State v. Kropp

• Court: Idaho Court of Appeals
• Writing for the Court: LORELLO, Judge
• Citation: State v. Kropp, 168 Idaho 948, 489 P.3d 859 (Idaho App. 2021)
• Decision Date: 03 June 2021
• Docket Number: Docket No. 47713
• Parties: STATE of Idaho, Plaintiff-Respondent, v. David Alexander KROPP, Defendant-Appellant.

168 Idaho 948

489 P.3d 859

STATE of Idaho, Plaintiff-Respondent,

v.David Alexander KROPP, Defendant-Appellant.

Docket No. 47713

Court of Appeals of Idaho.

Filed: June 3, 2021

Review Denied: July 19, 2021

Nevin, Benjamin, & McKay, LLP; Dennis A. Benjamin, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Andrew V. Wake, Deputy Attorney General, Boise, for respondent.

LORELLO, Judge

David Alexander Kropp appeals from his judgment of conviction for three counts of burglary. We affirm.

I.FACTUAL AND PROCEDURAL BACKGROUND

Following multiple storage unit thefts, Kropp was charged with three counts of burglary, I.C. § 18-1401, and being a persistent violator, I.C. § 19-2514. Prior to trial, Kropp filed a notice of alibi, which indicated a witness would testify that she was with Kropp during the time of the alleged thefts and that Kropp "was never at the storage units."

Kropp attended the first day of trial, but was not present at the beginning of the second day. Kropp's counsel moved to continue the trial after informing the district court that the vehicle transporting Kropp had become stuck in the snow after going off the road to avoid a deer and that it would be a few hours before a tow truck could arrive. After a short recess and obtaining additional information regarding Kropp's situation, the district court found that Kropp's absence was voluntary and denied the motion to continue. Kropp's counsel then noted that the alibi witness (the owner of the vehicle transporting Kropp) was also unable to appear and asked the district court to reconsider its decision. The district court denied the motion for reconsideration and the trial proceeded in Kropp's absence.¹

Later that afternoon, Kropp's counsel relayed that he had received text messages from Kropp indicating that he would soon appear at trial. However, after a brief recess, Kropp still had not appeared. Kropp's counsel moved for a mistrial. The district court again found that Kropp's absence was voluntary and denied the motion. Ultimately, the jury found Kropp guilty of all three counts of burglary and found that he is a persistent violator of the law. At the end of trial, Kropp still had not appeared. As a result, the district court issued a bench warrant for Kropp's arrest.

Sometime in the following year, Kropp was apprehended in Washington. Kropp moved for a new trial based on his absence and the absence of his alibi witness from the second day of trial through its conclusion. The district court denied his motion. Kropp appeals.

II.STANDARD OF REVIEW

The decision to grant a motion for a continuance rests within the sound discretion of the trial court. State v. Ransom , 124 Idaho 703, 706, 864 P.2d 149, 152 (1993). When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine whether the lower court: (1) correctly perceived the issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently with any legal standards applicable to the specific choices before it; and (4) reached its decision by an exercise of reason. State v. Herrera , 164 Idaho 261, 270, 429 P.3d 149, 158 (2018). However, when the requested continuance is based on the defendant's absence, and the waiver of a constitutional right is at issue, the appellate court conducts an independent review based upon the totality of the circumstances. State v. Miller , 131 Idaho 186, 188, 953 P.2d 626, 628 (Ct. App. 1998).

III.ANALYSIS

Kropp asserts the district court erred in denying his motion to continue because he was involuntarily absent from trial and because his alibi witness was also not present for trial. The State responds that the district court did not err in denying the motion to continue given Kropp's flight, which occurred when Kropp's alibi witness was with him. Because the legal standards governing a motion to continue differ according to whether the basis is the absence of a defendant or a witness, we address each absence separately. For the reasons set forth below, we affirm.

A. Defendant's Absence

Kropp asserts that, based on the evidence known at the time his motion to continue was denied, the district court erred in finding that his absence was voluntary. Kropp also asserts that this error was structural (necessitating reversal without a showing of prejudice) and that, if not, the error was not harmless. The State responds that we should review the district court's decision based on the entire record, which the State asserts shows Kropp's absence was voluntary. The State also contends that, even if review is limited to the record established at the time the district court denied the motion to continue, the district court correctly found that Kropp's absence was voluntary. The State further contends that, if there was error, structural error does not apply and the error was harmless. We hold that Kropp has failed to show reversible error in the district court's denial of his motion to continue.

The right to be present at trial is secured by both the United States Constitution and the Idaho Constitution. See U.S. CONST. amends. V, VI, XIV ; IDAHO CONST. art. I, § 13 ; United States v. Gagnon , 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) ; Miller , 131 Idaho at 188, 953 P.2d at 628. Like other constitutional rights, the right to be present can be waived. A defendant, after having been present at the trial's inception, can waive this constitutional right through a later, voluntary absence. Diaz v. United States , 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500 (1912) ; Miller , 131 Idaho at 188, 953 P.2d at 628. Similarly, our criminal rules require the defendant's presence at "every stage of trial," I.C.R. 43(a)(3), unless the defendant "who was initially present at trial ... waives the right to be present" by becoming "voluntarily absent after the trial has begun," I.C.R. 43(c)(1)(A). Thus, under both the Constitution and the applicable criminal rule, the common inquiry is whether the defendant's absence was voluntary.

This Court has adopted a three-step process for a trial court to follow when a defendant becomes absent after trial begins. Specifically, a trial court must: (1) make sufficient inquiry into the circumstances of a defendant's disappearance to justify a finding whether the absence was voluntary; (2) make a preliminary finding of voluntariness, when justified; and (3) afford the defendant an adequate opportunity to explain the absence when the defendant is returned to custody and before sentence is imposed.² State v. Elliott , 126 Idaho 323, 328, 882 P.2d 978, 983 (Ct. App. 1994), overruled on other grounds as recognized by Idaho Dep't of Health & Welfare v. Doe , 150 Idaho 752, 764, 250 P.3d 803, 815 (Ct. App. 2011). With respect to the first step, the district court did inquire into the reasons for Kropp's absence. At that time, defense counsel explained:

I received some texts from my client with photographs of his car stuck in the snow, swerved to miss a deer, waiting on tow truck. And then I've called the police and tow truck company. Towing company is on another call and it will be a few hours.^{[3 ]} My client has instructed me to ask for a continuance.

After receiving a response from the prosecutor who objected to a continuance, the district court inquired about when counsel received the text messages. Counsel responded, "Today at 8:52 a.m.," which was eight minutes prior to the time the second day of trial was set to convene.⁴ The court and defense counsel then engaged in the following exchange:

THE COURT: All right. Did your client say where he was?

[DEFENSE COUNSEL]: No, not specifically. I do know that he's been staying in St. Maries.

THE COURT: All right. Well, let's do this. I'm not inclined to grant a continuance of the trial. We've got a jury already impaneled, but I do want to give [defense counsel] an opportunity to try to communicate with his client to find out some more details. This is winter in North Idaho. There are deer in North Idaho. Things do happen.

But when we have a jury impaneled and witnesses all lined up and ready to go, I'm not inclined to grant a continuance of the trial, but I am inclined to give [defense counsel's] client a chance to talk to his lawyer about more details if he can get some. So it's now ten after 9:00. We'll reconvene here in about 20 minutes to give you a chance to find out what you can from your client about whether he's going to make it or not.

It is a defendant's obligation when they're out on bond to appear for all court appearances. And while this may be some unusual circumstances, we'll decide what we're going to do at 9:30.

Following the recess, defense counsel advised that he had spoken with Kropp who explained the vehicle was "somewhere between Chatcolet and Plummer in what was described as the Conklin Flats. It is relatively speaking, very far off the road." Defense counsel further stated: "The police said that they'd get there when they could and the tow truck driver said at least two hours, probably three, but ... don't worry about it till 4:00." The State reasserted its objection to a continuance, noting a lack of information regarding Kropp's efforts to obtain alternative transportation and the late notice regarding his inability to appear in court on time. The State also offered I.C.R. 43 and Elliott in support of its position that Kropp was voluntarily absent and, as such, a continuance was not warranted. In response, defense counsel noted he had seen Kropp and the alibi witness "in the same vehicle that's in the photograph that they sent" and defense counsel did not know whether Kropp had "any other vehicle besides that one." As to the timing of Kropp's notice, defense counsel represented that he did not know when Kropp "actually slid off the road," or "how much time he spent trying to dig out, trying to get back on the road," but that 8:52 a.m. was the time Kropp sent the photograph.

In denying...