State v. Turner , 11 N.C. App. 670 ( 1971 )

182 S.E.2d 244 (1971) 11 N.C. App. 670

STATE of North Carolina
v.
Lewis Edward TURNER.

No. 717SC369.

Court of Appeals of North Carolina.

July 14, 1971.

Atty. Gen. Robert Morgan by Asst. Attys. Gen. William W. Melvin and T. Buie Costen, for the State.

Thorp & Etheridge by William D. Etheridge, Rocky Mount, and W. O. Rosser, Whitakers, for defendant appellant.

CAMPBELL, Judge.

Defendant assigns as error the actions of the trial judge in finding that defendant, by his absence from trial, waived his right to be present and in proceeding with the trial in defendant's absence. In a criminal prosecution it is the right of the accused to be present at the trial, unless he waives that right. State v. Pope, 257 N.C. 326, 126 S.E.2d 126 (1962). But where the defendant voluntarily absents himself from the courtroom, and especially when he has fled the court, such conduct may be considered and construed as a waiver, and the presence of the defendant is not considered as essential to a valid trial and conviction. State v. Cherry, 154 N.C. 624, 70 S.E. 294 (1911).

Here, defendant did not appear in court when court reconvened the next morning but he did send a letter through his wife explaining that he had gone looking for a witness. There was nothing to indicate, as there was in State v. Cherry, supra, that defendant had fled. The court, accordingly, gave defendant the benefit of the doubt and waited for over a day for defendant to reappear. It was only after defendant had been given ample opportunity to return to the courtroom that the trial judge entered an order finding that defendant had waived his right to be present for the remainder of the trial. Further, all proceedings concerning the absence of defendant from the trial were conducted out of the presence of the jury thus preventing any possibility of prejudice to the defendant in the eyes of the jury. We are of the opinion that the trial judge properly construed defendant's extended absence from the courtroom as a waiver of his right to be present for the remainder of the trial.

Defendant also assigns as error the failure of the trial judge to instruct the jury of defendant's right to waive his right to be present at the trial and that his absence should not be considered with regard to his guilt or innocence. However, the record does not reveal that counsel for defendant requested the court to charge the jury regarding defendant's absence. "``Where the court adequately charges the law on every material aspect of the case arising on the evidence and applies the law fairly to the various factual situations presented by the evidence, the charge is sufficient and will not be held error for failure of the court to give instructions on subordinate features of the case, since it is the duty of a party desiring instructions on a subordinate feature * * * to aptly tender a request therefor.'" Mode v. Mode, 8 N.C.App. 209, 174 S.E.2d 30 (1970); 7 Strong, North Carolina Index 2d, Trial, § 33 (1968).

We have reviewed defendant's other assignments of error and find no merit in any of them. In the trial below, we find

No error.

MALLARD, C. J., and HEDRICK, J., concur.