State v. Finnegan

784 N.W.2d 243, 2010 Minn. LEXIS 340, 2010 WL 2605941

• Court: Supreme Court of Minnesota
• Decided: June 30, 2010
• Docket: A08-0777
• Status: Published

Opinions

OPINION

GILDEA, Justice.

This case is before us on review of the district court’s denial of appellant Jason Finnegan’s petition for posteonviction relief. Finnegan contended in his petition that he was entitled to a new trial because a portion of his first trial was conducted in his absence. The postconviction court denied the petition, and the court of appeals affirmed. Because we conclude that Finnegan did not meet his burden to show that he was involuntarily absent, we affirm.

An Otter Tail County jury found Finnegan guilty of one count of first-degree criminal sexual conduct in violation of Minn.Stat. § 609.342, subd. 1(c) (2008), and two counts of third-degree criminal sexual conduct in violation of Minn.Stat. § 609.344, subds. 1(b), (c) (2006).¹ The evidence at trial established that at approximately 11:30 p.m. on February 4, 2005, then 14-year-old M.F. returned home from a high school dance with her sister and her sister’s boyfriend. M.F.’s other sister, that sister’s boyfriend, and Finnegan, a family friend, were all at M.F.’s home. After one of the couples left, those remaining congregated in the lower level recreation room of M.F.’s family home; all, except M.F., were drinking. Finnegan also smoked marijuana that evening.

By 12:30 a.m., both M.F.’s sisters and their boyfriends had gone to bed, leaving M.F. and Finnegan alone. M.F. fell asleep on a loveseat. About twenty minutes later, M.F. testified that Finnegan woke her up, wrapped his arm around her, pulled her to the floor, and told her to remove her pants. M.F. refused, but in response, Finnegan tightened his grip and threatened to break her neck if she did not remove her pants. Because of the pain in her neck, M.F. obliged, and then Finnegan sexually assaulted her.

M.F. subsequently reported the sexual assault to authorities, and Finnegan was charged. In August 2005, Finnegan failed to appear for his omnibus hearing scheduled in the case, resulting in a bench warrant. Because Finnegan failed to appear at his omnibus hearing, the district court also postponed the scheduled jury trial.

Trial was thereafter scheduled to begin on May 4, 2006. On the first day of trial, the jury was selected and the State called several witnesses, including M.F., the physician who examined M.F. after she reported the assault, and M.F.’s sister. At the end of that day, the court told the jury “[w]e are looking forward to wrapping this up tomorrow early afternoon.” The court then instructed Finnegan and both attorneys to appear in the courtroom at 9 a.m. the next day.

On the morning of May 5, 2006, Finnegan did not appear. The district court held a hearing and the transcript reflects that Finnegan’s trial counsel informed the court that Finnegan’s mother had called and reported that Finnegan was in bed and nonresponsive. She thought Finnegan was having “a nervous breakdown,” and she asked that transportation be provided for him. The court ordered that officials “go get Mr. Finnegan, get some proper clothes on him, and get him to this courtroom as soon as possible.”

The hearing resumed approximately one hour later. The prosecutor told the court that Sergeant Barry Fitzgibbons, who had been dispatched to transport Finnegan, reported that Finnegan’s condition was “beyond an officer’s ability.” The prosecutor stated that Fitzgibbons believed Finnegan’s state was due to a medical condition, likely an overdose, because there was no movement of Finnegan’s legs; Finnegan was drooling; Finnegan’s eyes had rolled back in his head; and Finnegan could not speak. The prosecutor reported that an ambulance was en route to pick Finnegan up.

The district court asked the State what its position was with regard to continuing with trial. The State requested to proceed, stating that Finnegan’s absence was “a choice” and argued that Minn. R.Crim. P. 26.03 permitted the court to continue with trial. The State also cited considerations of expense and witness convenience. Finnegan’s attorney objected to proceeding without Finnegan, citing his constitutional right to be present at trial, and asked the court to “find out more as to why he’s in the hospital” and to ascertain Finnegan’s condition.

The district court did not wait or investigate further but determined that Finnegan had voluntarily absented himself from trial. The court stated that Finnegan’s “conduct of choosing to overdose or whatever he did to make himself in a stupor” waived his right to be present. The trial proceeded, and the State called five additional witnesses, including a DNA expert, M.F.’s mother, and the two officers who interviewed M.F. and collected related evidence. The defense rested without calling any witnesses.

The district court then excused the jury for lunch, and the court and the attorneys continued, on the record, to discuss Finnegan’s absence. During this hearing, Finnegan’s attorney noted, with regard to Finnegan’s right to testify, that Finnegan was not present to make the decision. The court concluded that Finnegan waived his right to testify by failing to attend trial. The court also asked for an update on Finnegan’s condition. The prosecutor reported that she learned from a police officer that Finnegan was unaware of his surroundings, unable to communicate, and still receiving medical treatment. The doctor preliminarily concluded that Finnegan had overdosed on sleeping pills, and the prosecutor said that Finnegan needed to remain in the hospital. The court then took the lunch recess.

Following the recess, but before the jury returned, the prosecutor made a record as to Finnegan’s August 2005 failure to appear for court and the subsequent bench warrant that had been issued for his arrest. Closing arguments and jury instructions followed. Thereafter, the jury deliberated and returned guilty verdicts.

Three days later, on May 8, 2006, the district court held a hearing at which Finnegan was present. The court explained to Finnegan that his trial had continued in his absence because the court had “deter-min[ed] that it was by your own willful acts that you failed to appear for the second day of your trial.” The court then gave Finnegan’s attorney an opportunity to be heard, and counsel moved for a new trial “given that [Finnegan] wasn’t available.” Finnegan did not attempt to explain his absence or submit any evidence of explanation. The court denied the motion for a new trial.

The court next ordered a presentence investigation and a “sex offender evalúation.” The resulting psychologist’s report, dated May 25, 2006, noted that Finnegan’s absence from the second day of trial was “due to the influence of illicit substances and suicidal thinking.” Additionally, the presentence investigation report stated that Finnegan’s hospitalization “occurred ... as a result of [Finnegan’s] attempting suicide.”

On June 16, 2006, the district court held a sentencing hearing. The court gave Finnegan the opportunity to correct or add to the two reports discussed above. Finnegan’s counsel stated that she had no corrections or additions to the reports. The court thereafter sentenced Finnegan to 144 months imprisonment.

On September 7, 2007, Finnegan filed a petition for postconviction relief, alleging prosecutorial misconduct and violation of his right to be present at trial. The post-conviction court held that Finnegan was not entitled to postconviction relief. Specifically, the court concluded that the trial court had not erred in proceeding without Finnegan because Finnegan voluntarily and unjustifiably absented himself, and that there was no prosecutorial misconduct.

Finnegan appealed. The court of appeals held that no prosecutorial misconduct occurred. The court further held that a “defendant voluntarily and without justification absents himself from trial after trial has commenced by attempting suicide, and thereby, waives his right to be present at all stages of trial.” Finnegan v. State, 764 N.W.2d 856, 858 (MinmApp. 2009). We subsequently granted Finnegan’s petition for review on the question relating to his absence from trial.

Finnegan contends that he is entitled to a new trial because, in allowing his trial to proceed without Finnegan, the district court violated his constitutional right to be present. The State contends that the postconviction court’s finding that Finnegan was voluntarily and without justification absent from trial is not clearly erroneous. We review the postconviction court’s legal determinations de novo. Bonga v. State, 765 N.W.2d 639, 642 (Minn.2009). But we will reverse the court’s factual findings only if they are clearly erroneous. Doppler v. State, 771 N.W.2d 867, 875 (Minn.2009).

I.

A defendant has a constitutional right to be present at every stage of trial. See State v. Martin, 723 N.W.2d 613, 619 (Minn.2006); State v. Cassidy, 567 N.W.2d 707, 709 (Minn.1997); see also Minn. R.Crim. P. 26.03, subd. 1(1) (“The defendant must be present at ... every stage of the trial-”). Like other constitutional rights, the right to be present can be waived. See, e.g., Martin, 723 N.W.2d at 619; State v. Ware, 498 N.W.2d 454, 457 (Minn.1993). The right may be waived expressly or impliedly, and a court may imply waiver from a defendant’s conduct. Cassidy, 567 N.W.2d at 709; see also Minn. R.Crim. P. 26.03, subd. 1(2). But the court must indulge every reasonable presumption against the loss of constitutional rights. Cassidy, 567 N.W.2d at 709 (citing Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970)).

Under the 2009 version of our rule of criminal procedure, if the court finds that the “defendant voluntarily and without justification absents himself ... after trial has commenced,” the trial “shall not be prevented” from continuing “and the defendant shall be considered to [have] waive[d] the right to be present.” Minn. R.Crim. P. 26.03, subd. 1(2)1 (2009) (amended Jan. 1, 2010). The defendant has the burden to prove that his absence was involuntary. Cassidy, 567 N.W.2d at . This burden is justifiably a “heavy” one because “[o]ur judicial system could not function if defendants were allowed to pick and choose when to show up for trial.” Id. A criminal trial involves the coordination of numerous independent components, including attorneys, witnesses, court personnel, facilities, and jurors. Once these components have finally come together in a coordinated fashion to begin the trial process, the orderly administration of justice demands that the process be completed if possible.² Thus, our criminal rule provides that the progress of the trial “shall not be prevented” once the court has found that the defendant is absent voluntarily and without justification. Minn. R.Crim. P. 26.03, subd. 1(2) (2009) (amended Jan. 1, 2010).³

The district court made the finding under this rule that Finnegan’s absence on May 5 was voluntary and without justification, and therefore the court ordered that the trial proceed in his absence. Finnegan argues that this ruling violated his constitutional right to be present. Specifically, Finnegan contends that he was absent because he attempted suicide and that an attempted suicide must always be an involuntary absence. He also argues that the district court erred in continuing the trial without giving him sufficient time to prove that this absence was involuntary. We examine each argument in turn.

A.

We first consider Finnegan’s argument that a suicide attempt is an involuntary absence and that therefore the district court’s continuation of the trial without Finnegan violated his constitutional right to be present. When the district court determined that Finnegan’s absence was voluntary, Finnegan’s lawyer did not assert that the reason he was absent was because he had attempted suicide. After his conviction, however, Finnegan was interviewed as part of presentence-investigation procedures, and Finnegan told the investigator that he was hospitalized on May 5 because he had attempted suicide. A psychologist also interviewed Finnegan as part of the presentence investigation, and the psychologist’s report reflects that on May 5 Finnegan was hospitalized “due to the influence of illicit substances and suicidal thinking.” The reference to “illicit substances” is clarified later in the report as Finnegan’s “being intoxicated on methamphetamine,” and the reference to “suicidal thinking” is later described as Finnegan “being stressed due to his present legal predicament and having suicidal ideation.”

Finnegan invites us to adopt a “clear’ and straightforward” rule of law that “a suicide attempt does not constitute a voluntary and unjustified absence from trial.”⁴ But the question of whether a defendant is voluntarily absent from trial, like the question of whether a defendant voluntarily enters a guilty plea, is a factual determination. See State v. Danh, 516 N.W.2d 539, 544 (Minn.1994) (noting that the district court’s conclusion that defendant’s plea was voluntarily made was a “question of fact which will not be disturbed unless clearly erroneous”); see also United States v. Crites, 176 F.3d 1096, 1097-98 (8th Cir.1999) (rejecting claim that the suicide attempt was an involuntary absence and stating that an appellate court “review[s] the district court’s finding on voluntary absence for clear error”); United States v. Davis, 61 F.3d 291, 300, 302 (5th Cir.1995) (rejecting claim that “apparent suicide attempt” was involuntary absence from trial and stating that “[w]e review the district court’s finding that the defendant’s absence is voluntary for clear error”). That the voluntariness question is one of fact is confirmed in Cassidy, where we recognized that the waiver of the right to be present at trial depends on the facts and circumstances of each case. Cassidy, 567 N.W.2d at 709. We reaffirm this case-specific and fact-driven approach today, and therefore reject Finnegan’s invitation to adopt a rule that every defendant who attempts suicide during a criminal trial is involuntarily and justifiably absent from trial.⁵

B.

We turn next to Finnegan’s alternative argument that the district court violated his right to be present when the court continued with the trial in Finnegan’s absence without an adequate investigation as to the circumstances of his absence. Specifically, Finnegan contends that at the time the court made this determination, it did not have sufficient information to conclude that his absence was voluntary, knowing only that Finnegan had overdosed and needed medical attention. According to Finnegan, the court should have complied with Finnegan’s lawyer’s request and delayed the trial for some undefined period to give Finnegan’s lawyer an opportunity to provide more information to the court as to Finnegan’s status. Because the court did not “fully and fairly investigate the circumstances” of his drug overdose, Finnegan argues he is entitled to a new trial.

We do not disagree with Finnegan that the district court, especially in light of Finnegan’s lawyer’s request, could have done a more thorough investigation into the nature of Finnegan’s overdose. But this case comes to us after Finnegan had the opportunity on postconviction to satisfy his burden of proving that his absence was involuntary. As the California Court of Appeals said in People v. Connolly, 36 Cal.App.3d 379, 111 Cal.Rptr. 409, 413 (1973), “[t]he determination of the reviewing court [on the question of the defendant’s absence from trial] must be based upon the totality of the facts; not just a portion of them.” In that case, the appellate court reviewed the trial court’s decision to proceed with the trial in the defendant’s absence. The defendant argued that the trial court did not conduct an adequate investigation before it found that he was voluntarily absent from the trial, and that therefore he was entitled to a new trial. Id. at 412. Recognizing the practical constraints under which trial courts are operating when making the voluntariness determination, the Connolly court concluded that the court’s initial determination of voluntariness could be made based on a “prima facie showing of voluntary absence,” but that the defendant would be allowed, when he returns to court, to challenge the court’s earlier determination that his absence was voluntary. Id. at 412-13. The appellate court’s review of the voluntariness question was developed on that question based on the entire record, not simply the record before the trial court when it made the initial ruling on voluntariness. Id. at 413.

The Washington Supreme Court has adopted a somewhat similar approach. There, the trial court is to follow a three-step process. First, the court must make “sufficient inquiry into the circumstances of a defendant’s disappearance to justify a finding whether the absence was voluntary”; second, the court is to “make a preliminary finding of voluntariness”; and, third, the defendant is afforded “an adequate opportunity to explain his absence when he is returned to custody and before sentence is imposed.” State v. Thomson, 123 Wash.2d 877, 872 P.2d 1097, 1100 (1994); see also State v. Elliott, 126 Idaho 323, 882 P.2d 978, 983 (Idaho Ct.App.1994) (adopting three-prong approach from Thomson).

We agree that the processes set forth in Connolly and Thomson provide a workable framework for district courts to utilize when confronting the question of continuing with a trial in the defendant’s absence. Where a defendant is absent from trial after the trial process has already commenced, the district court’s factual finding on voluntariness must necessarily be made efficiently. But where the defendant contends that he has not been given an adequate opportunity to explain his absence, our postconviction process operates in a fashion similar to the process outlined in Connolly and Thomson. For example, if on postconviction, the defendant meets his burden to demonstrate that his absence was involuntary, he would be entitled to a new trial unless the court could conclude that the erroneous continuation of the trial without the defendant was harmless beyond all reasonable doubt.⁶ See State v. Powers, 654 N.W.2d 667, 681 (Minn.2003) (holding that defendant’s absence from proceedings was harmless); State v. Grey, 256 N.W.2d 74, 77 (Minn.1977) (concluding that defendant was entitled to a new trial because defendant’s absence from pretrial suppression evidentiary hearing “was not harmless beyond a reasonable doubt”). Accordingly, a district court that makes a finding on the voluntariness of the defendant’s absence without an adequate investigation creates substantial risk of retrial. Clearly, the better practice is to pause the proceedings for as long as is reasonably necessary for the court to ascertain that the defendant’s absence is truly voluntary.

In this case, the district court perhaps proceeded too quickly. But even if the district comb’s finding of voluntariness was unreasonably premature, Finnegan had the opportunity to demonstrate that his absence was involuntary both at the hearing on May 8, and at the postconviction stage. Finnegan did not avail himself of either of these opportunities. Cf. State v. Martin, 723 N.W.2d 613, 621 (Minn.2006) (finding that defendant waived his right to be present because “[i]n contrast to Cassi-dy, Martin provided no evidence that he wanted to be present”); Cassidy, 567 N.W.2d at 710 (finding that defendant met his burden to prove that his absence was involuntary). Indeed, Finnegan waived his right to an evidentiary hearing at post-conviction, and chose to rest on the record as it then existed.

Our review of that record establishes that the postconviction court’s finding that Finnegan was voluntarily absent from his trial was not clearly erroneous. See Grites, 176 F.3d at 1097-98. The court found that Finnegan absented himself from trial by his own voluntary and unjustifiable action. We will not reverse findings of fact as clearly erroneous “if there is reasonable evidence to support them.” See Danh, 516 N.W.2d at 544. Such support exists here.

The presentence investigation reports establish that on the morning of the second day of his trial, Finnegan was intoxicated on methamphetamine, and physically unable to come to his trial. Finnegan seemingly argues that he ingested methamphetamine because he was trying to commit suicide. But Finnegan offered no evidence that he was coerced into taking methamphetamine, that he accidentally overdosed, or that he was compelled to do so because of a mental illness. On the contrary, the postconviction record indicates that Finnegan was a heavy user of methamphetamine and had been regularly voluntarily using methamphetamine for a number of years. This amounts to reasonable evidence that Finnegan’s absence on May 5 was voluntary. Cfi State v. Gor-man, 118 Minn. 401, 404, 129 N.W. 589, 590 (1911) (“The defendant cannot take advantage of his own willful wrong to defeat the ends of justice, and must be held to have waived, by his misconduct, his right to be present....”).

Because Finnegan did not demonstrate to the postconviction court that his absence from the trial was involuntary or justified, we hold that the postconviction court did not err in concluding that Finnegan waived his right to be present at his trial.

Affirmed.

1 . Minn.Stat. § 609.342, subd. 1(c) (2008) (defining first-degree criminal sexual conduct as sexual penetration in circumstances causing complainant to have a reasonable fear of imminent great bodily harm); Minn.Stat. § 609.344, subds. 1(b), (c) (2006) (defining third-degree criminal sexual conduct as sexual penetration of a victim between 13 and 15 years of age when the actor is more than 24 months older than the victim and sexual penetration is accomplished by use of force or coercion).

2 . As Justice Tomljanovich noted in her dissent in Cassidy, "[w]hen a trial cannot be completed on schedule, there is a domino effect in regard to trials and hearings that have been scheduled weeks or months in advance. Witnesses, litigants, jurors and attorneys in other cases are required to try to adjust their schedules, often for proceedings that have been scheduled weeks and months in advance." 567 N.W.2d at 713 (Tomljanovich, J., dissenting).

3 . The dissent suggests that we abandon our precedent and sua sponte adopt the "balancing approach” from United States v. Tortora, 464 F.2d 1202, 1210 (2d Cir.1972). Under this approach, after the court determines that the defendant has voluntarily absented himself from the trial, the court considers a second prong with a "complex of issues" before determining whether the trial should proceed. Id.

We disagree with the dissent for two reasons: first, we have addressed this issue before and have never directed district courts to consider a second prong after they make a determination that a defendant is voluntarily absent from trial. The Second Circuit adopted its balancing approach only after determining that the trial court had the discretion to decide whether proceedings should be held even where the court had determined the defendant was voluntarily absent. Tortora, 464 F.2d at 1210. We have never held that a district court is to address a second prong involving a "complex of issues” after determining a defendant is voluntarily absent from trial. Rather, under our precedent, a determination that a defendant was voluntarily absent from trial ends the analysis of whether the trial must continue. See, e.g., State v. Worthy, 583 N.W.2d 270, 277-78 (Minn.1998) (ending the analysis after concluding that because defendants failed to meet their burden of proving their absence from trial was involuntary, the district court did not abuse its discretion by continuing trial in their absence). Regardless of how federal courts have interpreted federal rules, our precedent gives effect to the word "shah” in the 2009 version of Minn. R.Crim. P. 26.03 by requiring a district court to continue a trial after determining a defendant is voluntarily absent. Second, the issue of whether we should adopt the federal balancing approach is not before us in this appeal. Finnegan did not argue the adoption of the federal balancing approach to the district court during trial, and he did not argue its adoption to the district court on postconviction review. Issues not raised before the district court are waived on appeal. See State v. Kremer, 307 Minn. 309, 312-13, 239 N.W.2d 476, 478 (1976). Further, Finnegan did not raise the issue in his petition for review to our court, which also waives the issue on appeal. See In re GlaxoSmithKline PLC, 699 N.W.2d 749, 757 (Minn.2005). Finnegan did not even cite Tortora in his briefs. He did cite United States v. Benavides, 596 F.2d 137 (5th Cir.1979), but he did not rely on Benavides to advocate that we should depart from our precedent and adopt the balancing approach the dissent advocates. Because our precedent and our rule do not provide for additional analysis after a district court's determination of voluntary absence and because the issue of whether we should adopt the federal balancing approach is not properly before us on appeal, we decline to adopt the Tortora approach created by the federal courts and suggested by the dissent.

4 . Finnegan made this request for a categorical rule in his reply brief even though in his opening brief, Finnegan stated that "[t]he determination of whether an attempted suicide constitutes a voluntary waiver of the constitutional right to be present at trial is fact-specific."

5 . The dissent’s extensive discussion of the facts from several federal cases, addressing medical issues within the context of assessing whether an absence from trial is voluntary, confirms the wisdom of our fact driven approach.

6 . The dissent's discussion of structural error ignores our precedent. We have repeatedly recognized, and we do so again here, that an error in continuing with a trial in the defendant's absence is not a structural error, but is an error that is subject to harmless error analysis. State v. Powers, 654 N.W.2d 667, 681 (Minn.2003); see also State v. Sessions, 621 N.W.2d 751, 756-57 (Minn.2001) (addressing the defendant’s presence in the context of the court's communications with a deliberating jury and concluding that defendant's absence was harmless error); State v. Hudspeth, 535 N.W.2d 292, 295 (Minn.1995) (same). The dissent cites two of our cases for the proposition that a judge entering a jury room during deliberations is structural error, and implies that those cases should apply to cases involving a trial continued in a defendant's absence. See Brown v. State, 682 N.W.2d 162, 168 (Minn.2004); State v. Mims, 306 Minn. 159, 169-70, 235 N.W.2d 381, 388 (1975). But we have limited our holding in those cases to that very situation. See State v. Martin, 723 N.W.2d 613, 621 n. 8 (Minn.2006) (limiting the holdings in Brown and Mims to cases involving judges entering jury rooms during deliberations).