Cruz v. Commonwealth , 23 Va. App. 113 ( 1996 )

DUFF, Senior Judge.

Following a jury trial conducted in his absence, appellant, Jose Luis Cruz (“Cruz”), was convicted of malicious wounding, sentenced to seven years imprisonment, and fined $20,000. On appeal, Cruz argues that the court erred by proceeding in his absence. We disagree and affirm.

I

Following his arrest, Cruz was released on bond after he signed a recognizance form on which he acknowledged that, if he failed to appear at trial, the court could try and convict him in his absence. Subsequently, Cruz was indicted and arraigned. Cruz was again released after he signed another form entitled, “Appearance at Trial,” in which he acknowledged that if he failed to appear at his trial, scheduled for October 31, 1994, the court could try him in his absence.¹

Cruz failed to appear at trial on October 31, and the court stated that it was prepared to proceed without him. Defense counsel objected and requested a continuance. However, counsel was unable to proffer an explanation for Cruz’s absence and stated that Cruz “lives with the knowledge and that he realizes his failing to appear is a waiver.”

Faced with both the “Appearance at Trial” form signed by Cruz and Cruz’s unexplained absence, the court found that Cruz had voluntarily waived his right to attend trial. The court stated that the reason for the “Appearance at Trial” form was

so we don’t have witnesses coming in here. We don’t have everybody ready for trial. We don’t have a jury sitting around and a defendant decides that he prefers to be somewhere else.

The court empathized with the difficulty Cruz’s absence presented defense counsel but observed that Cruz was responsible for counsel’s predicament and that Cruz’s absence did not mean “the witnesses, the Commonwealth, the Jury and the Court should suffer any further prejudice.” The court further stated that “[witnesses, jurors, court systems depend upon everybody showing up, including the defendant.” For these reasons, the court proceeded with trial in Cruz’s absence.²

On December 2, 1994, Cruz appeared for sentencing. Defense counsel renewed his objection and proffered Cruz’s excuse. He stated that Cruz was concerned about the trial and that he drank too much the night before trial and overslept. The court denied Cruz relief, stating that Cruz’s explanation demonstrated his awareness of the trial date and its importance.

II

An accused’s right to be present at trial arises from both the Sixth Amendment³ and Code § 19.2-259.⁴ Hunter v. Commonwealth, 13 Va.App. 187, 190, 409 S.E.2d 483, 485 (1991); Head v. Commonwealth, 3 Va.App. 163, 168, 348 S.E.2d 423, 426 (1986). At common law, the right to be present at trial could not be waived. Noell v. Commonwealth, 135 Va. 600, 608-09, 115 S.E. 679, 681 (1923), overruled by Jones v. Commonwealth, 227 Va. 425, 317 S.E.2d 482 (1984); Crosby v. United States, 506 U.S. 255, 259, 113 S.Ct. 748, 751, 122 L.Ed.2d 25 (1993).⁵ Under the modem rule, however, an accused may forfeit both the constitutional right and the statutory right to be present at trial. Head, 3 Va.App. at 168-69, 348 S.E.2d at 426-27; see also Sisk v. Commonwealth, 3 Va.App. 459, 463, 350 S.E.2d 676, 679 (1986).

An accused, present at the start of trial, can waive the right to be present for further proceedings once the trial begins. Taylor v. United States, 414 U.S. 17, 20, 94 S.Ct. 194, 196, 38 L.Ed.2d 174 (1973) (defendant absconded midtrial); Barfield v. Commonwealth, 20 Va.App. 447, 449-53, 457 S.E.2d 786, 787-89 (1995) (same); see also Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1060, 25 L.Ed.2d 353 (1970) (defendant removed from trial after refusal to refrain from disorderly, disruptive, and disrespectful conduct); Quintana v. Commonwealth, 224 Va. 127, 144-45, 295 S.E.2d 643, 651-52 (1982), cert. denied, 460 U.S. 1029, 103 S.Ct. 1280, 75 L.Ed.2d 501 (1983) (same). Moreover, under Virginia law, an accused can waive the right to be present for the entire trial. Head, 3 Va.App. at 170, 348 S.E.2d at 428; Hunter, 13 Va.App. at 190, 409 S.E.2d at 485.

However, as one of the most basic rights guaranteed by the Confrontation Clause, Allen, 397 U.S. at 338, 90 S.Ct. at 1058, an accused’s right to be present at trial must be carefully safeguarded. United States v. Beltran-Nunez, 716 F.2d 287, 290 (5th Cir.1983). Therefore, before proceeding in absentia, the court must first determine that the absence of the accused denotes a waiver of the right to be present at trial. See, e.g., Barfield, 20 Va.App. at 449-50, 457 S.E.2d at 787-88; Hunter, 13 Va.App. at 191, 409 S.E.2d at 485. Additionally, in the case of an accused who fails to appear at the start of trial, the court must also determine whether a continuance would be “prejudicial to the Commonwealth’s case.” Hunter, 13 Va.App. at 191, 409 S.E.2d at 485; Head, 3 Va.App. at 170, 348 S.E.2d at 428; cf. Barfield, 20 Va.App. at 453, 457 S.E.2d at 789 (“Commonwealth not required to prove prejudice when defendant absconds after trial has commenced”).

A presumption exists against the waiver of a constitutional right. Hunter, 13 Va.App. at 191, 409 S.E.2d at 485; Sisk, 3 Va.App. at 462, 350 S.E.2d at 678. Such a waiver must be a voluntary, knowing, and intelligent act “done with sufficient awareness of the relevant circumstances and likely consequences.” Hunter, 13 Va.App. at 191, 409 S.E.2d at 485 (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970)).

In determining whether there has been a “voluntary waiver” of the defendant’s right to be present at trial, the implications which can be derived from a defendant’s voluntary absence are fact specific. “[V]oluntary absence, standing alone, does not [necessarily] constitute a knowing and intelligent waiver.” Hunter, 13 Va.App. at 193, 409 S.E.2d at 486.

Three panels of this Court have considered the circumstances under which a defendant who is voluntarily absent from the entire trial may be found to have waived his right to be present at trial. In Head, 3 Va.App. at 170, 348 S.E.2d at 428, the defendant was present at arraignment where his trial date was read in open court. After he signed a recognizance form on which he acknowledged that his failure to appear could result in his being tried in his absence, the defendant was released on bond. Id. When the defendant failed to appear at trial, the trial court conducted a hearing to determine if he had notice of his trial date, if he was absent by choice, and if his absence was justified. Id. Defense counsel had no explanation for the defendant’s absence and stated that notification had been sent to his address. Id. For these reasons, we upheld the trial court’s determination that the defendant had voluntarily and knowingly waived his right to be present.

In Sisk, 3 Va.App. at 460, 350 S.E.2d at 677, the defendant was present at arraignment and signed a bond form indicating that if he failed to appear he could be tried in his absence. Although the defendant appeared for trial on the date it was originally scheduled, he faded to appear on the ultimate trial date, after the trial court had granted a number of continuances. Id. at 461, 350 S.E.2d at 678. The defendant was convicted in his absence. Id. We found no evidence that the defendant had notice of the ultimate trial date or that he was warned that his failure to appear at any further stage would be deemed a waiver of his right to be present. Id. at 461, 463-64, 350 S.E.2d at 678, 679-80.⁶ For these reasons, we reversed the trial court’s determination that the defendant had knowingly and voluntarily waived his right to be present.

In Hunter, 13 Va.App. at 193, 409 S.E.2d at 486, while the defendant clearly had knowledge of his trial date and was absent voluntarily, we held that the defendant had not know-

ingly and voluntarily waived his right to be present. Distinctly absent was any evidence that the defendant had been warned he could be tried in his absence if he failed to appear. Id. We stated that “[a] voluntary and intelligent waiver of the right to be present at trial could be shown by establishing that an officer of the court has explained to the defendant that failure to appear at trial could result in his being tried in his absence.” Id.⁷

These three eases establish the rule that a knowing and voluntary waiver of the right to be present by a defendant who is voluntarily absent from the entire trial cannot be shown unless the defendant (1) has been given notice of his trial date; and (2) has been warned that his failure to appear could result in a trial in his absence.

Cruz’s explanation that he missed trial because he drank too much and overslept clearly supports the trial court’s finding that his absence was, indeed, voluntary. The “Appearance at Trial” form provided Cruz both notice of his trial date and a warning that his failure to appear could result in a trial in his absence. That warning

provide[s] the basis for [our] subsequent finding that [Cruz] knew and understood that he ha[d] a right to be present at trial and that he might waive or forfeit that right by his absence. [Thus], the record [provides] prima facie evidence of [Cruz’s] knowing forfeiture or waiver of his right to be present.

Hunter, 13 Va.App. at 192, 409 S.E.2d at 486 (quoting Sisk, 3 Va.App. at 466, 350 S.E.2d at 680).⁸ Thus, we conclude the trial court properly found that Cruz was voluntarily absent from trial and that he had notice both of the trial date and the possibility he would be tried in his absence if he failed to appear.

We now turn to the more difficult issue of the nature of the prejudice which a continuance causes the Commonwealth. We do not believe the Commonwealth can establish prejudice only by showing that witnesses may be lost or not available for a second trial.

All of the cases dealing with this subject recognize that each case turns upon “a complex of issues, including the likelihood that the trial could soon take place with the defendant present.” United States v. Peterson, 524 F.2d 167, 185 (4th Cir.1975), cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976). In Head, 3 Va.App. at 169-70, 348 S.E.2d at 427, we cited the holding by the United States Court of Appeals for the Fourth Circuit in Peterson which recognized that, in the exercise of sound discretion, the trial judge should consider various factors in determining whether to proceed. Other circuits agree and have created a similar, nonexclusive list of factors that indicate prejudice.

Where the court finds that the defendant has voluntarily absented himself from the proceedings, it may decide to proceed in his absence only after balancing a “complex of issues” including the additional burdens, waste and expense inflicted upon the court, government, witnesses, and co-defendants, and the public’s interest in seeing the accused brought to trial as well as the court’s responsibility to do so speedily.

United States v. Pastor, 557 F.2d 930, 934 (2d Cir.1977).

In Clark v. Scott, 70 F.3d 386 (5th Cir.1995), cert. denied, — U.S.—, 116 S.Ct. 1444, 134 L.Ed.2d 564 (1996), the United States Court of Appeals for the Fifth Circuit recently reversed the grant of habeas relief by a district court and held that state courts are not constitutionally required to perform the balancing test announced in United States v. Benavides, 596 F.2d 137 (5th Cir.1979), and the later case of Beltmnr-Nunez. The Court explained:

The Supreme Court’s decision in Taylor [v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973) ] leads us inexorably to the conclusion that the imposition of a balancing test in Benavides and Beltmnr-Nunez is not constitutionally required. Consequently, our cases must be understood as an exercise of our supervisory powers over federal courts under Rule 43. As such, we are powerless to impose this balancing test on state courts in federal habeas actions.

We therefore hold that the Benavides balancing test is not constitutional in scope. Because the state trial court’s continuation of the trial against Clark in absentia after a finding of voluntary absence comports with constitutional requirements as set forth by the Supreme Court in Taylor, we conclude that the district court erred by granting Clark habeas relief.

Clark, 70 F.3d at 389-90.

In some cases, the Commonwealth’s claim of prejudice may be stark and dramatically evident as when a crucial witness would be unavailable, for whatever reason, in the future. In such an instance, the ability of the Commonwealth to prove its case would be clearly prejudiced. However, in most cases such prejudice cannot be shown nor should it be required.

Both Peterson and Head recognize that a crucial factor to be considered is the likelihood that the accused would appear and the trial could take place at a later date. This same reasoning1 was applied by the Fifth Circuit in BeltmnrNunez:

[H]ad an inquiry before the trial proceeded established for the record that the defendant had deliberately absented himself and that there was no reasonable probability he could be located shortly, we would be loath to say that the district [trial] court abused its discretion by failing to delay or reschedule the trial.

716 F.2d at 291.

In United States v. Muzevsky, 760 F.2d 83 (4th Cir.1985), the trial court faced a situation similar to the one before the trial judge here. The trial court did not know the reason for the defendant’s absence, and it had no basis to believe that the trial could be rescheduled within a reasonable time. Id. at 84. For those reasons, the Fourth Circuit affirmed the trial court’s decision to proceed in the defendant’s absence. Id. at 85.

The record in this case is totally devoid of any assurance, or even hint, that the defendant would be available in the future. As far as the trial court was aware, the defendant could have fled the jurisdiction or the country for parts unknown, never to be heard from again. Under such circumstances, we find no abuse of discretion in proceeding with the trial in the defendant’s absence.

No prejudice would result to a defendant who was absent as the result of a medical or other unanticipated emergency, because his trial would not have been completed. Sentencing would have been stayed, as we directed in Head, until he appeared and was accorded the opportunity to justify his absence from the guilt stage of his trial. Upon hearing, if the Court was satisfied that the defendant’s absence did not constitute a waiver, a new trial could be ordered.

We further do not agree with the argument that the economic cost to the court or the disruption of its docket is never sufficient to justify proceeding in absentia. It seems unwise and indeed unnecessary to establish such a rule that would apply to all cases, in the future, regardless of the cost involved. Most crimes involve the direct testimony of the victim, usually a local resident, who normally would be available in the event of a continuance. In all such cases, if the economic prejudice considered along with other factors, such as the absence of any evidence showing a reasonable likelihood that the trial could soon take place with the defendant’s presence, is not sufficient to try a voluntarily absent appellant, then a defendant could avoid trial at least once because the Commonwealth would not be able to establish that a delay would prejudice its ability to prove its case. Moreover, a defendant would be allowed to circumvent the trial court’s authority to control the scheduling of trials and the granting of continuances. We do not read our decisional law as subscribing to such a result.

We caution that the decision to proceed to trial in the absence of the defendant calls for the exercise of sound discretion by the trial judge. Undoubtedly there will be many instances where such discretion will require a continuance. If however, after carefully considering all factors, the exercise of sound discretion leads to a trial in the defendant’s absence, it would facilitate appellate review if the court insures that the factors which were considered appear in the record.

Apart therefrom, however, the argument regarding lack of prejudice was never presented to the trial court and we cannot consider it now for the first time on appeal. The entire focus of the argument before the trial judge was whether there had been a knowing and voluntary waiver by the defendant of his right to be present. The court also gave consideration to a defense motion for a continuance based on the claim that the defendant was to have given his counsel the name of the claimed perpetrator of the crime. Counsel contended he did not have “the opportunity to get the necessary witnesses here.” The court observed:

That’s because your client deprived you of the chance. That doesn’t mean the witnesses, the Commonwealth, the jury and the Court should suffer any further prejudice either.

This was the only reference in the record to any prejudice suffered by the Commonwealth and it was merely an observation by the trial judge, not an argument by counsel. See Rule 5A:18.

For these reasons, the conviction appealed from is affirmed.

Affirmed.

1 . The form reads as follows:

APPEARANCE AT TRIAL

I understand that I must appear in Circuit Court at 9:30 a.m. on the date set for my trial/disposition which is__

I understand that if I fail to appear on the date set for trial, I may be tried in my absence and may be indicted for the felony offense of Failure to Appear which carries a sentence of up to five years in the penitentiary.

Defendant

Date

2 . The court informed both the venire and the jury panel that Cruz was absent and instructed them not to speculate on the reasons. The court further instructed the panel that, in his absence, Cruz would be afforded the same constitutional protections as if he were present.

3 . “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. "The Fourteenth Amendment makes the guarantees of this clause obligatory upon the States.” Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970).

4 . Code § 19.2-259 provides, in part, "[a] person tried for felony shall be personally present during the triad.”

5 . This canon was premised on the notion that a fadr trial could take place only if the jurors met the defendant face-to-face and only if those testifying against the defendant did so in his presence. It was thought "contrary to the dictates of humanity to let a prisoner ‘waive the advamtage which a view of his sad plight might give him by inclining the hearts of the jurors to listen to his defence with indulgence.’ "

Crosby, 506 U.S. at 259, 113 S.Ct. at 751 (citations omitted).

6 . Refusing to apply Head, since it was decided subsequent to the defendant’s trial, the Sisk Court found that the bond form did not provide sufficient warning. Sisk, 3 Va.App. at 465, 350 S.E.2d at 680.

7 . The Hunter decision did not "limit the manner in which the trial court may determine that the appellant has made a knowing and intelligent waiver of the right to be present at trial,” 13 Va.App. at 193, 409 S.E.2d at 486, and it specifically did not determine the circumstances under which the execution of a bond form would be sufficient to show a voluntary and intelligent waiver. Id. at 193 n. 4, 409 S.E.2d at 486 n. 4.

8 . Because we find the "Appearance at Trial” form to have provided sufficient notice and warning, we, like the panel in Hunter, do not address what provisions in a bond recognizance form or under what circumstances the execution of such a form would be sufficient to show a voluntary and intelligent waiver.