Simpson v. State

• Decision Date: 29 August 2003
• Parties: James Olen SIMPSON, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

874 So.2d 575

James Olen SIMPSON, Jr. v. STATE.

CR-01-2408.

Court of Criminal Appeals of Alabama.

August 29, 2003.

Roland Lewis Sledge, Valley, for appellant.

William H. Pryor, Jr., atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.

McMILLAN, Presiding Judge.

The appellant, James Olen Simpson, Jr., was found guilty of leaving the scene of an accident involving injuries or death without providing the information or assistance required under § 32-10-1, Ala.Code 1975. The trial court sentenced him to 20 years' imprisonment and ordered the sentence to run concurrently with any other sentence that he was serving. The court also ordered him to repay $15,000 that had been paid to the victim by the crime victims compensation fund.

Simpson was indicted on January 30, 2002, and arraigned on March 11, 2002. Because of State budgetary problems, his case was not called for trial until June 19, 2002. Simpson failed to appear on that date, and the trial court found that he had voluntarily waived his right to be present. The State then offered evidence indicating the following: At approximately 7:00 p.m. on August 1, 2001, Jerry Cash and his wife Dana were riding their motorcycles near Lanett. Four or five times, a black automobile drove up behind them and then "back[ed] off." Shortly after Jerry Cash crossed some railroad tracks, the black automobile struck his motorcycle from behind. Dana Cash saw her husband fall onto the ground from the grille of the black automobile. The car accelerated and dragged Cash approximately 150 feet before it stopped; when it stopped its back tire was on Cash's chest. The driver then revved the engine and drove away without rendering any assistance or providing a name, address, vehicle registration, or driver's license. Neither Dana Cash nor Jerry Cash saw the driver of the automobile. Jerry Cash suffered numerous injuries, including deep abrasions, a broken nose, crushed eye sockets, and a dislocated shoulder. Two days after the accident, Jamie Reeves and his wife purchased a black 1989 Chevrolet Beretta automobile from Simpson. He told them that damage on the front of the vehicle had occurred when he drove into a ditch. On August 6, police lieutenant Richard Carter located the Beretta and contacted Simpson. After waiving his Miranda rights, Simpson told Carter that he had hit Jerry Cash accidentally because he did not see Cash's brake light. He said that he heard something being dragged under his car but he thought that it was the victim's motorcycle. Simpson said that he hid the Beretta in a field until he sold it to the Reeveses.

I.

Simpson's first contention is that the trial court abused its discretion by trying him in absentia. He argues that he had the right to be present at the trial of his case and that he did not affirmatively waive this right. He further argues that the court erred in finding an implied waiver based upon his failure to appear because, he says, there was no evidence indicating that his absence was voluntary. Simpson argues that Rule 9.1(b)(1)(ii), Ala. R.Crim. P., allows an implied waiver only when a defendant is present at the beginning of trial and then fails to appear at a later date.

The record reflects that the judge called Simpson's case for trial on June 19, 2002. He asked if the defense was ready to proceed, and defense counsel responded, "No, sir, Your Honor." The following discussion then ensued:

"[DEFENSE COUNSEL]: Judge, my client is not here as the Court is well aware. He has a constitutional right to be present at the trial of his case to hear the evidence presented against him. The court arraigned Mr. Simpson several weeks ago and explained to him his constitutional rights. The Court also explained that if he got out of jail he should stay in contact with me.

"Mr. Simpson was in jail until approximately three weeks ago. I found that out by going to the jail, and he was not there. He has not contacted me. I have sent him a letter, two letters in fact, Judge, to show that this was his week to go to trial. I have left four messages at the telephone number that is on his bond for him to call me or contact me and be here this morning. He is not here.

"THE COURT: At arraignment when counsel is appointed, it's my practice and procedure to explain to each defendant... that what they say to the lawyer and what the lawyer says to them is between the two of them, and that the worst thing that they could do is lie to their lawyer.

"I also tell then that another terrible thing that they can do is to disappear on the lawyer. So give the lawyer a good address and hopefully a good telephone number where they can be reached.

"If the defendant is in jail I specifically instruct the defendant that if they get out of jail on bond, then the first thing they need to do is contact the lawyer to let them know where they're going to be.

"Now, I am further informed this morning this defendant's bondsman has been contacted. I take the position that Mr. Simpson has decided that the best defense is a good offense and that he has chosen not to appear.

"So I will take the position that he has waived his right to be present in this case. We're going to go ahead and proceed. There was no indication by any of his family members or from him that something has come up where he's in the hospital or out of state or out of the country receiving the Nobel Prize for whatever reason.

"[DEFENSE COUNSEL]: I have not heard from any of his family members.

". . . .

"[PROSECUTOR]: One more thing for the record. It's my recollection at arraignment that the Court notified all persons at that time of the trial dates even though there was a change in the trial schedule due to the money situation that came up. Notices were sent to all persons to be present on June 17.

"[DEFENSE COUNSEL]: That's very true, Judge. And when the regular scheduled trial term was canceled by the Administrative Office of Courts and by the Supreme Court I notified Mr. Simpson in writing at the jail at that time that that trial term had been canceled and that I would inform him of any new trial date. I did that."

The court proceeded with the voir dire of the jury. At the end of the questioning, the judge called the attorneys to the bench, and the following occurred:

"[CLERK]: Tab Smith [Simpson's bondsman] just called. He has talked to Mr. Simpson. He said that he talked to [defense counsel] a couple of weeks ago. I told him it was always up to the attorneys to notify of the trial dates. But he has talked to Mr. Simpson. He's supposed to be calling him back.

"THE COURT: Mr. Simpson needs to be on the road."

The court asked defense counsel when he wanted the jury to return, and counsel said "[a]bout 30 minutes." When the jury returned, Simpson still was not present. The court then proceeded with the trial.

Whether a defendant who is absent at the commencement of trial can be tried in absentia when there is affirmative evidence that he knew of and voluntarily waived his right to be present by failing to appear is a matter of first impression before this court. Rule 9.1(a), Ala. R.Crim. P., provides that a defendant has "the right to be present at the arraignment and at every stage of the trial, including the selection of the jury, the giving of additional instructions pursuant to Rule 21, the return of the verdict, and sentencing." Section (b) of Rule 9.1 provides, in pertinent part:

"[A] defendant may waive the right to be present at any proceeding in the following manner:

"(i) With the consent of the court, by an understanding and voluntary waiver in open court or by a written consent, executed by the defendant and by the defendant's attorney of record, filed in the case.

"(ii) By the defendant's absence from any proceeding, upon the court's finding that such absence was voluntary and constitutes an understanding and voluntary waiver of the right to be present, and that the defendant had notice of the time and place of the proceeding and was informed of the right to be present."

The Committee Comments to Rule 9.1(b) state:

"Section (b) allows a defendant to waive the right to be present. The defendant may make an express waiver in open court or may waive the right by voluntary absence from the proceeding. See Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973)....

"Waiver of the right to be present must be clear and unequivocal. Waiver must be affirmative and positive in nature and made by the defendant personally. Consent or acquiescence of a defendant to a waiver of the right cannot be presumed but must affirmatively appear from the record. Berness v. State, 263 Ala. 641, 83 So.2d 613 (1955). Thus, section (b) allows the court to find an implied waiver only when the defendant has been present at the commencement of the trial and fails to appear at some later stage of the trial. Such a waiver may not be inferred if the defendant has never appeared at trial, except in the case of a minor misdemeanor, which by definition carries no threat of imprisonment."

(Emphasis added.)

In Meadows v. State, 644 So.2d 1342 (Ala.Crim.App.1994), this court considered whether a defendant charged with a felony could be tried in absentia if he was not present at the beginning of trial. We held that, in the absence of affirmative evidence indicating that a defendant has voluntarily waived his right to be present, a defendant charged with a felony cannot be tried in absentia if he is not present at the beginning of his trial. In reaching this decision, we relied on the Committee Comments to Rule 9.1(b), quoted above, and on H. Maddox, Alabama Rules of Criminal Procedure (1990), in which former Justice Hugh Maddox concludes that a court cannot infer a waiver of the right to be present unless the defendant was present at the commencement of the trial. We also relied on Crosby v. United States, 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993), in which the United States Supreme Court held...