Brown v. State, 45A05-0503-CR-166.

CourtSupreme Court of Indiana
Citation839 N.E.2d 225
Docket NumberNo. 45A05-0503-CR-166.,45A05-0503-CR-166.
PartiesAntoine BROWN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Decision Date19 December 2005

Marce Gonzalez, Jr., Merrillville, for Appellant.

Steve Carter, Attorney General of Indiana, Gary Damon Secrest, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

CRONE, Judge.

Case Summary

Antoine Brown appeals the denial of his motion to vacate his conviction in absentia for possession of cocaine as a class D felony. We affirm.

Issue

Brown raises one issue: whether he voluntarily waived his right to be present at his jury trial.

Facts and Procedural History

During the early evening of November 8, 2003, Anthony Rivera, a police officer for the City of Gary, was on patrol in the area of 200 East 43rd Avenue when he saw several people in the street. Tr. at 11-13. Officer Rivera, who was in full uniform, stopped his marked police vehicle, exited the car, and observed a man in a gray coat and white hat turn and begin walking away. As the man — later identified as Brown — walked, a bag fell from around his waist and hit the ground. The bag contained several smaller bags, which contained crack cocaine.

On December 9, 2003, the State filed an information in Lake County charging Brown with class D felony possession of cocaine. Appellant's Appendix at 9. On May 6, 2004, Brown, his counsel, and the State appeared for a hearing at which the parties agreed to a pretrial hearing date of August 26, 2004, and a jury trial date of November 8, 2004. Id. at 5, 24. At that same hearing, Brown was "advised of the State's right to try him in Absentia." Id. On August 26, 2004, Brown and his counsel appeared at the pretrial hearing. Id. at 5. On October 29, 2004, the State sought leave to file an amended information, adding a second count, this one for possession of cocaine in excess of three grams, a class C felony. Id. at 4, 27-28. The court set the matter for advisement hearing to occur on November 4, 2004. According to the docket entry for November 4, 2004, Brown "was not notified of" the hearing and thus did not attend; defense counsel appeared. Id. at 4.

On November 8, 2004, Brown failed to appear for his previously scheduled jury trial. Defense counsel represented Brown in absentia. Id. At the beginning of the trial, the court ordered the amended information stricken, thus Brown was tried using the original information. Tr. at 3, 4. The jury found Brown guilty of class D felony possession of cocaine, and the court entered judgment accordingly. Appellant's App. at 4, 29, 46.1 The court then granted the State's motion for a bench warrant and directed the clerk to notify Brown "that he is to surrender himself immediately to the Lake County Jail." Id. at 29. The court also set a sentencing hearing date of December 9, 2004.

On November 10, 2004, at 8:45 a.m. the trial court received a phone call from Brown's mother stating that he had been in the Porter County Jail for "five or six months[.]" Id. at 95. On November 12, 2004, Brown, by counsel, filed a motion to vacate his conviction. He attached to the motion a fax from the Porter County Sheriff's Department indicating that Brown had "was incarcerated at the Porter County Jail from 9-24-04 [through] present date." Id. at 4, 66-68. On February 24, 2005, the court held a hearing, which Brown attended, regarding his motion. Id. at 94-96. At the conclusion of the hearing, the court denied Brown's motion and ordered him to serve an eighteen-month sentence at the Indiana Department of Correction. Id. at 3, 90-91; Sentencing Tr. at 16.

Discussion and Decision

Brown contends that his waiver of right to be present at his jury trial "was not voluntary because he was incarcerated in another county at the time of his trial, and accordingly, his absence was not `the product of a free will."' Appellant's Br. at 7. He argues that "[b]y definition, the defendant who is in custody in a distinct county, awaiting a distinct charge, cannot accomplish a `voluntary' waiver unless it can be shown that the defendant elected to not be transported to Lake County to be present or in other words, that he had a choice." Id. at 7-8. Brown asserts that he raises an issue of first impression and consequently cites cases outside of Indiana2 in an effort to support his position. See United States v. Fontanez, 878 F.2d 33 (2nd Cir.1989); United States v. Crutcher, 405 F.2d 239 (2nd Cir.1968); Cross v. United States, 325 F.2d 629 (D.C.Cir.1963); Evans v. United States, 284 F.2d 393 (6th Cir.1960).3 He requests a new trial.

Generally, a criminal defendant has a right to be present at all stages of the trial. Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind.1997), modified on other grounds by 685 N.E.2d 698 (1997). However, "[a] defendant may waive this right and be tried in absentia if the trial court determines that the defendant knowingly and voluntarily waived that right." Id. "The trial court may presume a defendant voluntarily, knowingly and intelligently waived his right to be present and try the defendant in absentia upon a showing that the defendant knew the scheduled trial date but failed to appear." Ellis v. State, 525 N.E.2d 610, 611-12 (Ind.Ct.App.1987); see also Maez v. State, 530 N.E.2d 1203, 1206 (Ind.Ct.App.1988) ("The continued absence of a defendant who knows of his obligation to be in court, when coupled with a failure to notify the court and provide it with an explanation, constitutes a knowing and voluntary waiver."), trans. denied. The "best evidence" of knowledge is the defendant's presence in court on the day the matter is set for trial. Fennell v. State, 492 N.E.2d 297, 299 (Ind.1986).

By the same token, a defendant who has been tried in absentia "must be afforded an opportunity to explain his absence and thereby rebut the initial presumption of waiver." Ellis, 525 N.E.2d at 612. "As a reviewing court, we consider the entire record to determine whether the defendant voluntarily, knowingly, and intelligently waived his right to be present at trial." Soliz v. State, 832 N.E.2d 1022, 1029 (Ind.Ct.App.2005), trans. denied.4 Finally, a defendant's explanation of his absence is a part of the evidence available to a reviewing court in determining whether it was error to try him in absentia. Fennell, 492 N.E.2d at 299.

While not on all fours with Brown's case, our most recent pronouncement regarding trial in absentia is instructive nevertheless. See Soliz, 832 N.E.2d 1022. In Soliz, the defendant "offered the following reasons as to why he failed to appear for the second day of his trial: (1) he could not start his vehicle; (2) his fiancée was sick and he had to take her to the hospital; and (3) he believed that his attorney's representation was inadequate." Id. at 1029. We noted that despite Soliz's awareness of the trial date (as evidenced by the fact he appeared on the first day of trial), he "neither made an attempt to contact the court or his attorney the second day of trial to explain his absence." Id. (emphasis added). In holding that the trial court properly denied Soliz's motion to set aside the jury verdict, we concluded that under the circumstances, Soliz had no intention of appearing on the second day of his trial — regardless of the numerous excuses he later proffered. Id. at 1030.

Although incarceration is clearly a different excuse than those offered by Soliz for missing a jury trial, we apply a similar analysis. As a criminal defendant, Brown had the right to be present at all stages of his trial. See Lampkins, 682 N.E.2d at 1273. However, he could waive this right and be tried in absentia if the trial court determined that he knowingly and voluntarily waived that right. See id. Brown challenges only the latter (voluntary) element. Appellant's Br. at 5, 7, 8. Brown attended the May 6, 2004 hearing at which his November 8, 2004 trial date was set and during which he was informed that he would be tried on that date even if he failed to attend. Appellant's App. at 5, 24. He also attended a pretrial hearing on August 26, 2004, where the jury trial was reaffirmed. Id. at 5; cf. Phillips v. State, 543 N.E.2d 646 (Ind.Ct.App.1989) (reversing for new trial where defendant did not appear at and had no notice of either his pretrial or trial dates). Accordingly, when Brown failed to show up for his scheduled trial, the court was permitted to presume that Brown voluntarily waived his right to be present and could therefore try him in absentia. See Ellis, 525 N.E.2d at 611-12. While the court was not required to make further inquiry sua sponte as to the presumption, Brown could not be prevented from offering an explanation in an attempt to rebut the presumption of voluntary waiver. Soliz, 832 N.E.2d at 1029.

In his motion to vacate his conviction, Brown averred that on November 8, 2004, defense counsel sent a letter to Brown's last known address advising him of his conviction in absentia, and that on November 10, 2004, defense counsel "was telephonically advised by a person identifying herself as the defendant's aunt that the defendant had been in the Porter County Jail since September 2004." Appellant's App. at 66. Brown attached to his motion a fax from the Porter County Sheriff's Department verifying that Brown had been in that county's jail since September 24, 2005. Id. at 68.

At a February 24, 2005 hearing, the court provided an opportunity for Brown to explain his absence from his jury trial, that is, to rebut the waiver presumption. However, Brown did not elaborate on his motion to vacate, instead choosing to "stand by [his] verified motion which was filed." Id. at 94. Thus, the court was left with the bare fact that Brown was in another county's jail on the date he was tried in absentia. Brown made no attempt to enlighten the court as to why he elected not to inform anyone of his predicament. The trial court summarized the situation well when it said:

The Court would note for purposes of the...

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