The defendant must be in court when jurors are challenged (citations). Certainly the defendant must be present when the jury is in the box and the trial is in progress. The defendant must be deemed to have the absolute right to hear everything which the jury hears if he is to protect himself. Under such circumstances his presence bears a relation 'reasonably substantial, to his opportunity to defend'. To exclude him from the court room upon such occasions would be to hazard his constitutional rights upon the theory an appellate tribunal might save him from jeopardy. He must be present when the jury is present and is receiving evidence. If he is, then the trial meets the substance of the stringent test laid down by Mr. Justice Roberts in his dissenting opinion in the Snyder case (Snyder v. Massachusetts), 291 U.S. (97) at page 129 (54 S. Ct. 330, 78 L. Ed. 674) * * *. Mr. Justice Roberts stated that the prisoner's constitutional right of presence '* * * comprehend(s) the inquiry by the ordained trier of fact from beginning to end' * * *. In the instant case it appears that the defendant was present at all times that the jury was present and his absolute constitutional right of presence was not infringed.' 129 F.2d 958, 959.
The only issue at the trial was whether, as a consequence of certain happenings some months previously, relator was guilty of murder, and if so in what degree. Whether or not defendant was physically and mentally competent during part of the trial was, of course, a vital matter, but it was not an issue for the determination of the jury, any more than would have been the possible incompetence of court or counsel at the trial. The court's comment immediately preceding the charge (quoted above) might well have been omitted, but the comment did not violate any of defendant's rights to due process.
Since the issue of relator's competence was not an issue for the jury, it did not constitute part of the trial, and it was not violative of due process for the court to hear the doctor's reports in relator's absence.
One important factor in addition is that defendant's counsel made no objection although they were present when the trial judge received the medical reports and had every opportunity to object to their receipt in the absence of defendant.
Inability to Receive Effective Assistance of Counsel
Relator presented the testimony of himself, some of his relatives, a friend, and a fellow prisoner, which, if believed, would establish that during the trial he received surreptitiously and used a quanity of drugs, that he secreted them in his rectum and so was able to bring them into the prison undetected, that being in despair following the testimony of himself and his brother he attempted to commit suicide late Sunday night or early Monday morning by cutting his wrists and simultaneously taking the balance of the large quantity of drugs, that these drugs included seconal, nembutal, placidyl, and possibly butisol sodium, that the suicide attempt failed although he intended that it succeed, and that the effect of the drugs he took in the attempt, coupled with the thorazine given him later, had the effect of dulling his senses or awareness of his surroundings so that there could not be reasonable communication between him and his counsel, with the end result that during the seventh and perhaps the eighth day of the trial he was unable to cooperate fully with, or to receive the effective assistance of, his counsel.
It is incredible that he could take this quantity of powerful drugs and live. I accept as credible the testimony of Dr. Keyes that the taking of all these drugs would probably have caused death, or at the least a profound coma for a protracted period. I do not believe that relator, his relatives, his friend, and his fellow prisoner told the truth about the drugs. I am impressed by relator's failure to produce his defense counsel to testify in this proceeding on the vital issue of his ability to communicate with them. I find that relator's apparent unconsciousness or inability to communicate at his trial was not real but was an intentional and deliberate effort on his part to convey a false impression. I find that he was conscious and able to communicate with his counsel during his entire trial.
The facts and law set forth in this proceeding constitute the court's findings of fact and conclusions of law.
And Now, October 4, 1961, the petition for writ of habeas corpus is denied.