State v. Richardson

• Decision Date: 07 November 1991
• Docket Number: No. 353PA90,353PA90
• Citation: 330 N.C. 174,410 S.E.2d 61
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jimmy Arness RICHARDSON.

Page 61

410 S.E.2d 61

330 N.C. 174

STATE of North Carolina v. Jimmy Arness RICHARDSON.

No. 353PA90.

Supreme Court of North Carolina.

Nov. 7, 1991.

On discretionary review pursuant to N.C.G.S. § 7A-31 of the unanimous decision of the Court of Appeals, 99 N.C.App. 496, 393 S.E.2d 333 (1990), setting aside judgments entered by Friday, J., at the 17 April 1989 Criminal Session of Superior Court, Halifax County, and awarding defendant a new trial. Heard in the Supreme Court 16 October 1991.

Lacy H. Thornburg, Atty. Gen. by Robin W. Smith, Asst. Atty. Gen., and Daniel F. McLawhorn, Sp. Deputy Atty. Gen., Raleigh, for the State-appellant.

Robin E. Hudson, Raleigh, for defendant-appellee.

MEYER, Justice.

On 20 February 1989, the Halifax County Grand Jury returned four indictments charging defendant with: (1) possession of more than one gram of cocaine, (2) possession of cocaine with intent to sell or deliver and sale and delivery of cocaine at 3:15 p.m. on 2 December 1988, (3) possession with intent to sell or deliver and sale and delivery of cocaine at 6:10 p.m. on 2 December 1988, and (4) maintaining a dwelling for the purpose of selling cocaine.

On 17 April 1989, with defendant and his counsel present, jurors for defendant's trial were selected but not impaneled. Although defendant had arrived at the proceeding late that day, defendant was specifically informed that he was to return the following morning at 9:30 a.m., when the trial was to recommence. Defendant failed to appear at the appointed time. The trial judge continued the trial briefly to allow defense counsel to locate the defendant. Defense counsel, unable to contact defendant, then told the judge that a courtroom spectator had seen defendant walking from his home toward the courthouse that morning. Defense counsel also told the court that only a few weeks earlier, defendant had been under medical care for a chronic back problem that limited his ability to do strenuous physical work. Counsel did not know how this condition would affect the defendant's capacity to appear, but objected to proceeding in his absence. The trial judge then requested that the Sheriff's Department dispatch a car to locate defendant.

The court refused to continue the case, impaneled the jury in the defendant's absence, and the trial recommenced at 10:00 a.m. During examination of the first witness, defense counsel handed the trial judge a note from the Clerk of Court stating that a person identifying himself as a friend of defendant's had phoned at 10:10 a.m. to say that he was taking defendant to the hospital because of back problems. Counsel then requested a continuance to confirm this information. This request was denied, and the trial judge noted for the record that defendant had failed to contact either his counsel or the court directly and had ample opportunity to do so.

At 2:00 p.m., defense counsel informed the trial judge that defendant had called the Clerk's Office during the lunch recess and indicated that he was at Halifax Memorial Hospital seeking treatment for a sciatic nerve problem. The trial judge then granted defense counsel another brief recess to allow him to call the hospital and confirm defendant's whereabouts. Counsel was unable to confirm that defendant was at the hospital, and the district attorney informed the judge that sheriff's deputies had reported seeing defendant at two other locations during the day. Defense counsel again moved for a continuance. Subsequent to a bench conference, this motion was denied once again. The judge then issued an order for the defendant's arrest, stating, "It appears that [defendant] is playing tricks with the court."

At the close of the State's evidence, defense counsel related that he would be unable to present any evidence because defendant was the only witness scheduled to testify. The trial judge instructed the jury, and the jury returned less than an hour later, finding defendant guilty on all counts.

Sheriff's deputies brought defendant into court at 4:35 p.m., after the verdict had been returned. Defendant presented records showing that he had been treated at Halifax Memorial Hospital for head injuries resulting from a fall, but the time of treatment was not noted. The district attorney later noted that defendant did not seek treatment until 1:00 p.m. Defendant stated that he had been trying to communicate with the court, that he was not guilty, and that he wished to testify to that effect.

At trial, a detective with the Halifax County Sheriff's Department testified that he visited defendant's home at 3:15 p.m. on 2 December 1988 and asked if he could purchase two grams of cocaine. Defendant gave the detective a plastic bag containing 0.8 grams of cocaine in exchange for $180.00 in cash. The detective returned to defendant's residence at 6:10 p.m. and asked defendant if he could buy three grams of cocaine. Defendant gave the detective two plastic bags, later found to contain a total of 1.5 grams of cocaine, in exchange for $270.00 in cash.

The question before the Court is whether defendant's constitutional rights were infringed when the trial judge refused to grant defense counsel's motions to continue due to defendant's absence from his trial. It is well established that both the United States and North Carolina Constitutions provide criminal defendants the right to confront their accusers at trial. In particular, our state Constitution provides in pertinent part: "In all criminal prosecutions, every person charged with crime has the right ... to confront the accusers and witnesses with other testimony...." N.C.Const. art. I, § 23.

In noncapital felony trials, this right to confrontation is purely personal in nature and may be waived by a defendant. ¹ State v. Braswell, 312 N.C. 553, 558, 324 S.E.2d 241, 246 (1985); State v. Hayes, 291 N.C. 293, 296-97, 230 S.E.2d 146, 148 (1976); State v. Moore, 275 N.C. 198, 208, 166 S.E.2d 652, 659 (1969). A defendant's voluntary and unexplained absence from court subsequent to the commencement of trial constitutes such a waiver. State v. Wilson, 31 N.C.App. 323, 229 S.E.2d 314 (1976); State v. Mulwee, 27 N.C.App. 366, 219 S.E.2d 304 (1975). Once trial has commenced, the burden is on the defendant to explain his or her absence; if this burden is not met, waiver is to be inferred. State v. Austin, 75 N.C.App. 338, 330 S.E.2d 661 (1985); State v. Stockton, 13 N.C.App. 287, 185 S.E.2d 459 (1971).

Whether such a burden has been satisfied has been the subject of numerous appellate decisions. In State v. Stockton, 13 N.C.App. 287, 185 S.E.2d 459, for instance, defendant was present during the first day of his trial but failed to appear when the trial recommenced on the second day. Upon inquiry by the trial judge, defense counsel related that he had neither seen nor heard from defendant. Thereafter, the court concluded that defendant Stockton had due notice of the time that his trial was to recommence and that his absence amounted to a waiver. On appeal, the Court of Appeals agreed, concluding that the defendant voluntarily absented himself after his first day of trial and therefore waived his right to be present during the trial and rendering of the verdict. Id. at 292, 185 S.E.2d at 463. Findings of no error under similar circumstances have repeatedly been reached by this Court, as well as the Court of Appeals. State v. Kelly, 97 N.C. 404, 2 S.E. 185 (1887); State v. Austin, 75 N.C.App. 338, 330 S.E.2d 661 (1985); State v. Potts, 42 N.C.App. 357, 256 S.E.2d 497 (1979); State v. Montgomery, 33 N.C.App. 693, 236 S.E.2d 390, disc. rev. denied and appeal dismissed, 293 N.C. 256, 237 S.E.2d 258 (1977); State v. Wilson, 31 N.C.App. 323, 229 S.E.2d 314 (1976).

The granting or denial of a motion to continue is within the sound discretion of the trial judge, and this decision will not be disturbed absent an abuse of discretion. State v. Ferebee, 266 N.C. 606, 609, 146 S.E.2d 666, 668 (1966). Once trial begins, the burden is on the defendant to explain his absence. State v. Austin, 75 N.C.App. 338, 330 S.E.2d 661.

Here, it is clear that trial had begun before defendant absented himself. On 17 April 1989, the jury was selected in the presence of defendant and his counsel, and all parties involved were instructed to return on 18 April at 9:30 a.m. to resume trial. In this case, the trial began on 17 April, when the case was reached on the calendar and the jurors were called into the jury box for examination as to their qualifications. Pratt v. Bishop, 257 N.C. 486, 504, 126 S.E.2d 597, 610 (1962); State v. Montgomery, 33 N.C.App. 693, 236 S.E.2d 390. Therefore, it became...