State v. Tiller, 15186

• Decision Date: 15 December 1981
• Docket Number: No. 15186,15186
• Parties: STATE of West Virginia v. James Winston TILLER.
• Court: West Virginia Supreme Court

Page 371

285 S.E.2d 371

168 W.Va. 522

STATE of West Virginia v. James Winston TILLER.

No. 15186.

Supreme Court of Appeals of West Virginia.

Dec. 15, 1981.

Syllabus by the Court

1. "Correlative with the constitutional right of confrontation is the right of presence which requires that an accused charged with a felony shall be present in person at every critical stage of a criminal trial where anything may be done which affects the accused; the right of presence, originating in the common law, is secured to an accused by W.Va.Code 1931, 62-3-2." Syllabus Point 2, State ex rel. Grob v. Blair, W.Va., 214 S.E.2d 330 (1975).

2. A critical stage of a criminal proceeding is where the defendant's right to a fair trial will be affected.

3. Where a defendant in a noncapital case is free on bail and is initially present at trial, and thereafter voluntarily absents himself after the trial has commenced, and where he has been informed of his obligation to remain during all stages of the trial, then such voluntary absence will be deemed a waiver of his right to be present.

H. Truman Chafin, Williamson, for appellant.

Chancey H. Browning Jr., Atty. Gen. and Laurie J. Garrigan, Asst. Atty. Gen., Charleston, for appellee.

MILLER, Justice:

James Winston Tiller appeals from an order of the Circuit Court of Mingo County entered on July 30, 1980, sentencing him to confinement in the State Penitentiary for a period of not less than five or more than eighteen years. This order followed a jury verdict of guilty of murder in the second degree.

Defendant's sole allegation is that the trial court committed reversible error when it denied his motion for a new trial based on his absence during various stages of his trial. Among others, these absences include a pretrial hearing, certain conferences at the bench, and a conference in chambers during which instructions were discussed. For reasons more fully elaborated, we decline to reverse.

We have recognized that both by statute, W.Va.Code, 62-3-2, ¹ and under the Sixth Amendment to the United States Constitution, and Article III, Section 14 of the West Virginia Constitution, ² the defendant has a fundamental right to be present during the trial of a criminal case. State v. Boyd, W.Va., 233 S.E.2d 710 (1977); State ex rel. Grob v. Blair, W.Va., 214 S.E.2d 330 (1975). A number of our earlier cases are collected in State v. Vance, 146 W.Va. 925, 124 S.E.2d 252, 259 (1962).

In Grob, we addressed for the first time the correlation between the statutory right of presence and our constitutional right of confrontation and found the two equivalent, stating in Syllabus Point 2:

"Correlative with the constitutional right of confrontation is the right of presence which requires that an accused charged with a felony shall be present in person at every critical stage of a criminal trial where anything may be done which affects the accused; the right of presence, originating in the common law, is secured to an accused by W.Va.Code 1931, 62-3-2."

Grob was also the first "presence" case in which this Court recognized that the right of presence was subject to the doctrine of harmless constitutional error. In Syllabus Point 7, we overruled some of our prior cases which had held the right to be absolute. ³ In State v. Boyd, supra, we followed the principle set forth in Grob and concluded that the right of presence extended to any critical stage of the criminal proceeding. "Critical stage" was defined as a proceeding "where the defendant's right to a fair trial will be affected." 233 S.E.2d at 719. ⁴

In Fields v. Whyte, W.Va., 242 S.E.2d 463 (1978), we concluded that the State could by appropriate post-trial proof rebut an allegation made by a defendant that he was absent during a critical stage of the criminal proceeding. This conclusion followed from a realization that a trial transcript will not always show the defendant's exact whereabouts at bench conferences or hearings in chambers and that the State ought to be able to establish this fact independent of a silent record. ⁵

Our law in regard to presence has developed to some extent without a determination of how other courts have handled this problem. The United States Supreme Court initially adopted the rigid position, relying on English common law, that the right of presence could never be waived. Consequently, if the defendant was absent, the proceedings were nullified. ⁶ Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884). Subsequently, in Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912), the Supreme Court concluded there could be a waiver of the right of presence so long as the defendant was not charged with a capital offense or in custody.

Finally, in Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), in a unanimous per curiam opinion, the Supreme Court held that a defendant in a noncapital felony trial, who was not in custody, and who initially appeared at the trial but then voluntarily absented himself for the remainder of the trial, could not successfully claim that his right to be present had been violated. It was argued in Taylor that without an express warning to the defendant concerning his right to be present his voluntary absences could not constitute a waiver of his right to be present, because under Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), a waiver of a constitutional right could not be implied. Johnson required the knowing and intentional relinquishment of a constitutional right. The Supreme Court rejected this argument. ⁷ Other courts have followed the Taylor view, holding that where the case is noncapital and the defendant is at liberty on bail, his voluntary absence after an initial appearance will constitute a waiver of his right to be present. E.g., United States v. Martinez, 604 F.2d 361 (5th Cir. 1979), cert. denied, 444 U.S. 1034, 100 S.Ct. 708, 62 L.Ed.2d 671 (1980); United States v. Marotta, 518 F.2d 681 (9th Cir. 1975); Davis v. Campbell, 465 F.Supp. 1309 (E.D.Ark.1979), modified, 608 F.2d 317; State v. Cook, 115 Ariz. 146, 564 P.2d 97 (1977); People v. White, 18 Cal.App.3d 44, 95 Cal.Rptr. 576 (1971); Byrd v. Ricketts, 233 Ga. 779, 213 S.E.2d 610 (1975),cert. denied, 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675; People v. Pace, 34 Ill.App.3d 440, 339 N.E.2d 785 (1975); People v. Stubbs, 25 Ill.App.3d 181, 323 N.E.2d 26 (1974); People v. Steenbergen, 31 Ill.2d 615, 203 N.E.2d 404 (1965), cert. denied, 382 U.S. 853, 86 S.Ct. 104, 15 L.Ed.2d 92; State v. Kelley, 213 Kan. 237, 515 P.2d 1030 (1973); Bell v. State, 48 Md.App. 669, 429 A.2d 300 (1981); Commonwealth v. Flemmi, 360 Mass. 693, 277 N.E.2d 523 (1971); Commonwealth v. Diehl, 378 Pa. 214, 107 A.2d 543 (1954); Zambrano v. State, 478 S.W.2d 500 (Tex.Crim.App.1972); cf. United States v. Ford, 632 F.2d 1354 (9th Cir. 1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1399, 67 L.Ed.2d 369 (1981); Annot., 23 A.L.R.2d 456 (1952). ⁸

The reason for this rule is rather obvious. A defendant who is free on bail is not hampered in his ability to attend the trial, whereas the defendant in custody must depend on his custodians to make him physically present. Moreover, there is the recognition that a person, free on bail, by his voluntary absences could largely control the setting of trial proceedings.

Admittedly, most of the foregoing cases involve a defendant, free on bail, who after his initial trial appearance voluntarily leaves the trial and does not return. Our situation is somewhat different in that Tiller generally appeared at his trial but apparently absented himself for short periods during it. There are, however, cases where the courts have applied the voluntary absence rule to various in chamber or bench conference hearings where the defendant was not present and there was no indication that there had been any attempt to exclude him. E.g., Davis v. Campbell, 465 F.Supp. 1309 (E.D.Ark.1979); People v. Stubbs, 25 Ill.App.3d 181, 323 N.E.2d 26 (1974); Commonwealth v. Diehl, 378 Pa. 214, 107 A.2d 543 (1954).

The record here shows that on Friday, March 28, 1980, defendant, who was free on bail, appeared in court along with his counsel for purposes of selecting a jury. Apparently, the court noted before trial that there were several outstanding motions. These proceedings were held in chambers and the motions were argued. The court took the motions under advisement and decided to postpone the trial until Monday, March 31, 1980. ⁹ Defendant was present at these proceedings. The parties then adjourned to the courtroom where the jury was advised that the trial was reset for the following Monday and the witnesses were put under bond to return on that day. The court then stated: "That will conclude these proceedings for now." After this, defendant apparently left the courtroom along with the witnesses and jurors.

Tiller's attorney then asked the court to take up a matter in chambers. The record of the meeting in chambers indicates that the defendant was absent from this conference. When in chambers, defense counsel expressed his desire to interrogate two troopers concerning "some physical evidence (they) might or might not have." It appears that this evidence was related to some drug paraphernalia which the defense attorney acknowledged: "The State say[s] [it] is not going to introduce it, but we would like to know." The officers were then subjected to a brief interrogation concerning drug paraphernalia which they had found in a motel room, the ownership of which paraphernalia was unknown.

First, there is no contention made that this hearing involved a matter "where the defendant's right to a fair trial will be affected," which is the basic standard set in State v. Boyd, 233 S.E.2d at 719. The evidence of the drug paraphernalia was not offered by the prosecution but brought into the case by the defense attorney apparently as an attempt to link the victim with the use of...