Maupin v. State ( 1985 )

CARDINE, Justice.

Appellant is appealing from his conviction of aggravated assault and battery. We reverse and remand for further proceedings.

The issues we must determine on this appeal are these:

1. Did appellant voluntarily absent himself from his trial?

2. If such absence was not voluntary, was it prejudicial to continue the trial in appellant’s absence?

The relationship between appellant and his brothers and sister has been strained since the death of their father in November of 1978. In the summer of 1983, appellant suffered a heart attack and received medical care first locally and later in the state of Arizona. He returned to Wyoming August 8, 1983. On August 9,1983, appellant drove his pickup truck to his brother James’ house. James walked over to the truck, there was an argument, and appellant reached for a .22 caliber pistol laying in an open briefcase. James grabbed appellant’s arm. There was a struggle, and the gun dropped to the floor of the pickup. James backed away, appellant got out of the truck, and an argument ensued. The gun remained on the floor of the pickup where it had fallen. Appellant returned to the pickup and drove away. James contacted the sheriff and, as a result, appellant was charged with aggravated assault and battery pursuant to § 6-2-502(a)(iii), W.S.1977.¹

At the conclusion of the defendant’s case, before closing arguments, appellant complained of chest pains and was hospitalized. The trial was adjourned for the balance of the day. The next morning appellant’s counsel presented a doctor’s written statement advising that appellant would require hospitalization and at least 24 hours of testing and treatment. Appellant’s counsel moved for a continuance. This motion was denied. Appellant moved for a mistrial which was also denied. The attorneys then, without appellant being present, proceeded with the trial and presented closing arguments. The jury retired and, during deliberations, asked the court the following question:

“If we feel the defendant drew the gun in self-defense knowing he did have the gun in his hand, threatening his brother with it, must we find him guilty of aggravated assault and battery?”

The court’s response was:

“§ 6-2-502 of the Wyoming Statutes provides in part that a person is guilty of aggravated assault and battery if he threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person.”

The jury, after approximately eight hours of deliberation, returned a guilty verdict.

The Sixth Amendment to the Constitution of the United States is held to guarantee an accused the right to be present during every stage of his trial. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Article 1, § 10 of the Constitution of the State of Wyoming is even more explicit in its guarantee to an accused of the right of presence at trial in providing that,

“In all criminal prosecutions the accused shall have the right to defend in person and by counsel, * * * to be confronted with the witnesses against him, * * * and to [have] a speedy trial by an impartial jury * * ⅜.” (Emphasis added.)

This right is incorporated into Rule 42, W.R.Cr.P., which provides:

“The defendant shall be present at the arraignment, at every stage of the trial, including the impaneling of the jury, and the return of the verdict and at the imposition of sentence except as otherwise provided by these rules. In prosecution for offenses not punishable by death, the defendant’s voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict.”

The voluntary absence of defendant may properly be construed as an effective waiver of his constitutional right to be present. Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973). When the defendant voluntarily absents himself, the trial may be continued in his absence. The waiver of the right to be present, however, must be knowingly and voluntarily made. Capwell v. State, Wyo., 686 P.2d 1148 (1984); Weddle v. State, Wyo., 621 P.2d 231 (1980).

A defendant must have a compelling reason to stay away from the trial. If his absence is deliberate without a sound reason, the trial may start in his absence. United States v. Tortora, 464 F.2d 1202 (2nd Cir.1972). Where defendant’s failure to appear on the date set for his trial occurred voluntarily, knowingly, and without justification, his conviction in absentia was affirmed. United States v. Reed, 639 F.2d 896, 64 A.L.R.Fed. 276 (2nd Cir.1981). And where the trial has begun and the defendant fails to appear for the second day of the proceedings, United States v. Martinez, 604 F.2d 361 (5th Cir.1979), or upon the date the trial was to resume, United States v. Powell, 611 F.2d 41 (4th Cir.1979), the trial may proceed because the defendant’s absence was held voluntary or the result of his deliberate act. United States v. Lochan, 674 F.2d 960 (1st Cir. 1982).

The State, relying upon United States v. Pastor, 557 F.2d 930 (2nd Cir.1977), contends that appellant voluntarily absented himself from this trial and, therefore, knowingly waived his right to be present. The defendant in United States v. Pastor suffered a heart attack in 1966 and was hospitalized in subsequent years. His trial was set for May of 1976 after several adjournments. Trial time was limited to four hours a day because of the defendant’s heart condition. The defendant complained of chest pains on the second day of trial and did not appear. There was no effort to call his doctor for two hours, and defendant failed to produce any medical evidence or justification or other reason for his failure to appear. Defendant reappeared at trial the next day and continued to be present throughout the balance of the trial. Defendant’s absence was held voluntary and, therefore, a waiver of his right to be present at that portion of the trial. United States v. Pastor, supra, does not support the State in its contention for, unlike the instant ease, defendant in United States v. Pastor presented no evidence, medical or otherwise, explaining or justifying his failure to appear.

The record here shows that appellant became ill at the close of his ease. His attorney informed the court that appellant had been experiencing pains, was feeling ill, and that

“[h]e was on oxygen for a period of time after the defense closed its case, becoming further ill, and was transported to the hospital for examination by Dr. Har-ner.

“It’s my understanding that at this time an EKG has been run by Dr. Harner revealing that he’s had a mild coronary and that he has been admitted to the Crook County Memorial Hospital.”

At this time, upon request of the defense, court was adjourned until the next morning, the court stating:

“If he’s not available tomorrow then we would be faced with the problem [of] what should be done at that time.

“It would be my opinion that probably a mistrial would have to be declared, but that it wouldn’t be double jeopardy under those circumstances because it isn’t the fault of the State.”

The next morning appellant’s counsel presented a report from appellant’s doctor which stated that at least 24 hours hospitalization for testing would be required. Counsel then moved for a continuance. The State resisted the motion claiming that defendant’s absence was voluntary since he had refused a medical examination before trial and his brother and sister testified that they did not believe appellant had ever had a heart attack. There is no evidence nor does the State contend that a medical examination before trial would have or could have prevented the heart attack that occurred. It is immaterial that appellant’s brother and sister did not believe that appellant ever had a heart attack. The court, nevertheless, denied the motion for continuance and the trial continued.

The record discloses that appellant had suffered a heart attack during trial and that because of his persistent chest pain, there was a risk of a major heart attack or cardiac complications occurring in the future. Upon these undisputed facts, the reason and justification for appellant’s absence was sufficiently established and cannot be held voluntary.

The State next contends that should we conclude that appellant’s absence was not voluntary, the conviction should nevertheless be affirmed because prejudice did not result from continuing the trial in his absence. Before a constitutional error can be considered harmless, the court must be able to declare that it was harmless beyond a reasonable doubt. Krucheck v. State, Wyo., 671 P.2d 1222 (1983); Ortega v. State, Wyo., 669 P.2d 935 (1983). We are unable to say in this case that the error was harmless beyond a reasonable doubt. Appellant was not present to assist and consult with his attorney when instructions on the law were submitted and during closing arguments. During deliberations, the jury inquired of the court concerning the applicability of self-defense. Appellant was not able to consult or advise with his attorney concerning the appropriate means for responding to the jury’s inquiry. He was deprived of his right to be present at the trial and to be involved in the decisions being made.

“The right to be present at trial stems in part from the fact that by his physical presence the defendant can hear and see the proceedings, can be seen by the jury, and can participate in the presentation of his rights. * * * The defendant’s right to be present at all proceedings of the tribunal which may take his life or liberty is designed to safeguard the public’s interest in a fair and orderly judicial system. The presence of counsel alone at trial can never be harmless per se.” Bustamante v. Eyman, 456 F.2d 269, 274-275 (9th Cir.1972).

When the jury assembled to hear argument, appellant’s chair at counsel table was vacant. The court informed the jury that appellant was hospitalized and would require twenty-four hours of treatment and observation, and that his absence should have no bearing on their deliberations.

We do not know the effect of appellant’s absence or the court’s comments upon the jury. We do know that this was a close case. The jury deliberated approximately eight hours, returning once to inquire concerning the law of self-defense. Did appellant benefit from the natural sympathy for one who is ill or did the jury conclude that appellant was feigning illness or that he did not care?

Here, the apparent difficulty encountered in arriving at a verdict supports the notion that appellant’s presence during the latter crucial parts of the trial may have been critical. For the reason stated, we reverse the judgment of conviction and remand this case for further proceedings consistent with this opinion.

1 . Section 6-2-502(a)(iii), W.S.1977, provides:

"(a) A person is guilty of aggravated assault and battery if he:

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"(iii) Threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another