Sequestered in Memphis: Can Trial Counsel Be Excluded From the Courtroom in Ineffective Assistance Cases?

Similar to its federal counterpart, Tennessee Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses, including rebuttal witnesses, excluded at trial or other adjudicatory hearing. In the court’s discretion, the requested sequestration may be effective before voir dire, but in any event shall be effective before opening statements. The court shall order all persons not to disclose by any means to excluded witnesses any live trial testimony or exhibits created in the courtroom by a witness. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) a person designated by counsel for a party that is not a natural person, or (3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause. This rule does not forbid testimony of a witness called at the rebuttal stage of a hearing if, in the court’s discretion, counsel is genuinely surprised and demonstrates a need for rebuttal testimony from an unsequestered witness.

So, pursuant to this rule, may a criminal defendant move to exclude his trial attorney from the courtroom when he has brought a claim alleging the he received the ineffective assistance of counsel? Let’s take a look at the recent opinion of the United States District Court for the Eastern District of Tennessee in Page v. McAllister, 2015 WL 1298652 (E.D.Tenn. 2015).

In Page, Shavone Page pled guilty to five counts of especially aggravated kidnapping, three counts of aggravated rape, two counts of aggravated sexual battery, two counts of aggravated robbery, and one count of aggravated burglary. Page thereafter filed a petition for postconviction relief, claiming, inter alia, that he received ineffective assistance of counsel because (1) “his trial counsel failed to fully explain the nature and consequences of the plea, and because of his lack of intelligence, he was unable to fully understand the nature of the constitutional rights he was waiving;” and (2) counsel failed to fully investigate his case.

After Page was unsuccessful in state court, he brought a federal habeas petition, claiming, inter alia, that postconviction “court’s refusal to grant his request violated Rule 615 of the Tennessee Rules of Evidence, and allowed his trial counsel to tailor his testimony to Petitioner’s earlier testimony during the post-conviction hearing.”

The court dismissed this argument as procedurally barred and thus did not get to the merits of the issue. If it did, how would it have ruled? Page’s trial attorney was not technically a party under Rule 615(1). Typically, a person designated by a non-person party (e.g., the State) has to be a representative of a party (e.g., an FBI or IRS agent) under Rule 615(2). Could the State claim that trial counsel was essential to the preparation of its cause under Rule 615(3)? I’m not sure.

-CM