Kimes v. U.S., 86-1267.

• Decision Date: 31 October 1989
• Docket Number: No. 86-1267.,86-1267.
• Citation: 569 A.2d 104
• Parties: Sante KIMES, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

569 A.2d 104

Sante KIMES, Appellant, v. UNITED STATES, Appellee.

No. 86-1267.

District of Columbia Court of Appeals.

Argued January 26, 1989.

Decided October 31, 1989.

COPYRIGHT MATERIAL OMITTED

Andrew L. Frey, Washington, D.C., for appellant. Joseph Peter Drennan, Michael

H. Metzger, and David B. Smith, Washington, D.C., also filed briefs on behalf of appellant.

Sharon A. Sprague, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, were on the brief, for appellee.

Before MACK,^* FERREN, and SCHWELB, Associate Judges.

FERREN, Associate Judge:

A jury convicted appellant of grand larceny, D.C.Code § 22-2201 (1981), for theft of a full-length mink coat from the Town and Country Lounge at the Mayflower Hotel. Appellant (through counsel who were not trial counsel) raises five issues on appeal. She questions the admissibility of alleged "other crimes" evidence, a trial court instruction on the propriety of joint pretrial discussions among government witnesses, and the denial of a requested continuance. She also claims errors requiring a remand for resentencing. The most significant claim of error, however, is appellant's other contention: that the trial court, by proceeding to verdict in appellant's absence, violated her right under the Constitution and local statutes to be present at every stage of the trial.

Because the trial court failed to make any factual finding as to the voluntariness — or involuntariness — of appellant's absence, we are unable to decide this claim of error. Accordingly, we remand the record to the trial court for an evidentiary hearing on the circumstances surrounding appellant's absence during the return of the verdict and a finding as to whether her absence was voluntary or involuntary. In all other respects we affirm the conviction.

I.

A.

Appellant had been present throughout her trial, but on July 18, 1985, although in court when the trial resumed at 10:00 a.m., she failed to appear after a luncheon recess. At 11:20 a.m. the jury had begun deliberations. At 12:17 p.m. the trial judge had excused the jury for lunch until 1:20 p.m. The judge also had excused counsel and appellant, specifically cautioning appellant "to be available in the vicinity of the courtroom from and after 1:30."

Sometime after the lunchbreak, the court reconvened counsel to inform them about two notes the jury had sent. Appellant was not present. The court noted her absence, and counsel waived her presence for the purpose of accepting the notes. The first note, received at 2:37 p.m., said, "We have reach[ed] a verdict." The second, sent only four minutes later, said, "Please disregard the last note." Counsel told the court that he had looked for appellant for three or four minutes but had not seen her since before lunch. Aware that appellant's counsel was in trial in another courtroom, the judge asked him if anyone else could assist in locating appellant to inform her that she should be available. After appellant's counsel replied he would call his office to see whether someone could help, counsel were excused.

At about 3:55 p.m., the jury sent its final note announcing it had reached a verdict. The trial judge then recalled the case to take the verdict.¹ Appellant was still absent. Her counsel reported that when he had left the courtroom previously, he had looked for appellant in the general area for five to ten minutes and that he believed his assistant had probably continued to look for her during the next hour. Counsel asked the court to delay receiving the verdict at least until the following day so that he could try to ascertain appellant's whereabouts and assure her presence. The trial judge replied that several jurors had already completed their terms of service and proceeded to call in the jury, which delivered the verdict. After dismissing the jurors, the trial court issued a bench warrant for appellant's arrest.

The record reveals some information about the circumstances surrounding appellant's absence at the verdict. Medical reports attached to appellant's application for review and modification of conditions of release pending sentencing, filed in late September 1985, indicate that on July 18, 1985, at the time the verdict was rendered, appellant was hospitalized after being struck by a car in Arlington, Virginia, at approximately 1:45 p.m. According to these reports, appellant remained in the hospital until 8:30 that evening when she left against medical advice. The record also indicates that on July 21, three days after the verdict, appellant sent a telegram from her home in California to her trial counsel, with a copy to the court, describing the accident and her injuries and asking for information on the status of her case. (Aside from this telegram, the record reveals no other attempt by appellant to communicate the reason for her absence to the court or to counsel.) On August 3, 1985, appellant was arrested in La Jolla, California on the bench warrant and on unrelated federal charges.

B.

"The defendant shall be present at . . . every stage of the trial including . . . the return of the verdict," unless he or she "[v]oluntarily absents himself [or herself]." Super.Ct.Crim.R. 43(a), (b)(1); see Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 253, 56 L.Ed. 500 (1912); Black v. United States, 529 A.2d 323, 323 (D.C. 1987). This Rule 43 requirement, like the comparable federal rule requirement, is rooted in the confrontation clause of the sixth amendment, United States v. Gordon, 264 U.S.App.D.C. 334, 338, 829 F.2d 119, 123 (1987), but is premised on "the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him [or her]." United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (per curiam). Rule 43 also embraces the "common law right of presence." United States v. Washington, 227 U.S.App.D.C. 184, 191, 705 F.2d 489, 496 (1983) (citing Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934)).² The "`protective scope'" of Rule 43, therefore, "is broader than the constitutional right alone." Gordon, 264 U.S.App.D.C. at 338, 829 F.2d at 123 (citing Washington, 227 U.S.App.D.C. at 192-93 n. 5, 705 F.2d at 497-98 n. 5).³

According to the Supreme Court, a constitutional right is implicated whenever a criminal defendant's presence at trial or trial-related proceedings "`has a relation, reasonably substantial, to the fullness of his [or her] opportunity to defend against the charge.'" Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987) (quoting Snyder, 291 U.S. at 105-06, 54 S.Ct. at 332). Although this right of presence is not constitutionally guaranteed "`when presence would be useless or, the benefit but a shadow,' . . . due process clearly guarantees that the defendant be allowed to be present `to the extent that a fair and just hearing would be thwarted by his [or her] absence.'" Id. (quoting Snyder, 291 U.S. at 106-07, 108, 54 S.Ct. at 332-33). In sum, a defendant is constitutionally "guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his [or her] presence would contribute to the fairness of the procedure." Id.

The requirement of a defendant's presence at trial, whether derived from the Constitution or otherwise, can be deemed waived in the defendant's absence if the trial court determines that the defendant voluntarily failed to appear at trial. See Super.Ct.Crim.R. 43(b)(1) (waiver of right to be present whenever defendant, initially present, "voluntarily absents himself [or herself) after the trial has commenced . . ."). Rule 43(b)(1) reflects the teaching of Taylor v. United States, 414 U.S. 17, 18-20, 94 S.Ct. 194, 195-96, 38 L.Ed.2d 174 (1973), in which the Supreme Court, upholding a "longstanding rule" set forth in Diaz, stated that a defendant out on bail in a non-capital case who voluntarily fails to appear at a trial at which the defendant was initially present has waived his or her right to be present. In Taylor, the Court quoted the test for voluntariness articulated in Cureton v. United States, 130 U.S.App.D.C. 22, 27, 396 F.2d 671, 676 (1968), as "the controlling rule":

[I]f a defendant at liberty remains away during his [or her] trial the court may proceed provided it is clearly established that his [or her] absence is voluntary. He [or she] must be aware of the processes taking place, of his [or her] right and of his [or her] obligation to be present, and he [or she] must have no sound reason for remaining away.

Taylor, 414 U.S. at 19 n. 3, 94 S.Ct. at 196 n. 3. According to the Court, it is "wholly incredible" to suggest that a defendant at liberty on bail who attended an opening opinion of trial, and who had a duty to be present at trial, see Stack v. Boyle, 342 U.S. 1, 4-5, 72 S.Ct. 1, 3, 96 L.Ed. 3 (1951), would not know of his or her right to be present at every stage of trial or that trial would continue in the defendant's absence. Taylor, 414 U.S. at 20, 94 S.Ct. at 196.⁴

It follows that before proceeding with trial in the absence of a defendant, trial courts, in accordance with local or federal rules similar to Super.Ct.Crim.R. 43(b)(1), are required to make findings concerning voluntariness of the defendant's absence. See United States v. Hernandez, 842 F.2d 82, 85 (5th Cir. 1988); Cureton, 130 U.S.App.D.C. at 24, 396 F.2d at 673; Charliaga v. State, 758 P.2d 135, 136 (Alaska Ct.App. 1988); People v. Connolly, 36 Cal.App.3d 379, 382, 111 Cal.Rptr. 409, 411 (1973).⁵ However, the crucial question — "Why is the defendant absent?" — "rarely can be answered at the time the court must determine whether the trial should proceed." People v. Connolly, 36 Cal.App.3d at 385, 111 Cal.Rptr. at 412. Accordingly, trial courts customarily delay the proceedings...