McCaffrey v. State

• Decision Date: 09 September 1991
• Docket Number: No. 18A02-9102-CR-65,18A02-9102-CR-65
• Citation: 577 N.E.2d 617
• Parties: Charles M. McCAFFREY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. 1
• Court: Indiana Appellate Court

Page 617

577 N.E.2d 617

Charles M. McCAFFREY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 18A02-9102-CR-65. ¹

Court of Appeals of Indiana First District.

Sept. 9, 1991.

Alan K. Wilson, Muncie, for appellant.

Linley E. Pearson, State Atty. Gen. and Louis E. Ransdell, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

In this consolidated appeal of four separate causes, Charles M. McCaffrey challenges his conviction following a bench trial in absentia of three counts of resisting law enforcement, two counts of public intoxication, and one count of disorderly conduct. The sole error alleged is the trial court's decision to proceed with trial of McCaffrey in absentia. We reverse.

An accused has an absolute right to be present at trial; however, as McCaffrey acknowledges, a court may proceed with trial if it finds the defendant knew of the trial date yet failed to appear. Freeman v. State (1989), Ind., 541 N.E.2d 533, 535; Thorpe v. State (1988), Ind., 524 N.E.2d 795, 796. The question here is simply whether the evidence sufficiently establishes that McCaffrey knew of the trial date.

As a reviewing court, we consider the entire record to determine if the right to be present at trial was voluntarily and knowingly waived. Slocumb v. State (1991), Ind.App., 568 N.E.2d 1068, 1070, affirmed in relevant part, 573 N.E.2d 427; Reel v. State (1991), Ind.App., 567 N.E.2d 845, 846. A defendant's explanation of his absence is a part of the evidence available to this court on the question of whether it was error to try him in absentia. Fennell v. State (1986), Ind., 492 N.E.2d 297, 299. The absence of direct evidence the defendant knew the actual date of trial does not of itself prevent the court from trying the defendant in absentia. Id.

The circumstances presented here are much like those at issue in Reel v. State, 567 N.E.2d 845, in which this court held that the defendant had wrongly been tried in absentia. There, as here, the trial date was finally set in the defendant's absence after several continuances. Reel denied any knowledge of his trial date at sentencing and denied that he had received any of the mail sent to his residence; however, the State offered testimony from Reel's roommate and co-defendant to the effect that Reel had related to him in a telephone conversation the date of his trial.

The evidence in the instant case discloses that in one of the four causes, McCaffrey was present when the court set the trial date for that cause but then failed to appear and a warrant was issued for his arrest. He was not tried in absentia in that cause at that time. Instead, all four matters were set for trial on the same day in McCaffrey's absence. After several continuances, and the final date of trial had been determined, notice was ordered issued and was sent by the clerk. On the day of trial, the court took judicial notice of the fact that the records of the different causes showed a variety of addresses for McCaffrey. Indeed, the record indicates that less than ten days before trial, arrest records in another cause showed still another address for McCaffrey.

In addition to the notices issued by the court, the record discloses that McCaffrey's attorney attempted by letter to meet with him and notify him of the trial date. One of these letters was sent to the jail, the public defender's office having been alerted to the fact that McCaffrey had been arrested again and was in jail. That letter notified him that the trial had been postponed; whether it also informed him of the date of trial is unclear. The record shows only that the letter was sent and the trial date set on the same day.

McCaffrey testified at his sentencing hearing that he first learned of the final trial date on the day of sentencing, did not receive any of the mail or notices sent to him, but was living at the address utilized by the court and his attorney at the time of trial. Although a bench warrant issued after McCaffrey's first failure to appear, McCaffrey apparently was arrested a few days later on a new charge and though the court inquired about other outstanding warrants, it appears the court was unaware of the existence of the bench warrant. Accordingly, no evidence was elicited concerning the reason for McCaffrey's first failure to appear.

The State asserts that McCaffrey's knowing and voluntary failure to appear during the course of these proceedings distinguishes this case from Reel. We are however reluctant to draw the inference urged by the State, namely that because McCaffrey knowingly failed to appear on a prior occasion, he did so again. But even if we agreed that such an inference could properly be drawn and was relevant to show intentional conduct, the circumstantial...