State v. Walker

• Citation: 95 P.3d 555,208 Ariz. 491
• Decision Date: 12 August 2004
• Docket Number: No. 1 CA-CR 02-0982.,1 CA-CR 02-0982.
• Parties: STATE of Arizona, Appellee, v. Ronald Ray WALKER, Appellant.
• Court: Court of Appeals of Arizona

95 P.3d 555

208 Ariz. 491

STATE of Arizona, Appellee, v. Ronald Ray WALKER, Appellant.

No. -0982.

Court of Appeals of Arizona, Division 1, Department B.

August 12, 2004.

Terry Goddard, Arizona Attorney General by Randall M. Howe, Chief Counsel and John L. Saccoman, Assistant Attorney General Criminal Appeals Section, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender by Peg Green, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

LANKFORD, Judge.

¶ 1 Defendant Ronald Walker appeals his convictions for possession or use of dangerous drugs and possession of drug paraphernalia. The issue presented on appeal is whether the superior court abused its discretion by finding that Defendant voluntarily absented himself from part of his trial and thereby waived his right to be present.

¶ 2 This case is unlike many reported cases of voluntary absences from trial proceedings. Defendant Walker did not abscond. He was absent from part, not all, of the trial proceedings. The portion he missed was the beginning of the trial, and not its conclusion as is more common. He was available after his absence to explain to the superior court the reasons for his absence.

¶ 3 More typical of such cases, however, the record shows that Defendant was warned that he could be tried in absentia. The record also supports the inference that Defendant understood that trial could be reset on short notice.¹ It is equally clear that he was to remain in contact with his counsel regarding the trial setting, that he promised to do so, and that not only did he fail to do so, he made himself unavailable for contact from his counsel or the court.

¶ 4 The details of the proceedings are important to understand the nature of Defendant's absence. At a status conference on June 27, 2002, the superior court set the trial for August 27. The court warned Defendant in writing:

A defendant's failure to appear may result in a bench warrant being issued for his or her arrest ... and trial being conducted in the defendant's absence.

Defense counsel then requested a five-day continuance because counsel had been unable to meet with Defendant. The trial was briefly continued and reset for September 3. In the interim, at a trial management conference on August 30, the superior court confirmed the September 3 trial date. Defendant attended the trial management conference, and acknowledged that he was to appear for trial on September 3.

¶ 5 The trial apparently could not commence on September 3 due to a jury problem. The record is also unclear as to whether Defendant appeared for trial on September 3. To facilitate a speedy trial for Defendant, his case was placed in case transfer, reassigned to a new judge, and reset for trial on September 4 at 9 a.m. Defendant's attorney learned of the new trial setting at about 2 p.m. on September 3. She was in contact with Defendant shortly before she learned of the new trial date.

¶ 6 Defense counsel then tried to contact Defendant but was unsuccessful. Both counsel and the court had instructed him to stay in contact regarding the trial date, but he had not done so.² Defense counsel later attempted to contact Defendant via the cellular phone of Defendant's roommate, but was unsuccessful.³

¶ 7 A defense investigator went to Defendant's home at noon, but Defendant was not present. The investigator left his card and his phone number for Defendant to call regarding the trial date. Defendant did not telephone. Defendant later admitted that, instead of remaining at home where he would be available to be contacted, he had departed for the library.

¶ 8 The superior court continued the proceedings until 1:30 p.m., but denied counsel's request to issue a bench warrant and have Defendant's case reset for trial at another time. When Defendant had not appeared by 1:30 p.m., the trial began without him. The court gave the following jury instruction before the trial began:

The defendant has the right not to be present at trial. The defendant has exercised that right. You must not conclude that the defendant is likely to be guilty because the defendant is not present at trial.

Both jury selection and the State's case proceeded in Defendant's absence.

¶ 9 Finally, at about 4 p.m., Defendant telephoned his attorney. His counsel informed him that his trial had begun in his absence. Defendant claimed to have not found the investigator's card until just before he had telephoned. The court adjourned early to allow Defendant to appear and testify the following day.

¶ 10 Defendant attended the beginning of the second day of trial on September 5. Counsel moved for a mistrial based on the asserted violation of Defendant's right to be present at his trial. Defendant did not request an evidentiary hearing. The court offered to permit Defendant and his companion to testify on the circumstances of his absence. They did testify at trial, but their testimony did not include this subject.

¶ 11 Defense counsel informed the court of Defendant's proffered excuses for his absence. Counsel related that Defendant had claimed he lacked money to use a pay telephone. Counsel also stated that he had not been at home waiting for counsel to contact him because he went to the library to research his case. The court denied Defendant's motion for a mistrial, finding that he had voluntarily absented himself from trial.

¶ 12 The record thus indicates that Defendant made no efforts to contact his attorney or otherwise ascertain his trial date between the continuance from the scheduled September 3 start and 4 p.m. on September 4. Indeed, Defendant not only initiated no contacts, he made himself unavailable to repeated attempts by the court or counsel to notify him of a new trial setting. Defendant had actual notice of previous trial settings, had forced a continuance because he and his attorney had been unable to meet, knew his case was in case transfer and would be reset shortly, understood that he was required to maintain contact to update the situation, and knew that he could be tried in absentia if he failed to appear.

¶ 13 Defendant ultimately testified in his own defense on September 5 and was present during the defense case in chief and the remainder of the trial. The jury found Defendant guilty of all charges. He timely appealed and this Court has jurisdiction pursuant to the Arizona Constitution Article 6, Section 9 and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2001) and 13-4033(A)(2001).

¶ 14 The issue here is not whether a defendant has a constitutional right to be present at critical stages of his trial, such as the jury selection and presentation of the State's evidence involved here: That right is beyond doubt. See State v. Levato, 186 Ariz. 441, 443, 924 P.2d 445, 447 (1996); see also Ariz. R.Crim. P. 19.2 (defendant's right to be present at every stage of trial).

¶ 15 The question presented is instead whether this Defendant's right to be present was on the one hand violated, or on the other was waived by his voluntary absence from the proceedings. A defendant may waive his right to be present at any proceeding by voluntarily absenting himself from it. Ariz. R. Crim P. 9.1; see Taylor v. United States, 414 U.S. 17, 20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973) (defendant waived right by failure to return to court after attending part of first day of trial). Whether Defendant's absence was voluntary is a question of fact that we review deferentially. State v. Bishop, 139 Ariz. 567, 569, 679 P.2d 1054, 1056 (1984) (abuse of discretion standard); State v. Holm, 195 Ariz. 42, 43, ¶ 2, 985 P.2d 527, 528 (App.1998), disapproved in part on other grounds, State v. Estrada, 201 Ariz. 247, 34 P.3d 356 (2001) (citing and following Bishop).

¶ 16 A defendant's absence may be found voluntary in two distinct ways. First, "[t]he court may infer that an absence is voluntary if the defendant had personal notice of the time of the proceeding, the right to be present at it and a warning that the proceeding would go forward in his or her absence...." Ariz. R.Crim. P. 9.1. This inference does not apply to Defendant Walker: He lacked personal notice of the precise time that the trial began.

¶ 17 Voluntary absence may also be inferred, however, from other conduct by a defendant.⁴ See State ex rel. Romley v. Superior Court (Ochoa), 183 Ariz. 139, 143, 901 P.2d 1169, 1173 (App.1995) (absence of any of factors listed in Rule 9.1 does not prevent inference of voluntary absence); Cook, 115 Ariz. at 149, 564 P.2d at 100 (Rule 9.1 inference is only one set of facts that supports inference of voluntariness). A defendant who absconds, for example, voluntarily absents himself even if he was unaware of his trial date at the time of his disappearance. Ochoa, 183 Ariz. at 143, 901 P.2d at 1173. Thus, a defendant's knowledge of the trial date is not the sine qua non of voluntary absence. See Muniz-Caudillo, 185 Ariz. 261, 914 P.2d 1353 (trial judge did not abuse its discretion even though defendant did not have actual notice of trial date); see also Ochoa, 183 Ariz. 139, 901 P.2d 1169 (no abuse of discretion even though defendant did not have personal notice of his trial date). "Even if [Defendant] never actually received notice of the continued trial date, '... it was [his] 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.'" Tudgay, 128 Ariz. at 3, 623 P.2d at 362 (quoting Rice, 116 Ariz. at 186, 568 P.2d at 1084).

¶ 18 We must determine whether the record as a whole supports the superior court's determination. Two facts support the finding of voluntary absence and waiver of the right to be present. The first is the Defendant's failure to communicate with his attorney. Sanchez, 116 Ariz. at 120, 568 P.2d at 427; Muniz-Caudillo, 185 Ariz. at 262, 914 P.2d at 1354; Cook II, 118 Ariz. at 155, 575 P.2d at 354; ...