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Bland v. State5/16/2000
ion and we find none of them were situated identically with Ms. Flores and Mr. Aldape-say. This Court has stated that "a pretextual reason, that is, one not supported by the record, should be rejected." Cleary v. State, 942 P.2d 736, 743 (Okl.Cr.1997), cert. denied, 523 U.S. 1079, 118 S.Ct. 1528, 140 L.Ed. 679 (1998). In this case, the prosecutor's reasons for excusing the potential jurors were supported by the record.
Therefore, while the trial court's notation that Appellant was not a member of a minority race was not a relevant consideration, see Powers v. Ohio, 499 U.S. 400, 409, 111 S.Ct. 1364, 1369-70, 113 L.Ed.2d 411, 424 (1991), we find Appellant has failed to carry his burden of showing purposeful discrimination. Finding no error in the trial court's ruling granting the State's use of its third and ninth peremptory challenges, this assignment of error is denied.
B.
In his second assignment of error, Appellant contends the trial court committed fundamental error when portions of voir dire were conducted in his absence. The record reflects that on the second day of trial, thirty-two potential jurors were called to the judge's chambers for individual voir dire. With the first five venirepersons, the trial judge discussed various reasons why the individuals could not serve on the jury. The trial court asked if the defendant was needed in chambers and defense counsel waived his appearance. The remainder of the venirepersons were questioned, at defense counsel's request, to determine whether they had violated the court's directives to refrain from watching or reading news reports about the case.
In Perry v. State, 893 P.2d 521, 527-528 (Okl.Cr.1995) we quoted to Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) in stating:
A defendant has a due process right to be present during trial proceedings "'whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." " he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.'" The defendant's presence is not required where such "presence would be useless, or the benefit but a shadow."
We further recognized a defendant's state statutory rights in this regard:
A defendant also has a state statutory right to be present during certain communications with jurors. For instance, a trial court should not conduct communications with the jury outside the presence of counsel and the defendant during deliberations; nor should anyone communicate with the jury regarding the merits of the case prior to submission of the case to the jury. However, this Court has also made clear that not every communication between the court and jury outside the presence of counsel is prohibited. For example, communications with the jury regarding simple housekeeping matters do not give rise to a violation of the statutory right to be present. "Rather, prejudice arises when the trial court communicates with the jury outside the parameters of [the statute.]" Id. at 528. (internal citations omitted).
Appellant contends he was prejudiced in that he was unable to advise counsel during jury selection and to participate "in the selection of the persons who will not only determine his guilt or innocence, but will determine whether he lives or dies." He further argues he was denied the prerogative to challenge a juror simply on the basis of sudden impressions or personal knowledge indispensable to the selection of an impartial jury.
Of the first five persons called back to chambers,
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