Remer J. Dasher v. Norman Stripling, Probation Officer

685 F.2d 385, 1982 U.S. App. LEXIS 25882
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 7, 1982
Docket81-7441
StatusPublished
Cited by6 cases

This text of 685 F.2d 385 (Remer J. Dasher v. Norman Stripling, Probation Officer) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Remer J. Dasher v. Norman Stripling, Probation Officer, 685 F.2d 385, 1982 U.S. App. LEXIS 25882 (11th Cir. 1982).

Opinions

TJOFLAT, Circuit Judge:

I.

Remer Dasher was indicted in 1974 by a grand jury in Long County, Georgia, on a charge of conspiracy to murder his wife. The state trial court, granting a succession of defense motions based on the defendant’s precarious health, continued his trial from term to term for four years. In September 1978, the trial court ruled that no further continuances would be granted on account of Dasher’s illness unless competent medical evidence showed that his health would likely improve so that he could stand trial in the next term. At a subsequent hearing on another motion for a continuance, unchallenged expert testimony established that Dasher suffered from a severe heart condition, that his attendance at trial would imperil his life, and that his deteriorating health would not improve. There being no showing that Dasher would be better able to stand trial in the future, the court denied the continuance.

When the case was assigned for trial on January 22, 1980, Dasher sought writs of mandamus and prohibition in the Supreme Court of Georgia to require the trial court to continue the case until he was able to attend. Relief was denied. Dasher then moved the trial court in limine for a continuance on the ground that he lacked sufficient mental and physical ability to cooperate in his defense and to stand trial. The motion was denied. As the trial commenced in Dasher’s absence, his attorney announced that he was not ready to proceed and that, because of Dasher’s inability to attend and to assist in his defense, counsel could not effectively represent him. The grounds of the motion in limine and the related announcement at the outset of the trial were substantially identical to those that had supported the previous motions for continuance. The additional argument that [387]*387Dasher could not be effectively represented rested on counsel’s statement that when questioned about the case, Dasher responded incoherently and nonsensically, paled, and appeared on the verge of a coronary attack. These representations were corroborated by Dasher’s physician, who testified that Dasher’s malady produced intermittent mental dysfunction.

The trial proceeded in the defendant’s absence, and the jury convicted him of conspiracy to murder his wife. On May 13, 1980, Dasher was sentenced, again in absentia and over the objections of counsel, to five years’ imprisonment, with the stipulation that the sentence be served on probation provided he pay a $2,000 fine. The conviction and sentence were affirmed by the Court of Appeals of Georgia, Dasher v. Georgia, 157 Ga.App. 664, 278 S.E.2d 465 (1981), and the Georgia Supreme Court denied certiorari.

Represented by the same counsel who had represented him at trial, Dasher filed in the district court a petition for writ of habeas corpus, alleging that his trial in absentia violated his sixth and fourteenth amendment rights to be confronted with the witnesses against him and to the effective assistance of counsel. The court sustained both claims and granted the writ. We vacate the order of the district court and remand for further proceedings.

II.

The right of an accused to be present at his trial draws on two constitutional sources. In Hopt v. People of the Territory of Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 205, 28 L.Ed. 262 (1884), the Supreme Court held that the due process clause of the fifth amendment requires the defendant’s attendance at trial. This fifth amendment right was declared applicable to the states in Snyder v. Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934). More recently, the Supreme Court has stated that the confrontation clause of the sixth amendment, which also applies to the states, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), guarantees the right of an accused to be “in the courtroom at every stage of his trial.” Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970). While the accused’s right to be present at trial has roots in both the confrontation clause and in due process, Dasher, in both the Georgia and the federal courts, has relied solely on the confrontation clause, as did the district court in its order.

Although a defendant may waive his right of confrontation by his voluntary absence from trial, see, eg., Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973); United States v. Benavides, 596 F.2d 137 (5th Cir. 1979); Smith v. United States, 357 F.2d 486 (5th Cir. 1966), there was no waiver here. Dasher’s inability to attend his trial is not in dispute. The record shows, and the state concedes, that Dasher’s attendance would have seriously jeopardized his life. Absent waiver, the district court was squarely faced with the question whether the sixth amendment right to confrontation absolutely prohibits a state from trying a defendant who is physically unable to attend trial. The court concluded that the defendant’s right to be present at all stages of his trial, absent a voluntary waiver, is absolute. So holding, the court erred, for it should have required the defendant to show that he was prejudiced by his absence from the trial. We infer this requirement of prejudice from a line of cases holding that for a defendant’s absence from trial to constitute a violation of due process, prejudice must be shown, and from a comparison of the policies underlying the rights secured by the confrontation and due process clauses, which demonstrates that the requirement of a showing of prejudice is, if anything, more compelling in the sixth amendment context.

In Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1933), Justice Cardozo stated for the Court that due process does not assure “the privilege of presence when presence would be but a shadow,” and that the defendant has a constitutional right to be present at trial “to the extent that a fair and just hearing would be [388]*388thwarted by his absence, and to that extent only.” Id. at 106-108, 54 S.Ct. at 332-33. Similarly, in Faretta v. California, 422 U.S. 806, 819 n.15, 95 S.Ct. 2525, 2533 n.15, 45 L.Ed.2d 562 (1975), the Court stated that due process assures the criminal defendant only the “right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.... ” See also United States v. Veatch, 647 F.2d 995, 1003-4 (9th Cir. 1981) (because defendant was not prejudiced by his absence from pretrial conference, his absence did not violate due process); United States v. Brown, 571 F.2d 980

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Remer J. Dasher v. Norman Stripling, Probation Officer
685 F.2d 385 (Eleventh Circuit, 1982)

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Bluebook (online)
685 F.2d 385, 1982 U.S. App. LEXIS 25882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/remer-j-dasher-v-norman-stripling-probation-officer-ca11-1982.