David Lewis Rice v. Tana Wood, Superintendent, David Lewis Rice v. Tana Wood, Superintendent

Opinion by Judge KOZINSKI; Concurrence by Judge HAWKINS; Dissent by Judge D.W. NELSON.

David Lewis Rice was absent from the courtroom when the jury returned from its deliberations and sentenced him to death. After an unsuccessful direct appeal and personal restraint petition, see State v. Rice, 110 Wash.2d 577 , 757 P.2d 889 (1988), cert. denied, 491 U.S. 910 , 109 S.Ct. 3200 , 105 L.Ed.2d 707 (1989) (Rice I), Rice sought a writ of habeas corpus in the federal district court for the Western District of Washington. The district court stayed the habeas proceedings so Rice could bring a second personal restraint petition. After the Washington Supreme Court dismissed that petition, see In re Rice, 118 Wash.2d 876 , 828 P.2d 1086 cert. denied, 506 U.S. 958 , 113 S.Ct. 421 , 121 L.Ed.2d 344 (1992) (Rice II), the district judge granted Rice’s petition and set aside the sentence, holding that Rice *1140 could not and did not validly waive his right to be present. A panel of this court affirmed, concluding that Rice had a constitutional right to be present when the jury rendered his sentence; that he had not waived this right; and that the error was structural and, therefore, not subject…

concurring:

I join the majority opinion because I agree that the defendant’s absence under the facts of this case does not constitute structural error.

Prudent persons, however, should avoid reading this decision any more expansively than its facts permit. This decision does not broadly sanction the absence of the defendant from the return of a verdict and wise trial judges should be loathe to ever permit a return in the absence of the defendant.

This defendant was present during his trial and for the return of the jury’s verdict on guilt or innocence. Also, the members of the penalty jury were not strangers to the events or the defendant’s participation in them, because, under Washington law, if a penalty phase is required, the same jury hears the evidence and decides the punishment. Mr. Rice therefore confronted the same jurors who had earlier found him guilty; his absence was from the return of the penalty verdict and it alone.

Under these fairly limited and particular facts, the majority has properly determined that the absence of the defendant here was not an error of such magnitude as to impact the very fabric of the defendant’s trial. Cf. Arizona v. Fulminante, 499 U.S.…

with whom Circuit Judges JAMES R. BROWNING, SCHROEDER, FLETCHER, and DAVID R. THOMPSON, join, dissenting:

In Snyder v. Massachusetts, Justice Cardozo established that a state court cannot violate any constitutional right “ranked as fundamental” by “the traditions and conscience of our people.” 291 U.S. 97, 105 , 54 S.Ct. 330, 332 , 78 L.Ed. 674 (1934). The majority claims that state and federal case law give little reason to believe that a court violates a fundamental constitutional right when it allows a jury to render its sentence in the defendant’s absence. I respectfully disagree.

Courts throughout the nation have repeatedly held that allowing a jury to announce its decision in the absence of the defendant violates fundamental and inviolable constitutional rights. While this court now indicates that the defendant’s presence at sentencing is nothing but meaningless procedure, the consensus of federal and state precedent is that

Temple v. Commonwealth, 77 Ky. 769, 771 (1879); see also, e.g., United States v. Villano, 816 F.2d 1448, 1452 (10th Cir.1987) (en bane) (sentence imposed in defendant’s absence violates fundamental constitutional and human rights); State v. Levato,…

77 F.3d 1138 64 USLW 2595 , 96 Cal. Daily Op. Serv. 1080 , 96 Daily Journal D.A.R. 1842 David Lewis RICE, Petitioner-Appellee, v. Tana WOOD, Superintendent, Respondent-Appellant. David Lewis RICE, Petitioner-Appellant, v. Tana WOOD, Superintendent, Respondent-Appellee. Nos. 93-99011, 93-99012. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 29, 1995. Decided Feb. 20, 1996. Appeal from the United States District Court for the Western District of Washington. Robert S. Mahler, MacDonald, Hoague & Bayless, Seattle, Washington; Peter Offenbecher and Thomas Hillier, Office of Federal Public Defender, Seattle, Washington; and Montell E. Hester and Wayne Fricke, Tacoma, Washington, for petitioner-appellee/cross-appellant David Lewis Rice. Thomas J. Young, Christine O'Grady Gregoire, and Paul D. Weisser, Office of Attorney General, Olympia, Washington, for respondent-appellant/cross-appellee Tana Wood. Before: WALLACE, Chief Judge, JAMES R. BROWNING, SCHROEDER, FLETCHER, D.W. NELSON, CYNTHIA HOLCOMB HALL, KOZINSKI, DAVID R. THOMPSON, TROTT, T.G. NELSON and HAWKINS, Circuit Judges. Opinion by Judge KOZINSKI; Concurrence by Judge HAWKINS; Dissent by Judge D.W.…