Burrell v. Aaron, 77-1012
| Decision Date | 10 August 1977 |
| Docket Number | No. 77-1012,77-1012 |
| Parties | John Franklin BURRELL, Petitioner-Appellant, v. Ralph Lee AARON, Warden, New Mexico State Penitentiary, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William W. Deaton, Federal Public Defender, Albuquerque, N.M., submitted memorandum opposing summary action on behalf of petitioner-appellant.
Toney Anaya, Atty. Gen., Andrea Buzzard, Asst. Atty. Gen., Santa Fe, N.M., submitted memorandum in support of summary action on behalf of respondent-appellee.
Before SETH, Circuit Judge, PICKETT, Senior Circuit Judge, and BARRETT, Circuit Judge.
Petitioner was charged with and tried for trafficking in a narcotic drug. Petitioner testified on his own behalf, and then rested. The state called a rebuttal witness and rested. Petitioner was then present, and a recess for lunch was had. Petitioner was free on bond during the course of the trial. When court reconvened the petitioner was not present. The state trial judge said: The prosecution then said it had no objection, and petitioner's counsel said only: "I stand mute on this issue, Your Honor." The proceedings continued with summation, instructions, and return of a verdict with nothing more being said by petitioner's attorney, or anyone else, about a reason for the absence of petitioner. Nor was there any objection made by anyone to proceeding in his absence.
After the jury retired, the attorney for petitioner made a tender of proof. At the conclusion of the tender, the trial judge stated that he wanted the petitioner arrested. The attorney responded that he did not know where petitioner was. This was the only reference to the matter. The jury returned the verdict in the afternoon of May 22nd in petitioner's absence. The petitioner was sentenced on June 30th, and was then present in person with his same attorney. He was sentenced to ten to fifty years on each of the two counts, to run consecutively, and to be also consecutive to a one to five year sentence imposed shortly before. At his sentencing, petitioner was, of course, asked whether he had anything to say. All that he said was, "No, nothing to say to nobody, I will meet you all in prison." His attorney stated that he had nothing to say. Thus no reference whatever was made by the attorney or by petitioner to petitioner's absence from the conclusion of his trial, and no objection was made. During this same appearance in court for sentencing, there was had a competency hearing in another case, and petitioner was found competent to stand trial in such other proceedings.
In his direct appeal, the petitioner raised the in absentia issue. The New Mexico Court of Appeals held that he had voluntarily absented himself from his trial, as did the state court in the post-conviction proceedings. The United States District Court reached the same conclusion. Each court had before it only the record referred to above, as no evidentiary hearings were held. The basic issue is whether petitioner's absence was voluntary.
No assertion is made that the petitioner was in any way prevented or hindered in attendance at the conclusion of his trial by the state in any way or any law enforcement officials or by lack of knowledge that the case would continue after lunch. He was free on bond and presumably could come and go to the court house as he pleased. Thus his attendance at the trial was within his control, although we must assume that the bond required his attendance or appearance at trial. The state had no obligation to make an effort or to take steps to see that petitioner was present at trial. If he was unable to attend by reason of sickness, it was a risk he had to take. This was one of the burdens he assumed when released on bond, and thus he was on his own like everyone else. His presence under these circumstances was his problem, and that of his attorney. If he had become sick it is obvious that the trial court would, on application, afford relief. However, as indicated, there was no explanation made when trial resumed, nor at the tender of proof, nor at sentencing some time later. Thus petitioner's absence, in the situation as presented to the state trial court, should have been considered to be voluntary, as it was. In this respect, the fact the attorney declined to make a...
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Smith v. Kelly, 86 Civ. 7798 (JMW).
...reh'g denied, 607 F.2d 1006 (5th Cir.1979), cert. denied, 444 U.S. 1034, 100 S.Ct. 708, 62 L.Ed.2d 671 (1980); Burrell v. Aaron, 560 F.2d 988, 989-90 (10th Cir.1977) (per curiam), cert. denied, 434 U.S. 1018, 98 S.Ct. 740, 54 L.Ed.2d 765 (1978). Petitioner has no more substantial basis for ......
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Luu v. People
...all stages of his trial," including merely the reading back of testimony to a jury during their deliberations); Burrell v. Aaron, 560 F.2d 988, 989 (10th Cir.1977) (per curiam) (stating that a defendant who was absent from summation, instructions, and return of a verdict "obviously had a co......
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Larson v. Tansy
...had a constitutional right to be present at summations, jury instructions, and the return of the jury verdict. Burrell v. Aaron, 560 F.2d 988, 989 (10th Cir.1977). Thus, we accept the concession that defendant had a right to be present throughout his trial, unless his presence would be usel......
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U.S. v. Edward J.
...held a criminal defendant has a constitutional right to be present for summations delivered at a jury trial. See id.; Burrell v. Aaron, 560 F.2d 988, 989 (10th Cir. 1977), cert. denied, 434 U.S. 1018 (1978). However, unlike the situation in Larson, this is not a criminal proceeding, but a j......