United States v. Taylor, No. 72-1231.
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
| Writing for the Court | COFFIN, , McENTEE and CAMPBELL, Circuit |
| Citation | 478 F.2d 689 |
| Parties | UNITED STATES of America, Appellee, v. Richard J. TAYLOR, Jr., Defendant, Appellant. |
| Docket Number | No. 72-1231. |
| Decision Date | 14 May 1973 |
478 F.2d 689 (1973)
UNITED STATES of America, Appellee,
v.
Richard J. TAYLOR, Jr., Defendant, Appellant.
No. 72-1231.
United States Court of Appeals, First Circuit.
Argued April 10, 1973.
Decided May 14, 1973.
Roger C. Park, Boston, Mass., by appointment of the Court, with whom Zalkind & Silverglate, Boston, Mass., was on brief, for appellant.
Alan R. Hoffman, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
COFFIN, Chief Judge.
Appellant Taylor was charged with four counts of selling cocaine in violation of 26 U.S.C. § 4705(a). His trial began on April 4, 1972. At the expiration of the morning session, at which appellant was present and during which the prosecution had presented testimony from one of its agents who had purchased the cocaine from appellant, the district court announced that there would be a lunch recess until 2 p.m. Appellant was also told by his attorney to return to the courtroom at that time. Despite this knowledge, appellant failed to return and after the neighboring halls and courtrooms were searched, the judge recessed the trial until the following morning. That morning appellant's wife testified that she had left the courtroom the previous day with her husband, that they separated after taking a cab to Roxbury, that he did not appear to be ill, and that she had not heard from him since.
Appellant's trial counsel then moved for a mistrial on the grounds that the jurors' minds would be tainted by appellant's absence and that to continue the trial would deprive appellant of the Sixth Amendment right to confront witnesses against him. This motion was denied, as the judge found appellant to have absented himself voluntarily from the proceedings and, pursuant to F.R.Crim.P. 43, continued the trial.1 Throughout the remainder of the trial, the court scrupulously and more than once told the jury that they could not draw any inference of guilt from appellant's absence. Another motion for a mistrial on Fifth and Sixth Amendment grounds was denied before the jury was given the case. After deliberation, the jury found against appellant on all four counts. He was subsequently arrested and sentenced to the statutory five year minimum, to be served concurrently with a state court sentence, on July 6, 1972.
On appeal, appellant's main contention is that he was deprived of the right to confront witnesses against him under the Sixth Amendment and of due process of law under the Fifth Amendment as a result of the trial having continued in his absence. While recognizing the right to be present at every stage of one's trial may be waived, except in capital offenses, Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L. Ed. 500 (1912), appellant contends that generally a waiver of constitutional rights cannot be found in the absence of "an intentional relinquishment or abandonment of a known right or privilege", Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), and that in the context of the right of confrontation,
When we examine appellant's contention in regard to the Sixth Amendment right to confrontation in the circumstances of this case, his claim must be rejected. We agree with Judge Tamm in his dissent in McPherson, supra at 1131, that "the right that was involved was the right to be present. Thus it follows that if the defendant knew or should have known that he had a right to be present, his voluntary absence (and there is no doubt that his absence was voluntary) was a waiver of that `known right.'"3 We deem this reasoning dispositive here since there is no claim, nor do we think there can be under the facts before us, that appellant did not know that he had a right to be present in court during every stage of his trial, cf. Wade v. United States, 142 U.S.App.D.C. 356, 441 F.2d 1046 (1971), nor that his absence was due to anything but his voluntary choice.4
Appellant protests that this formulation of the confrontation right and its attendant waiver here is too narrow, since there is no indication that it was forfeited "with sufficient awareness of the relevant circumstances and likely consequences". Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). He would have us believe that a defendant who flees from a courtroom in the midst of a trial —where judge, jury, witnesses and lawyers are present and ready to continue —would not know that as a consequence the trial could continue in his absence. We think that "this is one of those cases in which the imagination is baffled by the facts." Sir Winston Churchill, Bartlett's Familiar Quotations at 922 (14th ed. 1968). The very statement that a trial will continue or commence at a fixed time, when coupled with knowledge of one's right to be present at trial, implies that the continuation of the trial, at least in non-capital cases, does not depend on his presence. More pertinent, and more specific here, we note that at sentencing, when appellant was questioned regarding his flight from the trial, he made no contention that he was unaware of the fact that as a consequence of his flight the trial could continue in his absence.5
Moreover, we note that any Supreme Court precedent on this specific issue is
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