State v. Phillips

• Citation: 247 Ga. 246,275 S.E.2d 323
• Decision Date: 03 March 1981
• Docket Number: No. 36863,36863
• Court: Supreme Court of Georgia
• Parties: The STATE v. PHILLIPS.

Page 323

275 S.E.2d 323

247 Ga. 246

The STATE v. PHILLIPS.

No. 36863.

Supreme Court of Georgia.

March 3, 1981.

William F. Lee, Dist. Atty., Newnan, Marc E. Acree, Asst. Dist. Atty., LaGrange, for State.

Joseph H. Phillips, pro se.

PER CURIAM.

Appellee was convicted of aggravated assault. The Court of Appeals,155 Ga.App. 509, 271 S.E.2d 656 reversed the conviction on the ground that "(t)he record fails to show that ... (counsel's) waiver (of appellee's confrontation rights) was made in the presence of the accused or by his express authority, or that he subsequently acquiesced in such waiver, as required. Wilson v. State, 212 Ga. 62, 78, 90 S.E.2d 557 (1955). See also Miller v. State, 13 Ga.App. 440, 442(2), 79 S.E. 232 (1913)." On certiorari, we reverse.

Appellee's wife was a witness for the state. At the conclusion of her direct examination, the following transpired: "MR. LEE: Your witness. MR. DAVIDSON: Excuse me just a moment. THE COURT: Mr. Davidson. (Conferring.) Let the record reflect that Counsel for the Defendant waives the presence of the Defendant in the Courtroom. In fact, he was the one that sent him out by the bailiff. During the cross-examination of the witness, who happens to be his wife, who is the Defendant's wife. Go ahead, Mr. Davidson. MR. DAVIDSON: Yes, sir, your Honor. Thank you!" After cross-examination of Mrs. Phillips was completed, the court and the district attorney had the following exchange: "THE COURT: Alright. Come down. Call your next witness, Mr. Lee. MR. LEE: Call Otis Furgerson to the stand, your Honor. Now, the Defendant, your Honor, is back in the Courtroom. THE COURT: Let the Record reflect that the Defendant is back in the Courtroom. MR. LEE: Now, let's back up and make sure that we are back on the Record here. The Defendant requested that he be sequestered THE COURT: In fact, it was requested by the Defense's attorney. MR. LEE: Yes sir. THE COURT: That he not remain in the Courtroom while he cross-examined the witness on the stand which happens to be the Defendant's wife. As soon as the cross-examination was over, the Defendant came back into the Courtroom. MR. LEE: And, the Defendant is now present in the Courtroom. THE COURT: Right." Subsequently, appellee took the stand and testified in his own defense.

Although the state contends that appellee was "free on bail," there is nothing in the record to support this contention. We shall therefore assume that appellee was in custody during trial.

1. Appellee asserts he "did not know he had a constitutional right to be present when his wife testified and no one advised him that he had that right." Thus, he argues, there could be no waiver of his constitutional right to be present during the cross-examination of his wife. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

(A.) We note at the outset that it is not entirely clear, as a matter of federal constitutional law, whether a criminal defendant accused of a felony and in custody may waive the right to be personally present during trial. In Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892), it is stated: "A leading principle that pervades the entire law of criminal procedure is that, after indictment found, nothing shall be done in the absence of the prisoner. While this rule has at times and in the cases of misdemeanors, been somewhat relaxed, yet in felonies, it is not in the power of the prisoner, either by himself or his counsel, to waive the right to be personally present during the trial." In Diaz v. United States, 233 U.S. 442, 455, 32 S.Ct. 250, 253, 56 L.Ed.2d 500 (1912), the court stated: "In cases of felony our courts, with substantial accord, have regarded it (the right to be present) as extending to every stage of the trial, inclusive of the empaneling of the jury and the reception of the verdict, and as being scarcely less important to the accused than the right of trial itself. And with like accord they have regarded an accused who is in custody and one who is charged with a capital offense as incapable of waiving the right; the one, because his presence or absence is not within his own control, and the other because, in addition to being usually in custody, he is deemed to suffer the constraint naturally incident to an apprehension of the awful penalty that would follow conviction." However, recent federal cases have questioned the "validity of the Lewis dictum ... in view of the subsequent adoption of (Federal) Rule (of Criminal Procedure) 43 and of the decision in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970)." United States v. Alper, 449 F.2d 1223, 1243 (3rd Cir. 1971); Wilson v. Harris, 595 F.2d 101, 104 (fn. 3) (2d Cir. 1979); State of Arizona v. Hunt, 408 F.2d 1086, 1096 (6th Cir. 1969); see also United States v. Brown, 571 F.2d 980, 986 (6th Cir. 1978). But see United States v. Crutcher, 405 F.2d 239 (2d Cir. 1968); Cross v. United States, 325 F.2d 629, 631 (D.C.Cir. 1963); Evans v. United States, 284 F.2d 393, 394 (6th Cir. 1960).

Our view is in accord with those federal decisions which have held that the dicta of Lewis and Diaz do not accurately reflect the current state of the law. Clearly, under the circumstances of this case, a blanket rule of non-waiver would be inappropriate. While appellee was, presumably, in custody and stood accused of a felony, he was in open court and represented by counsel. The only sense in which the state "controlled" appellee's absence was in its failure to raise any objection when appellee left the courtroom.

As appellee was capable of waiving his right to be present during the cross-examination of his wife, we must determine whether he had, in fact, done so.

(B.) "Confrontation rights are personal to the accused ..." Byrd v. Ricketts, 233 Ga. 779, 780, 213 S.E.2d 610 (1975); see also United States v. Johnson, 562 F.2d 649, 662 (fn. 5) (D.C.Cir.1976); United States v. Pinkney, 551 F.2d 1241, 1251 (fn. 60) (D.C.Cir.1976). "In order for the waiver of counsel to be binding on the defendant, it must be made in his presence or by his express authority, or be subsequently acquiesced in by him." (Emphasis supplied.) Wilson v. State, supra 212 Ga. at 77-78, 90 S.E.2d 557. Compare Webb v. State, 589 S.W.2d 89 (Mo.App.1979); State v. Sanders, 539 S.W.2d 458 (Mo.App.1976).

While the record in this case does not show that appellee was in the courtroom when counsel expressly waived appellee's presence during the cross-examination of his wife, it does affirmatively establish that appellee was present when the trial judge and district attorney recounted the events leading to his brief sequestration. At this time, appellee remained silent. Compare Wilson v. State, supra. In our view appellee acquiesced in counsel's waiver of his right to be present during the cross-examination of his wife. Wilson v. State, supra; Harwell v. England, 234 Ga. 640, 217 S.E.2d 154 (1975); Daugherty v. State, 225 Ga. 274, 168 S.E.2d 155 (1969).

(C.) Contrary to appellee's assertions, a waiver of confrontation rights is not necessarily precluded by the failure of the trial court to specifically inform the accused of his right to be present. Harwell v. England, supra 234 Ga. at 641, 217 S.E.2d 154. In Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), the accused, who was free on bond, absented himself from trial during recess and thereafter failed to appear. In affirming the conviction, the court held: "It is wholly incredible to suggest that petitioner, who was at liberty on bail, had attended the opening session of his trial, and had a duty to be present at the trial, see Stack v. Boyle, 342 U.S. 1, 4-5, 72 S.Ct. 1, 3, 96 L.Ed. 3 (1951), entertained any doubts about his right to be present at every stage of his trial. It seems equally incredible to us, as it did to the Court of Appeals, 'that a defendant who flees from a courtroom in the midst of a trial where judge, jury, witnesses and lawyers are present and ready to continue would not know that as a consequence the trial could continue in his absence.' 478 F.2d, at 691." Id. 414 U.S. at 20, 94 S.Ct. at 196; see also State v. Stout, 273 N.W.2d 621, 622-623 (Minn.App.1978); Dixon v. State, 357 So.2d 690, 699 (Ala.Crim.App.1978). In Illinois v. Allen, supra 397 U.S. at 343, 90 S.Ct. at 1060, it was held "that a defendant can lose his right to be present at trial if, after he had been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings."

Under the facts of this case, we cannot believe that appellee was unaware of his right to be present during the cross-examination of his wife. His trial began as follows: "THE COURT: Alright. Call the case of the State of Georgia versus Joseph Hugh Phillips, charged with Aggravated Assault. MR. DAVIDSON: Ready, your Honor. (Waiting for the Defendant Phillips to appear in the Courtroom.) Here he is, your Honor. THE COURT: Alright. Call the first twenty-four jurors, Mrs. Traylors." With the exception of appellee's brief absence during his wife's cross-examination, he was present throughout the trial of his case. His temporary absence appears to have been the product of a deliberate tactical decision made by counsel. ¹ Appellee's acquiescence in counsel's express waiver was both "knowing" and "voluntary" (see United States v. Tortora, 464 F.2d 1202, 1208 (2d Cir. 1972); Taylor v. United States, supra) and his absence during the cross-examination of his wife is not ground for reversal. Wilson v. State, supra....