Trombley v. Langlois

• Decision Date: 21 July 1960
• Docket Number: No. 1333,1333
• Citation: 91 R.I. 328,163 A.2d 25
• Parties: Francis N. TROMBLEY v. Harold V. LANGLOIS, Warden. M. P.
• Court: Rhode Island Supreme Court

Page 25

163 A.2d 25

91 R.I. 328

Francis N. TROMBLEY v. Harold V. LANGLOIS, Warden.

M. P. No. 1333.

Supreme Court of Rhode Island.

July 21, 1960.

Leo Patrick McGowan, Helen M. MacGregor, Providence, for petitioner.

J. Joseph Nugent, Atty. Gen., Raymond J. Pettine, Asst. Atty. Gen., for respondent.

ROBERTS, Justice.

This is a petition for a writ of habeas corpus directed to the warden of the adult correctional institutions where the petitioner is now confined pursuant to a sentence imposed by a justice of the superior court after a jury found him guilty of the crime of breaking and entering. The petitioner alleges in his petition that he is being unlawfully and illegally detained and deprived of his liberty and freedom as guaranteed to him by the constitution of the state of Rhode Island and the constitution of the United States, and requests that he should be forthwith dismissed and discharged from the custody of the warden.

There is no substantial dispute concerning the material facts in this case. After indictment by the December 1957 grand jury for Providence county, petitioner was arraigned and released on bail. A trial was thereafter commenced on January 28, 1958. On February 4, 1958, after the state had completed the presentation of its case, petitioner failed to appear, and the trial justice thereupon continued the trial until February 6, 1958. At that time, petitioner still not appearing, the case was again continued until February 10, 1958. On February 10, petitioner still being absent, the trial justice gave his attorney the opportunity to proceed with the case. The petitioner's attorney decided to stand mute and declined to proceed with the case or to rest. In this circumstance the prosecution declined to make a closing argument to the jury. Thereupon the trial justice charged the jury who, after deliberating on the case, returned a verdict of guilty. The petitioner was sentenced to a term of ten years in the adult correctional institutions.

The petitioner's failure to appear at his trial was the subject of a story published on February 4, 1958 in a local newspaper, which read in part: 'Francis N. Trombley * * * who has been in the State's crime news the past decade * * *.' When the trial justice on February 10, 1958 directed that petitioner's counsel proceed with the defense, he moved for a mistrial, contending that the published account of petitioner's absence and, in particular, the above-quoted language had prejudiced his case with the jury. The trial justice denied this motion, and petitioner's counsel thereupon moved that the jurors be polled for the purpose of ascertaining whether any of them had read the news item in question and, if so, had been thereby prejudiced against petitioner. This motion was also denied by the trial justice. However, in charging the jury he gave them a cautionary instruction to disregard and ignore anything they might have read in the press concerning the case, and to base their verdict entirely on the evidence produced at the trial and the law as given to them by him.

The petitioner contends that in proceeding with the conduct of any part of the trial in his absence and, in particular, to have charged the jury and to have received from them a verdict as to his guilt constituted an invasion of rights guaranteed him under article I, sec. 10, of the constitution of the state of Rhode Island and of article XIV of amendments to the constitution of the United States. The petitioner further contends that these same rights guaranteed him by both the state and federal constitutions were violated by the denial by the trial justice of his motion for a mistrial because of the publication of the news item set forth above and the denial of his motion to poll the jury.

We will first consider the contention that petitioner's constitutional rights were violated by the action of the trial justice in proceeding with the trial in his absence. It is well settled that one accused of a crime is entitled to be present at every stage of the trial with full opportunity for defense. Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607.

The requirement that a defendant be present in person during a trial for a felony is of ancient origin based upon the necessity for his presence when criminal guilt was decided by ordeal or by battle. Goldin, Presence of Defendant at Verdict, 16 Colum.L.Rev. 18. Further, until comparatively recent times an accused in a criminal suit was not represented by counsel. Powell v. State of Alabama, 287 U.S. 45, 60, 53 S.Ct. 55, 77 L.Ed. 158; 3 Blackstone, Commentaries* 25. The right to confront one's accusers and to be present during all stages of a trial is now guaranteed by article I, sec. 10, of the Rhode Island constitution and in federal cases by article VI of amendments to the federal constitution.

However, this constitutional right is primarily for the protection of the accused and is in the nature of a privilege extended to the accused which in a noncapital case he is free to assert or waive as to him may seem advantageous. In Diaz v. United States, 223 U.S. 442, at page 455, 32 S.Ct. 250, at page 254, 56 L.Ed. 500, the court stated: 'But, where 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.'

In the case of State v. Greene, 74 R.I. 437, 60 A.2d 711, this court considered the effect on her constitutional rights of defendant's absence from a portion of the trial. In that case the defendant, who had been charged with murder and was in custody during the trial, had not been promptly return to the courtroom after a recess. Her absence was noted within a minute or two and she was conducted to the courtroom where the court reporter, reading from the record in the defendant's presence, related what had taken place during her absence. This court found no violation of her constitutional rights, and at page 449 of 74 R.I., at page 718 of 60 A.2d stated: 'We agree with the general principle that an accused is entitled to be present in the courtroom at all stages of the trial when charged with a criminal offense. This right is precious and should be enforced, but it should be kept within the limits of reason and common sense by sound judicial interpretation.'

In our opinion it is significant that this court without comment has passed upon the effect of the absence of the accused at the taking of a view by the jury, State v. Congdon, 14 R.I. 458, and the receiving of a verdict from the jury in the absence of the accused, State v. Guinness, 16 R.I. 401, 16 A. 910. In neither case was it held that such absence constituted ground for a new trial.

In the instant case there is no contention that the absence of petitioner from his trial was anything other than voluntary, and therefore under the rule laid down in Diaz v. United States, supra, such absence constituted a waiver of his constitutional right to be present. It is our further opinion that in view of our holding in State v. Greene, supra, we would be giving the right an unreasonable and unwarranted interpretation if we were to hold that...