Flowers v. State
Decision Date | 23 October 1992 |
Citation | 608 So.2d 764 |
Parties | Mark FLOWERS v. STATE. CR 91-1348. |
Court | Alabama Court of Criminal Appeals |
Lindsay Clay Callaham, Montgomery, for appellant.
James H. Evans, Atty. Gen., and Stephen Dodd, Asst. Atty. Gen., for appellee.
This is an appeal from the appellant's conviction for robbery in the first degree and sentence, as a habitual offender, to life imprisonment without possibility of parole.
The appellant's trial began on April 24, 1992, and recessed for lunch. The appellant, who was free on $10,000 bond, failed to return to the courtroom after the lunch recess. Upon a finding that the appellant had voluntarily absented himself from the proceedings, the trial court issued a bond forfeiture order and a capias warrant for the appellant's arrest, and continued the trial in the appellant's absence. The appellant was convicted and sentenced in absentia. His appellate counsel, who was also his trial counsel, raises four issues on appeal.
The Attorney General filed a motion to dismiss the appeal on the ground that the appellant, by escaping, abandoned his right to appeal. There is no merit to this contention since, at the time the appellant failed to return to his trial, he was free on bond and did not "escape" from custody. See Gulledge v. State, 526 So.2d 654 (Ala.Cr.App.1988).
The trial court did not err by finding that the defense failed to prove a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Branch, 526 So.2d 609 (Ala.1987). The jury venire was composed of 30 people, 7 (23%) of whom were black. The State struck three black persons and four black persons served on the jury (33%).
Under Harrell v. State, 571 So.2d 1270 (Ala.1990), cert. denied, 499 U.S. 984, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991), the appellant failed to present a prima facie case of discrimination.
Harrell, 571 So.2d at 1271-72. The State was not required to come forward with the reasons for its strikes of the three black prospective jurors.
The appellant argued that he had provided other evidence, in addition to the striking of blacks, that would raise an inference of racial discrimination and contribute to a prima facie case, specifically the fact that the Montgomery County District Attorney's office had a history of racial discrimination. The trial court rejected that fact on the basis that "that history was established under a prior district attorney." R. 21.
Although appellate counsel concedes that he received notice of the prior convictions upon which the State intended to rely for habitual offender sentencing, he argues that the trial court erred by sentencing the appellant in absentia because the appellant did not personally receive formal notice of those convictions, or notice of the time, date and place of the sentencing proceeding.
Counsel relies on the following emphasized portion of Rule 26.7, A.R.Crim.P., relating to the defendant's right to be present at sentencing:
Although Rule 26.7 appears to mandate that a defendant may not waive his presence at sentencing unless he has prior notice of the time, place and date of the sentencing proceedings, that rule must be read in conjunction with Rule 9.1, the general provision establishing a defendant's right to be present at every stage of the trial. Rule 9.1 provides in pertinent part:
While Rules 26.7 and 9.1 speak in terms of "waiver" of the right to be present, "it would seem preferable to view the matter [under the circumstances present here] in terms of forfeiture of a right by misconduct." 3 W. LaFave & J. Israel, Criminal Procedure § 23.2 at 7 (1984). Reading both Rule 26.7 and Rule 9.1 together, we conclude that a defendant who has been present for the beginning of the guilt adjudication stage of his trial and then voluntarily absents himself forfeits his right to be present for the remaining portions of his trial, including the sentencing stage, if sentencing immediately follows the verdict. Our conclusion that the appellant forfeited his right to be...
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Pinkney v. State
...... an accused may forfeit both the constitutional right and the statutory right to be present at trial."); see also Flowers v. State, 608 So.2d 764, 766 (Ala.Crim.App.1992). Commentators have also described the relinquishment of the right to be present in terms of forfeiture. 3 WAYNE R. LA......
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Jackson v. State
...appellant was not prejudiced and the court concluded that this "plain error" did not amount to reversible error). Cf. Flowers v. State, 608 So.2d 764 (Ala.Cr.App.1992) ("[A] defendant who has been present for the beginning of the guilt adjudication stage of his trial and then voluntarily ab......
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State v. Wences
...in absentia "in extraordinary circumstances"); Byrd v. Ricketts, 233 Ga. 779, 780, 213 S.E.2d 610 (1975) ; Flowers v. State, 608 So.2d 764, 766 (Ala. Crim. App. 1992) ; Christopher Hall, Annotation, Voluntary Absence of Accused When Sentence Is Pronounced, 59 A.L.R. 5th 135 (1998). When a d......
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State v. Raiburn, 95,908.
...of the fugitive disentitlement rule encompasses both physical imprisonment and the power to imprison). But see Flowers v. State, 608 So.2d 764, 764 (Ala.Crim.App.1992) (failing to return to trial as ordered while free on bond did not constitute "escape" from custody); State v. Ford, 205 Or.......