State v. Lister

• Decision Date: 05 October 1979
• Docket Number: No. 79-295,79-295
• Citation: State v. Lister, 406 A.2d 967, 119 N.H. 713 (N.H. 1979)
• Parties: The STATE of New Hampshire v. Joseph A. LISTER.
• Court: New Hampshire Supreme Court

Page 967

406 A.2d 967

119 N.H. 713

The STATE of New Hampshire v. Joseph A. LISTER.

No. 79-295.

Supreme Court of New Hampshire.

Oct. 5, 1979.

Thomas D. Rath, Atty. Gen., Peter W. Heed, Asst. Atty. Gen. (David L. Harrigan, Asst. Atty. Gen., orally), for the State.

John A. Macoul, Salem, and James M. Reams, Exeter (John A. Macoul, Salem, orally), for defendant.

BROCK, Justice.

The Superior Court (Contas, J.) has transferred the following question of law to this court: "Where (a) defendant has voluntarily absented himself from criminal court proceedings for first-degree murder after completion of suppression hearings and selection, but not swearing, of five jurors, may (he) be tried In absentia ?"

The defendant is charged with noncapital, first-degree murder and, until recently, has been in custody at the State prison pending trial. Trial was set for September 24, 1979. The first four days, from September 24 to September 27, were devoted to various suppression motions. On September 28, 1979, the jury selection process began. At that time five jurors were selected but not sworn. Later that same day, the defendant escaped from custody and his whereabouts remain unknown at this time. Following this development, the prosecution moved to proceed with the trial In absentia. The trial court then transferred the question without ruling.

The defendant's counsel have argued that to proceed with the trial in the defendant's absence would deprive him of the right to confront the witnesses against him, and, therefore, would be in violation of the sixth amendment to the United States Constitution and part I, article 15 of the New Hampshire Constitution.

Although this issue is one of first impression in our jurisdiction, the Supreme Court of the United States and other federal courts have addressed the issue. As will be discussed, in the posture of this case, the answer to the transferred question hinges on whether the defendant has waived his right to be present by voluntarily absenting himself from trial, and whether his trial has commenced. These two considerations have been succinctly stated in Rule 43 of the Federal Rules of Criminal Procedure, which provides in part that:

(b) 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 his right to be present whenever a defendant, initially present, (1) voluntarily absents himself after the trial has commenced (whether or not he has been informed by the court of his obligation to remain during the trial), . . .

Fed.R.Crim.P. 43(b). The supreme court has ruled that this provision does not violate the United States Constitution. Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973).

Indeed, the constitutionality of Rule 43 is well established, because it is supported by the Court's decision in Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). In Taylor, the Supreme Court cited with approval the following language found in Diaz (W)here the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present. 414 U.S. at 19, 94 S.Ct. at 195; 223 U.S. at 455, 32 S.Ct. 250.

It is clear that a trial In absentia is not barred by the United States Constitution. In considering whether a trial In absentia would violate part I, article 15 of the New Hampshire Constitution, we find the federal decisions persuasive. Under the New Hampshire Constitution, a criminal defendant "shall have a right to produce all proofs that may be favorable to himself; to meet the witnesses against him face to face, and to be fully heard in his defense, by himself, and counsel." N.H.Const. pt. I, art. 15. There is no prohibition against that right being waived as the result of a defendant's voluntary absence from certain proceedings.

In Diaz the Supreme Court took note of the rationale that calls for the trial to continue when the defendant has voluntarily absented himself from the proceedings:

It does not seem to us to be consonant with the dictates of common sense that an accused person . . . should be at liberty, whenever he pleased, to withdraw himself from the courts . . . and to break up a trial already commenced. The practical result of such a proposition, if allowed to be law, would be to prevent any trial whatever until the accused person himself should be pleased to permit it. Diaz, 223 U.S. at 457, 32 S.Ct. at 254, 255.

We agree with that rationale and...