State v. Cook

• Decision Date: 29 March 1977
• Docket Number: CA-CR,No. 1,1
• Citation: 564 P.2d 97,115 Ariz. 146
• Parties: STATE of Arizona, Appellee, v. Keith Edward COOK, Appellant. 1940.
• Court: Arizona Court of Appeals

Page 97

564 P.2d 97

115 Ariz. 146

STATE of Arizona, Appellee, v. Keith Edward COOK, Appellant.

No. 1 CA-CR 1940.

Court of Appeals of Arizona, Division 1, Department A.

March 29, 1977.

Rehearing Denied May 4, 1977.

Bruce E. Babbitt, Arizona Atty. Gen. by William J. Schafter, III, Chief Counsel, Criminal Division, and Lynn Hakmilton, Asst. Atty. Gen., Phoenix, for appellee

Steiger, Helm & Kyle by Theodore L. Kyle, Tempe, for appellant.

OPINION

NELSON, Presiding Judge.

Defendant, Keith Edward Cook, appeals from his conviction of second degree burglary and his sentence of four to five years in the state prison.

He first contends the trial court erred in giving a general intent instruction in conjunction with an instruction concerning the specific intent necessary for burglary and in failing to give defendant's proposed instruction dealing with the intent a jury must find to convict of burglary. This issue was recently decided in State v. Rodriguez, 114 Ariz. 331, 560 P.2d 1238, filed February 18, 1977, in a separate appeal taken by Cook's co-defendant, Richard Amini Rodriguez. The Supreme Court held that under the circumstances of this case the giving of the general intent instruction was non-prejudicial. We are bound by the Court's interpretation in this matter.

Cook's second and principal contention is that this rights as guaranteed by the fifth and sixth amendments to the United States Constitution, Article 2, section 24 of the Arizona Constitution and Rules 9.1 and 19.2, Rules of Criminal Procedure, 17 A.R.S. were violated when he was tried and sentenced in absentia. For the reasons stated below we remand for a hearing on the question of the voluntariness of defendant's absence at trial and sentencing, the judgment of conviction and validity of sentence to abide the result.

Cook and Rodriguez were charged by complaint with second degree burglary. On August 12, 1975, Cook attended his preliminary hearing. He was released on his own recognizance after signing the acknowledgment on his release order which informed him of his right to be present at trial and other proceedings and that if he failed to appear proceedings would begin without him.

On August 26, 1975, both men were arraigned in Maricopa County Superior Court. Cook, who was present with counsel, entered a plea of not guilty. Rodriguez was absent but was represented by counsel. Trial as to both defendants was set for November 26, 1975. On November 25, 1975, one day prior to the scheduled date of trial, the trial court on Rodriguez' motion vacated the November 26th trial date and reset it for December 26, 1975. Defendant was carried along with the motion. The last day for trial was determined to be December 29, 1975 and on that day defendant's attorney, because he had been unsuccessful in locating the defendant, obtained a continuance. Trial was rescheduled for January 19, 1976 and January 26, 1976 was computed as the new last day.

On January 20, 1976, defendant's attorney advised the court that he had been unable to locate the defendant and was therefore unprepared for trial. He moved that a bench warrant issue for defendant's arrest and for continuance or severance of the proceedings. The motions were denied. On the basis of the information in the release order and defendant's actual notice of the November 26th trial date, the court found that defendant had personal notice of the time of trial, he knew of his right to be present, that trial would go forward without him if he were absent, and concluded that his absence was voluntary. Trial thereafter proceeded in absentia with respect to Cook. The defendant Rodriguez was present. On January 22, 1976 the jury returned guilty verdicts as to both defendants.

March 22, 1976 was the date set for sentencing. Cook was still absent but was represented by counsel who unsuccessfully moved to continue pronouncement of sentence. The court found defendant's absence voluntary and sentenced him to a term in the state prision. A bench warrant for his arrest was issued on April 7, 1976. It appears from the record that this warrant is still outstanding.

The Federal and Arizona Constitutions guarantee a defendant the right to appear and defend in person in all criminal proceedings. U.S.Const. amends. VI, XIV; Ariz.Const. Art. 2, § 24. In addition, Rule 19.2, Rules of Criminal Procedure, 17 A.R.S., states a 'defendant has the right to be present at every stage of the trial . . ..' and Rule 26.9, Rules of Criminal Procedure, 17 A.R.S., provides a defendant 'shall be present at sentencing.' This right to be present, secured to every criminal defendant, protects against the imposition of punishment pursuant to an unfair and surreptitious trial in a defendant's absence. State v. Clark, 36 Nev. 472, 135 P. 1083 (1913). The right, is not, however, absolute and may be waived by an accused charged with a non-capital offense who voluntarily absents himself from a proceeding. See Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); State v. Davis, 108 Ariz. 335, 498 P.2d 202 (1972); State v. Tacon, 107 Ariz. 353, 488 P.2d 973 (1971); Rule 9.1, Supra; Rule 26.9, Supra. Further, a defendant released on bail or his own recognizance has a concomitant obligation to be present so as not to frustrate the progress of his prosecution. Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973); Cureton v. United States, 130 U.S.App.D.C. 22, 396 F.2d 671 (1968).

In the present case, defense counsel argues that personal notice to the defendant of the actual dates of trial and sentencing was required before the trial court could find his absence was voluntary. In support of this proposition he relies on Rule 9.1, Supra, which states:

'The court may infer that an absence is voluntary if the defendant had personal notice of the time of the proceeding, his right to be present at it, and a warning that the proceeding would go forward in his absence should he fail to appear.'

We are not persuaded this rule requires actual notice of the time of a proceeding as a prerequisite to inferring an accused's absence is voluntary. The pivotal question is whether the defendant waived his right to be present by his voluntary absence and Rule 9.1 merely suggests one combination of factors which may support an inference of voluntariness. Thus, an accused who does not know of and fails to appear at a proceeding against him may be found to have waived his right to be present there if the record indicates criminal proceedings commenced in his presence, that he absconded knowing of his right to attend future proceedings, and that his disappearance has made it made it possible to contact him with reference to these proceedings. Cf. Diaz v. United States, supra; Government of Virgin Islands v. Brown, 507 F.2d 186 (3d Cir. 1975); 8B J. Moore, Moore's Federal Practice 43.02(2) (2d ed. 1976); 3 Wright, Federal Practice and Procedure § 173 (1969).

The courts have indicated reluctance to find a defendant's absence voluntary absent a clear showing that he knew of the proceedings against him, of his right and duty to be present, and that he had no sound reason for staying away. Taylor v. United States, supra; Cureton v. United States, supra. With this in mind, we are compelled to agree with counsel that the record here is insufficient to support an inference that defendant's absence was 'voluntary.'

Defendant was present at his ...