Jackson v. United States

420 A.2d 1202, 1979 D.C. App. LEXIS 412
CourtDistrict of Columbia Court of Appeals
DecidedJune 26, 1979
Docket9712
StatusPublished
Cited by30 cases

This text of 420 A.2d 1202 (Jackson v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson v. United States, 420 A.2d 1202, 1979 D.C. App. LEXIS 412 (D.C. 1979).

Opinions

GALLAGHER, Associate Judge:

We granted appellant’s petition for rehearing en banc to consider (1) whether a trial court order preventing appellant from consulting his attorney during a luncheon recess deprived him of the assistance of counsel guaranteed by the Sixth Amendment; and (2) whether the trial judge (a) erroneously denied without a hearing an oral motion to suppress lineup identification evidence and (b) improperly injected his [1203]*1203own views when instructing the jury.1 We reverse appellant’s conviction and remand for a new trial.2

I.

Appellant was convicted by a jury of armed robbery, robbery, and assault with a dangerous weapon.3 The charges arose out of a holdup at gunpoint of a Safeway supermarket cashier. Appellant, who admitted that he had been in the Safeway that day, was identified by the cashier and store security officer from photographic arrays, in a lineup, and at trial.

Appellant’s trial commenced in late April of 1975. After appellant testified on direct examination, a luncheon recess was called. The trial court instructed appellant as follows:

THE COURT: Since you’re under oath, sir, at this point, you discuss nothing with anyone, not even with your lawyer because he’s finished with you. As of now, you don’t discuss your testimony with anybody, you understand?
MR. JACKSON: Yes, sir, I understand.[4]

It is our view that the trial court deprived appellant of his constitutional right to assistance of counsel at a critical stage of the criminal proceedings against him, a right “so basic to a fair trial that [its] infraction can never be treated as harmless error.” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967).

The crux of this appeal, therefore, is the proper standard for appellate review of the erroneous trial court action in this case.5 In Chapman v. California, supra, the Supreme Court held that a federal harmless error rule should apply to some errors of constitutional magnitude while others are reversible automatically. See generally Note, Harmless Constitutional Error: A Reappraisal, 83 Harv.L.Rev. 814 (1970); Mause, Harmless Constitutional Error: The Implications of Chapman v. California, 53 Minn.L.Rev. 519 (1969). The right to counsel was particularized in Chapman as one of the “substantial rights” to which the harmless error rule cannot be applied. Chapman, supra at 23 n.8, 87 S.Ct. at 828 n.8. It had been established long before Chapman, however, that “[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). When a violation of the right to counsel is alleged, the degree of prejudice suffered by the accused, and the impact on jury deliberations often cannot be assessed on the record; in contrast, “in the normal case where a harmless error rule is applied, the error occurs at trial and its scope is readily identifiable.” Holloway v. Arkansas, 435 U.S. 475, 490, 98 S.Ct. 1173, 1182, 55 L.Ed.2d 426 (1978). Thus, reversal is required, without regard to a showing of prejudice and without regard to the [1204]*1204strength of the other evidence, when a defendant is deprived of counsel’s guiding hand during a critical stage of the proceedings. See Holloway v. Arkansas, supra at 489, 98 S.Ct. at 1181; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Hamilton v. Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961).

In Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), the Supreme Court recently set aside a conviction where the trial court prohibited communication between defendant and his attorney during an overnight recess. The Court held that the order impinged upon defendant’s right to the assistance of counsel guaranteed by the Sixth Amendment. Id. at 91, 96 S.Ct. at 1336. By reversing Geders’ conviction, the Court necessarily rejected the Fifth Circuit’s holding below that defendant’s failure to claim any prejudice was fatal to his appeal, and implicitly accepted the reasoning typified in United States v. Venuto, 182 F.2d 579 (3d Cir. 1950), i. e., an order barring overnight communication is inherently prejudical. 425 U.S. at 86, 96 S.Ct. at 1334. Implicit in the Court’s opinion, as the concurring opinion observed, was that “a defendant who claims that an order prohibiting communication with his lawyer impinges upon his Sixth Amendment right to counsel need not make a preliminary showing of prejudice.” Geders, supra, 425 U.S. at 92, 96 S.Ct. at 1337 (Marshall, J., concurring).

Although the Court in Geders dealt with an overnight recess, reserving the question of embargo orders imposed during “brief routine recesses,” we perceive no reason to distinguish constitutionally on the basis of the order’s duration. We agree with Mr. Justice Marshall, concurring in Geders, supra, 425 U.S. at 92, 96 S.Ct. at 1337, that

the general principles adopted by the Court [in Geders] are fully applicable to the analysis of any order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial. [Emphasis in original.]

Both federal and state courts have applied Geders to routine recess situations. See, e. g., United States v. Bryant, 545 F.2d 1035 (6th Cir. 1976); United States v. Allen, 542 F.2d 630 (4th Cir. 1976); Stripling v. State, 349 So.2d 187 (Fla.App.1977).

In United States v. Bryant, supra, the Sixth Circuit extended Geders to a trial court order forbidding consultation between defendant and her attorney during a luncheon recess, reversing the conviction. See also Stripling, supra (applying Geders to luncheon recess gag order). Since a criminal defendant is entitled to the advice of counsel throughout the trial, the court stated, an order barring communication is an abuse of discretion and a violation of defendant’s Sixth Amendment right to counsel. Bryant, supra at 1036. Relying on Geders, the Fourth Circuit similarly concluded in Allen, supra

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Bluebook (online)
420 A.2d 1202, 1979 D.C. App. LEXIS 412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-united-states-dc-1979.