People v. Ewing , 48 Mich. App. 657 ( 1973 )

48 Mich. App. 657 (1973) 211 N.W.2d 56

PEOPLE
v.
EWING

Docket No. 15583.

Michigan Court of Appeals.

Decided August 24, 1973.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Gerard A. Poehlman, Assistant Prosecuting Attorney, for the people.

George C. Dovas, for defendant on appeal.

Before: QUINN, P.J., and J.H. GILLIS and BASHARA, JJ.

PER CURIAM.

A jury convicted defendant of armed robbery. MCLA 750.529; MSA 28.797. He appeals of right.

The trial court issued a capias and forfeited defendant's bond when he failed to appear for the second day of trial. Defense counsel acquiesced in the judge's decision to proceed with the trial after a jury recess. However, when the jury returned, defense counsel objected to proceeding. The trial court then found defendant had voluntarily waived his right to be present. After a principal prosecution witness had testified for about 15 minutes, defendant appeared. When the judge questioned him about his whereabouts, defendant replied that he had been detained by two police officers for interrogation about the instant case. The judge, giving defendant "the benefit of the doubt", reinstated his bond. He then denied defense counsel's mistrial motion but ordered the court reporter to read defendant the direct examination testimony taken in his absence.

Appellant asserts that denial of the mistrial motion constituted an abuse of discretion. We agree. MCLA 768.3; MSA 28.1026, provides:

"No person indicted for a felony shall be tried unless personally present during the trial * * *."

US Const, Am VI, applicable to the states through the Fourteenth Amendment (Pointer v Texas, 380 U.S. 400; 85 S. Ct. 1065; 13 L. Ed. 2d 923 [1965]), affords a similar guarantee. As stated in Illinois v Allen, 397 U.S. 337, 338; 90 S. Ct. 1057, 1058; 25 L. Ed. 2d 353, 356 (1970):

"One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial."

The right to be present extends to every stage of the trial where an accused's substantial rights may be affected and where his presence relates to the fullness of his opportunity to defend the charge. Snyder v Massachusetts, 291 U.S. 97; 54 S. Ct. 330; 78 L. Ed. 674 (1934).

While a defendant may waive his right to be present (People v Medcoff, 344 Mich. 108; 73 NW2d 537 [1955]), we cannot presume waiver from a silent record. The instant record shows no attempt to determine the truth or falsity of defendant's claim of police detention; nor does it reveal defendant intentionally absented himself.

In People v Grimmett, 388 Mich. 590, 598; 202 NW2d 278, 282 (1972), the Court defined waiver requirements:

"Waiver is defined in Johnson v Zerbst, 304 U.S. 458, 464; 58 S. Ct. 1019, 1023; 82 L. Ed. 1461, 1466 (1938), as ``an intentional relinquishment or abandonment of a known right or privilege.' The Court added, ``"courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and * * * we "do not presume acquiescence in the loss of fundamental rights."' Thus, waiver consists of two separate parts: 1) a specific knowledge of the constitutional right; and 2) an intentional decision to abandon the protection of the constitutional right. Both of these elements must be present and if either is missing there can be no waiver and no finding of consent."

In the instant case, neither element was present.

Counsel's initial acquiescence and later objection cannot be construed as an effective waiver of defendant's rights.

"There are certain rights which are so essential to the concept of due process that no lawyer can waive them for a defendant. * * * The defendant's waiver of a right so fully protected will not be presumed from a silent record; it must affirmatively appear that the waiver was a deliberate choice by the accused person himself." People v Degraffenreid, 19 Mich. App. 702, 713; 173 NW2d 317, 322-323 (1969).

In Medcoff, supra, while acknowledging a defendant's right to waive his presence at trial, the Court stated:

"However, nothing in the nature of evidence should be taken in the absence of the accused." People v Medcoff, supra, 116.

If a defendant who is free on bond does not appear, the proper procedure is to enter a capias and order forfeiture of the bond. No proceedings in the nature of a trial should be conducted in defendant's absence. Defendant need show no prejudice.

"[T]he abrogation of defendants' right to be present is not determined from the result and review thereof of the court's inquiry but rather from the mere fact that during the inquiry defendants were not given an opportunity to exercise those privileges which their right to be present affords them. Where such fundamental rights are denied, the guilt or innocence of the accused is not concerned and neither party is put to the burden of showing actual injury or prejudice or lack of it. Injury is conclusively presumed." People v Medcoff, supra, 117-118. (Emphasis supplied.)

In light of our decision, defendant's other allegations of error are rendered moot.

Reversed and remanded for a new trial.