"I agree with the Fourth Circuit decision in [United States] v. Allen, [ 542 F.2d 630 (1976), cert. denied, 430 U.S. 908 (1977)], which held the Sixth Amendment right to counsel is so fundamental that it should never be interfered with for any length of time absent some compelling reason. See also Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir. 1982)[, cert. denied, 461 U.S. 907 (1983)]. To allow defendants to be deprived of counsel during court-ordered recesses is to assume the worst of our system of criminal justice, i. e., that defense lawyers will urge their clients to lie under oath.
In order for appellant to prevail on this issue, she must demonstrate that the action of the trial court deprived her of a constitutional right which she sought to exercise. See Stubbs v. Borderkircher, 689 F.2d 1205 (4th Cir. 1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983). However, there is no evidence that she made any attempt to confer with incarcerated counsel or had any desire to do so.
The Fourth Circuit in United States v. Allen, 542 F.2d 630 (4th Cir. 1976) accepted a similar view and applied the per se reversal rule to any restriction no matter how brief. The per se reversal rule was modified in Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir. 1982) and required the petitioners "to show that he desired to consult with his attorney and would have consulted with him but for the restriction placed upon him by the trial judge." Id. at 1207.
The Third and Fourth Circuits hold that no deprivation occurs in the absence of an objection. See Bailey v. Redman, 657 F.2d 21 (3d Cir. 1981), and Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir. 1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983). As we noted above, Crutchfield's lawyers did not object, move for a mistrial, or ask to discuss testimonial or non-testimonial aspects of the case with him after the trial judge instructed them not to confer with Crutchfield. As to the first alleged violation, we are unable to find any evidence that Crutchfield's lawyers actually wanted to talk with him during the recess, or that Crutchfield desired to consult with his counsel. If the record reflected such a desire by either, we would find that the trial judge's admonition constituted reversible error.
Perry, 832 F.2d at 839. In holding that this denial of the right to counsel did not mandate reversal, the Fourth Circuit stated that its previous position that it was always reversible error for a trial judge to prevent a defendant and attorney from consulting, United States v. Allen, 542 F.2d 630 (4th Cir. 1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977), and Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir. 1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983), was no longer viable in light of the Supreme Court's reasoning in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). Strickland and Cronic both concerned claims of ineffective assistance of counsel.
Relying on many of the factors just addressed, the Romano court found Geders controlling despite the testimonial limitation on the judge's order, and found a sixth amendment violation. 736 F.2d at 1436-37; see also Stubbs v. Bordenkircher, 689 F.2d 1205, 1206 (4th Cir. 1982) (trial court order not to discuss testimony during lunch hour held "constitutionally impermissible"), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983). In short, the district judge's order violated the sixth amendment.
United States v.Conway, 632 F.2d 641 (5th Cir. 1980) (blanket restriction imposed during lunch recess); United States v. Vesaas, 586 F.2d 101, 102 n. 2 (8th Cir. 1978) (indicating "grave doubts" whether ban on discussing testimony during short recess would be constitutional); United States v. Bryant, 545 F.2d 1035 (6th Cir. 1976) (blanket restriction imposed during lunch recess); see United States v. Allen, 542 F.2d 630 (4th Cir. 1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977) (routine recess); Jackson v. United States, 420 A.2d 1202 (D.C. 1979) (ban on testimony during lunch recess); Stripling v. State, 349 So.2d 187 (Fla.App. 1977) (blanket restriction imposed during lunch recess). But see Stubbs v.Bordenkircher, 689 F.2d 1205 (4th Cir. 1982) (lunch recess, specific prejudice necessary); United States v. DiLapi, 651 F.2d 140 (2d Cir. 1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982) (five minute recess, specific prejudice necessary); Bova v. State, 410 So.2d 1343 (Fla. 1982) (ten minute recess, specific prejudice necessary); People v. Seider, 98 Ill. App.3d 175, 53 Ill.Dec. 413, 423 N.E.2d 1217 (1981) (short recess to which defendant did not object, specific prejudice required); People v. Narayan,88 A.D.2d 622, 449 N.Y.S.2d 1008 (1982) (majority and dissent disputed length of time of bar, specific prejudice necessary); State v. Perry, 299 S.E.2d 324 (S.C. 1983) (fifteen minute recess, specific prejudice necessary). Courts applying Geders to cases involving overnight recesses have recognized that defendants who object to the prohibition need not show prejudice to establish reversible error.
The Third and Fourth Circuits hold that no deprivation occurs in the absence of an objection. See Bailey v. Redman, 657 F.2d 21 (3d Cir. 1981), [cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310, reh. denied, 455 U.S. 995, 102 S.Ct. 1624, 71 L.Ed.2d 857 (1982),] and Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir. 1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983)." Allen involved a routine recess.
In the absence of an objection to the court's order, or some similar indication that consultation with counsel was desired, we cannot say that the trial judge's order denied the defendant her right to the assistance of counsel. See Crutchfield v. Wainwright (11th Cir. 1986), 803 F.2d 1103; Mudd v. United States (D.C. Cir. 1986), 798 F.2d 1509; Stubbs v. Bordenkircher (4th Cir. 1982), 689 F.2d 1205; Bailey v. Redman (3d Cir. 1981), 657 F.2d 21; People v. Visnack (1985), 135 Ill. App.3d 113; People v. Seider (1981), 98 Ill. App.3d 175. The defendant also argues that the State introduced irrelevant and prejudicial evidence of other, unrelated instances of abuse supposedly committed by the defendant against the child.
In United States v. Conway, 632 F.2d 641 (5th Cir. 1980), this Court held that a sequestration order issued to a defendant witness during a lunch recess which interrupted his cross-examination constituted grounds for reversal of his conviction under the rationale of Geders. See also Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir. 1982), cert. denied, ___ U.S. ___, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983) ("any restriction upon a defendant's access to his counsel during a recess, whether the recess be extended or brief, is constitutionally impermissible."); United States v. Bryant, 545 F.2d 1035 (6th Cir. 1976) (order directing defendant not to converse with anyone during a one-hour lunch break during direct examination held to be a violation of Sixth Amendment right to counsel); United States v. Allen, 542 F.2d 630 (4th Cir. 1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977) (holding that "a restriction on a defendant's right to consult with his attorney during a brief routine recess is constitutionally impermissible," and reversing the conviction of a co-defendant witness ordered not to talk to her lawyer during an overnight recess); United States v. Vesaas, 586 F.2d 101, 102 n. 2 (8th Cir. 1978) (expressing in dicta the court's "grave doubts that even a brief restriction on a criminal defendant's