Luu v. People

841 P.2d 271, 16 Brief Times Rptr. 1783, 1992 Colo. LEXIS 1033, 1992 WL 332781

Opinions

Justice VOLLACK

delivered the Opinion of the Court.

Petitioner Minh Luu (Luu) petitions from the court of appeals decision in People v. Luu, 813 P.2d 826 (Colo.App.1991). The court of appeals found that Luu’s federal constitutional right to be present at his trial was not violated by the absence of an interpreter during closing arguments and the giving of jury instructions.¹ We affirm the court of appeals.

I.

The People of the State of Colorado (the People) charged Luu with second degree kidnapping, aggravated robbery, first degree burglary, conspiracy, second degree assault, and crime of violence, among other things. The charges stemmed from events which occurred on November 21, 1986, in the home of Yoshiyuki Saito. Luu is Vietnamese, and it is not disputed that Luu did not understand or speak English at the time of trial.²

Prior to commencement of a jury trial, the district court swore in a confidential interpreter for Luu, establishing that the interpreter would translate from English to Vietnamese and vice versa. On December 8, 1987, a jury trial commenced and continued for four days. Luu was present throughout the entire trial. An interpreter for Luu was present during opening arguments and during the presentation of evidence. An interpreter for Luu, however, was not present on December 14, when counsel delivered closing arguments and the district court instructed the jury. On December 14, counsel for Luu informed the court:

Mr. Luu’s interpreter is not present. However, we are prepared to proceed. ... I don’t think the interpreter is necessary for me to make my closing argument. I could be wrong about that. I think we prefer that we get this thing to the jury. I don’t think it’s going to affect Mr. Luu’s right in this case. That is my personal opinion but I would perhaps ask this court to explain why the interpreter isn’t here because I think if the jury sees they are not here there may be problems.

The district court noted that the interpreters had been introduced to the jury, and that the jury was entitled to know why a party was missing from counsel’s table. The district court accordingly informed the jury: “I want to indicate that the gentleman who had been seated at the defense table during part of the trial, Mr. Nguyen, is for reasons that we’ve not been informed of not able to be here. So he’s not here at this time.” Counsel subsequently present ed closing arguments, and the district court instructed the jury. After deliberations, the jury returned a verdict finding Luu guilty of two counts of second degree kidnapping, two counts of aggravated robbery, first degree burglary, second degree burglary, conspiracy, and theft.

Luu appealed his convictions to the court of appeals. He contended that the failure to provide an interpreter, during both closing arguments and the giving of jury instructions, amounted to reversible error because it violated his right to be present at trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitutions. The court of appeals observed that the harmless error test announced in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), had been applied to “a wide range of situations”. Luu, 813 P.2d at 828. Relying in part on federal case law, the court of appeals concluded that any error in the failure to provide an interpreter was harmless beyond a reasonable doubt. Id.

We granted certiorari to consider “whether the court of appeals erred in applying harmless error analysis to determine whether the defendant’s conviction should be reversed because the defendant’s interpreter was not present during closing arguments and the reading of jury instructions.” ³ Luu first contends that the harmless error doctrine is not appropriately applied to denial of the right to be present at trial. Luu alternatively contends that any error cannot be found harmless in the event that the doctrine does apply in this case. We first consider whether the court of appeals correctly determined that the harmless error doctrine applies to denial of the right to be present at trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.

II.

It is well settled in federal law that an accused enjoys a constitutional right to be present at trial. United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985); Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983); Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934). “The [federal] constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, but ... [that] right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him.” Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484 (citation omitted). Whether secured by the Sixth or Fourteenth amendments, the federal constitutional right to presence is not absolute.⁴ United States v. Shukitis, 871 F.2d 1322, 1329 (7th Cir.1989).

Since its landmark decision in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court “has recognized that most constitutional errors can be harmless.” Arizona v. Fulminante, _ U.S. _, _, 111 S.Ct. 1246, 1263, 113 L.Ed.2d 302 (1991). In support of this observation, the Fulminante Court relied on Rushen and explained that Rushen stands for the proposition that denial of a defendant’s right to be present at trial may be harmless error. Id. _ U.S. at _, 111 S.Ct. at 1263.⁵

Luu contends that the court of appeals’ reliance on Fulminante is misplaced because Rushen is distinguishable from Luu’s case. In Rushen, the trial judge had several ex parte communications with a juror. Rushen, 464 U.S. at 115-16, 104 S.Ct. at 454. Upon learning of the ex parte communications, defendant Spain moved for a new trial. The trial court denied Spain’s motion on the grounds that the trial court’s communications with the juror “ ‘lacked any significance’ and that [Spain] suffered no prejudice therefrom.” Id. at 116, 104 S.Ct. at 454. Spain filed a petition for a writ of habeas corpus in federal district court, and the district court vacated Spain's conviction. Id. at 117, 104 S.Ct. at 455. The Court of Appeals for the Ninth Circuit affirmed, holding that ex parte communications between a judge and a juror can never be harmless error. Id.

The United States Supreme Court “emphatically disagree[d],” and stated that

the right to personal presence at all critical stages of the trial and the right to counsel are fundamental rights of each criminal defendant. “At the same time and without detracting from the fundamental importance of [these rights], we have implicitly recognized the necessity for preserving society’s interest in the administration of criminal justice. Cases involving [such constitutional] deprivations are [therefore] subject to the general rule that remedies should be tailored to the injury suffered ... and should not unnecessarily infringe on competing interests.”

Id. at 117-18, 104 S.Ct. at 455 (alterations in original) (footnote omitted) (quoting United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667-68, 66 L.Ed.2d 564 (1981)). The Rushen Court concluded that, while ex parte communications may pose serious concerns, the lower federal court “should have found the alleged constitutional error harmless beyond a reasonable doubt” in that case. Id. 464 U.S. at 121, 104 S.Ct. at 456.

As the Supreme Court has declared, we are compelled to find that Rushen stands for the proposition that allegations of denial of the right to be present at trial are scrutinized under the harmless error doctrine. Fulminante, _ U.S. at _, 111 S.Ct. at 1263; Rose, 478 U.S. at 576, 106 S.Ct. at 3105; Rushen, 464 U.S. at 117-21, 104 S.Ct. at 454-56. Evaluated against this declaration, Luu’s contention is unpersuasive.

The distinction between Rushen and the present case lies in the manner in which the defendant allegedly suffered a deprivation of the right to be present at trial. Rushen was not physically present during conversations between the trial judge and juror. Luu was physically present during his trial, but was not provided with an interpreter during closing arguments and jury instructions. In both scenarios, a defendant may potentially suffer a total deprivation of the right to be present. The factual distinction alone, however, does not warrant application of a different standard of analysis to allegations of constitutional error. Rather, the Supreme Court’s decision in Fulmi-nante dictates that harmless error analysis governs the present case.

In Fulminante, the Supreme Court segregated those cases in which harmless error analysis does not apply from the cases in which harmless error analysis is appropriate. Fulminante, _ U.S. at _ - _, 111 S.Ct. at 1263-65. Harmless error analysis does not apply when there is a “structural defect[] in the constitution of the trial mechanism.” Id. at _ - _, 111 S.Ct. at 1263-65. The Fulminante Court cited examples of structural defects as total deprivations of the right to counsel and partial or biased trial judges.⁶ Id. at _ - _, 111 S.Ct. at 1263-65. Conversely, the Fulminante Court emphasized that harmless error analysis applies where a trial error — such as deprivation of the right to be present-occurs. Id. at _ - _, 111 S.Ct. at 1263-65.

Under Fulminante, federal law is clear: harmless error analysis applies to allegations of error regarding denial of the federal constitutional right to be present at trial. Accordingly, the court of appeals did not err in determining that the harmless error doctrine should govern Luu’s allegations of constitutional error. We thus consider whether the court of appeals correctly found that any error in the absence of an interpreter during closing arguments and the giving of jury instructions did not require reversal of Luu’s convictions.

III.

We begin by assuming that, for the purposes of our discussion, the Sixth and Fourteenth Amendments guarantee defendants a right to be present during closing arguments and the giving of jury instructions.⁷ We note that the Confrontation Clause of the Sixth Amendment guarantees the right to be present at trial to secure the opportunity for full and effective cross-examination of witnesses. Kentucky v. Stincer, 482 U.S. 730, 744 n. 17, 107 S.Ct. 2658, 2667 n. 17, 96 L.Ed.2d 631 (1987).

The Due Process Clause of the Fourteenth Amendment guarantees defendants a “right ‘to be present ... whenever [their] presence has a relation, reasonably substantial, to the fulness of [their] opportunity to defend against the charge.’ ” Id. at 745, 107 S.Ct. at 2667 (quoting Snyder, 291 U.S. at 105-06, 54 S.Ct. at 332); Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484. Thus, the “privilege of presence is not guaranteed ‘when presence would be useless, or the benefit but a shadow.’ ” Stincer, 482 U.S. at 745, 107 S.Ct. at 2667 (quoting Snyder, 291 U.S. at 106-07, 54 S.Ct. at 332); Snyder, 291 U.S. at 106, 54 S.Ct. at 332. Due Process only “requires that a defendant be allowed to be present ‘to the extent that a fair and just hearing would be thwarted by his absence.’ ” Stincer, 482 U.S. at 745, 107 S.Ct. at 2667 (quoting Snyder, 291 U.S. at 107-08, 54 S.Ct. at 333); Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484; Snyder, 291 U.S. at 107-08, 54 S.Ct. at 333.

With these guarantees in mind, harmless error analysis requires evaluation of whether the alleged error “was harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24, 87 S.Ct. at 828; see Fulminante, _ U.S. at _, 111 S.Ct. at 1266.

There is no evidence that the absence of an interpreter interfered with Luu’s ability to cross-examine witnesses. Nor is there any indication in the record that the absence of an interpreter during closing arguments and the giving of jury instructions compromised the basic fairness of the trial. What the record shows is the district court acceded to the request of Luu’s attorney to instruct the jury on the interpreter’s absence from the closing phase of trial and to proceed with closing argument. In light of the entire record, we conclude under these facts that any error suffered by Luu was harmless beyond a reasonable doubt.

For the foregoing reasons, we affirm the court of appeals.

QUINN, J., specially concurs. LOHR and KIRSHBAUM, JJ„ dissent.

Footnotes

1

. Luu first raised allegations of error under the Colorado Constitution in his petition for rehearing to the court of appeals. "Issues not raised in appellant's initial brief will normally not be considered by the court." People v. Czemerynski, 786 P.2d 1100, 1107 (Colo.1990); 16 Charles A. Wright et al., Federal Practice and Procedure § 3974 (1977). We do not consider the Colorado constitutional issues at this time.

2

. It appears from the record that an interpreter for Luu-was present during many of the pretrial proceedings.

3

. While the United States Supreme Court has not expressly so held, we assume, for the purposes of this case, that the absence of an interpreter for non-English-speaking defendants at trial amounts to denial of the right to be present at trial under federal law. See Larson v. Tansy, 911 F.2d 392 (10th Cir.1990) (holding that defendants have a federal constitutional right to be present at summations and jury instructions).

4

. Rule 43 of the Federal Rules of Criminal Procedure, which provides defendants in federal trials a right to be present, specifies the manner in which the right may be waived. Fed. R.Crim.P. 43(b); see United States v. Gagnon, 470 U.S. 522, 527-29, 105 S.Ct. 1482, 1484-86, 84 L.Ed.2d 486 (1985) (applying Rule 43). Because we conclude that any federal constitutional error is harmless, we do not address whether Luu waived his right to be present.

5

. Prior to its decision in Arizona v. Fulminante, _ U.S. _, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), the United States Supreme Court stated that harmless error doctrine "has been applied to a wide variety of constitutional errors.” Rose v. Clark, 478 U.S. 570, 576, 106 S.Ct. 3101, 3105, 92 L.Ed.2d 460 (1986). In support of that state ment, the Rose Court relied on Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983), and explained that Rushen stands for the proposition that harmless error applies to denial of the right to be present at trial. Id.

6

. The Fulminante Court also noted that violations of the right to self-representation, a public trial, and unlawful exclusion of members of the defendant’s race from a grand jury may not be evaluated under harmless error analysis. Fulminante, _ U.S. at _, 111 S.Ct. at 1265.

7

. See Larson, 911 F.2d at 394.