State v. Elliott

• Court: Idaho Court of Appeals
• Writing for the Court: LANSING; WALTERS, C.J., and PERRY
• Citation: State v. Elliott, 882 P.2d 978, 126 Idaho 323 (Idaho App. 1994)
• Decision Date: 31 August 1994
• Docket Number: No. 20724,20724
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Ray Glen ELLIOTT, Defendant-Appellant.

Page 978

882 P.2d 978

126 Idaho 323

STATE of Idaho, Plaintiff-Respondent, v. Ray Glen ELLIOTT, Defendant-Appellant.

No. 20724.

Court of Appeals of Idaho.

Aug. 31, 1994.

Petition for Review Denied Nov. 3, 1994.

Timothy L. Felton, Weiser, for appellant.

Larry EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for respondent.

LANSING, Judge.

Ray Glen Elliott appeals his convictions and sentences for manufacturing a controlled substance, I.C. § 37-2732(b), and failure to affix drug tax stamps, I.C. § 63-4206(2). He argues that his constitutional right to be present at his trial was violated on the second day of trial when the court ordered that the trial continue even though Elliott was then absent. Elliott also argues that his motion to disqualify the presiding judge prior to sentencing was erroneously denied and that he should be resentenced by a different judge. We conclude that Elliott voluntarily absented himself from his trial, thereby waiving the right to be present. We also hold that the district court properly denied the motion to disqualify. Therefore, the judgment of the district court is affirmed.

I. BACKGROUND

Elliott was charged with manufacturing a controlled substance by cultivating marijuana plants, and with failing to affix drug tax stamps to the product. He was released on bond pending the outcome of his trial. The trial began on October 13, 1992, at 9:00 a.m., at which time Elliott was present and represented by counsel. The trial recessed at 5:00 p.m., and Elliott was informed that it would resume at 9:00 a.m. the following day. When the court convened the next morning, Elliott was not present. The court recessed and asked defense counsel as well as Elliott's friends and relatives in the courtroom whether they knew the reason for his absence or where he could be found. The court also directed the sheriff to search for Elliott. Upon resuming the proceedings more than an hour later, the court stated that efforts to locate the defendant had failed, that the court considered Elliott's absence to be voluntary and intentional, and that the trial would resume. The defense attorney moved for a mistrial, averring that Elliott's absence would prejudice the jury. The court denied the motion, and the jury later returned guilty verdicts on both charges.

Elliott remained at large for five months. Upon his eventual re-arrest, Elliott was sentenced to concurrent prison terms of not less than three years nor more than five years and was fined $1,500. Prior to sentencing, Elliott filed a motion to disqualify the presiding judge pursuant to I.C.R. 25(b)(4) due to his alleged bias against Elliott. The district court denied the motion.

Elliott now contends that remarks by the judge at the end of the first day of trial convinced Elliott that he was not receiving a fair trial and that he had no choice but to flee. He asserts that his absence during the remainder of the trial was therefore involuntary and that the court's decision to complete the trial without Elliott being present, and without conducting an adequate inquiry into Elliott's whereabouts or the reasons for his absence, violated Elliott's rights under the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 13 of the Idaho Constitution. In addition, he complains that his motion for disqualification of the district judge was improperly denied.

II. VOLUNTARINESS OF THE DEFENDANT'S ABSENCE

The right of an accused to be present at trial is grounded in the Due Process Clauses of the Fifth and Fourteenth Amendments and the Confrontation Clause of the Sixth Amendment to the United States Constitution. United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985). This right is also conferred by Article I, Section 13 of the Idaho Constitution.

In Idaho, as in the Federal system, this right is further assured through provisions in the criminal rules. Idaho Criminal Rule 43 provides in pertinent part:

(a) Presence required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.

(b) Continued presence not required. The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived defendant's right to be present whenever a defendant, initially present:

(1) Is voluntarily absent after the trial has commenced (whether or not the defendant has been informed by the court of the obligation to remain during the trial)....

This rule, which is virtually identical to the corresponding federal rule, essentially codifies the constitutional principle enunciated in Diaz v. United States, 223 U.S. 442, 32 S.Ct 250, 56 L.Ed. 500 (1912), that a defendant may waive the right to be present by voluntarily absenting himself during the trial. Crosby v. United States, 506 U.S. 255, ----, 113 S.Ct. 748, 751, 122 L.Ed.2d 25, 31 (1993). Underlying this rule is the premise that a defendant who is at large should not "be at liberty, whenever he please[s], to withdraw himself from the courts of his country and to break up a trial already commenced," Diaz, 223 U.S. at 457, 32 S.Ct. at 254.

The question presented, therefore, is whether Elliott was voluntarily absent and thereby waived his right to be present on the second day of trial. Because the waiver of a constitutional right is at issue, we conduct an independent review on appeal based upon the totality of the circumstances. State v. Buzo, 121 Idaho 324, 327, 824 P.2d 899, 901 (Ct.App.1991); State v. Wuthrich, 112 Idaho 360, 364, 732 P.2d 329 (Ct.App.1986); State v. Blevins, 108 Idaho 239, 243, 697 P.2d 1253, 1257 (Ct.App.1985).

Elliott contends that his absence on the second day of the trial was involuntary because statements by the judge during the first day convinced Elliott that he could not receive a fair trial, and he consequently decided to flee rather than appear for the remainder of the proceeding. Elliott's position is based upon the following colloquy, which occurred after the jury had left the courtroom at the end of the first day of trial:

COURT: I want to put something else on the record, too. Mr. Elliott, you better be careful of what you're saying to the jurors and the Court--we call those sidebar comments--because I can tell you right now little comments like "That's a lie" and shaking your head and making comments--

DEFENDANT: I didn't say anything.

COURT: Don't argue with me, Mr. Elliott. I'm putting something on the record.

DEFENDANT: (Nodding).

COURT: And don't sit there and deny that you did this. Today when Chuck Kroll [the prosecutor] was making his opening statement you had an outburst. You don't do that in this courtroom.

DEFENDANT: I didn't.

COURT: I told you to shut your mouth, Mr. Elliott. Get a jailer up here. If I have one more outburst from you you're going to jail. Do you understand? Do you understand, Mr. Elliott?

DEFENDANT: Yes.

COURT: All right. When Mr. Kroll was making his opening statement you had an outburst. I'm not going to tolerate that. I didn't say anything because I thought that would be the end of it. I gave you a dirty look. You saw the dirty look and you didn't do it anymore. Then when this witness was testifying you said and some other people in the audience section made some comments about "That's a lie" and other things. We're not going to tolerate that.

And I'll tell you what is going to end up happening to you. What's going to end up happening to you is this jury will take that against you. Now, if I have any more outbursts from you today or tomorrow the sheriff is in this courtroom now and he's instructed to put you in custody right then and there. Do you understand?

DEFENDANT: Yes, sir.

COURT: I don't tolerate that at all. See you at 9 o'clock tomorrow morning.

The defendant then left the courtroom and the following conversation occurred outside his presence:

COURT: Chuck, he was just behind you.

Mr. Kroll [prosecutor]: I know. That's why I stepped back because I was afraid he was going to go back after my witness here.

COURT: We might need an officer in this courtroom.

SHERIFF: Tomorrow?

COURT: This guy, I don't like his attitude or anything else.

SHERIFF: We'll be here.

Elliott asserts that the judge demonstrated prejudice toward him during this exchange and that Elliott's decision not to return for completion of the trial was consequently justified and involuntary.

Elliott's argument is meritless. It is not for a criminal defendant to unilaterally determine whether the conduct of his or her trial is fair and, concluding that it is not, to implement self-help measures by absconding. If a criminal trial is tainted by bias or unfairness the defendant should present the issue to the trial court and, if satisfactory redress is not provided, may seek relief through an appeal or an application for post-conviction relief. Allowing a defendant to prevent completion of the trial by simply fleeing whenever he or she becomes dissatisfied with the conduct of the judge would vest in defendants control over the schedules of the courts, prosecutors and jurors, and would substitute the subjective assessment of the defendant for the carefully crafted mechanisms provided by our legal system to safeguard the right of an accused to a fair trial. Accordingly, we do not accept Elliott's contention that his alleged fear of an unfair trial, prompted by the judge's words of admonition, justified his flight and made his absence from the trial involuntary.

III. ADEQUACY OF THE COURT'S INVESTIGATION

Next, Elliott contends that regardless of the conclusion reached above, the district court erred in proceeding with the second day of trial because it did not first make a sufficient investigation into his...