State v. Arguello ( 2015 )

#27351-a-SLZ
2015 S.D. 103
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JOSEPH ARGUELLO, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE JEFF W. DAVIS
Judge
****
MARTY J. JACKLEY
Attorney General
JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
ROBERT VAN NORMAN
Rapid City, South Dakota Attorney for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON NOVEMBER 30, 2015
OPINION FILED 12/30/15
#27351
ZINTER, Justice
[¶1.] Joseph Arguello was convicted of three counts of sexual contact and
rape involving three minors. Arguello appeals his conviction on the ground that the
trial judge left the courtroom during the presentation of evidence. Arguello also
appeals on the ground that the judge failed to give the jury a statutorily-required
admonishment before recesses and adjournments. We affirm.
Facts and Procedural History
[¶2.] Joseph Arguello had a twenty-year, on-again, off-again relationship
with R.D. During one of the periods in which they were separated, R.D. married
another man and they had three children. R.D. divorced in 2007, and she reunited
with Arguello in 2008. She and the children began living with Arguello. In 2012,
one of the children accused Arguello of inappropriate sexual activity. Arguello was
subsequently charged with numerous counts of rape and sexual contact involving all
three children.
[¶3.] Circuit Court Judge Jeff Davis presided at trial. Immediately after the
jury was empaneled on the first day of trial, Judge Davis gave the jury the following
admonition to the jury:
It’s important that you honor your oaths as jurors. There’s a
statutory admonition I’m required to give you, which essentially
says: You are to form or express no opinions about the case,
discuss it among yourselves or allow anyone to discuss it with
you until it’s finally submitted to you for your determination.
It’s important that the testimony and the evidence come only
from the witness stand and has been properly admitted for you
folks to consider. Rather than say that at every recess, I’ll say
“Remember the admonition,” and that’s what I’m talking about.
-1-
#27351
The judge did not give the full admonition again during the three-day trial. At each
recess or adjournment, he told the jury to “remember the recess admonition” (on one
occasion he told the jury to “remember the recess admonition that I’ve given you in
the past”). The judge also failed to give any admonition before one lunch recess.
[¶4.] Near the end of the second day of trial, the attorneys and the judge
agreed to play for the jury videos of two of the victims’ forensic interviews in which
they gave their accounts of what had occurred. The judge then told the jury that he
had “a little mission about 4 o’clock that involve[d] the state’s attorney’s office on
entirely unrelated matters” and that he would leave the courtroom while the jury
watched the videos. The judge also told the jury that if necessary, “they’ll change
[the videos] and offer them separate.” The judge then told the bailiff they could
take a break “in between” and he would be “back around . . . .” The transcript does
not reflect the time the judge actually left the courtroom and the time he returned.
However, there is no dispute that the judge left the courtroom while the videos were
presented to the jury and he returned to discharge the jury for the day. It appears
from the transcript that both attorneys had agreed to have the videos played
without the judge’s presence. 1
Decision
[¶5.] Arguello appeals raising two issues. Arguello first argues that Judge
Davis caused structural error, invalidating the conviction, because he left the
1. Arguello’s appellate counsel did not represent him at trial.
-2-
#27351
courtroom during the presentation of evidence. 2 Structural error requires reversal
without a showing of prejudice. Structural errors so greatly affect the framework of
the trial that they merit automatic reversal. Guthmiller v. Weber, 2011 S.D. 62,
¶ 16, 804 N.W.2d 400, 406 (quoting Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113
S. Ct. 2078, 2082-83, 124 L. Ed. 2d 182 (1993)). However, structural errors occur
only “in a very limited class of cases.” Neder v. United States, 527 U.S. 1, 8, 119 S.
Ct. 1827, 1833, 144 L. Ed. 2d 35 (1999); see also United States v. Jones, 662 F.3d
1018, 1028 (8th Cir. 2011).
[¶6.] This Court, following Neder, has only recognized six types of structural
error:
(1) a deprivation of the right to counsel; (2) a biased judge; (3) an
unlawful exclusion of grand jurors of the defendant’s race; (4) a
deprivation of the right of self-representation at trial; (5) a
deprivation of the right to a public trial; and (6) an erroneous
reasonable doubt standard.
Guthmiller, 2011 S.D. 62, ¶ 16, 804 N.W.2d at 406 (citing Neder, 527 U.S. at 8, 119
S. Ct. at 1833); State v. Hayes, 2014 S.D. 72, ¶ 17, 855 N.W.2d 668, 674-75. We
have also followed the Supreme Court in rejecting any sort of “functional
equivalent[s].” Guthmiller, 2011 S.D. 62, ¶ 16, 804 N.W.2d at 406 (citing Neder, 527
U.S. at 8, 119 S. Ct. at 1833). Therefore, we have declined to find an error
structural unless it fits within one of the six categories. See id. (“Here, the trial
judge’s improper comments do not fit within one of the six categories of structural
error recognized by the Supreme Court.”).
2. Arguello argues that the judge’s leaving the courtroom violated Arguello’s
constitutional rights. We review alleged violations of constitutional rights de
novo. State v. Ball, 2004 S.D. 9, ¶ 21, 675 N.W.2d 192, 199.
-3-
#27351
[¶7.] This case is like Guthmiller. The judge erred in leaving the courtroom
during the presentation of evidence, but the error is not one of the six recognized
structural errors. See Guthmiller, 2011 S.D. 62, ¶ 18, 804 N.W.2d at 407. Arguello
recognizes the Guthmiller categorical framework. Therefore, he argues that the
judge’s leaving the courtroom violated some of the constitutional rights recognized
in the six categories; i.e. the rights to counsel, due process, and a public trial. But
there is no evidence even suggesting that the judge’s absence violated any one those
constitutional rights. There is certainly no evidence suggesting a constitutional
violation so egregious as to “necessarily render[] [the] trial fundamentally unfair."
See id. at ¶ 16. Because the error in this case does not fit the categorical
framework, we conclude that no structural error occurred.
[¶8.] This conclusion is supported by our pre-Neder cases disapproving
judges’ leaving the courtroom during trials. Although we have consistently
disapproved this conduct, we have not reversed without a showing of prejudice. In
O’Connor v. Bonney, 57 S.D. 134, 231 N.W. 521, 524 (1930), the judge and court
reporter left the courtroom during closing arguments. We “emphatically
disapproved” the judge’s departure but affirmed the judgment, indicating that the
judge’s absence alone was insufficient to reverse. O’Conner, 231 N.W. at 524 (“We
do not say that what is claimed to have taken place during the absence of the judge
and reporter in this case would alone be sufficient cause for reversal, but such
practice is emphatically disapproved.”). In Poe v. Arch, 26 S.D. 291, 128 N.W. 166,
168 (1910), a trial judge briefly left the courtroom when a party fainted and was
carried to an adjoining room, but defense counsel continued with his argument. We
-4-
#27351
again upheld the jury verdict because there was no prejudice to the defendant. Id.
(“The evidence in this case fully justified the verdict, and no prejudice to defendant
appears. Having carefully considered all the assignments of error, we are of the
opinion that no reversible error exists.”). Many other state and federal cases
support the conclusion that a trial judge’s absence is improper, but it is not
structural error. 3
[¶9.] Because there was no structural error, Arguello must establish
prejudice. Arguello argues that he was prejudiced because the judge’s absence
3. See United States v. Love, 134 F.3d 595, 604-05 (4th Cir. 1998) (rejecting the
defendant’s argument that the judge’s temporary absence was structural
error, requiring a showing of prejudice to justify reversal); Heflin v. United
States, 125 F.2d 700, 701 (5th Cir. 1942) (holding that a judge’s absence for a
few minutes during closing argument did not result in prejudice and was
thus not reversible error); People v. Garcia, 826 P.2d 1259, 1266 (Colo. 1992)
(holding that although the judge erred in leaving during the playing of a
video during trial, defendant’s failure to object waived the error); Sherman v.
Marden, 525 N.W.2d 550, 553 (Minn. Ct. App. 1994) (“While it is true that a
judge who, with or without objection, leaves the courtroom while court
continues in session demonstrates poor judgment, here the judge’s absence
was not so egregiously prejudicial as to deny Sherman a fair trial.”); State v.
Scott, 824 N.W.2d 668, 687 (Neb. 2012) (“Although we disapprove of the
judge’s practice, we conclude that Scott did not establish prejudice resulting
from the judge’s absences and that the district court did not err when it
overruled the motion for new trial on this basis.”); Coddington v. State, 254
P.3d 684 (Okla. 2011) (holding that a judge’s absence does not automatically
create structural error).
We recognize that other cases have concluded that a judge’s absence from the
courtroom can be structural error. See, e.g., United States v. Mortimer, 161
F.3d 240, 242 (3d Cir. 1998) (finding structural error when the judge
vanished during closing statements, without consent or knowledge of either
party); Riley v. Deeds, 56 F.3d 1117, 1119 (9th Cir. 1995) (holding that a
judge’s absence was structural error when the judge did not present himself
to have testimony read back, leaving the task to his law clerk); People v.
Vargas, 673 N.E.2d 1037, 1038 (Ill. 1996) (holding that a judge’s absence
during a felony trial is per se reversible error). However, Neder was decided
after these cases, and South Dakota applies the Neder categorical approach.
-5-
#27351
prevented a fair consideration of his motion for judgment of acquittal. Arguello
contends that because the judge was not present to observe the victims’ accounts of
the alleged sexual misconduct, the judge could not have properly considered
Arguello’s challenge to the sufficiency of the evidence.
[¶10.] The record is unclear whether the judge ever watched the videos. At
an earlier motion hearing, the parties indicated that the judge should watch the
videos at his convenience because they were the subject of a pretrial motion. The
judge indicated at the end of that hearing that he would “get the videos watched.”
But there is no indication in the record—from a decision of the court or otherwise—
whether the judge actually viewed the videos. However, even if we assume the
judge did not watch the videos, Arguello cannot establish prejudice. “We review de
novo a trial court’s denial of a motion for a judgment of acquittal and decide anew
whether there is sufficient evidence in the record to sustain the conviction.” State v.
Miland, 2014 S.D. 98, ¶ 11, 858 N.W.2d 328, 331. Notwithstanding our de novo
standard of review, Arguello does not challenge the sufficiency of the evidence on
appeal. Therefore, the sufficiency of the evidence to support the State’s case stands
unchallenged. Because Arguello has not established prejudice, we reject his
challenge to his conviction on this ground.
[¶11.] We do, however, reiterate that it is improper to leave the courtroom
during a trial. “The presiding judge is an integral part of the trial court, and ought
not to be absent for any period while the trial is proceeding.” O’Conner, 231 N.W. at
524. “It will thus be seen that the judge is an essential constituent of a court, and
that there can be no court in the absence of the judge or judges.” State v. Jackson,
-6-
#27351
21 S.D. 494, 113 N.W. 880, 881 (1907). Moreover, a judge’s absence can have a
significant effect on the jury. Jurors are mindful of a judge’s behavior during trial—
every word the judge says and every action the judge takes is received with
deference. People v. Vargas, 673 N.E.2d 1037, 1042 (Ill. 1996). Therefore, a “judge’s
absence from the bench during the course of the trial may create a negative
impression in the minds of the jury to the detriment of the defendant.” Id. (quoting
People v. Marino, 111 N.E.2d 534 (Ill. 1953)). We also believe that a judge’s absence
may cause the jury to believe the matters in court are not important enough to
merit attention. We adopt the Massachusetts Supreme Court’s view that:
The very act of a judge’s presiding over the trial has a profound
and sobering influence on all those who are present in the
courtroom. “[T]he core of our constitutional system is that
individual liberty must never be taken away by shortcuts. . . .”
Commonwealth v. Bergstrom, 524 N.E.2d 366, 377 (Mass. 1988) (quoting Jay v.
Boyd, 351 U.S. 345, 369-70, 76 S. Ct. 919, 933, 100 L. Ed. 2d 1242 (1956) (Black, J.,
dissenting)).
[¶12.] Arguello also argues that we should reverse his conviction because
Judge Davis failed to fully and regularly admonish the jury at each recess and
adjournment. 4 SDCL 23A-24-5 requires that the following admonition be given to
jurors at each adjournment of court.
Jurors shall, at each adjournment of court, whether permitted to
separate or kept in charge of officers, be admonished by the
court as follows: You are reminded that you are not to discuss
any aspect of this case among yourselves or with anyone else
4. Jury admonitions involve courtroom procedure. We review a trial judge’s
alleged violation of courtroom procedures for an abuse of discretion. State v.
Selalla, 2008 S.D. 3, ¶ 18, 744 N.W.2d 802, 807.
-7-
#27351
and that you should not form or express any opinion on the case
until it is given to you for decision.
Id. Substantial compliance with this requirement is sufficient. State v. Brim, 2010
S.D. 74, ¶ 14, 789 N.W.2d 80, 85 (holding that the judge substantially complied with
the statute at each and every recess and adjournment). See also State v. Iron
Necklace, 430 N.W.2d 66, 78 (S.D. 1988) (holding that failing to specifically
admonish one jury alternate at the beginning of trial was not grounds for a mistrial,
when the judge carefully followed the statutory mandate at every other
adjournment). Substantial compliance means “actual compliance with respect to
the substance essential to every reasonable objective of the statute.” R.B.O. v.
Congregation of Priests of Sacred Heart, Inc., 2011 S.D. 87, ¶ 12, 806 N.W.2d 907,
911-12 (quoting Wagner v. Truesdell, 1998 S.D. 9, ¶ 9, 574 N.W.2d 627, 629).
Substantial compliance cannot be shown unless the purpose of the statute has been
served. Id.
[¶13.] Arguello contends that the judge did not substantially comply with the
statutory mandate. We agree. On the first day of trial, immediately after the jury
had been empaneled, the judge’s first admonition substantially complied with the
statute. However, he never gave a complete admonishment again in a three-day
trial. Instead, at each adjournment or recess, he merely told the jury to “remember
the admonition.” Additionally, the judge gave no admonishment before the lunch
recess on the second day of trial.
[¶14.] The purpose of the admonishment is to prevent juror misconduct.
More specifically, its purpose is to dissuade jurors from forming or expressing any
opinion about the case until all of the evidence has been presented. The
-8-
#27351
admonishment is also intended to dissuade jurors from talking about the case with
anyone, including each other, until the case has finally been submitted for their
consideration. In a three-day trial, these purposes are not fulfilled by only one full
admonishment given before the presentation of evidence has started. It is too much
to expect that jurors can remember the full admonition one, two, and three days
after it is first given. To be effective, is also important to emphasize the admonition
when the evidence is being heard—the time when jurors are most likely to forget to
keep an open mind until they hear all of the evidence. Additionally, the admonition
must be repeated to dissuade the jurors from communicating among themselves and
with others. The stakes are too high in today’s environment of smartphones, the
internet, and social media to not repeat the full admonition. We are not suggesting
that substantial compliance cannot be found without parroting the statute at every
break. But the purpose of the admonishment is to prevent juror misconduct, and
only one complete admonishment at the end of jury selection is not sufficient to
satisfy that purpose. We conclude that the admonishments given in this case did
not substantially comply with the statute.
[¶15.] The question then, is what is the remedy for the failure to
substantially comply with the statute? Arguello argues that reversal is required
because if we condone what occurred, SDCL 23A-24-5 will become a nullity.
Arguello is correct to the extent that we cannot condone the admonitions given in
this case. However, our cases have established that reversal is not warranted
where there is no indication that the failure to properly admonish resulted in
prejudice. See Brim, 2010 S.D. 74, ¶ 13, 789 N.W.2d at 85 (“The trial court’s failure
-9-
#27351
to admonish the first panel of venire persons does not constitute reversible error as
there is no indication that the failure to do so affected the verdict in this case.”). See
also Iron Necklace, 430 N.W.2d at 78 (concluding that a minor omission did not
affect the verdict); State v. Lang, 354 N.W.2d 723, 725 (S.D. 1984) (same).
[¶16.] A prejudice requirement is warranted because the admonition is a
prophylactic protection against juror misconduct, but if the harm the statute is
intended to prevent never occurs, reversal to have the admonition given would be
pointless. See United States v. Nelson, 102 F.3d 1344, 1348 (4th Cir. 1996) (holding
a judge’s complete failure to admonish jury was not fundamental error meriting
automatic reversal where the party failed to object and no prejudice or harm was
shown); 5 See also State v. Lopes, 826 A.2d 1238, 1252-53 (Conn. App. Ct. 2003)
(holding that the defendant was not entitled to reversal without a showing of
prejudice, even though the judge did not comply with the terms of the statute);
People v. Small, 2 A.D.2d 935, 935, (N.Y. App. Div. 1956) aff’d, 143 N.E.2d 512 (N.Y.
1957) (holding that it was error for a judge to not admonish the jury at all on any
subject until the case was submitted, but it was not reversible error without a
5. Nelson acknowledged United States v. Williams, 635 F.2d 744, 745 (8th Cir.
1980), where no showing of prejudice was required to warrant reversal.
Nelson noted that Williams was decided before United States v. Olano, 507
U.S. 725, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993). In Olano, the Supreme
Court noted that reversal would be pointless in a case where no harm
resulted from an alternate juror sitting in on deliberations. Olano, 507 U.S.
at 738, 113 S. Ct. at 1780. Because Olano held that reversal for that error
would be pointless where the harm sought to be prevented never occurred,
Nelson declined to follow Williams. We are persuaded by the reasoning in
Nelson.
-10-
#27351
showing of prejudice). Because Arguello concedes that he cannot show prejudice as
a result of this error, we deny his challenge to his conviction on this ground.
[¶17.] Affirmed.
[¶18.] GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,
Justices, concur.
-11-