The flood of NFP decisions now available for public viewing has provided some very interesting stuff. There are many cases that when I look at them, I wonder why they are NFP. But in this post, I want to take on a case that is definitely small potatoes and deservedly NFP. It's an astonishing collection of spuds nonetheless.
The case is Sanders v. State, Court of Appeals No. 10A01-0512-CR-585 (Ind. Ct. App. October 4, 2006) (mem.). Sanders was not very well-behaved at various points during his trial, so the trial court excluded him from closing arguments and from the habitual substance offender phase. Sanders claimed on appeal that he had been denied his Sixth Amendment right to be present at all critical stages as well as his similar right under Article 1, § 13(a), of the Indiana Constitution.
Sanders forfeited / waived his right to be present at those times, the opinion says, by his behavior. Fine. End of issue.
Except, unnecessarily, the opinion goes on:
Moreover, even if we were to agree with Sanders, a denial of the right to be present during all critical stages of the proceedings under the Sixth Amendment is a constitutional right that is subject to a harmless error analysis. Hernandez v. State, 761 N.E.2d 845, 853 (Ind. 2002), reh’g denied. Further, under the Due Process Clause, "a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Hubbell v. State, 754 N.E.2d 884, 895 (Ind. 2001). Lastly, a violation of Article I, Section 13 of the Indiana Constitution is subject to a harmless error analysis. Debro v. State, 821 N.E.2d 367, 375 (Ind. 2005). Sanders has not shown, or attempted to show, how he was harmed by his absence or how his presence would have contributed to the fairness of the procedure. Any error in the trial court’s exclusion of Sanders from the courtroom was harmless. See, e.g., Ridley, 690 N.E.2d at 180-181 (holding that the defendant failed to show how the proceedings were critical to the outcome of the trial or how his presence would have contributed to the fairness of the procedure).
Slip op. at 5. This apparently unobjectionable paragraph of superfluous legal analysis is, in fact, practically a perfect storm of errors. First, the opening proposition supposedly ripped from Hernandez is not complete. What Hernandez actually says is: "[T]he United States Supreme Court has held that denial of this constitutional right is 'subject to a harmless error analysis unless the deprivation, by its very nature, cannot be harmless.' Rushen v. Spain, 464 U.S. 114, 117-18 n.2 (1983) [(per curiam)] (citations omitted)." (Emphasis added).
So, contrary to the Sanders opinion and according to the case it cites, a critical-stage error is subject to harmless error analysis--except when it's not. And there is no explanation in Sanders about why exclusion during closing arguments and the subsequent habitual substance offender phase does not qualify for the alternative treatment as structural error.
But why is Hernandez being cited at all? Hernandez was a right-to-counsel case, not a right-to-be-present case. The two are related, but not the same. As in Hernandez, the right-to-counsel cases usually talk about the need for a lawyer when confronted with legal intricacies. And Sanders's lawyer was always present. The right-to-be-present cases are vaguer . . . see the next paragraph.
The next proposition is similarly incomplete. The citation to Hubbell is correct--Hubbell actually says what Sanders says it does. ("In sum, 'a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.' Kentucky v. Stincer, 482 U.S. 730, 745 (1987).".) But here is part of Hubbell that Sanders leaves out: "Although Hubbell has the right to be present at significant stages of the criminal proceedings, he has not established that any hearings he missed, including the one on July 14, 1999, were of critical importance to implicate the Confrontation Clause."
It is not hard to guess why Sanders leaves that out: it is hard to imagine how exclusion from the habitual substance offender phase did not "implicate the Confrontation Clause," in the words of Hubbell. And it's similarly not hard to guess why Stephenson v. State, a 2001 Indiana Supreme Court case, wasn't the citation of choice here in Sanders, even though Stephenson is really the case on point:
First, Defendant claims his Sixth Amendment right to be present in the courtroom at every stage of his trial was violated. This right is rooted in the Confrontation Clause. Ridley, 690 N.E.2d at 180 (citing Illinois v. Allen, 397 U.S. 337 (1970)). A Confrontation Clause violation occurs when witnesses or hearsay evidence are presented in the defendant’s absence that affect the defendant’s opportunity for cross-examination. See Kentucky v. Stincer, 482 U.S. 730, 737-38 (1987).
With respect to the proposition regarding Article 1, §13 of the Indiana Constituion and harmless error, the citation to Debro is stunning for a couple of reasons. First, to the extent that Debro involved Article 1, § 13(a), at all, it involved the state Confrontation Clause, which is quite different from the Sixth Amendment's, providing for the right "to meet the witnesses face to face." It did not involve the provision of Article 1, § 13(a), that provides for the right of a defendant "to be heard by himself and by counsel." Debro was about hearsay testimony admitted over objection while both Debro and his lawyer were present.
Second, Justice Rucker's Debro opinion makes no mention at all of Article 1, § 13, and harmless error analysis in any context. The opinion specifically declines to decide anything under Article 1, § 13: "We need not determine today whether our state constitution affords a defendant a right of confrontation in a sentencing hearing." (In fact, citing Chapman, Debro decided that the federal Confrontation Clause violation found was harmless because there was "sufficient other evidence.of probative value." Now there's Chapman harmless error analysis for you.)
Back to the final bits of the Sanders paragraph: "Sanders has not shown, or attempted to show, how he was harmed by his absence or how his presence would have contributed to the fairness of the procedure." The first half of this has Chapman harmless error analysis backwards, as did Hernandez. If there was federal constitutional error in Sanders being excluded then, at best, from the State's perspective, the State had to show beyond a reasonable doubt that Sanders's absence did not contribute to the outcome of the habitual substance offender phase. And my guess is that complete exclusion, if error, is structural error. I have not done the research on that, though.
That Sanders failed to show "how his presence would have contributed to the fairness of the procedure" does not indicate that the error in excluding him was harmless. It indicates that there was no error because the moment was not a critical stage.
And lastly: "Any error in the trial court’s exclusion of Sanders from the courtroom was harmless. See, e.g., Ridley, 690 N.E.2d at 180-181 (holding that the defendant failed to show how the proceedings were critical to the outcome of the trial or how his presence would have contributed to the fairness of the procedure)." This is the same problem. The parenthetical proposition from Ridley says nothing about harmlessness. Indeed Ridley, in the passage cited for the reasons mentioned, concluded that Ridley's absence had not occurred during a critical stage.
O.K. There is a reason that some cases are NFP. But so much of this stuff ought to be boilerplate. It ought to be correct boilerplate. And really--NFP or not--how much can go awry in a single, unnecessary, paragraph?