Brown v. State

• Decision Date: 20 June 1979
• Docket Number: No. 2-178A22,2-178A22
• Parties: Adrian Anthony BROWN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1058

390 N.E.2d 1058

181 Ind.App. 102

Adrian Anthony BROWN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-178A22.

Court of Appeals of Indiana, Second District.

June 20, 1979.

Patrick L. McCarty, Indianapolis, for defendant-appellant

Theo. L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

BUCHANAN, Chief Judge.

STATEMENT OF THE CASE

Adrian Anthony Brown (Brown) appeals from his conviction of Commission of a Felony While Armed (Robbery), claiming the second trial was barred by the double jeopardy clauses of the Indiana and United States Constitutions, and that certain evidence was improperly admitted at his second trial.

We affirm.

FACTS

On October 13, 1976, Brown, who was free on bond, failed to appear in the Criminal Court of Marion County at the time set for his trial (or thereafter). Over objections by both the State and defense counsel the trial judge ordered the trial to proceed.

After some preliminary motion skirmishing, the court called Brown's trial counsel as a witness, who testified in response to questioning by the court that he had talked with Brown the previous evening at approximately 8 p. m., and that Brown was aware of the time set for his trial.

With both sides refusing to participate in the proceedings, the jury was empaneled and sworn by the court. ¹

After the jury had been removed from the courtroom, Wesley Jackson, Brown's The trial judge found that Brown had voluntarily absented himself from the trial, and that the trial would proceed. ²

bail bondsman, was called to the stand. Jackson testified that he had contacted Brown's parents (the sureties on the bail bond) during the past five days, and had advised them of the time set for trial.

The trial court was then informed by Marion County Prosecutor James Kelley that without Brown present in the court room the State's witnesses would be unable to sufficiently identify Brown to prove the State's case. Deputy Prosecutor Linda Wagoner was placed under oath and testified confirming the prosecutor's statement. The trial court then declared a mistrial and dismissed the jury.

Brown did not appear at this proceeding. A re-arrest warrant issued October 13, 1976 was served April 30, 1977.

On September 22, 1977, Brown was tried and found guilty of Commission of a Felony While Armed, to-wit: Robbery.

ISSUES

ISSUE ONE Did Brown's second trial violate the double jeopardy clauses of the Indiana and United States Constitutions? ³

ISSUE TWO Did the court improperly admit into evidence two photographs of the defendant's car?

ISSUE THREE Was there a sufficient chain of custody established for a loan application which was admitted into evidence?

PARTIES' CONTENTIONS As to ISSUE ONE, Brown contends that jeopardy attached at his first trial, and that the second trial therefore violated his right not to twice be put in jeopardy for the same offense. The State maintains that the first trial was a void proceeding due to Brown's absence, and that therefore jeopardy did not attach.

As to ISSUE TWO, Brown contends that neither a proper foundation nor a proper chain of custody was established for admission of the photographs. The State asserts the photographs were properly admitted.

As to ISSUE THREE, the defendant asserts that the State failed to establish a chain of custody for a loan application admitted into evidence. The State maintains that a chain of custody is not required for admission of non-fungible items such as the application, and even if such a chain is required, it was sufficiently established.

DECISION

ISSUE ONE

CONCLUSION Brown's second trial did not violate the prohibition against double jeopardy guaranteed by the Indiana and United States Constitutions.

In order to decide the double jeopardy question we must first determine whether the trial court properly proceeded with the first trial despite the absence of the defendant Brown.

I.

It is established that a defendant by his conduct may waive both his statutory and constitutional right to be present at his own trial. Taylor v. State (1978), Ind.App., 383 N.E.2d 1068; Broecker v. State (1976), Ind.App., 342 N.E.2d 886. See Snyder v. Massachusetts (1934), 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674; McCorkle v. State (1859), 14 Ind. 39. A defendant's failure to appear at the time and place designated for his trial may amount to such a waiver. Taylor v. State, supra; Broecker v. State, supra.

The efficient functioning of the criminal judicial system demands such a rule.

The rationale undergirding this rule was plainly stated in United States v. Tortora (2d Cir. 1972), 464 F.2d 1202, Cert. denied 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516, and was quoted extensively in Broecker v. State :

The deliberate absence of a defendant who knows that he stands accused in a criminal case and that the trial will begin on a day certain indicates nothing less than an intention to obstruct the orderly processes of justice. No defendant has a unilateral right to set the time or circumstances under which he will be tried. . . .

Without this obligation on the accused the disposition of criminal cases would be subject to the whims of defendants who could frustrate the speedy satisfaction of justice by absenting themselves from their trials. Today more than ever the public interest demands that criminal proceedings be prosecuted with dispatch . . . and the greater the delay between the charge and the trial date, the greater the likelihood that witnesses will be unable to appear or that their memories will have faded and their testimony will be less convincing. That a defendant can be convicted of bail-jumping if he fails to appear at trial is not sufficient to vindicate the public interest; the public is entitled to a speedy disposition of the criminal charges absent a finding by the court that good reasons exist for delay.

464 F.2d at 1208-09.

In Taylor v. State, supra, the defendant failed to appear at 9 a. m. for the second day of his trial. The judge waited for one hour, but when the defendant had not arrived proceeded with the trial. An hour later the defendant arrived explaining to the judge that he was late because of transportation problems. Our court recognized that emergency situations will occasionally arise which prevent a defendant from arriving at a trial on time, and that a defendant's failure to appear on time, in and of itself, is not a waiver of his right to be present. But it was also recognized that a defendant's continued absence coupled with a failure to notify the court and provide it with an adequate explanation therefor does constitute such a waiver . . . and the decision to proceed with trial is in the discretion of the trial court, reviewable only for an abuse of discretion.

Although we agree with the Third District of this court that the better procedure is to wait a reasonable period of time ⁴ before proceeding without the defendant, Taylor v. State, supra, we do not believe the failure to delay proceedings is necessarily error.

The trial court in this case took judicial notice of its records that Brown was personally present at this arraignment when the trial date was set; there was testimony by Brown's counsel that on the previous evening he had reminded Brown of the trial setting; there was testimony by Brown's bail bondsman that he had advised Brown's parents five days before trial of the time of trial, and the court records showed that Brown lived in Indianapolis where the trial was held. It also subsequently became apparent that Brown was not merely delayed, but had "jumped bail," not being reapprehended until six months later. As the court concluded in United States v. Tortora :

Having received actual notice when trial proceedings will take place, in the absence of some compelling excuse the defendant cannot obstruct the course of justice by absenting himself from the process . . . .

464 F.2d at 1209.

So we must conclude that the first "trial" could properly be conducted in Brown's absence and the trial court did not abuse its discretion in proceeding under these circumstances. Brown waived his constitutional right to be present.

Having so concluded we turn to the double jeopardy problem.

II.

A case of ancient vintage created the test for determining whether an initial mistrial followed by a second trial constitutes a violation of the prohibition against double jeopardy. In United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165, Justice Story declared:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, Whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office. (emphasis added)

22 U.S. (9 Wheat.) at 580, 6 L.Ed. 165.

In the 155 years since that statement, the United States Supreme Court has consistently restated the "manifest necessity" language of this case. And the Supreme Court has just as consistently refused to formulate a mechanical test for all circumstances. See Arizona v. Washington (1978), 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d...