State v. Padilla

• Decision Date: 10 May 2002
• Docket Number: No. 26,540.,26,540.
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Chris PADILLA, Defendant-Respondent.
• Court: New Mexico Supreme Court

46 P.3d 1247

132 N.M. 247

2002 NMSC 16

STATE of New Mexico, Plaintiff-Petitioner, v. Chris PADILLA, Defendant-Respondent.

No. 26,540.

Supreme Court of New Mexico.

May 10, 2002.

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

David Henderson, Santa Fe, NM, for Respondent.

OPINION

FRANCHINI, Justice.

{1} Following a jury trial, Defendant Chris Padilla was convicted of two counts of aggravated battery with a deadly weapon under NMSA 1978, § 30-3-5(C) (1969). The Court of Appeals, in a divided opinion, reversed Defendant's convictions after determining that under Rule 5-612 NMRA 2002, Defendant's absence from jury selection was "non-waivable" and had created a "structural defect" which "automatically require[d] a new trial." See State v. Padilla, 2000-NMCA-090, ¶¶ 1, 19, 129 N.M. 625, 11 P.3d 589,

cert. granted, No. 26,540, 129 N.M. 519, 10 P.3d 843 (2000). The State petitioned this Court to issue a writ of certiorari to the Court of Appeals under NMSA 1978, § 34-5-14(B) (1972), which we granted. Although we concur in the result reached by the majority of the Court of Appeals, we are not in agreement with the reasoning of the opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

{2} Defendant and a co-defendant attacked two employees of a bar which resulted in their being indicted for multiple counts of aggravated battery with a deadly weapon. The two men were set for a joint trial; the record does not indicate that either of the defendants objected to the joinder. On July 6, 1998, a jury pool was summoned to district court to select jury panels for Defendant's trial and another upcoming trial. Defendant's attorney was in court, but Defendant was not present. The trial court then issued a bench warrant for Defendant for failure to appear. Shortly thereafter, the co-defendant's attorney arrived with a signed statement from the co-defendant waiving his right to be present for jury selection. In the waiver, the co-defendant stated that he had been advised of his right to be present for jury selection and confirmed that his waiver of the right to be present was being made with the advice and consent of his attorney. Jury selection had not yet begun for the trial of Defendant and the co-defendant which was set for July 27, 1998. The co-defendant's waiver was read into the record by the trial court at the beginning of jury selection.

{3} When Defendant did not appear for jury selection, his attorney left and did not participate in jury selection. Because at that point neither Defendant nor his attorney was present, the trial court severed the trial so that the court could proceed with voir dire in the co-defendant's trial. After a lunch recess, Defendant came to the trial court but without his attorney. The trial court told Defendant that he was free to go because the trial had been severed and that he and his attorney should appear in court the following morning to resolve the matter of the bench warrant. Jury selection then continued in the co-defendant's case. Defendant did not stay for any of the jury selection.

{4} At the bench warrant hearing the following morning, the trial court explained to Defendant and his attorney that the trials had been severed and a jury had been selected for the co-defendant's trial. Defendant's attorney told the court that Defendant had been absent from jury selection because he was confused about the trial date. The original scheduling order issued by the trial court had listed the date for jury selection as July 7, 1998. After clarifying some procedural details regarding the bench warrant, Defendant's attorney then asked the trial court to reconsider its decision to sever the trial. He stated that he and Defendant would be willing to waive the jury selection "irregularities" and proceed with a joint trial before the jury selected by the co-defendant's attorney. The trial court cautioned that if the defenses diverged at trial, Defendant would find himself in the position of being tried by a jury that had been picked by the co-defendant's attorney. At that point, Defendant's attorney offered to waive the jury selection issue "permanently." The trial court then agreed to the waiver and told the attorney that it would have to be filed before 5:00 p.m. that day. The entire hearing lasted seven minutes; the discussion about obtaining and filing the bench warrant occupied two-thirds of the time.

{5} Defendant's attorney prepared the following statement which he signed and Defendant co-signed:

WAIVER OF JURY SELECTION IRREGULARITIES

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 ... 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.

Trial counsel submitted the statement to the court; no further hearings were held. An order was issued approving the waiver and permitting Defendant to "proceed to the evidentiary phase of the trial with the jury selected by his co-defendant's counsel." It is undisputed that both Defendant and his co-defendant were present on July 27, 1998, for the evidentiary phase of the trial. Defendant and the co-defendant were found guilty at that trial.

II. DISCUSSION

A. Presence at Jury Selection.

{6} On appeal, the State asks this Court to affirm Defendant's conviction, arguing that the Court of Appeals misconstrued Rule 5-612. The State's position is that the Court of Appeals was mistaken when it concluded, first, that Rule 5-612 does not permit a defendant to waive his initial appearance at trial and, second, that Defendant's absence from jury selection was a structural defect requiring automatic reversal. The State argues that the Rule does permit a waiver of presence and Defendant expressly waived any challenge to the manner in which the jury was selected. Relying upon the waiver, the State also protests Defendant's appeal arguing that, because he had waived his right to appeal this issue, the appropriate action for Defendant would be to pursue a habeas corpus claim. In response, Defendant asserts that the Court of Appeals correctly determined that Rule 5-612 contains a "no-waiver rule," the violation of which called for automatic reversal. {7} The part of Rule 5-612 at issue contains the following language:

A. Presence required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impanelling of the jury and the return of the verdict and imposition of any sentence, except as otherwise provided by the 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 (whether or not he has been informed by the court of his obligation to remain during the trial); or

(2) engages in conduct which is such as to justify his being excluded from the courtroom.

{8} In arriving at its conclusion that Defendant could not waive his right to be present at jury selection because he had not been initially present, the Court of Appeals relied on Crosby v. United States, 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993), and the common law. In Crosby, the Supreme Court had analyzed the language of Rule 43 of the Federal Rules of Criminal Procedure (the federal counterpart to our Rule 5-612) to determine whether the trial court had erred when it tried the defendant in absentia. In Crosby, the Supreme Court was dealing with the second section of Rule 43 which, like Section B of Rule 5-612, addresses those occasions when the trial court must make a determination of whether a defendant should be considered to have waived his or her presence, based on a defendant's actions. Although the defendant in Crosby had been notified of his trial date, he absconded before the start of the trial, and the court proceeded with his trial. Id. at 257, 113 S.Ct. 748. The trial court in Crosby had considered the defendant's failure to appear at trial to be a voluntary waiver of his right to be present. Id. at 257, 113 S.Ct. 748. The Supreme Court disagreed, concluding that the requirement for initial presence served to clarify whether a defendant's absence could be considered a knowing waiver. Id. at 261, 113 S.Ct. 748. In so doing, the Court relied upon Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500 (1912), which had held that the voluntary absence of a defendant from court after trial has begun constitutes waiver of the right to be present. Crosby, 506 U.S. at 261, 113 S.Ct. 748. In Crosby, the Supreme Court concluded that "Rule [43] treats midtrial flight as a knowing and voluntary waiver of the right to be present," but that a knowing waiver could not be ascertained from initial absence alone. Id. The Court held that because the defendant had not been present when the trial began, Rule 43 did not permit a trial in absentia in federal court. Id. at 262, 113 S.Ct. 748.

{9} The Court of Appeals found the factual differences between what occurred in Crosby and in this case to be immaterial and concluded that because Defendant was not initially present at jury selection, Rule 5-612 "did not authorize the trial court"...