State v. Sanchez
| Decision Date | 27 April 1977 |
| Docket Number | CA-CR,No. 2,2 |
| Citation | 568 P.2d 425,116 Ariz. 118 |
| Parties | The STATE of Arizona, Appellee, v. Eddie Jackson SANCHEZ, Appellant. 1017. |
| Court | Arizona Court of Appeals |
Platt & Jenson, P. C. by Boyd T. Johnson, Coolidge, for appellant.
Appellant was tried in absentia and found guilty by a jury of unlawful sale of marijuana, for which he was sentenced to a state prison term of five to seven years. On appeal he attacks the trial court's decision to proceed in his absence, its denial of his motion for mistrial based on testimony of an unrelated marijuana transaction, and the admission of identification testimony.
The first ground is without merit. Appellant was released on his own recognizance on condition that he communicate with his attorney at least once a week. At the time of his release the scheduled trial date was May 18, 1976. On May 17 the court granted a motion for continuance filed a week earlier by appellant's attorney, although at that time there had been no communication with his client for approximately one month. On June 17, the new trial date, the attorney still had not heard from his client. The trial court determined that appellant's absence was voluntary and ordered that the case proceed to trial without him.
Appellant argues that although he was informed specifically at the release hearing that he would be tried in absentia if he willfully failed to appear on May 18, a finding of voluntary absence on June 17 was precluded by Rule 9.1, Rules of Criminal Procedure, because he never received personal notice of the continued trial date. The rule in question specifies such notice "of the time of the proceeding, . . . (defendant's) right to be present at it, and a warning that the proceeding would go forward in his absence should he fail to appear" as sufficient to permit an inference that an absence is voluntary. Where a defendant apparently has made no effort to ascertain the continued date of the proceeding, however, either he has waived personal notice, if in fact such notice is required where the time of the proceeding has been deferred pursuant to motion on his behalf, or voluntariness may be inferred from his failure to communicate with the court or his attorney.
Further, any question of the accuracy of the inference or appellant's right to challenge it in the present case was dispelled at post-trial hearings. After he had been taken into custody, appellant informed the court at one such hearing that he was "home" on May 18, the originally scheduled " time of the proceeding" of which he had personal notice, and thereafter, prior to sentencing, he and his attorney were asked specifically if either had anything to say regarding the fact that he was tried in absentia, which produced the following response:
Having declined the offered opportunity to present any evidence available to dispel the inference that his absence on June 17 was voluntary, appellant should not be heard on appeal to challenge the trial court's finding in that regard.
Appellant's motion for mistrial was based upon testimony of a Department of Public Safety undercover narcotics agent, while the state was attempting to establish his ability to identify appellant.
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