State v. Padilla, 20,232.

• Citation: 129 N.M. 625,2000 NMCA 90,11 P.3d 589
• Decision Date: 09 August 2000
• Docket Number: No. 20,232.,20,232.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Chris PADILLA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

11 P.3d 589

129 N.M. 625

2000 NMCA 90

STATE of New Mexico, Plaintiff-Appellee, v. Chris PADILLA, Defendant-Appellant.

No. 20,232.

Court of Appeals of New Mexico.

August 9, 2000.

Certiorari Granted October 2, 2000.

Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.

David Henderson, Santa Fe, NM, for Appellant.

Certiorari Granted, No. 26,540, October 2, 2000.

OPINION

ALARID, Judge.

{1} This case requires us to decide whether the Rules of Criminal Procedure for the District Courts authorized the trial court to sever Defendant's trial from that of his co-defendant, and then, after jury selection was completed in the co-defendant's case, to reconsolidate the trials at Defendant's request. As we explain below, this procedure runs afoul of Rule 5-612 NMRA 2000 (1972, as amended through 1974), which prohibits the commencement of a criminal trial in the defendant's absence. Because a defendant's absence at the commencement of his trial is a non-waivable, structural defect, we reverse Defendant's convictions.

BACKGROUND

{2} Defendant, and a co-defendant, Miguel Gallegos, were each indicted on two counts of aggravated battery with a deadly weapon and a single count of concealing identity. Defendant and Gallegos were joined for trial. On the morning of July 6, 1998, Defendant and Gallegos' case and another unrelated case were called for jury selection. Defendant's attorney and the prosecutor were present, but Defendant, Gallegos, and Gallegos' attorney were absent. In response to questioning by the trial court, Defendant's counsel responded that he did not know Defendant's whereabouts and that he had unsuccessfully attempted to locate Defendant by telephone. The trial court issued a bench warrant for Defendant's arrest and cited Gallegos and Gallegos' counsel for contempt.

{3} A panel of prospective jurors was sworn and voir dire commenced in the unrelated case. As voir dire in the unrelated case was proceeding, counsel for Gallegos appeared. He explained that he had been delayed because he had been waiting for Gallegos to fax him a written waiver of Gallegos' right to be present during jury selection. Counsel explained that he now had the written waiver and tendered it to the court.

{4} The trial court remarked that it had "a real problem with Mr. Padilla [Defendant] not being here and having the other co-defendant not present and going through [jury] questioning." The trial court expressed a preference for waiting until Defendant had been re-arrested and rescheduling "the whole thing together" rather than proceeding with a "de facto severance." The State responded that it preferred to accept a severance and proceed with Gallegos' trial. Counsel for Gallegos responded that he did not see a problem in continuing with jury selection in view of his client's signed waiver of his right to be present during jury selection. The trial court ruled that the parties would proceed with jury selection in Gallegos' case.

{5} Prior to the lunch recess, jury selection was completed in the unrelated case. Following the lunch recess, Defendant briefly appeared in the courtroom without counsel. The trial court addressed Defendant, explaining that the court had issued a bench warrant for Defendant's arrest due to his failure to appear when his case was called that morning. The trial court commented that "this afternoon we can't find your attorney." The trial court told Defendant that it would hold the bench warrant until the following morning and directed Defendant to appear at 8:30 a.m. the next day. The trial court then told Defendant that he was "free to go."

{6} The trial court called Gallegos' case for jury selection. The trial court explained to the jury array that Gallegos had waived his right to be present at jury selection. The trial court then read into the record Gallegos' waiver of his right to be present. The trial court explained the nature of the case to the jury array and reminded them that they were still under oath. The trial court explained that the selection process would be the same as it was in the morning except that it should be quicker because "many of the questions are the same." Jury selection proceeded in Gallegos' case, and by the end of the day a petit jury had been impaneled to try Gallegos.

{7} The next morning, both Defendant and counsel were present in court. The trial court informed Defendant and his counsel that Defendant's and Gallegos' cases had been severed for trial. Defendant's counsel explained that Defendant had been confused by conflicting information as to the date jury selection was to begin and had relied on a scheduling order listing July 7, 1998, as the date jury selection was to begin. Instead of accepting the severance of Defendant's and Gallegos' trials, Defendant's counsel offered to waive Defendant's presence during jury selection in view of his "faith" in the ability of Gallegos' counsel to pick a jury. The trial court cautioned Defendant's counsel that the Defendants' defenses could diverge at trial and that Defendant would then be tried in front of a jury picked by Gallegos' counsel. The trial court directed Defendant's counsel to file a written waiver by 5:00 p.m. that day.

{8} In furtherance of the procedure suggested by Defendant's counsel and adopted by the trial court, Defendant and his counsel signed a document titled "Waiver of Jury Selection Irregularities" containing the following recitals:

COMES NOW Defendant CHRIS PADILLA and files this Waiver of Jury Irregularities, and in support of said waiver hereby states:

1) Defendant was not present for jury selection due to his uncertainty about the date of jury selection.

2) Defendant's counsel appeared initially for jury selection but did not return for completion of jury selection when Defendant failed to appear;

3) Co-defendant's attorney Mr. Dan Marlowe completed jury selection on behalf of his client;

4) Defendant Chris Padilla hereby waives his and his counsel's appearance at jury selection and requests to proceed to the evidentiary phase of trial with the jury as selected by co-defendant's counsel. Defendant Chris Padilla also waives any issue on appeal regarding this irregularity in the selection of the jury in his case.

{9} The case proceeded to trial at which Defendant and Gallegos were each convicted of two counts of aggravated battery. Gallegos was also convicted of one count of concealing identity.

DISCUSSION

{10} At common law "`[i]n felonies, it is not in the province of the prisoner, either by himself or by his counsel, to waive the right to be personally present during the trial.'" Territory v. Lopez, 3 N.M. 156, 164, 2 P. 364, 367 (1884) (quoting 1 Bishop on Criminal Procedure § 686 (3d ed.)); see also Crosby v. United States, 506 U.S. 255, 259, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993) (collecting authorities). In Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500 (1912), the United States Supreme Court noted and applied a limited exception to the requirement that the defendant be present at all stages of trial:

if, after the trial has begun in his presence, [defendant] 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.

(Emphasis added). The Diaz exception is incorporated in Rule 43 of the Federal Rules of Criminal Procedure. See Crosby, 506 U.S. at 260-261, 113 S.Ct. 748. Federal Rule 43 provides as follows:

(a) Presence Required. The defendant shall be present at ... every stage of the trial including the impaneling of the jury and the return of the verdict ... 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 ... will not be prevented and the defendant will be considered to have waived the right to be present whenever a defendant, initially present, ...

(1) is voluntarily absent after the trial has commenced.

(1946, as amended through 1987) (emphasis added).

{11} Federal Rule 43 clearly is the model for the parallel New Mexico rule of criminal procedure in effect at the time of Defendant's trial:

A. Presence Required. The defendant shall be present at ... every stage of the trial including the impaneling of the jury and the return of the verdict ... except as otherwise provided by this rule.

B. Continued Presence Not Required. The further progress of the trial, 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.

Rule 5-612 (emphasis added).

{12} Although Rule 5-612 and subsequent cases have modified the common law as set out in Lopez, see Hovey v. State, 104 N.M. 667, 671-72, 726 P.2d 344, 349 (1986) (Walters, J., specially concurring; discussing retreat from "early and intractable" position of Lopez), Lopez has never been expressly overruled. In particular, no New Mexico case has held that a trial court has the authority to begin a criminal trial in the defendant's absence.

{13} The question of whether a trial may begin in the defendant's absence was addressed by the United States Supreme Court in the context of Federal Rule 43 in Crosby. Crosby involved a defendant facing federal mail fraud charges who fled the night before his trial was scheduled to begin. After unsuccessful efforts to locate the defendant, the trial court proceeded to trial over the objections of the absent defendant's counsel. The absent defendant and two co-defendants who were present were found guilty by the jury. Ultimately, the absent defendant was apprehended and sentenced. On appeal to the Eighth Circuit...