People v. Ewing

• Decision Date: 24 August 1973
• Docket Number: Docket No. 15583,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Blaine EWING, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 56

211 N.W.2d 56

48 Mich.App. 657

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Blaine EWING, Defendant-Appellant.

Docket No. 15583.

Court of Appeals of Michigan, Division No. 1.

Aug. 24, 1973.

Released for Publication Oct. 12, 1973.

George C. Dovas, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Gerard A. Poehlman, Asst. Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and J. H. GILLIS and BASHARA, JJ.

PER CURIAM.

A jury convicted defendant of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797. He appeals of right.

The trial court issued a Capias and forfeited defendant's bond when he failed to appear for the second day of trial. Defense counsel acquiesced in the judge's decision to proceed with the trial after a jury recess. However, when the jury returned, defense counsel objected to proceeding. The trial court then found defendant had voluntarily waived his right to be present. After a principal prosecution witness had testified for about 15 minutes, defendant appeared. When the judge questioned him about his whereabouts, defendant replied that he had been detained by 2 police officers for interrogation about the instant case. The judge, giving defendant 'the benefit of the doubt', reinstated his bond. He then denied defense counsel's mistrial motion but ordered the court reporter to read defendant the direct examination testimony taken in his absence.

Appellant asserts that denial of the mistrial motion constituted an abuse of discretion. We agree. M.C.L.A. § 768.3; M.S.A. § 28.1026, provides:

'No person indicted for a felony shall be tried unless personally present during the trial * * *.'

U.S.Const., Am. VI, applicable to the states through the Fourteenth Amendment (Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)), affords a similar guarantee. As stated in Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353, 356 (1970):

'One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial.'

The right to be present extends to every stage of the trial where an accused's substantial rights may be affected and where his presence relates to the fullness of his opportunity to defend the charge. Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934).

While a defendant may waive his right to be present (People v. Medcoff, 344 Mich. 107, 73 N.W.2d 537 (1955)), we cannot presume waiver from a silent record. The instant record shows no attempt to determine the truth or falsity of defendant's claim of police detention; nor does it reveal defendant intentionally absented himself.

In People v. Grimmett, 388 Mich. 590, 598, 202 N.W.2d 278, 282 (1972), the Court defined waiver requirements:

'Waiver is defined in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938), as 'an intentional relinquishment or abandonment of a known right or privilege.' The court added, "courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and * * * we 'do not presume acquiescence in the loss of fundamental rights" Thus, waiver consists of two separate parts: 1) a specific knowledge of the constitutional right; and 2) an intentional decision to abandon the protection of the constitutional right. Both of these elements must be present and if either is missing there can be no waiver and no finding of consent.'

In the instant case, neither element was present.

Counsel's initial acquiescence and later objection cannot be construed as an effective waiver of defendant's rights.

'There are certain rights which are so essential to the concept of due process that no lawyer can waive them for a defendant. * * * The defendant's waiver of a right so fully protected will not be presumed from a silent record; it must affirmatively appear that the waiver was a deliberate choice by the accused person himself.'...