State v. Walker

95 P.3d 555, 208 Ariz. 491, 432 Ariz. Adv. Rep. 3, 2004 Ariz. App. LEXIS 115, 2004 WL 1794472

• Court: Court of Appeals of Arizona
• Decided: August 12, 2004
• Docket: No. 1 CA-CR 02-0982
• Status: Published

Opinions

OPINION

LANKFORD, Judge.

¶ 1 Defendant Ronald Walker appeals his convictions for possession or use of dangerous drugs and possession of drug paraphernalia. The issue presented on appeal is whether the superior court abused its discretion by finding that Defendant voluntarily absented himself from part of his trial and thereby waived his right to be present.

¶ 2 This case is unlike many reported eases of voluntary absences from trial proceedings. Defendant Walker did not abscond. He was absent from part, not all, of the trial proceedings. The portion he missed was the beginning of the trial, and not its conclusion as is more common. He was available after his absence to explain to the superior court the reasons for his absence.

¶ 3 More typical of such cases, however, the record shows that Defendant was warned that he could be tried in absentia. The record also supports the inference that Defendant understood that trial could be reset on short notice.¹ It is equally clear that he was to remain in contact with his counsel regarding the trial setting, that he promised to do so, and that not only did he fail to do so, he made himself unavailable for contact from his counsel or the court.

¶ 4 The details of the proceedings are important to understand the nature of Defendant’s absence. At a status conference on June 27, 2002, the superior court set the trial for August 27. The court warned Defendant in writing:

A defendant’s failure to appear may result in a bench warrant being issued for his or her arrest ... and trial being conducted in the defendant’s absence.

Defense counsel then requested a five-day continuance because counsel had been unable to meet with Defendant. The trial was briefly continued and reset for September 3. In the interim, at a trial management conference on August 30, the superior court confirmed the September 3 trial date. Defendant attended the trial management conference, and acknowledged that he was to appear for trial on September 3.

¶ 5 The trial apparently could not commence on September 3 due to a jury problem. The record is also unclear as to whether Defendant appeared for trial on September 3. To facilitate a speedy trial for Defendant, his case was placed in case transfer, reassigned to a new judge, and reset for trial on September 4 at 9 a.m. Defendant’s attorney learned of the new trial setting at about 2 p.m. on September 3. She was in contact with Defendant shortly before she learned of the new trial date.

¶ 6 Defense counsel then tried to contact Defendant but was unsuccessful. Both counsel and the court had instructed him to stay in contact regarding the trial date, but he had not done so.² Defense counsel later attempted to contact Defendant via the cellular phone of Defendant’s roommate, but was unsuccessful.³

¶ 7 A defense investigator went to Defendant’s home at noon, but Defendant was not present. The investigator left his card and his phone number for Defendant to call regarding the trial date. Defendant did not telephone. Defendant later admitted that, instead of remaining at home where he would be available to be contacted, he had departed for the library.

¶ 8 The superior court continued the proceedings until 1:30 p.m., but denied counsel’s request to issue a bench warrant and have Defendant’s case reset for trial at another time. When Defendant had not appeared by 1:30 p.m., the trial began without him. The court gave the following jury instruction before the trial began:

The defendant has the right not to be present at trial. The defendant has exercised that right. You must not conclude that the defendant is likely to be guilty because the defendant is not present at trial.

Both jury selection and the State’s case proceeded in Defendant’s absence.

¶ 9 Finally, at about 4 p.m., Defendant telephoned his attorney. His counsel informed him that his trial had begun in his absence. Defendant claimed to have not found the investigator’s card until just before he had telephoned. The court adjourned early to allow Defendant to appear and testify the following day.

¶ 10 Defendant attended the beginning of the second day of trial on September 5. Counsel moved for a mistrial based on the asserted violation of Defendant’s right to be present at his trial. Defendant did not request an evidentiary hearing. The court offered to permit Defendant and his companion to testify on the circumstances of his absence. They did testify at trial, but their testimony did not include this subject.

¶ 11 Defense counsel informed the court of Defendant’s proffered excuses for his absence. Counsel related that Defendant had claimed he lacked money to use a pay telephone. Counsel also stated that he had not been at home waiting for counsel to contact him because he went to the library to research his case. The court denied Defendant’s motion for a mistrial, finding that he had voluntarily absented himself from trial.

¶ 12 The record thus indicates that Defendant made no efforts to contact his attorney or otherwise ascertain his trial date between the continuance from the scheduled September 3 start and 4 p.m. on September 4. Indeed, Defendant not only initiated no contacts, he made himself unavailable to repeated attempts by the court or counsel to notify him of a new trial setting. Defendant had actual notice of previous trial settings, had forced a continuance because he and his attorney had been unable to meet, knew his case was in case transfer and would be reset shortly, understood that he was required to maintain contact to update the situation, and knew that he could be tried in absentia if he failed to appear.

¶ 13 Defendant ultimately testified in his own defense on September 5 and was present during the defense case in chief and the remainder of the trial. The jury found Defendant guilty of all charges. He timely appealed and this Court has jurisdiction pursuant to the Arizona Constitution Article 6, Section 9 and Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031 (2001) and 13-4033(A)(2001).

¶ 14 The issue here is not whether a defendant has a constitutional right to be present at critical stages of his trial, such as the jury selection and presentation of the State’s evidence involved here: That right is beyond doubt. See State v. Levato, 186 Ariz. 441, 443, 924 P.2d 445, 447 (1996); see also Ariz. R.Crim. P. 19.2 (defendant’s right to be present at every stage of trial).

¶ 15 The question presented is instead whether this Defendant’s right to be present was on the one hand violated, or on the other was waived by his voluntary absence from the proceedings. A defendant may waive his right to be present at any proceeding by voluntarily absenting himself from it. Ariz. R. Crim P. 9.1; see Taylor v. United States, 414 U.S. 17, 20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973) (defendant waived right by failure to return to court after attending part of first day of trial). Whether Defendant’s absence was voluntary is a question of fact that we review deferentially. State v. Bishop, 139 Ariz. 567, 569, 679 P.2d 1054, 1056 (1984) (abuse of discretion standard); State v. Holm, 195 Ariz. 42, 43, ¶ 2, 985 P.2d 527, 528 (App.1998), disapproved, in part on other grounds, State v. Estrada, 201 Ariz. 247, 34 P.3d 356 (2001) (citing and following Bishop).

¶ 16 A defendant’s absence may be found voluntary in two distinct ways. First, “[t]he court may infer that an absence is voluntary if the defendant had personal notice of the time of the proceeding, the right to be present at it and a warning that the proceeding would go forward in his or her absence____” Ariz. R.Crim. P. 9.1. This inference does not apply to Defendant Walker: He lacked personal notice of the precise time that the trial began.

¶ 17 Voluntary absence may also be inferred, however, from other conduct by a defendant.⁴ See State ex rel. Romley v. Superior Court (Ochoa), 183 Ariz. 139, 143, 901 P.2d 1169, 1173 (App.1995) (absence of any of factors listed in Rule 9.1 does not prevent inference of voluntary absence); Cook, 115 Ariz. at 149, 564 P.2d at 100 (Rule 9.1 inference is only one set of facts that supports inference of voluntariness). A defendant who absconds, for example, voluntarily absents himself even if he was unaware of his trial date at the time of his disappearance. Ochoa, 183 Ariz. at 143, 901 P.2d at 1173. Thus, a defendant’s knowledge of the trial date is not the sine qua non of voluntary absence. See Muniz-Caudillo, 185 Ariz. 261, 914 P.2d 1353 (trial judge did not abuse its discretion even though defendant did not have actual notice of trial date); see also Ochoa, 183 Ariz. 139, 901 P.2d 1169 (no abuse of discretion even though defendant did not have personal notice of his trial date). “Even if [Defendant] never actually received notice of the continued trial date, ‘... it was [his] duty under the conditions of his release to maintain contact with the court and/or his attorney as to the trial date and any changes in that date.’ ” Tudgay, 128 Ariz. at 3, 623 P.2d at 362 (quoting Rice, 116 Ariz. at 186, 568 P.2d at 1084).

¶ 18 We must determine whether the record as a whole supports the superior court’s determination. Two facts support the finding of voluntary absence and waiver of the right to be present. The first is the Defendant’s failure to communicate with his attorney. Sanchez, 116 Ariz. at 120, 568 P.2d at 427; Muniz-Caudillo, 185 Ariz. at 262, 914 P.2d at 1354; Cook II, 118 Ariz. at 155, 575 P.2d at 354; see also Love, 147 Ariz. at 570, 711 P.2d at 1243 (failure to remain in contact with attorney waives right to be informed of state’s allegation of probation status, just as it can waive right to be present at trial).

¶ 19 Our cases recognize that defendants have a duty to remain in contact with court or counsel to obtain current information about trial settings. ‘Where a defendant apparently has made no effort to ascertain the continued date of the proceeding, however, either he has waived personal notice ... or voluntariness may be inferred from his failure to communicate with the court or his attorney.” Sanchez, 116 Ariz. at 120, 568 P.2d at 427. “[I]t [is defendant’s] obligation to ‘remain in contact with his ... attorney and with the court.’” Holm, 195 Ariz. at 43, ¶ 4, 985 P.2d at 528 (quoting Love, 147 Ariz. at 570, 711 P.2d at 1243); see also Tudgay, 128 Ariz. at 3, 623 P.2d at 362 (defendant was required by conditions of release to inform himself of continued trial date). A defendant who understands this obligation and then ignores it does so at the peril of losing his right to be present. The record demonstrates that Defendant Walker understood this duty but did not fulfill it.⁵

¶ 20 The superior court’s decision is supported by another critical fact. The defendant not only failed to maintain communication, he intentionally made himself unavailable for communications from the court and counsel. See Cook II, 118 Ariz. at 155, 575 P.2d at 354 (defendant “continued to avoid all efforts of counsel to apprise him of the date of the subsequent trial.”). He left home to visit the library even though he knew that he needed to remain at home to be informed of the new trial setting. The latter fact can be inferred not only from the circumstances of prior brief trial continuances and the ease transfer process, but also from the roommate’s statement that Defendant was at home to await word from his attorney.

¶ 21 The record on these matters is sufficient to support the superior court’s finding. Ordinarily, defendants absent themselves from the entire trial or the end of trial and the court cannot learn from the defendant his reasons for absence. But in this case, we have much more: Defendant ultimately appeared and explained his absence to the court through counsel. The court thus was able to consider whether the reasons for Defendant’s absence constituted an excuse. See State v. Suniga, 145 Ariz. 389, 392, 701 P.2d 1197, 1200 (App.1985) (insufficiency of defendant’s proffered excuses supported finding of voluntary absence). Defendant’s availability to explain his absence provided sufficient evidence for the superior court to make its finding of voluntary absence, and renders it unnecessary for us to remand for additional evidence. Compare Cook I, 115 Ariz. at 150, 564 P.2d at 101 (remanding), with Tudgay, 128 Ariz. at 3, 623 P.2d at 362 (evidentiary hearing was not required and remand was unnecessary). Contrary to the dissent’s assertion, infra ¶ 42, State v. Sainz does not hold that a hearing is always required. Rather, we held that a trial court cannot ignore “the uncontroverted fact that defendant was unable to attend the commencement of trial because of his confinement in jail” and cannot “ignore the reality of the situation and adhere to the limited facts known to the trial court at the time of the defendant’s absence.” 186 Ariz. 470, 473, 924 P.2d 474, 477 (App.1996).

¶22 Although the dissent argues that an evidentiary hearing was required, the circumstances of this case did not mandate a full hearing. First, Defendant did not request one. Second, the superior court offered an opportunity for both Defendant and his companion on the day of his absence to testify on the matter. Defendant chose not to present any testimony. In effect, Defendant was offered an evidentiary hearing and refused it. Third, defense counsel presented Defendant’s excuses. The result was a more robust record than in the typical case, in which the defendant is absent from the entire trial or its conclusion, leaving the court without his testimony and defense counsel completely unaware of the circumstances.

¶23 We recognize that the trial continuances involved here were brief. This made Defendant’s corresponding duty to remain informed somewhat more burdensome. Simply stated, brief continuances require a defendant to maintain more frequent contact. But the nature of Defendant’s responsibility does not change merely because the court has adopted procedures to vindicate defendants’ rights to speedy trials. Nor is the obligation so onerous as to preclude a finding of voluntary absence when he ignores his responsibility. Walker, knowing that his case was continued previously for a very short period, knowing that his case was in case transfer, and knowing that he was supposed to maintain contact to keep himself informed, failed to contact his attorney or the court to ascertain the status of his trial. No more than a telephone call would have discharged Defendant’s duty, and the court was entitled to reject Defendant’s claim that he (and presumably, his companion) lacked a few cents for a pay telephone call. Moreover, on the facts of this case, Defendant’s burden was even less than making a telephone call: His attorney sent an investigator to Walker’s home to notify him in person, but Walker was simply not present. He had decided to leave his home where he might be contacted, without informing his roommate of his whereabouts contrary to the apparently pre-arranged method of contact, for a purpose that the court was entitled to regard as not a valid excuse.

¶ 24 These circumstances permit the finding of voluntary absence. Defendants cannot treat felony criminal trials casually and cannot prevent the trial from going forward by cloaking themselves in ignorance. See Love, 147 Ariz. at 570, 711 P.2d at 1243 (“The appellant failed [to maintain contact with court or counsel] in this case, and she cannot benefit from her misconduct by manipulating a rule designed for her protection”; and rejecting defendant’s claim based on lack of notice of allegation that offense had been committed while on probation); see also Diaz v. United States, 223 U.S. 442, 457-58, 32 S.Ct. 250, 56 L.Ed. 500 (1912) (voluntary absence from trial cannot prevent trial from proceeding or act as shield from prosecution).

¶25 We are not persuaded otherwise by the cases cited by our dissenting colleague. In People v. Evans, 21 Ill.2d 403, 172 N.E.2d 799 (1961), defense counsel affirmatively misled the defendant by assuring him that his case would not be tried in the near future. In reliance on that statement, the defendant left the state for work. Counsel never informed the defendant of the new trial setting, instead relying on a bondsman to do so. Id. at 800. See People v. Clark, 96 Ill.App.3d 491, 51 Ill.Dec. 955, 421 N.E.2d 590, 594-95 (1981) (distinguishing Evans on this basis).

¶ 26 The dissent also relies on State v. Mahone, 297 N.J.Super. 524, 688 A.2d 658 (Ct.App.Div.1997), aff'd, 152 N.J. 44, 702 A.2d 1286 (1997). However, that opinion conflicts with Arizona law by requiring the court to provide notice to a defendant, by holding that notification by defense counsel is deficient, and by implicitly rejecting the notion that it is defendant’s responsibility to keep himself informed of the trial schedule. See 688 A.2d at 660-61.

¶ 27 The dissent cites State v. Sellars, 331 N.J.Super. 110, 751 A.2d 151 (Ct.App.Div.2000), but that case is readily distinguishable. Important to that decision was the defendant’s inability to attend trial on short notice. The defendant resided in North Carolina, an eight-hour drive from the court in New Jersey. He needed his employer’s permission to be absent from work and the written approval of his probation officer to travel. He lacked funds for transportation and lodging. It was in this light that the court held that less than twenty-four hours of notice of the trial date was insufficient. Id. at 156-58.⁶ Moreover, the New Jersey rule on waiver materially differs from Arizona law by requiring either a waiver on the record or voluntary absence with actual notice in court of the precise trial date. Id. at 157.

¶ 28 Equally unconvincing is State v. Smith, 346 N.J.Super. 233, 787 A.2d 276 (Ct.App.Div.2002). The Smith court relied on factors not present here. First, it relied on a court rule requiring that defendants be notified in court of the trial date. Second, it relied on the absence of any inquiry by the trial court as to why the defendant was absent. Third, the defendant could neither attend trial on the scheduled date nor contact the court because a snowstorm had closed the courthouse.

¶ 29 The superior court had sufficient evidence from which it could reasonably find that Walker failed to maintain contact with his attorney or otherwise keep himself informed of the trial setting and that he inexcusably made himself unavailable to contact initiated by his attorney to keep him informed. Based on that finding, the court acted within its discretion by deciding that Walker waived his right to be present.

¶ 30 Accordingly, we affirm Walker’s convictions.

CONCURRING: DANIEL A. BARKER, Judge.

1 . Although the dissent states that "[tjhere is simply no such evidence in the record,” infra ¶ 45, we see no reason why the trial judge may not decide the fact inferentially, as with any other issue of fact. Among the evidence supporting the inference is that Defendant was told his case was in the case transfer process, that Defendant had an "on call" arrangement with his roommate, and that Defendant apparently had told his roommate that he would be at home awaiting a call about the trial schedule.

2 . The dissent notes that defense counsel told the court on September 4 that on September 3 she had instructed Defendant to remain in contact and on September 5 said that she could not recollect precisely what she had told Defendant, but that requiring him to maintain contact was "the common practice.” Although these statements are not contradictions, the superior court was entitled to resolve any question this raised.

3 . This effort was made from 7:15 a.m. until the superior court convened at 9:42 a.m. on September 4. Then, because Defendant had not appeared, the court continued the proceedings until the afternoon of September 4. Apparently, Defendant did not have a telephone in his home, and the cellular phone was the arranged method for counsel to contact Defendant. Nevertheless, Defendant did not inform his roommate that he would not be at home and on the contrary knew he was to be "on call”: Defendant’s roommate reported that Defendant was at home waiting to be contacted by his attorney about the trial date.

4 . While the conduct that supports an inference of voluntary absence can be "egregious" as the dissent observes, infra ¶ 46, it need not be. The question is whether the absence was voluntary. Conduct that can be characterized as "egregious” does support an inference of voluntary absence, but no Arizona authority states that only such conduct evidences voluntary absence. See State v. Garcia-Contreras, 191 Ariz. 144, 147, ¶ 13, 953 P.2d 536, 539 (1998) ("We should be wary of accuseds who attempt to 'frustrate the process of justice’ ... by purposefully arriving at the courthouse without civilian clothing.") (citation omitted); State v. Love, 147 Ariz. 567, 570, 711 P.2d 1240, 1243 (App.1985) ("The constitutionally protected right to be present ... may be waived if the defendant voluntarily absents himself. ... It is the responsibility of an out-of-custody defendant to remain in contact ... with the court____The appellant failed to do so in this case, and she cannot benefit from her misconduct by manipulating a rule designed for her protection.”) (citation omitted); State v. Cook, 115 Ariz. 146, 149, 564 P.2d 97, 100 (App.1977) ("Cook I"), supplemented, 118 Ariz. 154, 575 P.2d 353 (App.1978) (“Cook II"), and overruled in part on other grounds, State v. Fettis, 136 Ariz. 58, 664 P.2d 208 (1983) ("[W]e cannot be certain that [defendant’s] failure to appear at trial or sentencing indicates a willful intent to frustrate the criminal process or a desire not to be present at a time when he knew he should.’’) (citations omitted) (emphasis added). Similarly, the cases do not support the proposition that Defendant must engage in "egregious" misconduct. See Love, 147 Ariz. at 570, 711 P.2d at 1243 (defendant’s failure to maintain contact waives right to be present); State v. Tudgay, 128 Ariz. 1, 3, 623 P.2d 360, 362 (1981) (same; defendant claimed not to have received letter from counsel). Defendant’s failure to communicate has been the basis for findings of voluntary absence. E.g., State v. Muniz-Caudillo, 185 Ariz. 261, 261-62, 914 P.2d 1353, 1353-54 (App.1996); State v. Sanchez, 116 Ariz. 118, 120, 568 P.2d 425, 427 (App.1977); State v. Rice, 116 Ariz. 182, 185, 568 P.2d 1080, 1083 (App.1977).

5 . The dissent appears to suggest that a defendant's failure to communicate cannot support a finding of voluntary absence. While mere carelessness may not be enough, see infra ¶ 39, neither may a defendant bury his head in the sand and ignore the status of the proceeding. See Sanchez, 116 Ariz. at 120, 568 P.2d at 427 (voluntariness can be inferred from failure to cornmunicate with counsel about continued trial date). We think it unwise policy to shift solely to court or counsel the obligation of tracking defendants' whereabouts and contacting them about changes in the court’s calendar. Conversely, we think it fair and reasonable that defendants be required to contact court or counsel to be informed of scheduled proceedings.

6 . The dissent argues a different view of Sellars. The dissent opines that it was unimportant that defendant was absent from the state and therefore unable to appear. Infra ¶ 51. That is neither the expressed view of the Sellars court nor ours. Based on that court’s extensive discussion of the defendant’s inability to attend trial on short notice, we stand by our reading of Sellars that this was an important factor in the decision.