#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
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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.




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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.

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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.

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[¶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


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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.

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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,


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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.

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              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

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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


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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.

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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.




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