State v. Galloway

• Decision Date: 20 September 1991
• Docket Number: No. 65559,65559
• Citation: 817 P.2d 1124,16 Kan.App.2d 54
• Parties: STATE of Kansas, Appellee, v. John F. GALLOWAY, Appellant.
• Court: Kansas Court of Appeals

Page 1124

817 P.2d 1124

16 Kan.App.2d 54

STATE of Kansas, Appellee, v. John F. GALLOWAY, Appellant.

No. 65559.

Court of Appeals of Kansas.

Sept. 20, 1991.

Review Denied Nov. 5, 1991.

Syllabus by the Court

1. Criminal defendants have the absolute right to be present at all stages of the prosecution against them. This right is guaranteed by the Sixth Amendment to the United States Constitution. The Fourteenth Amendment makes this guarantee obligatory upon the states.

2. While the right of the accused to be present at trial is one of the most basic 3. The right to be present at trial can be waived by a criminal defendant. However, the trial court has only a narrow discretion in deciding whether to proceed with a trial when the defendant is voluntarily in absentia because the right to be present at one's own trial must be carefully safeguarded.

rights preserved by the Constitution, a criminal defendant may not impede or prevent the continuation of his or her trial by simply choosing to be voluntarily absent from the proceedings.

4. K.S.A. 22-3405, in relevant part, provides the defendant in a felony case shall be present at the arraignment, 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 law. In prosecutions for crimes not punishable by death, the defendant's voluntary absence after the trial has been commenced in such person's presence shall not prevent continuing the trial to and including the return of the verdict.

5. Unless the defendant has effectively waived the right to be present, nothing done in his or her absence is of legal effect and reversal of the defendant's conviction is required unless there was no reasonable possibility of prejudice to the defendant from his or her absence, in which case the error may be regarded as harmless.

6. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Thus, before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.

Elizabeth Sterns, Michael L. McCoy, Asst. Appellate Defenders, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Jeffrey E. Goering, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before RULON, P.J., and REES and BRAZIL, JJ.

RULON, Presiding Judge:

John F. Galloway, defendant, appeals his conviction of one count of possession of cocaine, K.S.A. 1990 Supp. 65-4127a, arguing the district court: (1) violated his statutory and constitutional rights when it held he was voluntarily absent and proceeded with the last day of trial; and (2) abused its discretion in admitting a black pouch into evidence. We affirm.

With regard to the black pouch, Galloway testified that he knew his companion Lester Shine had it, but he did not know what was in it. However, later in his testimony, Galloway stated that the only time he saw Shine with the pouch was when Shine removed it from Shine's car.

At the end of the first day of trial and after the presentation of all the evidence, the court adjourned the proceedings until the following day. The next day, Galloway did not appear in court. A jury instruction conference was conducted between the parties and the court. Defense counsel moved that a mistrial be ordered because Galloway was absent. Finding that Galloway was voluntarily absent, the court denied the motion.

DEFENDANT'S ABSENCE

Galloway argues that, in finding he was voluntarily absent, the district court did not make sufficient inquiry as to the circumstances causing the absence. At the hearing on Galloway's post-trial motion for judgment of acquittal or a new trial, the court found that Galloway was absent from the trial because he had gone to the hospital. However, because Galloway failed to notify the court and his counsel of his whereabouts, the court refused to order a new trial. Contrary to the court's finding that Galloway had gone to the hospital, there is no evidence in the record establishing that Galloway was in a hospital.

Speaking generally on a defendant's right to be present in court during criminal proceedings, we have said:

"[A] criminal defendant has the absolute right to be present at all stages of the prosecution against him. This right is guaranteed by the Sixth Amendment to the United States Constitution, which provides that: 'In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....' The Fourteenth Amendment makes this guarantee obligatory upon the states. [Citation omitted.] It has been held that the right of the accused to be present at trial is one of the most basic rights preserved by the Constitution. [Citation omitted.]

"However, a criminal defendant may not impede or prevent the continuation of his trial by simply choosing to voluntarily absent himself from the proceedings. This exception to the rule that a defendant must be present at trial was first recognized in case law.

" 'We have many times held that these rights may be waived by the accused, even in felony cases, and that voluntary absence may be deemed to be such a waiver. Thus a felony trial commenced when the defendant was present could be concluded and a verdict received in his absence when it was shown that the defendant, free on bond, had fled the jurisdiction.' [Citations omitted.]" State v. Hartfield, 9 Kan.App.2d 156, 160-61, 676 P.2d 141 (1984).

Thus, although the Sixth Amendment to the United States Constitution allows the defendant the right to be present, this right can be waived. See U.S. v. Rogers, 853 F.2d 249, 252 (4th Cir.1988). However, the trial " 'court has "only a narrow discretion" in deciding whether to proceed with a trial when the defendant is voluntarily in absentia because the right to be present at one's own trial must be carefully safeguarded.' " U.S. v. Hernandez, 842 F.2d 82, 85, reh. denied 846 F.2d 752 (5th Cir.1988).

K.S.A. 22-3405, in relevant part, provides:

"(1) The defendant in a felony case shall be present at the arraignment, 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 law. In prosecutions for crimes not punishable by death, the defendant's voluntary absence after the trial has been commenced in such person's presence shall not prevent continuing the trial to and including the return of the verdict." (Emphasis added.)

Here, the question raised concerned what constitutes a voluntary absence. In State v. Sandstrom, 225 Kan. 717, 721-22, 595 P.2d 324, cert. denied 444 U.S. 942, 100 S.Ct. 296, 62 L.Ed.2d 308 (1979), the court noted that counsel for the defendant waived the defendant's right to be present. In considering waiver, the court noted that Sandstrom was free on bond and was not in custody at the time she was required to appear. 225 Kan. at 721, 595 P.2d 324. The court further noted "[t]here is nothing to show that she was prevented from being present or that she could not have been present had she desired to do so." 225 Kan. at 721, 595 P.2d 324.

In State v. Kelly, 213 Kan. 237, 515 P.2d 1030 (1973), the issue addressed by the court was whether a defendant can be sentenced in absentia. 213 Kan. at 241, 515 P.2d 1030. Although sentencing in absentia is not challenged here, dicta in Kelly clearly indicates that voluntary absence can be found when the defendant has fled the jurisdiction while free on bond. 213 Kan. at 241, 515 P.2d 1030.

Therefore, based on these prior decisions, voluntary absence can be found when the defendant, released on bond, is not in custody and was not prevented from being present. There does not appear to be any requirement that the court inquire as to why the defendant is absent or whether someone has tried to contact or locate the defendant.

Galloway, as we understand, is requesting this court to hold that some inquiry must be made by the trial court before it can determine that a defendant has voluntarily The present version of the Montana provision is found at Mont.Code Annot. § 46-16-108 (1989). Examination of that statute reveals that it does not speak of "voluntary absence"; therefore, reliance on cases interpreting that statute is not warranted. Accordingly, we turn to consideration of judicial interpretations of the federal rule.

waived his right to be present. Due to the limited discussion of voluntary absence in our case law, decisions of other jurisdictions may provide assistance in analyzing the subject. The Judicial Council Comments to K.S.A. 22-3405 note the Kansas statute is modeled after both Fed.R.Crim.Proc. 43 and Mont.Code Annot. § 95-1904 (1947).

Fed.R.Crim.Proc. 43(b)(1) (1991 Supp.) provides:

"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 the 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)."

As noted by Wright, "The purpose of this is to prevent the defendant from obstructing the trial by absconding. If defendant is voluntarily absent, the court may continue the trial up to and including the return of the verdict. Defendant's absence must be found to be voluntary." 3A Wright, Federal Practice and Procedure: Criminal § 723, p. 21 (1982).

In U.S. v. Rogers, 853 F.2d 249, the defendant was absent on the second day of trial for about 50 minutes. 853 F.2d at 251. During that time, three witnesses were called. 853 F.2d at 251. Although the district court ordered the...