State v. Rossignol

• Decision Date: 01 March 1995
• Docket Number: Docket No. P,No. 7158,7158
• Citation: 654 A.2d 1297
• Parties: STATE of Maine v. Terri ROSSIGNOL. DecisionLawen-94-486.
• Court: Maine Supreme Court

Page 1297

654 A.2d 1297

STATE of Maine v. Terri ROSSIGNOL.

Decision No. 7158.

Law Docket No. Pen-94-486.

Supreme Judicial Court of Maine.

Submitted on Briefs Jan. 5, 1995.

Decided March 1, 1995.

R. Christopher Almy, Dist. Atty., Bangor, for state.

Joseph M. Baldacci, Bangor, for defendant.

Before WATHEN, C.J., and GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

WATHEN, Chief Justice.

Defendant Terri Rossignol appeals from a judgment entered in the Superior Court (Penobscot County, Chandler, J.) affirming her conviction, in the District Court (Newport, Russell, J.), for operating a motor vehicle while under the influence of intoxicating liquor. 29 M.R.S.A. § 1312 (Pamph.1994). Defendant contends that the trial court abused its discretion by ordering her to appear at trial, thereby permitting the in-court identification of her by a State's witness. Defendant also asserts that there is insufficient evidence to support her conviction. We affirm the judgment.

At about 2 o'clock in the morning on November 10, 1991, the Piscataquis County Sheriff's Department received a call reporting that a car with its motor and headlights off was parked in the driving lane on Route 15 in Charleston. Police went to the scene and found defendant curled up on the front seat leaning toward the passenger's side. The hood of the car "seemed warm" to one of the officers. The officers removed defendant from the car, placed her in the police cruiser and questioned her. After submitting to blood alcohol testing, defendant was transported to her home.

Prior to the trial, defendant moved to suppress all statements made when she was questioned in the police cruiser. The District Court (Newport, Mills, J.) denied the motion. Defendant entered a conditional guilty plea and appealed the ruling. The Superior Court (Penobscot County, Smith J.) affirmed, but on appeal we vacated the judgment, holding that all the statements made to the police officer were inadmissible. State v. Rossignol, 627 A.2d 524 (Me.1993).

On remand, defendant withdrew her conditional guilty plea. She did not appear at the trial and her attorney informed the court that he was authorized to proceed in her absence. In response to the court's inquiry about the reason for her absence, defense counsel replied that defendant "does not have to be here, your Honor, according to Rule 43.... Defendant is working, and it's not necessary that she be here for this trial, your Honor. She's not going to be a witness." The State made no objection, and the trial proceeded. After the State's first witness had testified, the court determined that defendant's identification was at issue. The court referred to the M.R.Crim.P. 43 ¹ and concluded that it did not entitle defendant to be voluntarily absent without the court's permission. The court then denied such permission; defendant appeared and was identified by a State witness. After being found guilty, defendant appealed her conviction. The Superior Court affirmed, and defendant now appeals to this Court.

Defendant asserts that she complied fully with the requirements of M.R.Crim.P. 43, which she interprets to permit a defendant to be absent from trial for a minor offense. She argues that the court abused its discretion by requiring her presence, thereby aiding the State in proving her identity. Defendant further asserts that the court impliedly permitted her absence by allowing the trial to proceed, and that the subsequent revocation of permission represents an abuse of discretion. We disagree.

When the Superior Court acts as an intermediate appellate court, we review the decision of the trial court directly. Noyes v. Noyes, 617 A.2d 1036, 1037 (Me.1992). The decision to permit a trial in the absence of the defendant is within the discretion of the court and is reviewed only for an abuse of that discretion. State v. Lapointe, 357 A.2d 882, 887 (Me.1976). Rule 43 authorizes the court to permit the trial of a represented defendant in the defendant's absence when the prosecution is for an offense punishable by fine or imprisonment for less than one year. We have stated that "Rule 43, while acknowledging the right of a defendant to be present at all stages of the trial, also imposes upon a human defendant a legal obligation to be thus present." State v. Lapointe, 357 A.2d 882, 887 (Me.1976). Although a defendant has the power to waive the right to be present throughout the trial, "such a prerogative of waiver does not establish in a human defendant a right to be absent at any stage of the trial." Id. It is for the trial court to decide whether defendant having waived her right, should be relieved of her duty to be present. Id.

In Lapointe, defendant requested permission to be absent from the courtroom while the State's witnesses were testifying, thus attempting to deprive the State of the opportunity to have a witness make an in-court identification. The trial court refused permission and, on appeal, we found no abuse of discretion. We held that it was reasonable for the "[c]ourt to require defendant to be available in the courtroom as a means of affording the State fair opportunity to present all of the evidence known...