Gulledge v. State, 7 Div. 907

• Decision Date: 08 March 1988
• Docket Number: 7 Div. 907,7 Div. 908
• Citation: 526 So.2d 654
• Parties: Jimmy GULLEDGE and Terry Gulledge v. STATE. ,
• Court: Alabama Court of Criminal Appeals

Page 654

526 So.2d 654

Jimmy GULLEDGE and Terry Gulledge v. STATE.

7 Div. 907, 7 Div. 908.

Court of Criminal Appeals of Alabama.

March 8, 1988.

Rehearing Denied April 12, 1988.

Certiorari Denied June 3, 1988

Alabama Supreme Court 87-874.

Stansel A. Brown III, Pell City, for appellant Jimmy Gulledge.

Tommie Wilson, Pell City, for appellant Terry Gulledge.

Don Siegelman, Atty. Gen., and Mary Ellen Forehand, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Jimmy and Terry Gulledge were convicted for theft in the second degree and sentenced as habitual offenders to imprisonment for terms of thirty and twenty years respectively. On their appeals from those convictions, both defendants raise the same three issues.

I

Although the entire trial was held in the absence of both defendants, neither defendant was denied his constitutional right to be present during every stage of his trial. Ex parte Hammond, 510 So.2d 153, 154 (Ala.1987); Berness v. State, 263 Ala. 641, 644, 83 So.2d 613 (1955). The trial court found that "the defendants did voluntarily and deliberately absence themselves from the trial of said cause." "This case came on for trial on the 30th day of March, 1987 as previously scheduled at the preliminary call of the docket. The Defendants being present in open Court represented by their counsel. The Honorable Stan Brown representing Jimmy Gulledge and the Honorable Dan Davis representing Terry Gulledge. The State of Alabama and the Defendants' Attorneys announced ready for trial. The cases were not reached on the 30th day of March and were continued over to the 31st day of March. Due to the Court being engaged in a jury trial, the cases were not reached on March 31st. At approximately 3:00 to 3:30 p.m. on the 31st the Court had reached the point in the jury trial that same would be finished in late afternoon of March 31st. Both defendants were in open Court at that time and the Court made an announcement to the Defendants and their attorneys that their cases would be called for trial at 9:00 a.m. the next morning on April 1st. This Court observed the defendants leaving the courtroom after said announcement was made. Thereafter, the next morning on April 1st at 9:00 a.m., this Court called for trial the case of the State of Alabama vs. Jimmy Gulledge and Terry Gulledge. Said cases having previously been consolidated for trial. Defendants' attorneys were present in open Court, however, the defendants failed to appear. The full jury panel standing by for the trial of said cases. The Court made inquiry from the defendants' attorneys who stated that they had had no contact with the defendants since the previous afternoon. The Court observed the wife of Terry Gulledge and in chambers made inquiry of her as to the whereabouts of the defendants and she stated that she had not seen the defendants since the previous afternoon, that her husband did not come home that night and that she had not heard from him or the other defendant since they left the courtroom the previous day. This Court was made aware by the District Attorney and another co-defendant by the name of Gossett that there had been certain threats made in the nature of intimidating Gossett in the event that he should testify in their cases. Another eyewitness of said cause and another co-defendant had also made complaints to this Court of threats made against them by the Gulledge brothers in the event that they should testify against them in said cause. This Court after some delay recalled the cases for trial at which time the defendants still were not present. This Court finds that the defendants did voluntarily and deliberately absence themselves from the trial of said cause."

The trial began and was completed on April 1st.

In his oral charge to the jury, the judge stated: "The Court has made an investigation outside the presence of the jury, and the Court at this time has not determined any cause or excuse whatsoever that the defendants have not seen fit to be here and participate in this trial."

At the conclusion of the trial court's oral charge to the jury, defense counsel, in making his objection to a portion of the instructions, stated that "we don't know if [the defendants] are voluntarily absenting themselves from the court." The trial court responded, "Well, I'll guarantee you if we find out that they are not voluntarily absent, this Court will take that up on motion being filed by each of the respective defendants." The record contains no indication that any explanation for the absence of either defendant was ever advanced.

A trial court does not commit error in trying a defendant in his absence where that defendant knows the date of the trial and simply fails to appear, and there is no evidence suggesting that the defendant was involuntarily absent. United States v. Schocket, 753 F.2d 336, 339-340 (4th Cir.1985). "A defendant may not unilaterally set the time or circumstances of his trial, see United States v. Bentvena, 319 F.2d 916 (2d Cir.), cert. denied, sub nom. Ormento v. United States, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963); rather, the defendant bears the burden of justifying his absence from a known proceeding against him." United States v. Sanchez, 790 F.2d 245, 249 (2d Cir.1986) (emphasis in original). An acknowledgement from defense counsel that there is no evidence of the whereabouts of his client may support the conclusion of the trial judge that the accused has willfully absented himself without a reason. Sanchez, 790 F.2d at 250. See generally 21A Am.Jur.2d Criminal Law §§ 698-699 (1981).

II

Immediately before the voir dire of the jury venire, the trial court made the following comments:

"THE COURT: Ladies and gentlemen, this is going to be a case tried without the defendants present. Ladies and gentlemen, this is a case that I have been trying to work around this week. I have had the whole 48 jurors this week in order to try these cases. And I announced yesterday afternoon this case would be called for trial this morning. The defendants--one of the defendants--there were three cases. After I let you go yesterday afternoon, one of the defendants entered a plea of guilty, and I took his plea yesterday afternoon. The other two have not seen fit to show up. They have inconvenienced this jury. This is the first time I have ever had the situation come before the Court. At this time, I am going to go on and try them. One of their wives said she hasn't seen them since yesterday afternoon, and has no idea where they are. Also, evidence has come before this Court that some of the witnesses in the case have been intimidated. I am not going to stand for any such conduct in this court. I am calling the case for trial at this time."

Counsel for both defendants objected to these remarks as "creating a highly prejudicial atmosphere toward our clients." Counsel objected because "it has already created the presumption of guilt of our clients. The fact that he mentioned that a co-defendant had pled guilty. The fact that our clients have absconded. The fact that it was mentioned that there have been threats made against witnesses by our clients." The trial court did not rule on these...