Cureton v. United States, 21175.

• Decision Date: 18 April 1968
• Docket Number: No. 21175.,21175.
• Citation: 396 F.2d 671,130 US App. DC 22
• Parties: Milton CURETON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

130 US App. DC 22, 396 F.2d 671 (1968)

Milton CURETON, Appellant, v. UNITED STATES of America, Appellee.

No. 21175.

United States Court of Appeals District of Columbia Circuit.

Argued January 24, 1968.

Decided April 18, 1968.

Mr. Harry A. Inman, Washington, D. C., (appointed by this court) for appellant.

Mr. Jerome M. Feit, Attorney, Department of Justice, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, for appellee. Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief for appellee.

Before FAHY, Senior Circuit Judge, and McGOWAN and ROBINSON, Circuit Judges.

FAHY, Senior Circuit Judge:

Appellant was convicted by a jury of housebreaking (22 D.C.Code § 1801), arson (22 D.C.Code § 401), and malicious destruction of personal property of a value in excess of $200.00 (22 D.C. Code § 403). The charges grew out of a single episode which was apparently the result of an estrangement between appellant and his wife. She had rejoined her father and stepmother in their household where the indicted conduct occurred. The family were then absent, indicating appellant did not desire to inflict bodily harm. He was sentenced to three to ten years' imprisonment on each of the three counts, the sentences to run concurrently with each other but to take effect at the expiration of another sentence.

Appellant's principal contention, and the only one which in our view requires discussion, is that he was tried in absentia in violation of the Due Process Clause of the Fifth Amendment and his right to be confronted with the witnesses against him as guaranteed by the Sixth Amendment. We remand for a hearing on the absentia issue, the judgment of conviction to abide the result.

Appellant was present with counsel when the trial began on a Thursday and progressed through the impaneling of the jury. The afternoon becoming advanced, the judge respited the trial until the following Monday. When the court reconvened on Monday appellant, who was at liberty on his personal recognizance, did not appear.

A short recess was taken to enable counsel to call appellant's grandmother through whom counsel had contacted appellant on other occasions. Counsel also advised the court that appellant was required to report daily to Precinct Two. The prosecuting attorney undertook to check into the defendant's compliance. Later in the morning counsel for appellant reported he had not been successful in ascertaining appellant's whereabouts. He said his recollection was that on the last day they were in court "I told him * * * that I would see him here Monday morning." The prosecuting attorney advised the court he was informed appellant had not reported to the Precinct since Friday.

The court issued a bench warrant and recessed for a few hours. In agreeing to this procedure, appellant's counsel stated he "opposed a trial in absentia and respectfully represented to the court * * * I think that would be prejudicial." The court reconvened at 1:45 p. m., when the Marshal explained his unsuccessful efforts to locate appellant.

The court then stated that he found appellant had voluntarily absented himself and that the trial should proceed in his absence under the rules of the court. In appellant's absence the trial continued for the remainder of the court day and most of the following morning, eventuating in the verdicts. Two months later appellant was apprehended, and several weeks thereafter he was present with counsel at his sentencing.

Rule 43, Fed.R.Crim.P., which no doubt the court had in mind in continuing with the trial, provides in its most pertinent part:

The defendant shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules. In prosecutions for offenses not punishable by death, the defendant\'s voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict.

The 1943 Notes of the Advisory Committee on the Rules of Criminal Procedure contain the following comments on the preliminary draft of Rule 38, which became Rule 43:

The right of a defendant in a criminal case to be present at every stage of the proceedings after an indictment has been found or an information filed and until sentence is imposed, is preserved. See United States Constitution, Amendments V and VI. * * *

Blackstone and Chitty are cited; and, also, cases illustrating "the extent to which criminal proceedings in both the federal and state courts in the absence of a defendant have been permitted or forbidden."

The Notes then continue:

The second sentence permits continuance of trials both in felony cases if the crime is not punishable by death and in misdemeanor cases when the defendant by his voluntary act absents himself after the commencement of the trial. Under this provision the defendant is required to be present at arraignment and plea and the trial must be begun in his presence. Compare Diaz v. United States, 223 U.S. 442 32 S. Ct. 250, 56 L.Ed. 500 (1912); Falk v. United States, 15 App.D.C. 446, 454, 455 (1899); American Law Institute Code of Criminal Procedure (1931) § 287; N.Y.Code Crim.Proc. § 356; Tex.Code Crim.Proc.Ann. (Vernon, 1941) art. 580.

The Notes to a 1946 Edition of the Rules, "prepared under the direction of the Advisory Committee appointed by the United States Supreme Court,"¹ include the following under Rule 43:

The second sentence of the rule is a restatement of existing law that, except in capital cases, the defendant may not defeat the proceedings by voluntarily absenting himself after the trial has been commenced in his presence, Diaz v. United States, 223 U.S. 442, 455 32 S.Ct. 250, 56 L.Ed 500; United States v. Noble, 294 Fed. 689 (D.Mont.) — affirmed, 300 Fed. 689 (C.C.A. 9th); United States v. Barracota, 45 F.Supp. 38 (S.D.N.Y.); United States v. Vassalo, 52 F.(2d) 699 (E.D.Mich).

It appears from the foregoing that (a) the right to be present is recognized and preserved, (b) limited absence is tolerated, however, in certain circumstances, and (c) in noncapital felony cases, when the trial has begun in defendant's presence, it may continue in his absence to and including the verdict when he voluntarily absents himself.

Turning now to a somewhat fuller consideration of decisional law, there is our own case of Cross v. United States, 117 U.S.App.D.C. 56, 325 F.2d 629. We held that a defendant who was in the continuing physical custody of the Government did not voluntarily absent himself by declining to return to the courtroom after his trial had commenced. We said that the provision regarding voluntary absence had "no clear application to defendants in custody," its purpose being "to prevent frustration of a trial in progress by the escape or absconding of the defendant." We also held that Cross had not validly waived his right to be present by telling his attorney that he did not want to go into the courtroom, since the standards for waiver of a constitutional right, set forth in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, were not met.²

Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 5, is more closely in point; for the defendant there, like appellant here, was not in custody and was present when his trial began. He continued to be present during most of the trial; but on two occasions he sent a message to the court expressly consenting that the trial proceed in his absence, which was done.³ His conviction was upheld. The Court stated that in a noncapital felony case, when the accused is not in custody,

the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.

223 U.S. at 455, 32 S.Ct. at 254.

Mr. Justice Lamar, though dissenting, nevertheless stated:

The defendant has no right to force the court to order a mistrial. If he escapes or takes advantage of his bail to remain away during the trial, the court proceeds, not because it is willing that he should be absent, but because it is obliged to go on without him.

223 U.S. at 461, 32 S.Ct. at 256. His dissent was on the ground that the trial court itself had consented to Diaz's absence, which he thought should not have been done. He relied upon Hopt v. People of Territory of Utah, 110 U.S. 574, 4 S. Ct. 202, 28 L.Ed. 262, which the majority held not to be controlling, as the majority also held with respect to Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L. Ed. 1011; Schwab v. Berggren, 143 U.S. 442, 12 S.Ct. 525, 36 L.Ed. 218, and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061. The Court said that in each of these cases "the accused was in custody charged with a capital offense, and was sentenced to death."⁴

In view of Diaz we take it that the language in Lewis that "A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner," does not prevent continuing a trial when the defendant voluntarily absents himself within the meaning of Rule 43.⁵

The spectrum of federal cases includes several which arose in the States, in each of which the unconsented absence of the defendant from part of the proceedings was held not to invalidate his trial. Thus, in Frank v. Mangum, 237 U.S. 309, 35 S. Ct. 582, 59 L.Ed. 969, the defendant's enforced absence at rendition of the verdict was held by the Supreme Court in habeas corpus proceedings not to require a new trial. The Court leaned upon the State court's affirmance on the...