State v. Rucker

Decision Date13 September 2013
Docket NumberNo. 106,803.,106,803.
Citation49 Kan.App. 414,310 P.3d 422
PartiesSTATE of Kansas, Appellee, v. Matthew M. RUCKER, Appellant.
CourtKansas Court of Appeals

OPINION TEXT STARTS HERE

Syllabus by the Court

1. The defendant in a criminal case has a constitutional right to be present at trial. Any waiver of this right must be done in a knowing, intelligent, and voluntary manner, and a waiver will not be presumed in the absence of an adequate record.

2. Ordinarily, for the defendant to waive the right to be present at trial, the trial judge should explain that right to the defendant, determine whether the defendant understands the right, and then determine whether the defendant is voluntarily waiving the right.

3. In this case, the defendant sent a note to court on the morning of trial stating that he was too weak to come to court. The trial judge had the defense attorney send a letter to the defendant advising him of his right to be present at trial. The trial judge then heard evidence that the defendant appeared to have read the letter and thrown it on the floor. On these facts, the record does not show that the defendant was appropriately advised of his right to be present at trial, that the defendant understood his right, or that the defendant voluntarily waived his right. It was therefore improper for the district court to proceed to hold a jury trial on the charges against the defendant.

Meryl Carver–Allmond, of Kansas Capital Appellate Defender Office, for appellant.

Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.

LEBEN, J.

Matthew Rucker was convicted in a jury trial of theft and eluding a police officer. But even though he was in state custody, he wasn't in attendance at the trial, and he has appealed on the basis that his constitutional and statutory right to be present at his own trial was violated.

Rucker sent a note to the court on the morning of his trial, claiming that he had been on a hunger strike for several days and was too weak to come to court. He also said he had complaints about his defense counsel, and he asked the court to appoint new counsel to represent him.

The district judge expressed skepticism, noting that Rucker had had two other jury trials in his court in the past few weeks and that he had appeared healthy. The judge speculated that Rucker was trying to delay the trial. The court heard testimony from jail personnel that, at breakfast that day, Rucker had taken an orange and some milk before returning the remainder of his food tray uneaten, and that Rucker had appeared to be healthy.

The court then directed that Rucker's defense attorney deliver a note to Rucker, advising him that the judge was requiring Rucker's presence at trial, didn't believe he was too weak to come to court, and considered Rucker's note a ploy to delay the trial—but would not force Rucker to appear. Rucker's counsel prepared such a note, and jail personnel delivered it. Those personnel reported that Rucker took the note, appeared to read it, and then threw it down.

The district court then conducted the jury trial in Rucker's absence. The court told the jury that Rucker had a constitutional right to appear at the trial but that he had voluntarily decided not to appear. The court instructed the jury not to use Rucker's absence against him in deciding the case. The jury convicted Rucker on both charges.

Rucker has appealed, contending that his right to be present at his trial under both constitutional and statutory provisions was violated. A criminal defendant has a right to be present at trial under the Sixth Amendment to the United States Constitution, under Section 10 of the Kansas Constitution Bill of Rights, and under K.S.A. 22–3405.

The parties have focused their appellate briefs primarily on the language of K.S.A. 22–3405, which provides that “the defendant's voluntary absence after the trial has been commenced in such person's presence shall not prevent continuing the trial....” (Emphasis added.)The State argues that Rucker was voluntarily absent. Rucker argues that his absence occurred before the trial had been commenced in his presence, so his voluntary absence did not qualify under the statute to allow the trial to continue. But Rucker concedes that the Kansas Supreme Court, applying K.S.A. 22–3405 in State v. Salton, 238 Kan. 835, 837–38, 715 P.2d 412 (1986), held that a defendant's absence at the commencement of a trial could constitute a voluntary absence that would waive the defendant's right to be present and would allow the trial to proceed in his or her absence.

There are two critical differences, however, between the procedures leading up to Salton's waiver of his right to be present at trial and the claim here that Rucker did so. In Salton, [t]he judge advised the [defendant] of his continuing right to be present at the trial.” 238 Kan. at 414, 710 P.2d 1312. In Rucker's case, the district court had Rucker's attorney pass along this information—and we have an insufficient record upon which to conclude that Rucker understood his rights before he waived them. These differences are important ones.

The right to be present at one's own criminal trial is “scarcely less important to the accused than the right of trial itself.” Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500 (1912). Like other constitutional rights of the criminal defendant, given its importance, the right to be present at one's own trial can only be waived if the record demonstrates that the waiver was knowing and voluntary. See Schriro v. Landrigan, 550 U.S. 465, 484, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (“It is well established that a citizen's waiver of a constitutional right must be knowing, intelligent, and voluntary.”); Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (holding that waiver of constitutional rights may not be presumed where record does not show waiver); United States v. Berger, 473 F.3d 1080, 1095 (9th Cir.2007) (applying knowing, intelligent, and voluntary waiver requirement to right to be present at trial); United States v. Nichols, 56 F.3d 403, 413 (2d Cir.1995) (same).

But what does this mean the judge must actually do? With similar constitutional rights at stake, Kansas courts have required that the judge make sure that the right at issue has been clearly explained to the defendant and that the defendant, with sufficient understanding of the right, has voluntarily waived it. E.g., State v. Frye, 294 Kan. 364, Syl. ¶ 3, 277 P.3d 1091 (2012) (right to jury trial); State v. Youngblood, 288 Kan. 659, 664–65, 206 P.3d 518 (2009) (right to counsel). We have also emphasized in cases involving the jury-trial right that it is generally the trial judge's obligation to explain the right to the defendant. E.g., State v. Bowers, 42 Kan.App.2d 739, 741, 216 P.3d 715 (2009) (citing State v. Irving, 216 Kan. 588, 590, 533 P.2d 1225 [1975] );State v. Larraco, 32 Kan.App.2d 996, Syl. ¶ 1, 93 P.3d 725 (2004).

Ordinarily, then, the trial judge should do two things before the defendant can properly waive such a right. First, the judge should clearly explain the right to the defendant. Second, the judge should determine whether the defendant understands the right and is voluntarily waiving it. Neither step was sufficiently accomplished here.

First, the district judge didn't personally and directly explain to the defendant his right to be present for his trial. Instead, the judge assigned that task to the defendant's attorney. There may perhaps be cases in which that would suffice—such as one in which a defendant has previously injured deputies transporting him to the courtroom and the judge concludes that it isn't safe to attempt to bring the defendant to court to explain his rights to him. See Jones v. Murphy, 694 F.3d 225, 240–42 (2d Cir.2012) (finding that defendant's violent and disruptive actions, including injuring a deputy who tried to restrain him in court, prevented returning him to court during trial); State v. Hartfield, 9 Kan.App.2d 156, 162, 676 P.2d 141 (1984) (noting trial judge's options when defendant is disruptive during trial) (citing Illinois v. Allen, 397 U.S. 337, 343–44, 90 S.Ct. 1057, 25 L.Ed.2d 353 [1970] ). But there is nothing in our record to suggest that deputies would have had any difficulty bringing Rucker to the courtroom to have a discussion with the judge about Rucker's right to be present. The judge should ordinarily take the responsibility for explaining to the defendant his constitutional rights, and the judge here should have done so.

Second, the record here does not show that the defendant knowingly and voluntarily waived his rights. We know that a jailer said the defendant took the letter written by his attorney, seemed to read it, and then threw it down. But when important constitutional rights are at stake, we cannot assume from this evidence either that Rucker understood the rights explained to him in the letter or that, by throwing the paper to the ground, he was voluntarily giving up any specific rights. Thus, the defendant...

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  • Majors v. Hillebrand
    • United States
    • Kansas Court of Appeals
    • June 12, 2015
    ...departing from its previous position. See Johnson v. Westhoff Sand Co., 281 Kan. 930, 952, 135 P.3d 1127 (2006) ; State v. Rucker, 49 Kan.App.2d 414, 419, 310 P.3d 422 (2013) (“overruling a Kansas Supreme Court case is something that we obviously cannot do”); State v. Ottinger, 46 Kan.App.2......
  • State v. Brown
    • United States
    • Kansas Court of Appeals
    • September 4, 2015
    ...242–44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ; State v. Valladarez, 288 Kan. 671, 681–82, 206 P.3d 879 (2009) ; State v. Rucker, 49 Kan.App.2d 414, 416–17, 310 P.3d 422 (2013). But those same advisories are not constitutionally required in probation-revocation proceedings. See United States......

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