that afternoon may please the court andrea christiansen of the michigan attorney general's office appearing on behalf of the state i'd like to request three minutes for rebuttal to district court granted where haiti is really in this case based on cory donald's claim that he was denied his sixth amendment right to counsel during a critical stage and we respectfully ask that this court reverse the facts of this case are simple we know that it was a multi defendant case we know that that counsel was absent from the courtroom for a brief period of time and we know that testimony was taken during that time the question that this court needs to answer is whether the michigan court of appeals decision that counsel's absence was not during a critical stage was reasonable under and was deferential standard not to answer that question this court must determine if the supreme court has ever actually defined what constitutes a stage and the answer to that question is no over the past several decades the supreme court has given general descriptions of a critical stage and they've done it at various steps of the criminal proceedings arraignment preliminary hearings sentencing but it has never defined what constitutes a criminal excuse me what constitutes a critical stage in the context of evidence taking of the prosecutor's case in chief as the frontal argues it or even trial in general so because the supreme court has not spoken on what constitutes a critical stage within the confines of trial it was not unreasonable for the state court to determine that the circumstances here did not qualify as a critical stage well even if supposing  u and correct me if you have a different view of it but don't we look to see whether the result of what the state did with speil active of those principles we they could have the wrong reasoning but if the result is right it doesn't make any difference that i completely agree with you your honor there are several cases out of the circuit and out of others i could cite the one that i cite right now is as west versus bell there's also one in our case i believe it's had been it's a seven circuit case but there are several cases out of the circuit and others that says that the reasoning aside it's the outcome to which deference is out and in this case we've got a determination that chronic was not a political and that there was no prejudice resulting from the from i don't disagree that this is a debated issue it especially is in this in this circuit and it may seem counterintuitive that trial would not be considered a criminal  requires is that there is a clearly established supreme court law that was violated and here there is we don't dispute that that a that critical stage is when when counsel is absent during a critical stage that critical stages being sentencing they have held that and i will point to the specific case of hamilton versus alabama that case the supreme court held that alabama's law made arraignment a critical stage because if the defendant in that case did not plead insanity at his arraignment he lost the opportunity to do so so in alabama that was considered a critical stage however the court noted that jurisdictions i believe they noted in the body of their case maybe that's what this court says but i hate vs we don't there is no supreme court decision that i could find and i've looked that said trial from a arraignment to sentencing that's a critical stage counsel cannot be absent and i would also add analogize it to the fact that the circuit courts and that's where a lot of the debate about critical stage happens especially since chronic button but in the circuit courts we see debate about stages within trial we see it at the return of the verdict we see it as supplemental jury instructions and this court is well aware with french versus jones and hudson versus jones if all of trial was considered a critical stage those cases wouldn't happen because if trial was arraignment to appeal or if it was for why do you or or the or the swearing of the jury  i don't disagree with that however but we do have circuit court precedent that says that when you have direct evidence against a defendant whether it be direct evidence in a multi defendant case or direct evidence in a in a single person case the case especially under the special circumstance of this case being that it is a multi defendant trial and the evidence the evidence that came in were evidence of phone calls between all other members that that participated in this robbery slash murder it was in reference to only those defendants donald's name didn't even come up in that testimony it wasn't brought up by name and he wasn't brought up even by inference while counsel was missing the only time his name came up with respect to those phone calls was during closing argument when counsel was present and he mediately addressed it frankly at the most important time which is right before they go into deliberations the jury well i had a tender and agree with judge moore would stay here but at the risk of putting words in your mouth which i guess that's what i'm doing a trial is clearly a critical stage of proceeding but not everything that results during that trial deprives the defendant of the sixth amendment right to counsel i think that has to be yes if if i'm if i'm understanding you correctly i think that i think that the court may find that trial in and of itself as as a broad as a broad term is a critical stage but it can be broken up within that's that's the best that we can come up with at this point however i do want to say  before my time runs down too much is i want to point the court to van versus jones it is a two thousand and seven case out of the circuit and i think that it's instructive in this in this instance and it was not a it was not a trial case it was a consolidation hearing but what that court how old was that because there is not a comprehensive definition of critical stage that courts must examine what actually happened during counsel's absence in order to determine if there's a reasonable probability that the defendant actually suffered significant consequences and this is what i think the most debate is about because it may seem absurd to have to examine prejudice to determine if there's a presumption of prejudice however with out a directive from the supreme court which which we just maintain there is not the state courts decision to examine what actually happened during the absence was said that you have in order to determine if if a certain moment during trial is a critical stage then you have to examine what actually happened chronic on the other hand says prejudice is presumed you don't even go there so i wanted to make that distinction well that's be a little careful there because if he was i think the case law is that  if he was deprived of counsel during a critical stage of the proceedings he said dissolve from having to show the prejudice prove the prejudice prong under strict yes speak up because under stric have to establish prejudiced under under chronic there would be no he's absolved of having to show prejudice under chronic ok if i'm understanding so a different answer than you gave a moment ago or maybe i misunderstood it maybe i misunderstood it my apologies i understand that it's that it's a it's a stretch to say that that the supreme court hasn't said that what parts of trial are considered critical stages but in the h that afternoon may please the court can really thomas of the michigan juvenile justice clinic for mr corey donald your honor is that in this case mr donaldson court appointed counsel was absent during the testimony of a prosecution witness during the state's case in chief of his trial for aiding and abetting in a felony murder homicide the core of the criminal trial is the taking of testimony that is used to support the guilt of the accused that's a critical stage of the trial there are many cases and i'm sure this court has seen that nip at the edges of what the supreme court might consider a critical stage but this case is not one of the state court and recently applied clearly established law in its failure to apply chronic to this case and we ask you to firm the district court's decision honor there is clearly established law in this case there is cronic there are so subsequent cases that address where the absence of counsel at a critical stage requires automatic reversal are critical stages a step of the criminal proceeding at this stage of the proceeding there are so if we're looking at the stage of the case not at specific facts that are entered into the case at that particular stage here the stage of the case is the taking of testimony during mr donalds homicide person commits the jury was correctly instructed that they had to find that someone mr donald or someone else committed the crime in this case there was no debate that this was an aiding and abetting case and so mr donald liability is hinged on the liability of his said judge i got an emergency phone call this what's happening next doesn't pertain to my client do you mind if i absent myself for a few minutes and the judge went back into court and said to the defendant not the mere absence in and of itself that is the problem well an absence accompanied by a knowing and voluntary waiver would be fine suppose in that there is a video of this trial and it shows that defense counsel ambiguity about what happened right there is unlike some cases this court has seen where we're not sure if defendant left or for how long here there's a clear departure and arrival we know what occurred during that time and when he came back in the judge inquired as to whether he needed any review of what occurred and so forth and so on when he came back the judge said that paraphrasing but we've been taking testimony related to the in well we don't know what counsel would have done had he been there and that's the whole point i think that counsel sr counsel points to the fact that the defense attorney addressed this in closing it's obvious why the defense attorney addressed it in closing because in the prosecutor's closing she makes so clear how important this evidence is to mr donald scope ability she says that the phone records are critical to tie all the defendants including mr donald into this conspiracy and so he has to respond at that  but there's no indication that this would have played out any differently if he had been sitting there that's not really the question before the court the question is is what happened here a critical stage of the trial or not no it isn't the question is was he deprived of couns well the the the there might be in this case there's not in this case mr donald did not have any choice in the matter his counsel left during the taking  not only did counsel say this stuff just doesn't impact on my client whatsoever and then later on say on the quick closing argument sort of make here you see it doesn't impact on this evidence shows that he was part of it that he had actual knowledge of what was going on in the phone on conversations i mean it really doesn't touch him and so it's it's a little respectfully i disagree with the proposition that it doesn't touch him so clearly the state thought that this evidence touched him that they thought that this tied all of the actors in this conspiracy together  infer that mr donald was someone who made one of these phone calls so there was no evidence that he had a cellular phone however there was a statement from mr steyn that was introduced into the record that said donald called him and said i'm shocked company me up a reasonable jury could have thought that these phone calls were at least one or more of those phone calls were made by mr donald and so there's that there is not an unreasonable assumption that it in fact does go to mr donald specifically but the fact that he was given the opportunity to object even after he came back in and didn't to me makes this more of a ineffective assistance of counsel case than a chronic case i would disagree that i'm doing so so let me say why i think especially in an aiding and abetting case why it's so important is because the culpability of every party here is relevant to mr donaldson culpability and so if the jury believes that someone else committed this crime and mr donald helped them then mr donald is guilty but that's my point it's the failure of counsel to object to that testimony that is the  anything because he was absent and so he had to do something when he come back and he had the opportunity knowing in advance to make a motion and that he knew what the testimony was going to be so he had an opportunity at both ends there is no suggestion in this case that he would have done anything differently if he had been there that being the case the real nub of the problem is that he didn't object to this evidence coming or that he didn't get a limiting instruction as to his  someone else but the fact that his attorney miscalculated and didn't appreciate that even evidence that went to his co defendants killed hurt his client is not does not undermine the fact that this is a case o required to apply clearly established law of the court and case after case the court has this court and the u s supreme court has compared when it looks at whether something is a critical stage  compared the question to the stage in question to the stage in question here so was this like a trial so is arraignment like a trial is the defendant in put in a position where he is the tipping of testimony a trial is not necessary this court has been able to apply that the u s supreme court's cases on clearly established case law clearly anticipate that lower courts can apply the  and it's not an argument around the edges of what critical stages like many of the cases seen by this court the fact that  in terms of taint the taint of the other defendants conduct even if the quote this court doesn't believe that mr donald's conduct was implicated by these phone calls but the tape from the other defendants i spread to him it's brought to him through that testimony the state vigorously argues that in closing mr liggins testimony was not as credible as the state i think thought he would be and so the state asserts that mr donald and mr s are tied to this offense through these phone records that those phone records are what show that he is there is a pre planned arrangement for mr donald to be picked up by mr saying after the commission of this robbery and whether or not his attorney properly appreciated that the import of this testimony is in the question because his attorney was absent and wasn't able to defend him at that time and so the whether he got it right trial your honor so i would submit that it's an extreme malfunction of our system when mr donald is literally left sitting without counsel at his homicide trial during the prosecution's case in chief and would ask that this court affirm the finding a l