Harmless Error

Defendant Yarborough was convicted of second-degree murder in a street shooting. On appeal, Yarborough contended that his absence from a meeting between his attorney and the judge violated his "constitutional right to be present at all material stages of the proceedings and to confront the witnesses against him." The meeting concerned the influence upon a prosecution witness who was inadvertently present in the courtroom during the testimony of another prosecution witness. The trial judge ruled that the witness had not been improperly influenced. The appeals court held that Yarborough's constitutional right to be present was not violated. Yarborough now argues his theory in a habeas motion.

Does harmless-error analysis apply?

If so, was the error harmless?

Answer

See Yarborough v. Keane, 1996 WL 705551 (2d Cir. 1996).

The absence of the defendant from a hearing under these circumstances does not call into question the fundamental fairness of the trial. It did not "affect[ ] the [structural] framework within which the trial proceeds." Fulminante, 499 U.S. at 310. If this incident was error, it was of such minimal importance to the fair structure of the criminal proceeding that it cannot fall within Fulminante 's classification of structural errors. It is therefore subject to harmless error analysis. Fulminante, 499 U.S. at 310.  So harmless error analysis applies.

Given the lack of significance of Garvin's testimony (virtually all of which Yarborough admitted), and the overwhelming evidence of Yarborough's guilt, independent of Garvin's testimony, it made no difference whether Yarborough's counsel succeeded at the robing room conference in disqualifying Garvin as a witness. If it was error to conduct the hearing without the defendant being present (and we make no such ruling), the error was certainly harmless. It had no substantial or injurious effect or influence on Yarborough's case.