Grady Jamal Moss v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 15, 2017
• Docket: 71A03-1609-CR-2067
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Feb 15 2017, 10:04 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Troy D. Warner Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana South Bend, Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Grady Jamal Moss, February 15, 2017 Appellant-Defendant, Court of Appeals Case No. 71A03-1609-CR-2067 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jeffery L. Sanford, Appellee-Plaintiff. Judge Trial Court Cause No. 71D03-1509-F5-199

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2067 | February 15, 2017 Page 1 of 7 Case Summary and Issue [1] Following a jury trial, Grady Moss was convicted of dealing in cocaine as a

Level 5 felony. Moss appeals, raising two issues for our review, which we

consolidate and state as whether he waived his right to be present at his jury

trial. Concluding Moss waived his right to be present, we affirm.

Facts and Procedural History [2] Following a controlled buy on September 9, 2015, the State charged Moss with

dealing in cocaine as a Level 5 felony. The trial court scheduled a status

conference for January 4, 2016, and Moss failed to appear. The trial court

rescheduled the status conference and issued a bench warrant for Moss. At the

rescheduled hearing on March 14, Moss was present and the trial court

informed him the court would hold a pre-trial conference on June 6 and a jury

trial would commence on June 20. When Moss expressed concern about being

able to remember the trial date, the trial court provided Moss with a reminder

card. Moss failed to appear for the pre-trial conference on June 6 and the trial

court issued a bench warrant for his arrest. Unable to contact Moss, defense

counsel moved to continue the June 20 trial date. After reviewing the relevant

case law and discussing the matter with counsel at length, the trial court denied

the motion to continue and concluded Moss could be tried in absentia if he did

not appear at trial on June 20.

Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2067 | February 15, 2017 Page 2 of 7 [3] Moss did not appear at trial on June 20 and Moss’ counsel objected to trying

the case in absentia, arguing the trial court did not advise Moss his failure to

appear at trial could result in a waiver of his right to be present at his trial.1 The

trial court noted the objection and proceeded with trial. The jury found Moss

guilty as charged.

[4] On July 12, Moss appeared before the trial court in custody and the trial court

entered judgment of conviction. At the sentencing hearing, the following

discussion occurred:

[Trial Court:] All right. Mr. Moss, this is a result of the trial that you were absent from. I think I am required to allow you to give an explanation as to why you weren’t here for trial. I think you had told me that you had mixed up the dates?

[Moss:] Yes.

[Trial Court:] Which I don’t think is a really strong reason for me to vacate the jury’s verdict now. . . . You were here when we set the trial date. . . . You were informed of the trial date. So I think based on that that we can go forward. Okay? So I will listen to your attorney and to you, if you have anything you want to tell me . . . .

***

1 The record on appeal does not include the entirety of the parties’ discussions with the trial court at the March 14 hearing. Thus, it is not entirely clear whether the trial court explained to Moss he could be tried in absentia. For the purposes of this appeal, we address the merits of Moss’ claims assuming the trial court did not advise him of the potential waiver

Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2067 | February 15, 2017 Page 3 of 7 [Moss:] I apologize for missing court, and I was wrong for that. I’m just sorry for that, and I just want to try and ask you to give me another chance to do the right thing.

Transcript, Vol. 2 at 82-84. This appeal ensued.

Discussion and Decision [5] Moss argues the trial court improperly tried him in absentia. Pursuant to the

United States and Indiana Constitutions, a criminal defendant has the right to

be present during his or her trial. Holtz v. State, 858 N.E.2d 1059, 1061 (Ind. Ct.

App. 2006), trans. denied. A defendant may waive this right so long as the

waiver is voluntarily, knowingly, and intelligently made. Id. When a

defendant fails to appear for trial and fails to notify the trial court or provide it

with an explanation of his or her absence, the trial court may conclude the

defendant’s absence is knowing and voluntary and proceed with trial when

there is evidence the defendant knew of his or her scheduled trial date. Id. at

1062. However, a defendant who has been tried in absentia must be afforded an

opportunity to explain his or her absence in an attempt rebut the initial

presumption of waiver. Ellis v. State, 525 N.E.2d 610, 611 (Ind. Ct. App. 1987).

“As a reviewing court, we consider the entire record to determine whether the

defendant voluntarily, knowingly, and intelligently waived his right to be

present at trial.” Brown v. State, 839 N.E.2d 225, 228 (Ind. Ct. App. 2005)

(citation omitted), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2067 | February 15, 2017 Page 4 of 7 [6] Despite this well-established framework for trying defendants in absentia, Moss

claims two additional requirements must be addressed before a defendant can

be tried in absentia. First, he cites to Jackson v. State, 868 N.E.2d 494 (Ind.

2007), and argues there must be evidence of egregious conduct by the

defendant, noting the court’s statement that Jackson’s absence was “intentional

and inexcusable.” Id. at 496. In Jackson, our supreme court concluded the

defendant waived his right to be present at his trial, reasoning he was informed

of his trial date both orally and in writing and he never contacted the court prior

to his trial to address any confusion he might have had about the trial date. Id.

at 498-99. In fact, the court specifically stated, “Consistent with Indiana law,

the trial court properly concluded that Jackson’s knowledge of the trial date

coupled with a lack of explanation for his absence supported a determination

that there was a voluntary and knowing waiver.” Id. at 499. We therefore

cannot read Jackson as indicating or implying there must be evidence of

egregious conduct by the defendant before the defendant may be tried in

absentia.

[7] Second, he cites to Holtz and argues the trial court is also required to advise a

defendant a failure to appear at trial could result in a waiver of his or her right

to be present at trial. In Holtz, we found no error in the defendant being tried in

absentia, reasoning in part that the trial court had already informed the

defendant the trial may proceed regardless of his attendance. 858 N.E.2d at

1062. However, we did not state as a matter of law the trial court is required to

advise a defendant his absence from trial could result in waiver. Rather, the

Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2067 | February 15, 2017 Page 5 of 7 defendant in Holtz was merely present in court when the trial court informed

him of his trial date and did not give a justifiable reason for his absence.

Consistent with a number of cases from this court and our supreme court, this

was and remains sufficient evidence to establish a defendant knowingly waived

his or her right to be present at trial. See, e.g., Jackson, 868 N.E.2d at 498;

Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind. 1997); Calvert v. State, 14 N.E.3d

818, 821 (Ind. Ct. App. 2014); Brown, 839 N.E.2d at 227-28; Soliz v. State, 832

N.E.2d 1022, 1029 (Ind. Ct. App. 2005), trans. denied; Ellis, 525 N.E.2d at 611.

The fact the trial court advised the defendant in Holtz of the potential waiver is

merely additional evidence showing the defendant knowingly waived the right to

be present at trial and we conclude such evidence is not a prerequisite to trying

a defendant in absentia.

[8] Consistent with our case law, the trial court informed Moss of his trial date. In

addition, the trial court provided Moss with a reminder card containing the trial

date. Moss did not appear at the June 6 pre-trial conference or at trial on June

20. Moss did not contact his attorney or the trial court and notify them he

would be absent. When Moss finally appeared in custody, the trial court gave

Moss an opportunity to explain his absence. Moss claimed he misunderstood

the trial dates, and when given an opportunity to elaborate further, he only

apologized for his absence and stated he was “wrong for that.” Tr., Vol. 2 at

84. We do not agree such an explanation rebuts the presumption of waiver

already established by Moss’ knowledge of the trial date and failure to appear,

especially in light of the fact the trial court gave Moss a card reminding him of

Court of Appeals of Indiana | Memorandum Decision 71A03-1609-CR-2067 | February 15, 2017 Page 6 of 7 the trial date. Compare Calvert, 14 N.E.3d at 822-23 (concluding a defendant’s

deployment to Afghanistan justified his absence at trial), with Brown, 839

N.E.2d at 231 (concluding a defendant’s assertion he was in another county’s

jail during his trial was not an adequate explanation for his absence when he

was present in court when the trial date was set and he chose not to

communicate his predicament to his counsel). We conclude Moss knowingly,

voluntarily, and intelligently waived his right to be present at trial.2

Conclusion [9] Moss waived his constitutional right to be present at his trial. Accordingly, we

affirm.

[10] Affirmed.

Kirsch, J., and Barnes, J., concur.

2 Because Moss knowingly waived his right to be present at trial, we conclude all other claims presented in the Brief of Appellant fail.

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