United States v. Price , 1998 CAAF LEXIS 45 ( 1998 )

Opinion of the Court

COX, Chief Judge:

Appellant was convicted, in absentia, of conspiracy to commit robbery, robbery, and aggravated assault.¹ We granted his petition to determine whether he was unlawfully tried in absentia and whether the Court of Criminal Appeals erred in holding that he waived his right to arraignment by voluntarily absenting himself prior to arraignment. 46 MJ 423-24. We agree with appellant that he was unlawfully tried in absentia, and finding no waiver, we reverse.

The record shows that pretrial Article 39(a)² sessions in this case were held on August 10 and 23, 1994, and that appellant was present and represented by counsel at both sessions. At the first Article 39(a) session, the military judge advised appellant of his counsel rights and the types of trial available. Appellant elected to be represented by his detailed military defense counsel and to be tried by officer and enlisted members.

Although the Government presented the charges and appellant waived their reading, he was not asked to plead. In fact, the military judge specifically stated:

I will not ask for the accused’s plea, as I was served with notice of several motions that I would obviously need to resolve before any plea was entered in this case.

Appellant was also not advised that he could be tried in absentia.

At the second Article 39(a) session on August 23, several motions were litigated, and a trial date of August 30 was set. Again, appellant was not asked to plead, and he was not advised that he could be tried in absentia.

When the court-martial resumed on August 30, appellant was absent. Without further discussion and without objection by trial defense counsel, trial counsel began presenting evidence showing that appellant’s absence was voluntary. Based on that evidence, the military judge found appellant to be voluntarily absent.

Again without objection by defense counsel, the court-martial was assembled. The military judge appropriately instructed the members how to treat appellant’s absence. Although pleas had never been expressly entered on appellant’s behalf, the military judge announced that appellant had pleaded not guilty to all charges and specifications; and on that basis the trial proceeded to the result indicated.

The Court of Criminal Appeals concluded that the arraignment had not been completed because appellant had never been called upon to plead. 43 MJ at 827. Nevertheless, that court affirmed appellant’s conviction, holding that appellant waived arraignment by his conduct.

The rule on trial in absentia in the military is RCM 804(b), Manual for Courts-Martial, United States (1995 ed.), which provides:

The further progress of the trial to and including the return of the findings and, if necessary, determination of a sentence shall not be prevented and the accused shall be considered to have waived the right to be present whenever an accused, initially present:

(1) Is voluntarily absent after arraignment (whether or not informed by the military judge of the obligation to remain during the trial)____

(Emphasis added.) Further, arraignment “consist[s] of reading the charges and specifications to the accused and calling on the accused to plead.” RCM 904 (emphasis added).

Under these rules, clearly, appellant was never arraigned, so procession to trial was unauthorized. The question is whether appellant waived arraignment by his conduct. We hold that he did not.

By way of comparison, Fed.R.Crim.P. 43(b) is the counterpart to RCM 804(b), though it differs from the military rule in several significant respects. At the time of appellant’s trial, Rule 43(b) provided:

The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived his right to be present whenever a defendant, initially present,

(1) voluntarily absents himself after the trial has commenced (whether or not he has been informed by the court of his obligation to remain during the trial)____

(Emphasis added.)

Commencement of trial, under the Federal Rules, apparently denotes commencement of trial on the merits. The Supreme Court interpreted the previously-quoted version of Fed.R.Crim.P. 43(b) in Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), where the accused had absented himself after trial on the merits had commenced, and the trial continued to verdict. Taylor argued that he could not have waived his constitutional rights to testify and confront witnesses, etc., “unless it [was] demonstrated that he knew or had been expressly warned by the trial court not only that he had a right to be present but also that the trial would continue in his absence____” Id. at 19, 94 S.Ct. at 196.

The Supreme Court disagreed, concluding that it was “incredible ... that a defendant who flees from a courtroom in the midst of a trial ... would not know that as a consequence the trial would continue in his absence.” Id. at 20, 94 S.Ct. at 196. Thus the Court upheld the waiver provision of Rule 43(b)(1), after trial had commenced, regardless of whether it could be proved that Taylor had been advised of the waiver.

In Crosby v. United States, 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993), however, the Supreme Court set Taylor in sharp relief. Similar to Taylor, Crosby had entered pleas, had “attended pretrial conferences and hearings,” and had been advised of the date of trial. Still, because Crosby was not present on the date of trial, the Supreme Court reversed his conviction based on his trial in absentia. Id. at 256, 262, 113 S.Ct. at 750, 752.

Writing for a unanimous Court, Justice Blackmun observed that there were rational distinctions between absences prior to and after commencement of a trial. Among them was the fact that.“the defendant’s initial presence [at trial on the merits] serves to assure that any waiver is indeed knowing.” Id. at 261, 113 S.Ct. at 752. Thus, Fed. R.Crim.P. 43 does not permit trial on the merits to commence in the absence of a defendant — at least if the defendant has not been specifically warned — even where the defendant has entered pleas and attended pretrial hearings on motions and other preliminaries.

Military law, however, extends the presumptive waiver point back to arraignment, which often arises well prior to commencement of trial on the merits. See United States v. Bass, 40 MJ 220 (CMA 1994); United States v. Sharp, 38 MJ 33 (CMA 1993); see also Guide for General and Special Courts-Martial, Manual, supra at A8-5. Given the Supreme Court’s strict interpretation of Rule 43 and the extensions under military law, we conclude that appellant’s conviction is even less defensible than Crosby’s. Not only was the clear and unambiguous requirement of RCM 804(b) not met, but there is no indication in the record — either expressed or by legal inference — that appellant was on notice of the fact that trial would proceed in his absence through sentencing. Under these circumstances, appellant cannot be deemed to have waived in-person arraignment by his conduct, i.e., by absenting himself from the proceedings.

The decision of the United States Army Court of Criminal Appeals is reversed, and the findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.

Judges GIERKE and EFFRON eoncur.

1 . Violations of Articles 81, 122, and 128, Uniform Code of Military Justice, 10 USC §§ 881, 922, and 928, respectively. He was sentenced to total forfeitures, confinement for 8 years, and a dishonorable discharge. The convening authori-1y approved the sentence, and the Court of Criminal Appeals affirmed. 43 MJ 823.

2 . Art. 39(a), UCMJ, 10 USC § 839(a).