State v. Tudgay, 5094

• Decision Date: 09 January 1981
• Docket Number: No. 5094,5094
• Citation: 128 Ariz. 1,623 P.2d 360
• Parties: STATE of Arizona, Appellee, v. Richard James TUDGAY, Appellant.
• Court: Arizona Supreme Court

Page 360

623 P.2d 360

128 Ariz. 1

STATE of Arizona, Appellee, v. Richard James TUDGAY, Appellant.

No. 5094.

Supreme Court of Arizona, In Banc.

Jan. 9, 1981.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Gerald R. Grant, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender by Charles R. Krull, Deputy Public Defender, Phoenix, for appellant.

HAYS, Justice.

Appellant Richard James Tudgay appeals his conviction of manslaughter, a class 3 felony. A fatal collision occurred on December 29, 1978, at approximately 8:30 p. m. William Hoffman, his wife Barbara and son Brian, were proceeding in the northbound lane on 67th Avenue between Thomas and Indian School Roads, when the jeep driven by appellant swerved into the northbound lane and collided head-on with the Hoffman car. The impact caused the death of William Hoffman, the driver of the other vehicle. We take jurisdiction pursuant to 17A A.R.S., Rules of the Supreme Court, rule 47(e)(5).

Appellant was deposed on April 4, 1979, regarding the accident, in connection with a civil suit filed by Mrs. Hoffman, the surviving spouse. On July 31, 1979, a complaint was filed charging appellant with manslaughter. Appellant was not present at the empaneling of the jury on the commencement of trial, January 2, 1980. The court denied appellant's counsel's request for a continuance due to the absence of appellant, and ordered a bench warrant issued. Appellant was present at trial the next day pursuant to the warrant but voluntarily waived his presence for the remaining proceedings. The trial court had initially ruled that the civil deposition was to be excluded at the criminal trial, but vacated its order upon the State's request for reconsideration.

The State's evidence presented at trial included appellant's statements read by the court reporter who transcribed the civil deposition; testimony of other drivers on 67th Avenue who had seen the accident and described appellant's swerving for a considerable distance prior to the eventual collision; testimony of witnesses who noticed a strong odor of alcohol on appellant's breath immediately after the accident; and the results of a breath analysis which indicated .08 percent blood alcohol. The defense rested without the presentation of any evidence. Appellant was found guilty of manslaughter by the jury and committed to the Department of Corrections for five years. Two questions were raised on appeal.

I

Appellant urges error in the trial court's empaneling of the jury in appellant's absence. Appellant has the right to be present at jury selection but this right may be waived by the accused if he voluntarily absents himself. Annot., 26 A.L.R.2d 762 at 786 (1952) (Impaneling or selection of jury in accused's absence Waiver by accused). 17 A.R.S., Rules of Criminal Procedure, rule 9.1, provides that the court may infer that the absence is voluntary if the defendant had 1) personal notice of the time of the proceeding, 2) his right to be present at it, and 3) a warning that the proceeding would go forward in his absence should he fail to appear. We find there was sufficient evidence of these three requirements to support the inference of voluntariness and the legality of the court's proceeding in his absence.

Evidence of personal notice is apparent from the following facts. Appellant appeared with counsel on November 2, 1979, and was aware that trial was reset at that time for December 3, as indicated by the minute entry. On December 3 counsel stipulated to continue to January 2, 1980. Counsel for appellant had successfully sent other notices of proceedings to appellant by mailing them to appellant's girlfriend, Miss Wellman's, address. Counsel sent a notice of the continued trial date in the same manner as before and stated in the record that "I feel he (appellant) knew of the trial date because of Miss Wellman's efforts to communicate by letters to her, which is the only means of communication I have ... He apparently did know the trial date from what she indicated to me."

Requirements 2 and 3 were met by the following. Appellant signed and acknowledged his release order on July 22, 1979. This order which is identical to that suggested in the Arizona Rules of Criminal Procedure Form VI contained the following:

WARNING TO THE DEFENDANT:

You have the right to be present at your trial and a number of other proceedings of which you will be notified. If you do not appear at the times set by the court, a warrant will be issued for your arrest and the proceeding will begin without you.

A Form VI was signed by the defendant in State v. Pena, 25 Ariz.App. 80, 541 P.2d 406 (1975). The Court of Appeals, in holding that the requirements of Rule 9.1 were met, stated at 541 P.2d 407-08:

"The defendant signed this form thus showing that he received notice of his right to be present and that the preliminary hearing would go forward without him if he did not appear. Certainly this satisfies the notice requirement of the Rules. See State v. Thornburg, 111 Ariz. 254, 527 P.2d 762 (1974). There is no requirement that a defendant receive notice of his rights after every continuance. Likewise, simply because the defendant was released on his recognizance rather than on the bond described in his release order does not alter the warning that he received."

Even if appellant never actually received notice of the continued trial date, "... it was the appellant's duty under the conditions of his release to maintain contact with the court and/or his attorney as to the trial date and any changes in that date." State v. Rice, 116 Ariz. 182, 186, 568 P.2d 1080, 1084 (App.1977). Appellant's counsel did not persuade the court that his absence was other than voluntary. "Once a defendant's knowledge of the trial date is shown, the defendant has the burden of persuading the court that his absence was not voluntary." State v. Tacon, 107 Ariz. 353, 356, 488 P.2d 973, 976 (1971).

Appellant urges that the record provides an insufficient basis to determine the voluntariness of appellant's absence and that we must remand for an evidentiary hearing so that appellant can rebut the court's finding. "We will not thus defeat the entire purpose of Rule 9.1." State v. Goldsmith, 112 Ariz. 399, 400, 542 P.2d 1098, 1099 (1975). Reinforcement of the determination that appellant was absent by choice was displayed by appellant's conduct. Pursuant to bench warrant, he was present for trial the next day, and thereafter he knowingly waived his right to be present and to testify in the remaining proceedings. Since there was a prima facie showing of voluntary waiver, and no evidence presented by appellant to the contrary, the court did not err in proceeding in absentia.

II

Appellant alleges that the trial court erroneously permitted the introduction into evidence of appellant's statements made at the earlier civil deposition. Appellant was noticed by the surviving spouse's attorney and deposed regarding the fatal car accident which was the subject of the civil suit. The civil case was settled and dismissed and the deposition was never filed as part of the record in that matter. Appellant was purportedly represented by the attorney for the insured's (the owner of the car that appellant was driving) insurance company. At the taking of the deposition, a criminal complaint had not yet been filed. The trial court's earlier order suppressing the deposition was based upon the failure to give Miranda ^* warnings and the failure to inform the appellant that the statement made in the deposition could be used in any subsequent criminal proceeding. The statements read into evidence from the deposition, over defense counsel's objection, tended to corroborate the other testimony as to defendant's use of alcohol. Appellant contends on appeal that the trial court erred in admitting these statements without preliminarily determining the voluntariness of appellant's statements and without the State's laying the proper foundation. We find that the statements were properly admitted.

First, appellant has conceded that the failure to give Miranda warnings does not render the statements involuntary because the deposing of the appellant did not involve custodial police interrogation. Appellant claims, however, that even where a private individual takes a statement from a suspect, the statements must be found to be voluntary. Appellant cites State v. Cabrera, 114 Ariz. 233, 236, 560 P.2d 417, 420 (1977), for this proposition. Appellant has stretched the holding in State v. Cabrera, to its snapping point in suggesting it supports his argument. There, the owners had apprehended the defendant-burglar and his companions, held them at gunpoint and made them lie down until the police arrived. An owner had shot at defendant and had hit defendant with the butt of his gun. That was the background for the defendant's statements made in response to the owner's questions. In that obviously coercive context we held that the statements were involuntary.

To permit the use of a deposition in a later prosecution, we agree that the voluntariness of the testimony given must be determined. A determination of voluntariness is necessary to insure that the deponent has effectively waived his privilege to refuse to testify to incriminating matters. We do not require a showing that the deponent was instructed regarding his rights and consciously waived his rights at the civil deposition. In the Ninth Circuit Court of Appeals decision of London v. Patterson, 9 Cir., 463 F.2d 95, 97 (9th Cir.1972), the court did not require that specific "Miranda-type" instructions be given at the deposition and stated:

"Appellant places great emphasis upon the argument that at the time his deposition was taken in the civil case, there was no reason whatever to apprehend any possibility of incrimination. Therefore, appellant continues, his innocent answering of questions could not have...