State v. Staples

• Decision Date: 31 March 1976
• Citation: 354 A.2d 771
• Parties: STATE of Maine v. Gary C. STAPLES. STATE of Maine v. Barry A. BRANN.
• Court: Maine Supreme Court

Page 771

354 A.2d 771

STATE of Maine v. Gary C. STAPLES.

STATE of Maine v. Barry A. BRANN.

Supreme Judicial Court of Maine.

March 31, 1976.

Thomas E. Delahanty, II, Dist. Atty., John Wilson, Law Student Intern, Farmington, for plaintiff.

Holmans' Law Offices, by Ronald J. Cullenberg, Farmington, for defendants.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

WEATHERBEE, Justice.

Co-defendants Gary Staples and Barry Brann were separately indicted for breaking, entering and larceny in the nighttime (17 M.R.S.A. § 2103) and tried before a jury in the Superior Court of Franklin County on December 16 and 17, 1974. At the start of the trial and without objection from counsel, the Court consolidated the cases of the two defendants for trial. Of the four witnesses presented by the State, the most damaging doubtless was a 19-year-old inmate of the Men's Correctional Center, Robert Dustin. Dustin claimed to have been a co-conspirator with the defendants and his testimony, if believed, would have left little doubt that the defendants had committed the crime as charged. He further stated that he had pled guilty to a charge of breaking, entering and larceny in the daytime, based upon this same criminal act, and was then serving an indefinited sentence at South Windham for this offense.

Prior to the cross-examination of this witness by defendants' counsel, the Court recessed. At some point during the recess, the Court was informed that Staples was no longer in the courthouse. The Court was also notified that Brann wished to withdraw his plea of not guilty and plead guilty to the indictment pending against him. Out of the presence of the jury, the Court then interrogated Brann pursuant to M.R.Crim.P., Rule 11 as to the circumstances surrounding his change of plea. Satisfied that the defendant fully understood the nature of the crime to which he pled and that his change of plea was voluntarily made, the Court accepted the defendant's plea and sentenced him to 3 1/2 to 10 years in the Maine State Prison. The record does not show that either the Court or the defendant's counsel attempted to determine whether Staples' absence was a factor in the defendant's decision to change his plea.

After notification by counsel that Staples was no longer in the courthouse, the Court extnded the recess while a search for that defendant was undertaken. When it became clear that Staples could not be located, the Court decided to continue the trial against him in his absence and ordered a warrant to issue for his arrest. The presiding Justice concluded that Staples' absence was voluntary and advised the jury that the case of Barry Brann was no longer before it. Defense counsel objected to the continuation of the trial in the defendant Staples' absence but was overruled. Defense counsel, although doubtless dismayed by the surprising turn in events, continued a strenuous defense of Staples. He cross-examined Robert Dustin at length and then made his final argument to the jury in the absence of the defendant. The jury reached a verdict of guilty and Staples was, after his eventual apprehension, sentenced to 5 to 15 years in Maine State Prison. Both defendants appeal, urging a number of errors in the trial below. We deny the appeal of defendant Staples and dismiss the appeal of defendant Brann.

The Constitutionality of Maine Rules of Criminal Procedure, Rule 43

Staples claims that the continuation of the trial in his absence denied him due process and his right to confront witnesses against him as guaranteed under the sixth amendment of the United States Constitution and art. 1, § 6 of the Maine Constitution. This defendant first argues that the right of an accused to be present during trial is so essential to the requirement of a fair trial that no defendant accused of a felony should be permitted to waive that right. We do not agree.

M.R.Crim.P., Rule 43 ¹ required the defendant's presence at trial on felony charges but, in any trial where the potential penalty is not a life sentence, allowed the trial to continue when the defendant has voluntarily absented himself if he was present at the start of the trial. In this regard, our Rule 43 is similar to Fed.R.Crim.P., Rule 43 which allows the defendant to waive his right to be present where the offense for which he is being tried is non-capital. The United States Supreme Court has examined Fed.R.Crim.P., Rule 43 and concluded that the criminal defendant's voluntary absence from trial does not deprive him of his constitutional rights. Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973).

The rule was not always so. At one time the presence of a criminal defendant accused of a felony was an absolute precondition for the continuation of the trial against him. Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). Yet, as evidenced by the Maine and Federal Rules of Criminal Procedure, Rule 43, the categorical prerequisite of the defendant's presence during a trial against him has eroded. The apparent genesis of the modern rule is Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 254, 56 L.Ed. 500, (1912) in which the Court stated:

'. . . (W)here the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present, and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.'

The policy underlying this rule permitting the presiding Justice, in his discretion, to continue a trial when a defendant voluntarily absents himself is obviously sound. If a mistrial were to be declared whenever the defendant voluntarily absented himself from trial, the defendant could, after evaluating the course of the proceedings against him, simply leave the courtroom whenever he anticipated an adverse verdict. His voluntary absence would then entitle him to a fresh trial and a sencond chance at acquittal. The defendant's right to his day in court does not permit him unilaterally to select whatever date his pleasure dictates. M.R.Crim.P., Rule 43 is not constitutionally infirm.

Conduct of the Proceedings in Staples' Absence

When the presiding Justice was notified that the defendant had left the courthouse, he extended the recess another hour while the defendant's counsel attempted to locate the defendant. Then, after inquiring of the defendant's counsel as to the circumstances of the defendant's leaving the courthouse, the presiding Justice found that the defendant's absence was voluntary and, over counsel's objections, ordered that that trial continue.

The defendant now urges us that due process entitled the defendant to notice and hearing on the issue of the voluntariness of his departure. There can be no doubt that 'the governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward.' Illinois v. Allen, 397 U.S. 337, 349, 90 S.Ct. 1057, 1063, 25 L.Ed.2d 353, 362 (1970). Although only a voluntary absence can justify the trial continuing in a defendant's absence, it is obvious that if a departed defendant has to be found and notified of an opportunity to be heard on the voluntariness of his absence before the trial can continue, an escaping defendant could force the court to declare a mistrial or keep the jury waiting until the defendant could be found and returned.

It would seem clear that the public interest in the orderly determination of criminal charges would be frustrated by long suspension of trials while authorities attempted to find and return defendants to the courtrooms. Equally unacceptable would be the maintenance of custody over all defendants for the duration of trials in order to prevent such absences. We are certain that due process-judicial fair play-is observed in such a situation when a Justice (1) makes sufficient inquiry into the circumstances of a defendant's disappearance to justify a finding whether the absence was voluntary, (2) makes a preliminary finding of voluntariness (when justified), and (3) affords the defendant an adequate opportunity to explain his absence when he is returned to custody and before sentence is imposed. (Of course, if the Justice was then satisfied that the defendant's absence was not voluntary, he would order a new trial.)

We are satisfied that each of these requirements was met here.

The Standard by Which the Constitutionality of the Waiver is to be Measured

While Rule 43 speaks of a defendant's voluntary absence we must bear in mind that we are concerned with a waiver of the right of confrontation guaranteed by the sixth amendment of the Constitution of the United States and by article I, § 6 of our own Constitution. Such a waiver must be 'an intentional relinquishment or abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938). Recently, the Court reaffirmed the necessity of an application of this standard to a defendant's decision to forego those rights constitutionally guaranteed to assure a fair criminal trial and to protect the 'reliability of the truth-determining process.' Schneckloth v. Bustamonte, 412 U.S. 218, 236, 93 S.Ct. 2041, 2052, 36 L.Ed.2d 854, 868 (1973). We have no doubt that a defendant's opportunity to confront his accusers and assist his counsel concerning evidentiary facts bears heavily upon the reliability of the truth determining process. State v. Pullen, Me., 266 A.2d 222 (1970). The defendant's waiver of presence at trial must then be not only a voluntary but also a knowing waiver.

The defendant now argues that to meet this standard, a presiding Justice must be able to find that a departing defendant...