Cruz v. Commonwealth

482 S.E.2d 880, 24 Va. App. 454, 1997 Va. App. LEXIS 179

• Court: Court of Appeals of Virginia
• Decided: March 25, 1997
• Docket: 0749954
• Status: Published

Opinions

ANNUNZIATA, Judge,

with whom BENTON, J., joins, concurring in part, and dissenting in part.

While I concur with the majority opinion that Cruz, by his action, waived his right to be present at his trial, I cannot join in the holding that trial properly proceeded in his absence.

An accused’s right to be present at trial is one of the most important and basic rights guaranteed by the Confrontation Clause, Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970), and must be carefully safeguarded. United States v. Beltran-Nunez, 716 F.2d 287, 290 (5th Cir. 1983). As the majority recognizes, the accused was not permitted at common law to waive the right to be present at trial. Noell v. Commonwealth, 135 Va. 600, 608-09, 115 S.E. 679, 681 (1923), overruled by Jones v. Commonwealth, 227 Va. 425, 317 S.E.2d 482 (1984); Crosby v. United States, 506 U.S. 255, 259, 113 S.Ct. 748, 751, 122 L.Ed.2d 25 (1993).

This canon was premised on the notion that a fair trial could take place only if the jurors met the defendant face-to-face and only if those testifying against the defendant did so in his presence. It was thought “contrary to the dictates of humanity to let a prisoner ‘waive the advantage which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defence with indulgence.’ ”

Crosby, 506 U.S. at 259, 113 S.Ct. at 751 (citations omitted). Under modern principles, however, an accused may forfeit both the constitutional right and the statutory right to be present at trial. Head v. Commonwealth, 3 Va.App. 163, 168, 348 S.E.2d 423, 426 (1986); see also Sisk v. Commonwealth, 3 Va.App. 459, 463, 350 S.E.2d 676, 679 (1986).

In light of the historic requirement to protect an accused’s right to be present at trial, a dichotomy emerged between the principles applicable to a defendant who has waived the right to be present after trial begins and the principles applicable to a defendant who fails to appear at the commencement of trial. See Crosby, 506 U.S. at 261-62, 113 S.Ct. at 752-53; Barfield v. Commonwealth, 20 Va.App. 447, 453, 457 S.E.2d 786, 789 (1995). This distinction, which the majority appears to ignore, is well-founded:

As a general matter, the costs of suspending a proceeding already under way will be greater that the cost of postponing a trial not yet begun.... [Additionally,] the defendant’s initial presence serves to assure that any waiver is indeed knowing. “Since the notion that trial may be com-' menced in absentia still seems to shock most lawyers, it would hardly seem appropriate to impute knowledge that this will occur to their clients.” It is unlikely, on the other hand, “ ‘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.’ ” Moreover, a rule that allows an ongoing trial to continue when a defendant disappears deprives the defendant of the option of gambling on an acquittal knowing that he can terminate the trial if it seems that the verdict will go against him — an option that might otherwise appear preferable to the costly, perhaps unnecessary, path of becoming a fugitive from the outset.

Crosby, 506 U.S. at 261-62, 113 S.Ct. at 752-53 (citations omitted).

As noted by the majority, an accused, present at the start of trial, clearly can waive the right to be present for further proceedings once trial has begun. Taylor v. United States, 414 U.S. 17, 20, 94 S.Ct. 194, 196, 38 L.Ed.2d 174 (1973) (defendant absconded mid-trial); Barfield v. Commonwealth, 20 Va.App. 447, 449-53, 457 S.E.2d 786, 787-89 (1995) (same); see also Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1060-61, 25 L.Ed.2d 353 (1970) (defendant removed from trial after refusal to refrain from disorderly, disruptive, and disrespectful conduct); Quintana v. Commonwealth, 224 Va. 127, 144-45, 295 S.E.2d 643, 651-52 (1982), cert. denied, 460 U.S. 1029, 103 S.Ct. 1280, 75 L.Ed.2d 501 (1983) (same). Where an accused is found to have voluntarily waived the right to be present after trial is underway, the court may proceed in absentia without having to justify specifically its denial of a continuance. E.g., Barfield, 20 Va.App. at 453, 457 S.E.2d at 789. In such cases,

when the defendant absconds after the trial has begun, the prejudice to the Commonwealth is clear and substantial. Both jurors and witnesses will have their lives further disrupted by having to be on call until the capture or return of the defendant. Witnesses’s memories will fade. Prosecutors, defense counsel and judges, who need to work on other cases, will later have to interrupt their present case load to familiarize themselves with the defendant’s case which was put on hold. The general disruption to the proper administration of the criminal justice system is such that the Commonwealth should not have to prove any special prejudice when the defendant absconds after the trial has commenced.

Id. (emphasis added).

The federal courts have extended the rule allowing trial to proceed in the absence of a defendant found to have absconded mid-trial to trials in absentia of defendants who failed to appear at the commencement of trial. E.g., United States v. Tortora, 464 F.2d 1202 (2d Cir.), cert. denied sub. nom. Santoro v. United States, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972).¹⁰ However, the Tortora Court held that an accused’s voluntary absence at the start of trial is not alone sufficient to warrant proceeding with trial. Id. at 1210. Rather, under the Tortora approach, the decision to proceed in the absence of the defendant who fails to appear at the start of trial is a matter for the discretion of the trial court, and should be exercised only in “extraordinary” circumstances where the “public interest clearly outweighs that of the voluntarily absent defendant.” Id. This balancing turns on a “complex of issues” including

the likelihood that the trial could soon take place with the defendant present; the difficulty of rescheduling, particularly in multiple-defendant trials; the burden on the Government in having to undertake two trials, again particularly in multiple-defendant trials where the evidence against the defendants is often overlapping and more than one trial might keep the Government’s witnesses in substantial jeopardy.

Id. The Tortora Court further noted, “[i]t is difficult for us to conceive of any case where the exercise of this discretion would be appropriate other than a multiple-defendant case.” Id. at n. 7. Indeed, “[i]n virtually all of the cases in which a conviction of a defendant obtained in absentia has been affirmed, other co-defendants were present for the trial.” United States v. Latham, 874 F.2d 852, 859 (1st Cir.1989).

The federal circuits never agreed that such a balancing test was appropriate and, in fact, contested whether the trial court should have narrow, broad, or complete discretion to proceed in absentia once voluntary waiver was found. See United States v. Houtchens, 926 F.2d 824, 827 (9th Cir.1991) (discussing disagreement among circuits and adopting rule requiring no further determination of prejudice once voluntary waiver found).

The Fourth Circuit, however, adopted Tortora’s balancing test in a multiple defendant case involving a “set of extraordinary factors.” United States v. Peterson, 524 F.2d 167, 185-86 (4th Cir.1975), cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976). Later, in United States v. Muzevsky, 760 F.2d 83 (4th Cir.1985), the Fourth Circuit extended the rule of Peterson and Tortora to a single-defendant trial. In so doing, the Muzevsky Court reaffirmed the Peterson ¡Tortora balancing approach, stating,

when the court does not know the reasons for the defendant’s absence and has no basis to believe that the trial can be rescheduled within a reasonable time, consideration of the government’s difficulty in reassembling its proof may. dictate an immediate trial. This determination should be undertaken in accord with Peterson.

Muzevsky, 760 F.2d at 85.¹¹

Subsequently, this Court adopted the Fourth Circuit’s approach to conducting trials in absentia of defendants absent at the commencement of trial. See Head, 3 Va.App. at 170, 348 S.E.2d at 428; Hunter v. Commonwealth, 13 Va.App. 187, 190, 409 S.E.2d 483, 485 (1991). Thus, an accused can waive the right to be present for the entire trial under Virginia law. Id. However, in line with the Fourth Circuit, this Court adopted the Peterson /Tortora balancing approach and directed trial courts, before proceeding in absentia, to consider

inter alia, the likelihood that the trial could soon take place with the defendant present, the difficulty of rescheduling, the burden on the Commonwealth in securing the attendance of witnesses on another date, and any other factors given to explain the defendant’s absence.

Id. at 169-70, 348 S.E.2d at 427-28.

The majority seeks to avoid the result of this Court’s adoption of the balancing test by relying on federal cases which held that such a test is not mandated by the federal constitution. It is not the mandate of the federal constitution which compels the result here but, rather, the dictates of Virginia law. The rule resulting from the decisions of this Court is that trial may proceed in the absence of a defendant who fails to appear for the entire trial only if the court finds (1) that the defendant voluntarily waived the right to be present; and (2) “that the burden of a continuance would be prejudicial to the Commonwealth’s case.” Head, 3 Va.App. at 170, 348 S.E.2d at 428 (emphasis added); see also Hunter, 13 Va.App. at 191, 409 S.E.2d at 485; Barfield, 20 Va.App. at 453, 457 S.E.2d at 789. Recently, in Barfield, this Court affirmed the distinction between the principles applicable to cases involving a defendant who absconds mid-trial and the principles involved in a case where the defendant fails to appear for the entire proceeding. Thus, while

[t]he general disruption to the proper administration of the criminal justice system is such that the Commonwealth should not have to prove any special prejudice when the defendant absconds after the trial has commenced, ... prejudice to the Commonwealth’s case due to a continuance must be shown in order for the court to proceed in the defendant’s absence [in] those cases where the trial ha[s] not yet commenced.

Barfield, 20 Va.App. at 453, 457 S.E.2d at 789 (emphasis added).

I concur with the majority opinion that appellant, by his action, knowingly and voluntarily waived his right to be present at his trial. However, in light of principles developed by this Court, a finding that an accused who fails to appear for the entire trial has voluntarily waived his right to be present at trial is, alone, insufficient to justify proceeding in his absence. I cannot join in holding that the trial court properly proceeded in appellant’s absence without the Commonwealth having proffered sufficient reasons why its case would have been prejudiced by a continuance.

Indeed, the Commonwealth failed to proffer any reason why its case would be prejudiced by a continuance. Instead, the trial court considered as its basis for proceeding the general-disruption to the proper administration of the criminal justice system of Cruz’s failure to appear.¹² While such disruption is clearly sufficient to justify proceeding in the absence of a defendant who absconds mid-trial, it is not sufficient to establish “prejudice to the Commonwealth’s case” to justify proceeding in the absence of a defendant who fails to appear at the commencement of trial. Barfield, 20 Va.App. at 453, 457 S.E.2d at 789.

As the majority points out, the likelihood that the trial could soon take place with the defendant present is one of the factors the trial court must consider. However, although the majority asserts that this case must turn on a “complex of issues,” its holding actually turns on its application of a single factor — that “[t]he record in this case is totally devoid of any assurance, or even hint, that the defendant would be available .in the future.” While I agree that there was no assurance Cruz would be available in the near future, this factor alone is not determinative.¹³

The majority’s reference to United States v. Muzevsky to support its holding is misplaced. To say, as the majority does, that “the Fourth Circuit [in Muzevsky ] affirmed the trial court’s decision to proceed in the defendant’s absence” because “[t]he trial court did not know the reason for the defendant’s absence, and it had no basis to believe that the trial could be rescheduled within a reasonable time” relates only a fraction of the record. In Muzevsky, the trial court

explained that it had proceeded with the trial because it was concerned that delay would lead accomplices testifying against Muzevsky to change their testimony and that the other witnesses, mostly transient hotel employees, would not be available for a second court appearance. Moreover, the court noted that at the time of the trial no information was available that would have allowed the court to predict if Muzevsky would appear in a reasonable time — if at all.

Muzevsky, 760 F.2d at 84 (emphasis added). The Fourth Circuit affirmed the trial court’s decision to proceed in absentia, stating,

when the court does not know the reasons for the defendant’s absence and has no basis to believe that the trial can be rescheduled within a reasonable time, consideration of the government’s difficulty in reassembling its proof may dictate an immediate trial. This determination should be undertaken in accord with Peterson.

Muzevsky, 760 F.2d at 85 (emphasis added).

The principle underlying the application of the balancing test this Court has adopted is the preservation of the accused’s right to be present at trial except when the accused’s absence prejudices the government’s ability to obtain a conviction. Indeed, the Virginia cases and those on which they rely support the proposition that the accused cannot use the right to be present at trial as a sword, in an attempt to avoid conviction. These cases simply require the government to prove that obtaining a conviction will be more difficult in the future.

While the absence of assurances as to the missing defendant’s location or likelihood of reappearance may aid the government in meeting its burden, the absence of such assurances alone is insufficient. As Muzevsky clearly demonstrates, the whereabouts of a defendant and the likelihood of his reappearing in a reasonable time are factors which may contribute to the broader determination that the government’s case will be prejudiced but which alone are not determinative. Here, the Commonwealth neither proffered nor argued any reason why a continuance would prejudice its ability to convict Cruz at a later date, and the court made no such finding.

The majority suggests that Cruz’s confrontation rights were adequately protected because “[sentencing would have been stayed ... until he appeared and was accorded the opportunity to justify his absence.” This argument misses the point and provides false assurance that Cruz’s confrontation rights were protected. According a defendant the opportunity to justify his absence before sentencing addresses only the issue of voluntary waiver of the right to be present as required by the first prong of the test. See Head, 3 Va.App. at 170, 348 S.E.2d at 428; Hunter, 13 Va.App. at 191, 409 S.E.2d at 485; Barfield, 20 Va.App. at 453, 457 S.E.2d at 789. However, in addressing the second prong of the test, as we do here, the question to be addressed is whether Cruz’s unjustified absence caused sufficient prejudice to the Commonwealth’s case to warrant sacrificing his right to confrontation. See id. An after-the-fact affirmation that Cruz’s absence was unjustified does not establish that the need to conduct a trial in absentia outweighed his confrontation rights.

The majority concludes that the Commonwealth should not be required to prove prejudice to its ability to obtain a conviction before the court may proceed in the absence of a defendant who fails to appear at the start of trial. This conclusion eviscerates the prejudice prong of the test this Court adopted in Head and reaffirmed in Hunter and destroys the distinction established by this Court in Barfield between the principles applicable to defendants who abscond mid-trial and those who fail to appear before trial commences.

In support of its position, the majority relies on Clark v. Scott, 70 F.3d 386 (5th Cir.1995), which held that the United States Constitution does not require a trial court to conduct a balancing test similar to the test established by Tortora and Peterson and adopted by this Court in Head, before proceeding with trial in absentia. Again, the issue is not whether the United States Constitution requires a Tortora /Peterson balancing test. This Court has adopted and affirmed precisely such an approach, see Head, 3 Va.App. at 169-70, 348 S.E.2d at 427; Hunter, 13 Va.App. at 190-91, 409 S.E.2d at 485; Barfield, 20 Va.App. at 453, 457 S.E.2d at 789, and under familiar principles of stare decisis, we are bound by that precedent. See Commonwealth v. Burns, 240 Va. 171, 173-74, 395 S.E.2d 456, 457 (1990).¹⁴ Moreover, the Fifth Circuit’s opinion in Clark is inapposite to Cruz’s case because Clark involved a defendant who absented himself after the jury had been sworn.

The majority is concerned that “prejudice to the Commonwealth’s case” is too difficult to prove and that imposing such a standard would allow a defendant to “circumvent the trial court’s authority to control the scheduling of trials and the granting of continuances.” However, the standard envisioned by this Court in Head, Hunter, Barfield, and which I would reaffirm here, does not transfer to the defendant authority to control the court’s docket. Defendants who fail to appear for trial do so at their peril. Not only is any bond forfeited, a defendant’s willful failure to appear as required by the court is indictable as a separate offense. Code § 19.2-128.¹⁵

Furthermore, the costs incurred by our system of justice must be balanced against the constitutional framework of its operation. Preserving an accused’s constitutional rights may in fact inhibit the most efficient and convenient means of prosecuting a case through the system. However, our system of justice requires the government to bear the cost of inefficiency and inconvenience mandated by the preservation of an accused’s rights.

For the foregoing reasons, I would reverse appellant’s conviction and remand the case for further proceedings as the Commonwealth may find appropriate.

10 . Tortora has been cited as the leading federal case upholding a trial in absentia of a defendant who took flight before the trial commenced. 3 LaFave & Israel, Criminal Procedure § 23.2(b) (1984).

11 . The United States Supreme Court's decision in Crosby effectively overruled Tortora, Peterson, and Muzevsky on the proposition that, under the federal rules, trial could proceed in the absence of a defendant who failed to appear at the commencement of trial. Following Crosby, trial may not proceed in the absence of a defendant who fails to appear at its commencement under any circumstance. Decided solely on the basis of the federal rule without reaching the constitutional question, Crosby does not preclude state courts from proceeding in the absence of a defendant who fails to appear at the start of trial. Also, because it precludes trial in absentia of a defendant absent when the trial commences under any circumstance, the Crosby Court did not address the necessity of a balancing test to protect the rights of such a defendant.

12 . The court indicated that the reason for the Appearance at Trial form was

so we don’t have witnesses coming in here. We don’t have everybody ready for trial. We don’t have a jury sitting around and a defendant decides that he prefers to be somewhere else.

Later, the court indicated that although Cruz’s failure to appear impinged his attorney’s ability to defend him, that did not mean that “the witnesses, the Commonwealth, the Jury and the Court should suffer any further prejudice” and that "[wjitnesses, jurors, court systems depend upon everybody showing up, including the defendant.”

13 . I also note the record reflects that the trial court did not issue a bench warrant for Cruz or attempt in any way to secure his presence for trial in the immediate future.

14 . Contrary to the suggestion of the majority, I would not define “prejudice to the Commonwealth's case” so narrowly “as requiring that the Commonwealth must show that witnesses may be lost or not available for a second trial.” Rather, I seek merely to reaffirm the principles developed in Virginia law, which I believe control this issue.

15 . Code § 19.2-128 provides,

A. Whoever, having been released pursuant to this chapter or on a summons pursuant to § 19.2-73 or § 19.2-74, willfully fails to appear before any court or judicial officer as required, shall, after notice to all interested parties, incur a forfeiture of any security which may have been given or pledged for his release, unless one of the parties can show good cause for excusing the absence, or unless the court, in its sound discretion, shall determine that neither the interests of justice nor the power of the court to conduct orderly proceedings will be served by such forfeiture.

B. Any person charged with a felony offense who willfully fails to appear before any court as required shall be guilty of a Class 6 felony. Any person charged with a misdemeanor offense who willfully fails to appear before any court as required shall be guilty of a Class 1 misdemeanor.