State v. Whitley

• Decision Date: 24 February 2004
• Docket Number: No. 1 CA-CR 02-0823.,1 CA-CR 02-0823.
• Citation: 207 Ariz. 238,85 P.3d 116
• Parties: STATE of Arizona, Appellee, v. Eric Glynn WHITLEY, Appellant.
• Court: Arizona Court of Appeals

85 P.3d 116

207 Ariz. 238

STATE of Arizona, Appellee, v. Eric Glynn WHITLEY, Appellant.

No. -0823.

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

February 24, 2004.

Terry Goddard, Attorney General, By Randall M. Howe, Chief Counsel Criminal Appeals Section and Karla Hotis DeLord, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender, By Spencer D. Heffel, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

GARBARINO, Presiding Judge.

¶ 1 The defendant, Eric Glynn Whitley, appeals his conviction and sentence for theft of means of transportation and requests a new trial. For the following reasons, we reverse and remand for a new trial.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 The defendant was charged with and convicted of theft of means of transportation, a class 3 felony. At the close of the trial, the court recessed for jury deliberations. After the jury notified the court that it had reached a verdict, the following dialogue took place:

THE COURT: Let's go back on the record. Show the parties are present with the exception of the defendant, who, counsel, I believe you told me you tried to call him but you have not been able to reached [sic] him; is that correct,

[DEFENSE COUNSEL]: Yes.

THE COURT: I know you asked me in his presence about how long, how quickly he could be here. He said about 15 minutes. I don't know what time it was when you first tried to call him.

[DEFENSE COUNSEL]: I thought it was about five ten after 3:00.

THE COURT: It's been close to 30 minutes since we first tried to calling [sic] him. We tried again. We were unsuccessful. We're not going to wait, unless either party knows some reason why we can't have the verdict. I'm going to let the verdict be reported in his absence. You can advise him of his verdict.

I'm not aware of anything that is preventing you from proceeding to a verdict without the present [sic] of defendant.

[DEFENSE COUNSEL]: I believe that defendant's presence cannot [sic] waived. He's supposed to be here by 4:30. I imagine we take the verdict, and he [sic] if it's an unfavorable one for him, it won't require custody. If he shows up at 4:30.

THE COURT: I understand custody is not required. I'm not going to take him into custody if he's convicted. I'll set a sentencing date.

You're going to do [sic] need to be advised about that, if you think you can get an affidavit to the court indicating he knows the sentencing dates we can proceed.

[DEFENSE COUNSEL]: I can provide an affidavit. I would [sic] going out of town next week, but I can get one to the court, you know, certainly by Wednesday of the week following.

THE COURT: As long as he knows the sentencing date, something he signed he understands his sentencing date, that's fine.

Let's go ahead and call the jury in.

Then I know you haven't specifically waived his presence, but by his absence, he waives his presence.

At this time I will take the verdict.

(Whereupon, the following proceedings took place in the presence of the jury panel.)

THE COURT: The record should reflect the jury is back in the courtroom and counsel.

Ladies and gentlemen, the defense [sic] is not here. We didn't want to have to wait much longer. We will go ahead and [Defense Counsel] can sent [sic] a message to him at his home. He may come in any minute, again, he may not be here. I know you have been waiting about 30 minutes.

All right it's not required he be present for your verdict. Either way we will go ahead. The clerk proceeded to read the jury's verdict, in the absence of the defendant. At the request of defense counsel, the clerk polled each juror and each juror stated that it was his or her true verdict.

¶ 3 The defendant was sentenced to three years' probation and ordered to complete 200 hours of community service. The defendant filed a timely notice of appeal. The defendant raises a single issue on appeal, contending that the trial court committed reversible error by receiving the verdict in the defendant's absence.

DISCUSSION

¶ 4 "We review the trial court's determination of a defendant's voluntary or involuntary absence for an abuse of discretion." State v. Reed, 196 Ariz. 37, 38, 992 P.2d 1132, 1133 (App.1999); see also State v. Muniz-Caudillo, 185 Ariz. 261, 262, 914 P.2d 1353, 1354 (App.1996)

(reviewing the trial court's decision to go forward with the defendant's trial in absentia for abuse of discretion).

¶ 5 Criminal defendants possess a constitutional and procedural right to be physically present for the return of jury verdicts. State v. Levato, 186 Ariz. 441, 444, 924 P.2d 445, 448 (1996); Ariz. R.Crim. P. 19.2 (stating that the defendant has a right to be present at every stage of the trial, including the return of the verdict). This right is provided to a defendant by Arizona Rule of Criminal Procedure 19.2 and the Sixth and Fourteenth Amendments to the United States Constitution. Levato, 186 Ariz. at 444, 924 P.2d at 448. "[A] defendant may waive the right to be present at any proceeding by voluntarily absenting himself or herself from it." Ariz. R.Crim. P. 9.1. A voluntary waiver of the right to be present requires true freedom of choice. State v. Garcia-Contreras, 191 Ariz. 144, 147, ¶ 11, 953 P.2d 536, 539 (1998). A trial court may infer that a defendant's absence from trial is voluntary and constitutes a waiver if a defendant had personal knowledge of the time of the proceeding, his or her right to be present, and he or she had received a warning that the proceeding would take place in his absence if he or she failed to appear. Muniz-Caudillo, 185 Ariz. at 262, 914 P.2d at 1354. Bearing in mind that the courts indulge every reasonable presumption against the waiver of fundamental constitutional rights, we look at the facts of this case. State v. McGriff, 7 Ariz.App. 498, 503, 441 P.2d 264, 269 (1968).

¶ 6 On July 3, 2002, at 2:34 p.m., the jury retired to deliberate. Prior to jury deliberations, the judge was present when defense counsel asked the defendant how quickly he could return for the reading of the verdict. At that time, the defendant indicated that he could be back in about fifteen minutes from the time that he received notice that the jury had reached a verdict. At 3:32 p.m. the court was back in session discussing the defendant's absence. Defense counsel explained that he first tried to call the defendant at approximately 3:05 p.m. or 3:10 p.m., but was unable to reach the defendant. Counsel then advised the court that he could not waive the defendant's presence and that the defendant had earlier informed counsel that he would return at 4:30 p.m. At 3:35 p.m., the jury returned to the courtroom and announced the verdict.

¶ 7 The judge decided to hear the verdict in the absence of the defendant, finding that the defendant had waived his presence by his absence. There is no evidence that the defendant knew the time of the proceeding, knew of his right to be present, or that the proceeding would continue in his absence if he failed to appear. See Muniz-Caudillo, 185 Ariz. at 262,

914 P.2d at 1354. We are particularly concerned with the defendant's lack of knowledge regarding the culmination of the jury's deliberation. Defense counsel stated that the defendant would be returning at 4:30 p.m. Moreover, the record reflects that the court tried to call the defendant, but was unable to reach him. The facts indicate that the defendant had no notice that the proceeding would commence any time before 4:30 p.m. There is nothing in the record to indicate that the defendant received notice that the jury had reached a verdict or that the court was ready to proceed. Without this information, the defendant could not voluntarily waive his right to attend by true freedom of choice. See Garcia-Contreras, 191 Ariz. at 147, ¶ 11, 953 P.2d at 539; Muniz-Caudillo, 185 Ariz. at 262,

914 P.2d at 1354.

¶ 8 The State, citing to Reed and State v. Suniga, 145 Ariz. 389, 701 P.2d 1197 (App.1985), claims that the defendant has the burden of establishing that his absence was involuntary. Placing the burden on the defendant presupposes that the defendant had knowledge of the fact that the hearing was going forward with or without his presence. In Suniga, this Court stated that when a defendant has personal notice of the time of the hearing, has notice of the right to be present, and is warned that the proceeding will go forward in the defendant's absence, the trial court may presume that the defendant's absence is voluntary. 145 Ariz. at 392, 701 P.2d at 1200. The burden is then on the defendant to prove otherwise. Id.; see also Reed, 196 Ariz. at 38-39,

992 P.2d at 1133-34 (placing the burden on the defendant to establish absence was involuntary when the defendant was aware of when the proceeding would take place, his right to be present, and had knowledge that the proceeding would go forward in his absence). The burden is on a defendant to prove that the defendant's absence was involuntary only when the defendant had notice of the time of the proceeding, had notice of the right to be present, and had knowledge that the trial would continue in the defendant's absence. Because the defendant in the present case did not have notice of the time of the proceeding, there is no burden on the defendant to demonstrate that his absence was involuntary.

¶ 9 The State further asserts that criminal proceedings conducted in violation of the defendant's right to be present may be reviewed for harmless error. The dissent agrees with the State that we should apply a harmless error analysis and affirm the defendant's conviction. In contrast, the concurrence suggests that the defendant's absence constitutes structural error. I respectfully disagree with both positions.

¶ 10 First, our supreme court recently held that the denial of a jury during the sentencing phase of a capital case constitutes trial error, not structural error. State v. Ring, 204 Ariz....