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Name: People v. Marks
Case #: F049797
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 07/02/2007

A defendant has a federal constitutional right under the Sixth and Fourteenth Amendment to be present at any stage of the criminal proceedings that is critical to its outcome if his presence would contribute to the fairness of the proceeding. Defendant has the burden of showing that his absence deprived him of a fair trial. Here a portion of the jury selection occurred outside of the presence of appellant and the prospective jurors and induced a breakdown in attorney/client communication about peremptory challenges. During voir dire a juror indicated a desire to hear defendant’s side of the story. Peremptory challenges later occurred outside of appellant’s presence and despite this particular juror’s expressed sentiments, the defense attorney did not excuse him. After the juror was seated, appellant asked his attorney why the juror was still there and attorney responded that he had “messed up.” Later, during deliberations the juror sent a note asking for appellant’s explanation as to evidence. With this record, appellant met his burden of establishing that his right to due process had been violated with this procedure.