Cross v. United States
Decision Date | 14 November 1963 |
Docket Number | No. 17775.,17775. |
Parties | Harold S. CROSS, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Messrs. Thomas S. Jackson and Austin P. Frum, Washington, D. C. (both appointed by this court), for appellant.
Mr. David Epstein, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.
Before FAHY, WASHINGTON and WRIGHT, Circuit Judges.
Appellant was convicted of assault on a police officer. 22 D.C.Code § 505(a). During his trial his counsel advised the court that the defendant had declined to return to the courtroom. At the time the defendant was in the custody of the United States Marshal in a room adjacent to the courtroom. The court ordered the trial to "proceed with the defendant in absentia."1 Appellant asks reversal of his conviction, asserting that under the Constitution an accused in custody cannot waive his right to be present at his trial, that in any event he had not validly waived his right to be present, and that the prosecutor suppressed information concerning his mental condition.
The Government contends that the defendant "voluntarily absented" himself after the trial had commenced in his presence and that, therefore, under the second sentence of Rule 43,2 F.R. Cr.P., the court was authorized to proceed without him. The Government does not attempt to explain how, under Rule 43, a person in continuing physical custody can "voluntarily absent" himself. The purpose of the second sentence of Rule 43, as the Advisory Committee Notes make clear, is to prevent frustration of a trial in progress by the escape or absconding of the defendant.3 Since the Rule is intended to be a restatement of the existing law on this subject,4 the second sentence thereof has no clear application to defendants in custody.5 No case, prior to or since the Rule, has even suggested that a defendant in custody, other than by escaping, can "voluntarily absent" himself from his trial.6
The Government also suggests that, in any event, the appellant expressly waived his right to be present during his trial by telling his attorney he did not want to go into the courtroom. On the subject of waiver, Johnson v. Zerbst, 304 U.S. 458, 464-465, 58 S.Ct. 1019, 1023, 82 L. Ed. 1461 (1938), quoted in Carnley v. Cochran, 369 U.S. 506, 514-515, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). This means that where the defendant is available, "the serious and weighty responsibility" of determining whether he wants to waive a constitutional right requires that he be brought before the court, advised of that right, and then permitted to make "an intelligent and competent waiver." This has been the uniform practice.7 In the District Court here waivers by defendants of the constitutional rights to indictment and to trial by jury are taken in open court in writing, signed by the defendant personally8 on forms prescribed for the purpose.9 Since the right to be present at trial is "scarcely less important to the accused than the right of trial itself,"10 some such procedure is certainly indicated before a trial judge can determine whether the defendant has made an intelligent and competent waiver. At least an on-the-record statement in open court by the defendant himself should be required. Compare Pearson v. United States, 117 U.S.App.D.C. ___, 325 F.2d 625, decided this day.
A new trial being necessary, we need not consider the other issues raised by the appellant.
Reversed.
It seems clear that neither the Constitution nor the first sentence of Rule 43 precludes a waiver by an accused of his right to be present at his trial.1 The question in each case must be whether fair procedures have been followed, and the interests of substantial justice adequately served. Here, for the reasons given by Judge Wright in the concluding portion of his opinion, I think there must be a new trial.
1 The colloquy between court and counsel follows:
2 Rule 43 reads:
3 See Note 2 to Rule 43, and cases therein cited; see especially Diaz v. United States, 223 U.S. 442, 457-458, 32 S.Ct. 250, 56 L.Ed. 500 (1912), quoting with approval Falk v. United States, 15 App. D.C. 446, 454, 460 (1899), appeal dismissed, 180 U.S. 636, 21 S.Ct. 922, 45 L.Ed. 709 (1901), cert. denied, 181 U.S. 618, 21 S.Ct. 923, 45 L.Ed. 1030 (1901).
4 See Note 2 to Rule 43.
5 In Diaz v. United States, supra Note 2, 223 U.S. at 455, 32 S.Ct. at 253-254, 56 L.Ed. 500, the Court stated:
"* * * And with like accord the courts have regarded an accused who is in custody and one who is charged with a capital offense as incapable of waiving the right; the one, because his presence or absence is not within his own control, and the other because, in addition to being usually in custody, he is deemed to suffer the constraint naturally incident to an apprehension of the awful penalty that would follow conviction. * * *"
6 See cases cited in Note 2 to Rule 43. See also Evans v. United States, 6 Cir., 284 F.2d 393, 395 (1960); Brown v. State, 372 P.2d 785 (Alaska 1962) ( ). In Falk v. United States, supra Note 2, 15 App.D.C. at 459-460, this court discussed a line of cases which held that trial could not proceed in the absence of the accused, Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), Schwab v. Berggren, 143 U.S. 442, 12 S.Ct. 525, 36 L.Ed. 218 (1892), and Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), and explained that they rested "on the theory, which was a fact in all these cases, that the accused person is a prisoner; that he is...
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Kimes v. U.S., 86-1267.
...any stage of his trial, and affirmance on waiver grounds in such cases is comparatively rare. See, e.g., Cross v. United States, 117 U.S.App.D.C. 56, 59-60, 325 F.2d 629, 631-32 (1963); Falk v. United States, 15 App.D.C. 446, 457 (1899); State v. Okumora, 58 Haw. 425, 426, 570 P.2d 848, 851......
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...before the court, advised of that right, and then permitted to make 'an intelligent and competent waiver." Gross v. United States, (117 U.S.App.D.C. 56) 325 F.2d 629 (D.C.Cir. 1963). When the record or a written waiver establishes that the defendant was specifically advised that he could be......
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...v. Crutcher, 405 F.2d 239, 243 (2d Cir.1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969); Cross v. United States, 325 F.2d 629, 631 (D.C.Cir.1963), quoting Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Cf. Illinois v. Allen, 397 U.......
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