State v. Hudson

• Decision Date: 30 May 1990
• Citation: 574 A.2d 434,119 N.J. 165
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Rufus HUDSON and Russell Samuel Hall, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 165

119 N.J. 165

574 A.2d 434

STATE of New Jersey, Plaintiff-Appellant, v. Rufus HUDSON and Russell Samuel Hall, Defendants-Respondents.

Supreme Court of New Jersey.

Argued Jan. 18, 1990.

Decided May 30, 1990.

Linda K. Danielson, Deputy Atty. Gen., for plaintiff-appellant (Robert J. Del Tufo, Atty. Gen., attorney).

Frank J. Soltis, Asst. Deputy Public Defender, for defendant-respondent Russell Samuel Hall (Thomas S. Smith, Jr., Acting Public Defender, attorney; Frank J. Soltis and Faye R. Puddington, Jersey City, Designated Counsel, on the briefs).

Philip A. Ross, Designated Counsel, for defendant-respondent Rufus Hudson (Thomas S. Smith, Jr., Acting Public Defender, attorney; Philip A. Ross, East Orange, and Lennox S. Hinds, Designated Counsel, on the briefs).

The opinion of the Court was delivered by

STEIN, J.

The question in this appeal is whether the convictions of two defendants who knew the date, time, and place of their joint trial should be vacated because they left the courtroom before trial commenced. At issue is the application of Rule 3:16, which provides in relevant part:

The defendant shall be present at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by rule, but the defendant's voluntary absence after trial has commenced in his presence shall not prevent its continuing to and including the return of the verdict. * * *

Defendants had been released on bail, pending their trial. Both defendants were present in court on the morning of trial. The case, however, was adjourned until the afternoon, at which time defendants failed to appear. The trial court concluded that they had voluntarily absented themselves and ordered that jury selection begin. Defendants were tried and convicted in absentia.

The Appellate Division reversed both convictions, holding that "defendants disappeared before the trial commenced," and therefore "the 'voluntary absence' proviso of R. 3:16 [could not] be invoked." 226 N.J.Super. 412, 416, 544 A.2d 868 (1988).

We granted certification, 114 N.J. 509, 555 A.2d 626 (1989), and now reverse.

I.

A Camden County grand jury returned separate indictments against the defendants, charging each with three counts of second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1); one count of second-degree possession of a handgun with the purpose to use it unlawfully, contrary to N.J.S.A. 2C:39-4a; and one count of third-degree possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5b. The charges arose from a shooting incident that occurred in November 1984.

The two cases were peremptorily listed for a joint trial on June 3, 1985. Both defendants appeared in court on June third. On that day, the court granted Hall's attorney a continuance so that he could review the grand jury transcript. The court informed both defendants that the new trial date was June 18, 1985, at 9:00 a.m.

The court called the matter for trial as scheduled on June 18th. Hudson and Hall were present in the courtroom at nine o'clock. The case was again delayed because Hall's attorney was involved in a different trial before another judge. The court informed the two defense attorneys to be ready for trial at 1:30 p.m. The attorneys met with their clients and told them to be in court at that time. Hall and Hudson remained in or near the courthouse for the rest of the morning.

At 1:30 p.m., Hall's attorney was granted an adjournment of his other trial. He then sought Hudson's attorney in order to finish preparing for Hall's defense. Counsel located Hall, Hudson, and Hudson's attorney in a conference room at the courthouse. The attorneys left defendants, conferred briefly in another room, then proceeded to the court's chambers.

Shortly before 3:00 p.m., the trial court requested that a panel of sixty potential jurors be brought into the courtroom to begin jury selection. Neither defense attorney was present at that time; the record is unclear whether either defendant was in the courtroom.

A short time later, counsel for Hall arrived and sought another continuance for additional time to prepare his client's case. At that point, the absence of defendants became apparent to the court:

THE COURT: If you want to make a motion I suggest you make it right now.

MR. KRAMER: Yeah. They had been here all day. They may have just stepped out to get something to eat.

THE COURT: Fine, because the jury's on its way.

MR. KRAMER: I think they got a buck fifty for something to eat.

THE COURT: This matter was called for trial this morning at 9:00. Defendants have been here all day, the court has been ready to move the matter, in fact, the jury has been sent for. The defendants were in court, were they not, sir?

MR. KRAMER: Yes, your Honor.

THE COURT: Yes, they have absented themselves voluntarily, there is no question about that. The court did not excuse them or suggest to them that they shouldn't remain. You may, therefore, proceed with your motion in the absence of the defendants since they themselves have absented themselves.

The court then heard and denied the motion for a continuance.

Court officers unsuccessfully searched the courthouse for defendants. Shortly thereafter, the jury panel entered the courtroom. The court ordered that jury selection begin and that the trial proceed without defendants. The court determined that defendants had "voluntarily absented" themselves from the case:

THE COURT: The record should reflect that it's ten after three. This case was listed for trial this morning at 9:00, pre-emptorily [sic] listed. Counsel has known that all day long. I'm not faulting counsel at all. Mr. Kramer was engaged in another trial and Mr. Supnick was advised to come in at 1:30. Likewise Mr. Kramer was alerted to be here at 1:30. Defendants should have been here. In fact, defendants were here at some time during the course of the day.

It isn't that so [sic], Mr. Supnick?

MR. SUPNICK: That is correct.

THE COURT: Am I right?

MR. KRAMER: That is correct, your Honor.

THE COURT: They were here, nobody excused them, at least the court didn't excuse them, and nobody ever advised anybody in this case that it would not move. The jury is here ready to be selected, the defendants are not here and the court finds as a matter of fact they've absented themselves voluntarily from the proceedings and in that case the matter may proceed in their absence. And it will do just that unless the prosecutor has objection.

MS. SPADEA: No objection, your Honor.

MR. KRAMER: Your Honor, at this time I guess the proper time [sic] would be to make a motion to ask for a continuance and if the court wishes to issue a bench warrant to do so, but I would like to have my client here.

MR. SUPNICK: I would join in that. I would like to have them here for a jury selection.

THE COURT: This is about the fourth time today that counsel has requested this matter go off. I'm beginning to start to wonder about the absence of these defendants. I don't know that it could be some type of ploy to bring the matter to a point where the court might be forced to continue it. But that isn't going to work and it isn't going to happen. These men aren't here, there's no reason to issue a bench warrant. They have a right to be at their own trial and they have a right to absent themselves from their trial. They've obviously elected the latter and, therefore, we will proceed in their absence. Motion denied.

The court informed the potential jurors that defendants "[are] not with us right now, but we presume they will be with us tomorrow." However, efforts to locate either defendant during the trial were unsuccessful.

According to the evidence adduced at trial, a gang of several young men, including Hall and Hudson, chased three victims in the streets of East Camden. The gang confronted the victims in front of a house, and displayed handguns and a shotgun. Shots were fired, but no one was injured. Because of defendants' absence, the victims used photographs to identify Hall and Hudson as two of the gun-brandishing gang members.

The prosecutor and both defense attorneys noted in their summation the absence of defendants. The trial court instructed the jury not to attach any significance to the absence of defendants:

That I made clear and I will go over it again, but likewise there is no obligation on the part of a defendant to attend the trial. The defendant has every right to attend the trial if he elects to do so, but he likewise has a constitutional right if he decides to elect such right not to attend the trial. And the fact that in this case obviously the defendants elected not to attend the trial, that may not be used in determining their guilt or innocence. You may not draw any inferences of guilt from that fact. That fact should not enter into your deliberations whatsoever. It should in no way affect the presumption of innocence that every defendant is entitled to in every case.

The jury convicted both defendants on all counts. Because neither Hall nor Hudson could be located when the jury announced its verdict, the court revoked bail and issued bench warrants for their arrest.

On October 11, 1985, nearly four months after his trial, Hudson appeared for sentencing. At the sentencing hearing, Hudson explained to the court that he left the courthouse on June 18th because he "[j]ust got kind of shaken up a little bit." The court sentenced Hudson to a seven-year custodial term with three years of parole ineligibility on count one, a concurrent seven-year term on count four, and a concurrent four-year term on count five. The court merged counts two and three with count one.

Hall remained at large until he turned himself in on or about June 17, 1986. At his sentencing hearing, Hall revealed that he had telephoned the judge's chambers on June 27, 1985, two days after the jury had returned its verdict. During that...