Head v. Com.

• Decision Date: 16 September 1986
• Docket Number: No. 0174-85,0174-85
• Citation: 348 S.E.2d 423,3 Va.App. 163
• Court: Virginia Court of Appeals
• Parties: David Pratt HEAD v. COMMONWEALTH of Virginia. Record

Page 423

348 S.E.2d 423

3 Va.App. 163

David Pratt HEAD v. COMMONWEALTH of Virginia.

Record No. 0174-85.

Court of Appeals of Virginia.

Sept. 16, 1986.

Deborah Brumback, Winchester, for appellant.

Lucy H. Allen, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.

Present: BARROW, BENTON and DUFF, JJ.

DUFF, Judge.

On November 13, 1984, a jury convicted David Pratt Head, in his absence, of robbery and recommended a sentence of five years in the penitentiary. The court imposed the sentence, in his absence, on January 15, 1985. Head's absence gives rise to the issues involved in this appeal.

The issues presented are: (1) whether Head voluntarily waived his sixth amendment right to confront the witnesses against him; (2) whether Head waived his statutory right to be present during his trial, pursuant to Code § 19.2-259; and (3) whether Head waived his right to be present at his sentencing.

A careful review of the record and the cited authorities convinces us that Head voluntarily waived his rights of confrontation and presence at trial. However, we hold that sentence should not have been imposed in his absence and remand for resentencing.

I. Factual Background

On September 4, 1984, David Pratt Head was indicted for robbery by the Grand Jury for the City of Winchester, appeared in court with his attorney, and was arraigned. In open court, with Head present, the judge announced that the case was set for trial on November 13, 1984. Nothing in the record indicates that Head had impaired hearing or failed to hear when the trial date was announced. Head was released on bond the same day as his arraignment. The "Conditions of Release and Recognizance", which he signed, contained the following language:

The Accused further promises to appear to answer for the offenses for which he may be charged at all times and places and before any court or judge to which this case may be rescheduled, continued, transferred, certified or appealed. The Accused promises not to depart the Commonwealth of Virginia without leave of such court or judge, to keep the peace and be of good behavior until final disposition of this case.

The bond agreement also warned: "[f]ailure to appear may result in your being tried and convicted in your absence."

On November 13, 1984, the court convened, but Head was absent. The court then conducted a hearing to determine if Head had been notified of the trial date, if he was absent by his choice, and if his absence was justified. Defense counsel candidly stated that she had not been in touch with her client since the date of his arraignment; that he had not responded to several letters she had written to him; and that she had no knowledge that his absence was due to accident, illness, or any other reason beyond his control. She further informed the court that, at arraignment, Head gave her what he represented was his current address. In response to the court's questioning, she also stated that her client appeared to be mentally competent when she last saw him at arraignment.

The court made a specific finding of fact, based on this information, that Head had absented himself from the trial without just cause or reason, and the court proceeded with the jury trial of Head, in absentia. Prior to opening statements, the jurors were cautioned that the accused's absence had no bearing on his guilt or innocence.

After hearing the evidence and instructions of the court, the jury returned a verdict of guilty and fixed Head's sentence at five years in the penitentiary. Judgment was entered on the verdict, but the court gave defense counsel twenty-one days to demonstrate that error had been committed in trying and sentencing Head in his absence. The court, however, did not enter an order on the judgment and reconvened on December 3, 1984, to state for the record its decision to vacate the judgment on the verdict. Inquiry of defense counsel revealed that her continued efforts to locate Head had been fruitless. The trial court decided that defense counsel should be given additional time to locate him or produce an explanation for his absence from the trial.

On December 17, 1984, another hearing was held to determine if Head had been notified of the trial date. Defense counsel again stated that from arraignment to trial, she had written the defendant six or seven letters and mailed them to him at the address he had given her. In four of those letters, she had reminded him of the trial date. At the time of the December 17 hearing, five of these letters had been returned. She further told the court that at arraignment, Head had given her the names of several witnesses and was to furnish her with their addresses, but never did so. At this hearing, evidence was also taken from the bondsman, who detailed the efforts made to locate Head. Head's probation officer from prior convictions also testified to his criminal record and his exposure to the criminal justice system. The court then continued the case until January 15, 1985, to give the Commonwealth and defense counsel additional time to locate Head.

When court reconvened on January 15, 1985, Head's whereabouts were still unknown. Other than the asserted claim of sixth amendment and statutory rights violation, defense counsel advanced no reason why the court should not proceed with sentencing. The court found that Head's absence was unjustified and was knowing and voluntary. Finding that he had waived his right to be present, the court pronounced judgment against Head and sentenced him to serve five years in the penitentiary, as recommended by the jury. ¹ This appeal followed.

II. Trial

At the threshold of this issue, the Commonwealth contends that Head did not timely object to being tried in his absence and, therefore, we should not consider the point on appeal. The primary purpose of the contemporaneous objection rule is to advise the trial judge of the action complained of so that the court can consider the issue intelligently and, if necessary, take corrective action to avoid unnecessary appeals, reversals, and mistrials. Woodson v. Commonwealth, 211 Va. 285, 288, 176 S.E.2d 818, 820 (1970), cert. denied, 401 U.S. 959, 91 S.Ct. 990, 28 L.Ed.2d 244 (1971). In the present case, the court and counsel were well aware of the unique situation presented and of the issues raised by Head's absence. At the close of all the evidence, a formal objection was made by defense counsel. While it would have been preferable if counsel had placed a formal objection in the record at the beginning of the trial, the factual situation is not comparable to that presented by evidentiary objections or improper argument made by counsel. In those instances, a prompt objection would alert a judge, and any error could be immediately corrected. Here, the court and counsel knew that Head was not present. Although no immediate formal objection was made to proceeding without him, the trial went forward only after much discussion about trying him in his absence. The trial court could have done nothing to produce him for trial at that time. These factors considered, we believe that the importance of the questions presented and the ends of justice require us to address the issues on their merits. Rule 5A:18.

A defendant's right to be present at trial arises from two sources, the sixth amendment and Code § 19.2-259. The sixth amendment right of confrontation is "a fundamental right." Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923 (1965). While there is a presumption against the waiver of a fundamental right, Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), under certain circumstances, an accused may forfeit his constitutional right to be present at his trial. Taylor v. United States, 414 U.S. 17, 18, 94 S.Ct. 194, 195, 38 L.Ed.2d 174 (1973); Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970); Boykin v. Alabama 395 U.S. 238, 246-47, 89 S.Ct. 1709, 1713-14, 23 L.Ed.2d 274 (1969). A defendant's voluntary absence from trial may be properly construed under the sixth amendment as a waiver of his right of confrontation. Taylor v. United States, 414 U.S. at 17, 94 S.Ct. at 195; United States v. Powell, 611 F.2d 41, 42 (4th Cir.1979); United States v. Peterson, 524 F.2d 167, 184 (4th Cir.1975). In Quintana v. Commonwealth, 224 Va. 127, 295 S.E.2d 643 (1982), cert. denied, 460 U.S. 1029, 103 S.Ct. 1280, 75 L.Ed.2d 501 (1983), the Virginia Supreme Court held that under Code § 19.2-259, an accused may by his conduct forfeit his constitutional right of confrontation and his statutory right to be present during the trial. Id. at 145, 295 S.E.2d at 651.

In Noell v. Commonwealth, 135 Va. 600, 115 S.E. 679 (1923), the court held that the defendant's continuous presence from arraignment to sentence was an essential part of the process of law provided for his trial. Without the defendant's presence, which he could not waive, the courts were held to have no jurisdiction to pronounce judgment on him. Id. at 608, 115 S.E. at 681. In Jones v. Commonwealth, 227 Va. 425, 317 S.E.2d 482 (1984), the Virginia Supreme Court had occasion to reconsider this issue. There, although offered the opportunity to be present, the defendant waived his right to view the crime scene with the court and counsel. In finding that the defendant could effectively waive his right to be present at the scene, the court overruled Noell to the extent that it had held that the defendant's presence at the view was jurisdictional. The court in Jones noted:

And in Quintana v. Commonwealth, 224 Va. 127, 295 S.E.2d 643 (1982), cert. denied, 460 U.S. 1029, 103 S.Ct. 1280, 75 L.Ed.2d 501 (1983), we held that an accused may by his conduct forfeit his constitutional rights of confrontation and due process and his statutory right conferred by Code § 19.2-259 to be present during the trial. 224 Va. at 144-45, 295 S.E.2d at 651-52.

Id....