are largely accurate, several important qualifications must be made. First, in spite of his obvious general detachment, Hayes does show flashes of alertness from time to time and has, when directly addressed, intelligently answered questions put to him by the court. He is no automaton. Second, on March 2, 2010, at a hearing dealing with Hayes' conditions of confinement following his suicide attempt, Dr. Suzanne Ducate, the psychiatrist employed by the Department of Correction who is responsible for the defendant's treatment, credibly testified that she did not, at that time, have concerns about Hayes' continued participation in the voir dire process. Third, on March 17, 2010, the court ordered a competency examination and, on April 1, 2010, the examiners, in their written report, found Hayes competent without qualification. As mentioned, given this report, Hayes and his experienced counsel waived a hearing and effectively admitted competency. This occurred eleven days prior to the filing of the motion now before the court. Finally, the voir dire process, while lengthy, is not endless. In spite of the many interruptions, eleven of a total of twenty jurors have already been selected in nineteen days of individual voir dire. The court does not mean to minimize the emotional burden of this process, but it has every expectation that, under these circumstances, the remainder of the process can be endured.
Whatever his state of detachment, there is some appeal to the idea that a defendant like Hayes, represented by counsel, who finds jury selection distressing, should be excused from attending this stage of the case, provided that the waiver is voluntary and knowing, following an appropriate judicial canvass. Defendants in civil actions frequently choose not to attend voir dire and do not seem to lose a disproportionate number of verdicts as a result. In criminal cases, P.B. § 44-8(1) allows the judicial authority to excuse a defendant represented by counsel "from being present at the trial or a part thereof . . . if the defendant waives his right to be present." The constitutionality of such waiver rules, when applied to criminal defendants in noncapital cases, has long been upheld. Diaz v. United States, 223 U.S. 442, 455 (1912).
Standing in Hayes' way, however, is an ancient rule lurking in the constitutional attic. Diaz teaches that, although criminal defendants in noncapital cases have the right to waive their presence in court at every stage of the trial, including voir dire, "our courts . . . have regarded an accused . . . who is charged with a capital offense as incapable of waiving the right." 223 U.S., at 455. (Emphasis added.) The Supreme Court has, moreover, held that this nonwaiver rule specifically applies to the voir dire process. Lewis v. United States, 146 U.S. 370, 372 (1892); Hopt v. Utah, 110 U.S. 574, 579 (1884). The Court has viewed this rule as grounded in both the Sixth Amendment and the Due Process Clause. See Diaz, supra, 223 U.S., at 455; Hopt, supra, 110 U.S., at 579. Put bluntly, Lewis and Hopt hold that if a defendant in a capital case waives his presence at voir dire, even with no objection by counsel, the error is fatal, and a new trial must be ordered. See 146 U.S., at 380; 110 U.S., at 579. This is a path down which the court declines to tread.
It is unquestionably true that the force of these decisions "has been diminished" by later precedent. State v. Durkin, 219 Conn. 629, 638, 595 A.2d 826 (1991). Snyder v. Massachusetts, 291 U.S. 97 (1934), declined to extend Diaz to require the presence of the defendant at a jury view of the scene of the crime. More recently, Illinois v. Allen, 397 U.S. 337 (1971), held that a defendant can lose his right to be present at trial by disruptive behavior. Beyond these precedents, modern jurisprudence allows criminal defendants to waive a wide variety of fundamental rights, including the right to counsel; Faretta v. California, 422 U.S. 806 (1975); and the right to trial; Brady v. United States, 397 U.S. 742 (1970). See People v. Robertson, 767 P.2d 1109, 1134 (Cal.), cert. denied, 493 U.S. 879 (1989).
The doctrinal underpinnings of Diaz's nonwaiver rule have also eroded over time. Indeed, the Supreme Court has been less than consistent in explaining just what those doctrinal underpinnings are in the first place.
To some extent, the nonwaiver rule is an artifact of the practical workings of medieval criminal procedure. The most common early method of proof in criminal cases was trial by ordeal. A criminal defendant would have to carry a red-hot iron or perform some similar task to prove his innocence. 2 Frederick Pollock Frederic William Maitland, The History of English Law 598 (2d. Ed. 1898). Alternatively, proof could be established by judicial combat, "a bilateral ordeal." Id., at 600. As a practical matter, these methods of proof required the physical presence of the defendant. See Gullie B. Golden, Presence of the Defendant at Rendition of the Verdict in Felony Cases, 16 Colum. L. Rev. 18, 18-19 (1916). Even after the advent of the modern trial, all felonies were capital, and no defendant in a felony (i.e. capital) case could be allowed counsel. 4 William Blackstone, Commentaries on the Laws of England 349 (1769). As a practical matter, the defendant was on his own, and his physical presence remained indispensable.
By 1884, when the Supreme Court first articulated the nonwaiver rule, in Hopt v. Utah, supra, these ancient practicalities of the common law had been consigned to the dustbin of history. They are not even mentioned in the opinion of the Court. Hopt instead looks upon the criminal trial as a public spectacle, with the defendant playing an indispensable part in the drama, and murkily conflates the public goal of deterrence with the individual right of due process of law:
The great end of punishment is not the expiation or atonement of the offense committed, but the prevention of future offenses of the same kind . . . Such being the relation which the citizen holds to the public, and the object of punishment for public wrongs, the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony, that he shall be personally present at the trial, that is, at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the Constitution.
110 U.S., at 579. Accord Schwab v. Berggren, 143 U.S. 442, 448-49 (1892) (repeating this language). As to how the knowingly-waived presence of the defendant at voir dire would frustrate the public goal of deterrence or why a defendant, assisted by counsel, could not knowingly waive a due process right meant for his protection, the Hopt Court remained majestically silent.
In Lewis v. United States, supra, the Court tried another tack. It explained that,
[I]n felonies, it is not in the power of the prisoner, either by himself or his counsel, to waive the right to be personally present during the trial. "It would be contrary to the dictates of humanity to let him waive the advantage which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defence with indulgence." Prine v. The Commonwealth, 18 Penn. St. 103, 104 [(1851)], per Gibson, C.J.
146 U.S., at 372. Lewis, as mentioned, applied this rationale to overrule the defendant's waiver of his right to presence at voir dire. The Court declined to explain why a defendant could not knowingly defer the jury's "view of his sad plight" until the time of trial.
In Diaz v. United States, supra, the Court tried yet again. By 1912, when Diaz was decided, the law allowed defendants in noncapital cases, at least those who were not in custody, to waive their presence at criminal trials. 223 U.S., at 455. But, Diaz explains, a defendant in a capital case stands on a different ground "because, in addition to being usually in custody, he is deemed to suffer the constraint naturally incident to an apprehension of the awful penalty that would follow conviction." Id. The process, it appears, is part of the punishment, and the "apprehension" portion of the punishment is not to be avoided by the hapless defendant, even prior to conviction. The presumption of innocence, long regarded as a bedrock of modern jurisprudence, is not mentioned.
There is, as discussed above, much to criticize in the holdings and rationales of Hopt, Lewis, and Diaz. The Supreme Court has reserved the question whether the rule of Diaz should be overruled. Drope v. Missouri, 420 U.S. 162, 182 (1975). Modern waiver jurisprudence, discussed supra, makes it unlikely that the modern Court would retain the Diaz rule were that doctrine now to be considered.
It is, however, for the Supreme Court, and not this court, to overrule its precedents. The Court has cautioned that, "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [lower court] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). Since Hopt and Lewis remain precedents directly applicable to the voir dire process in capital cases, a lower court has no discretion in the matter. These precedents must be followed, and the question as to whether they should be overruled must be left to the Supreme Court.
Faithful adherence to precedent on this issue will compromise no recognized right held by the defendant. Our Supreme Court has recognized that, while a defendant has a constitutional right to be present at every stage of his trial, he has no "concomitant right to be absent from such proceedings." State v. Randolph, 284 Conn. 328, 371, 933 A.2d 1158 (2007). (Emphasis added.) See State v. Reddick, 224 Conn. 445, 464-66, 619 A.2d 453 (1993).
This is an important consideration. In rare cases, when a mechanical adherence to dated precedent would deprive a litigant of fundamental rights more recently recognized by the judiciary, a lower court may be obliged to disregard outmoded precedent to vindicate the more recently recognized rights. A well-known example of this superseding judicial obligation occurred in the flag salute litigation during the Second World War. Barnette v. West Virginia State Board of Education, 47 F.Sup. 251, 253 (S.D.W.Va. 1942), aff'd, 319 U.S. 624 (1943). For a much more modest Connecticut example, see Bradford v. Brennan, 42 Conn.Sup. 534, 631 A.2d 1165 [ 7 Conn. L. Rptr. 513] (1992). But, since a criminal defendant has no recognized right to be absent from any stage of his trial, there is no superseding judicial obligation here. Hopt and Lewis have direct application to this case. Lower courts are obliged to follow them.
For the reasons set forth above, the defendant's motion to waive his right to be present at voir dire is denied.