State of Iowa v. Randall Lee Hurlburt

IN THE SUPREME COURT OF IOWA
No. 20–0630
Submitted September 15, 2021—Filed February 11, 2022
STATE OF IOWA,
Appellee,
vs.
RANDALL LEE HURLBUT,
Appellant.
Appeal from the Iowa District Court for Plymouth County, Jeffrey A. Neary,
Judge.
The defendant appeals his conviction for a misdemeanor operating-while-
intoxicated charge entered after a trial at which the defendant was wholly absent.
AFFIRMED.
McDermott, J., delivered the opinion of the court, in which Christensen,
C.J., and Waterman, Mansfield, McDonald, and Oxley, JJ., joined. Appel, J., filed
an opinion concurring specially.
Martha J. Lucey, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellant Defender, for appellant.
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Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
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McDERMOTT, Justice.
When the trial date for the misdemeanor defendant in this case finally
arrived, he did not. The district court determined that the trial could proceed in
his absence, and the jury found him guilty. In this appeal, we must decide
whether a court may conduct a criminal trial on a misdemeanor criminal charge
without the defendant present for any portion of the trial.
I.
On a Thursday morning in August 2017, Randall Hurlbut called 911
several times to ask why the police were following him. The emergency dispatcher
responded that, in fact, no officers had been assigned to follow him. But those
brief calls didn’t end the dispatcher’s affairs with Hurlbut that day: other calls
about the driver of a white Buick Roadmaster “squealing tires and just acting
crazy” would put Hurlbut at their center.
Dillon Kunkel was at work in a mechanic’s garage when Hurlbut’s car
came “flying” into the shop and slammed on its brakes. Kunkel had previously
worked with Hurlbut and immediately recognized him. Hurlbut asked Kunkel
and others assembled to “get the snowman off the top of his car.” But Kunkel
could offer no help, presumably because it was a clear day in August and no
snowman actually resided atop Hurlbut’s car. Undeterred, Hurlbut revved his
engine and sped away. Kunkel called the police.
A Le Mars police officer soon found a white Roadmaster matching the
caller’s description in a nearby parking lot, but the car bolted as the police
cruiser pulled in behind. The police officer watched as the Roadmaster sped
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between two cars heading opposite directions on a two-lane road, almost causing
a crash. Now in pursuit with the cruiser’s emergency flashers aglow, the police
officer saw the Roadmaster race up a private driveway, through some pine trees
in a yard, and toward a cornfield. Soon after blasting through a ditch and back
onto the road, the Roadmaster circled back to the same parking lot from which
the pursuit began and came to a stop. The police officer—familiar with Hurlbut
from prior encounters and now approaching the car with a Taser in hand—
ordered Hurlbut out of the car and to the ground. Hurlbut complied. When the
police officer asked Hurlbut what he was doing, Hurlbut replied that he was
trying to get someone off the roof of his car.
The police officer surmised that Hurlbut was under the influence of drugs.
The officer had specialized training to recognize methamphetamine users and
noted that Hurlbut had several indicia of methamphetamine abuse: the sunken-
in face, the grinding teeth, the disheveled appearance, and the “off-the-wall”
statements. He placed Hurlbut under arrest. During a drug recognition
evaluation by another police officer soon after, Hurlbut cut off the assessment
and said that he just wanted to give a urine sample. His sample tested positive
for amphetamine and methamphetamine. The State charged Hurlbut with
operating while intoxicated under Iowa Code section 321J.2 (2017), a serious
misdemeanor.
The district court promptly appointed a lawyer to represent Hurlbut. But
less than six weeks later, the lawyer moved to withdraw from the case, citing
disagreements with Hurlbut about depositions and Hurlbut’s complaints about
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the lawyer’s efforts on the case. During the court hearing on the motion to
withdraw, Hurlbut (incarcerated elsewhere for a different crime and participating
by phone) eventually hung up and refused to participate. The State resisted the
motion to withdraw, as trial was set for six days later, arguing Hurlbut is just “a
difficult client and his personality will continue to be a problem for any counsel
that’s appointed.” The court denied the motion.
Yet the day before trial was to begin, Hurlbut announced he would not
come to trial. He again requested new counsel, and expanded on his arguments
about why he couldn’t get along with his appointed lawyer. The appointed lawyer,
for his part, identified a different lawyer who was willing to represent Hurlbut,
and even got Hurlbut to agree to the switch. The district court permitted the first
lawyer to withdraw, appointed the new lawyer, and postponed the trial to give
new counsel time to prepare. But the court warned that it would have no patience
with Hurlbut if he took the same combative tack with his new lawyer.
At a hearing in January 2018 to set the trial date, Hurlbut requested that
the court appoint him another new lawyer. Hurlbut said that he and his new
lawyer disagreed on trial strategy and, in particular, that the lawyer wouldn’t
pursue Hurlbut’s theory that the police tampered with his urine sample. Hurlbut
also asked that the district court postpone his trial until after his release from
prison. The lawyer assured the court that he was investigating Hurlbut’s claims
but said his interactions with Hurlbut involved a level of difficulty rarely
experienced with other clients. The district court denied the request for new
counsel and scheduled trial for August.
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Five days before the trial date, Hurlbut’s second lawyer filed a motion to
withdraw as counsel, stating that the attorney–client relationship had
deteriorated and that “the attorney has no control over the client and [the] client
is not trusting of anything that the attorney utters.” The district court granted
the second lawyer’s withdrawal motion. The court offered Hurlbut the names of
three attorneys it might appoint to see if he would have an objection to any of
them. Hurlbut had none.
At the same hearing, the judge asked Hurlbut about a new trial date.
Hurlbut again requested that trial be postponed until after his release from jail:
“It would work out better for anybody—everybody so they didn’t have to transport
me, and I could show up on my own.” Hurlbut said he would be in favor of a
March 2019 trial date.
The court appointed Hurlbut a third new attorney and set trial for
March 12, 2019. At the ensuing pretrial conference shortly before his trial date,
Hurlbut requested that the court revoke his bond and that he be arrested so the
sheriff would transport him to trial from his home. But the court noted that
Hurlbut had been released without bond and, as a result, there was no bond to
revoke. The State thereafter moved to continue the trial for an unrelated reason,
which Hurlbut did not resist, and the court again postponed the trial. The court
reset trial for July 23, with a final pretrial conference on July 12. The order
specified that Hurlbut must appear in person at the final pretrial conference.
Three days before the final pretrial conference, Hurlbut filed an application
to remove his third lawyer, this time claiming a conflict of interest with the
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lawyer. On the date of the pretrial conference, at which the court was also to
hear Hurlbut on his application to remove his lawyer, Hurlbut did not show. The
court issued a warrant for his arrest, and again postponed the trial.
About five months later, in December, Hurlbut personally attended the
rescheduled hearing on his application to remove his lawyer based on the alleged
conflict. The court denied the application and set trial for February 4, 2020, with
a pretrial conference set for January 31. The court told Hurlbut: “If you want to
be at that final pretrial conference, that’s fine. You don’t have to be. I would
prefer that you be here, but you will need to be here for the trial.”
On the date of the pretrial conference, Hurlbut filed a motion to change
the venue for his trial. He didn’t appear for the pretrial conference. Nor did he
appear for the hearing on his motion to change venue that the court held the day
before trial. In the courtroom that day, Hurlbut’s lawyer advised that Hurlbut
had called his office and said that he planned on being there “tomorrow for the
pretrial conference.” But in fact, “tomorrow” was the date of the trial. The lawyer’s
secretary corrected Hurlbut that trial, not a pretrial conference, was the next
day. His lawyer told the court that he believed Hurlbut planned to attend the
trial. The court stated its plan to proceed with trial irrespective of whether
Hurlbut in fact decided to appear.
At the first day of trial the next day, Hurlbut’s lawyer informed the court
that he’d personally spoken with Hurlbut after the court proceedings the day
before, that Hurlbut claimed to have been mistaken about the schedule, and that
Hurlbut claimed he could not find a ride to court to attend his trial. The lawyer
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requested a trial continuance. Hurlbut’s lawyer argued that Hurlbut had not
affirmatively waived his right to be present at trial and that Hurlbut’s
“constitutional protection regarding due process and the right to confront the
accuser” required his presence.
The State argued that Hurlbut had been physically present at a hearing
seven weeks before at which the court set his trial date and thus had ample
notice of the trial date. The State further suggested that Hurlbut’s absence was
voluntary based on his statements to his lawyer: when Hurlbut understood it
was the date of his pretrial conference, he planned on showing up, yet when he
found out it was his trial date, he suddenly couldn’t make it. The State stated its
preference that the court issue a bench warrant for Hurlbut’s arrest. But in
response to Hurlbut’s lawyer’s request to continue the trial, the State steadfastly
resisted, arguing that Hurlbut’s “confusion” regarding the dates of trial and
pretrial was “on his part, not that any change was made about which he had not
been informed.”
The district court denied the motion to continue the trial. The court found
no compelling circumstances or reason for Hurlbut’s absence and thus
determined that the trial could continue without Hurlbut present under Iowa
Rule of Criminal Procedure 2.27.
The district court and counsel for both parties discussed trial issues that
needed to be addressed because of Hurlbut’s absence. The district court ordered
that the court reporter transcribe portions of the jury selection (which in many
trials are not transcribed). The district court also informed the jury at the outset
9
of jury selection, and again after the close of evidence when providing jury
instructions, about Hurlbut’s absence. The jury instruction read: “You will see
that the defendant is not present in the courtroom. He is represented by an
attorney and a case of this type can proceed without the presence of the
defendant. You shall draw no conclusion or inference from the fact that the
defendant is not present.”
On the first day of trial, Hurlbut’s lawyer participated in jury selection and
made an opening statement on his client’s behalf. He didn’t question a few of the
State’s witnesses (including the 911 dispatcher and Kunkel) but did cross-
examine the arresting officer, another police officer involved in collecting the
urine specimen, and a State toxicologist who processed the urine sample. On
cross-examination, Hurlbut’s lawyer pursued his client’s theory of tampering
with the urine sample based on the officers’ alleged dislike for Hurlbut. After the
State rested, Hurlbut’s lawyer renewed his objection to conducting the trial
without his client present. The district court stood by its prior ruling.
The trial progressed to a second day to give Hurlbut the opportunity to
appear and, if he wished, testify. He didn’t show. In his closing argument,
Hurlbut’s lawyer reminded the jury: “You’ll be instructed by the judge that you
cannot hold it against the defendant that he chose not to testify, or even that he
chose not to be present for trial today.” The jury found Hurlbut guilty of operating
while intoxicated. The district court sentenced him to 365 days incarceration,
with credit for two days already served, along with a $1,250 fine, court costs,
and restitution.
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Hurlbut thereafter filed a motion in arrest of judgment. He argued that no
judgment could be pronounced against him due to his absence at trial, and that
the district court should have first given him a warning before moving forward
with trial in his absence. He did not argue in his written motion in arrest of
judgment, nor in his oral argument at the hearing on the motion, that he was
absent because he could not arrange transportation to court or that he was given
incorrect dates for the proceedings.
II.
Hurlbut argues on appeal that the district court erred in holding that rule
2.27 permitted trial to proceed without him and that the State failed to establish
that he waived his constitutional confrontation and due process rights. We
review a district court’s interpretation and application of the rules of criminal
procedure for correction of legal error, State v. Sanders, 623 N.W.2d 858, 859
(Iowa 2001) (en banc), and constitutional claims de novo, State v. Hendren, 311
N.W.2d 61, 62 (Iowa 1981) (en banc).
Every criminal defendant possesses the right to due process through
presence at his trial and the right to confront the State’s witnesses against him.
U.S. Const. amends. V, VI, XIV; Iowa Const. art. I, §§ 9, 10. Rule 2.27 implements
the constitutional presence right. State v. Myers, 426 N.W.2d 614, 616 (Iowa
1988) (discussing the rule under its prior number). Subsection (1) of the rule
states:
Felony or misdemeanor. In felony cases the defendant shall be
present personally or by interactive audiovisual closed circuit
system at the initial appearance, arraignment and plea, unless a
written arraignment form as provided in rule 2.8(1) is filed, and
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pretrial proceedings, and shall be personally present 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 this rule. In other cases the defendant may appear by
counsel.
Iowa R. Crim. P. 2.27(1) (second emphasis added).
We confront two sentences. The first begins with the words, “In felony
cases the defendant shall be present personally,” and proceeds to detail the
methods of participation and portions of proceedings at which defendants must
be present in felony cases. The second sentence makes clear it applies to the
universe of cases other than felony cases: “In other cases the defendant may
appear by counsel.” See New Oxford American Dictionary (2d ed. 2005) (defining
“other” as “used to refer to a person or thing that is different or distinct from one
already mentioned or known about”). Restating these two sentences as logical
equations draws out the starkness of the propositions stated. The first sentence
provides: If A (felony cases), then B (defendant’s presence required). The second
sentence provides: If not A (other cases), then not B (defendant’s presence not
required).
To the extent one might claim confusion about whether “other cases”
includes misdemeanor cases, the subsection’s title immediately preceding the
two sentences resolves it, making clear the sentences pertain to “[f]elony or
misdemeanor” cases and thus leaving misdemeanors (and all other nonfelony
cases) for inclusion in the second sentence. Indeed, this court has previously
held that the “other cases” language refers to misdemeanors. Wright v. Denato,
178 N.W.2d 339, 342 (Iowa 1970) (interpreting nearly identical language in Iowa
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Code § 775.2 (1966)). The district court thus correctly interpreted rule 2.27(1) to
permit that, as to misdemeanor cases, so long as counsel is present, the rule
doesn’t require the defendant’s personal presence.
The law’s sanction of misdemeanor criminal trials in the defendant’s
absence bears a longstanding stamp of approval. For more than 150 years,
Iowa’s statutes have consistently permitted misdemeanor trials in the
defendant’s absence. See Iowa Code § 4706 (1860) (“If the indictment be for a
misdemeanor, the trial may be had in the absence of the defendant, if he appear
by counsel . . . .”); Iowa Code § 4351 (1873) (same); Iowa Code § 5338 (1897) (“If
a felony is charged, the defendant must be personally present at the trial, but
the trial of a misdemeanor may be had in his absence, if he appears by counsel.”);
Iowa Code § 13806 (1924) (same); Iowa Code § 777.19 (1977) (same); Iowa Code
§ 775.2 (1977) (“A person charged with a felony, or in custody without an
attorney, must be personally present for arraignment, but in other cases he may
appear therefor by counsel.”); see also John P. Roehrick, The New Iowa Criminal
Code: A Comparison 653 (1977) (noting the statute’s language change from
“misdemeanors” to “other cases” was an “[a]doption of the prerevised law”).
Hurlbut’s pitch that we must apply the second subsection of rule 2.27 in
this situation, and not the first subsection, misses the strike zone. Rule 2.27(2)
addresses situations when a defendant is present at the beginning of a trial or
proceeding but then either voluntarily leaves or engages in disorderly conduct
that warrants his exclusion from the remainder of the trial. In that situation, the
rule permits the proceeding to continue without the defendant “[i]n all cases”—
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even in felony cases—only after the defendant has first appeared at trial. But
rule 2.27(2) doesn’t apply to this case because Hurlbut was charged with a
misdemeanor. Under rule 2.27(1), Hurlbut wasn’t required to be present for any
portion of his trial, either at the beginning or at any other time, for the court to
proceed in his absence.
Hurlbut contends that the district court violated his constitutional rights
of presence and confrontation when it proceeded with trial in his absence. Due
process and confrontation are, without question, fundamental rights. See State
v. Wise, 472 N.W.2d 278, 279 (Iowa 1991) (“A criminal defendant has a
constitutional and statutory right to be personally present at every stage of
trial.”); see also Illinois v. Allen, 397 U.S. 337, 338 (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.”). But these rights may be
lost through a defendant’s voluntary conduct. Hendren, 311 N.W.2d at 62. A
misdemeanor defendant who knows his trial date yet deliberately chooses,
without good cause, to remain absent from his scheduled trial cannot then cry
foul when the court follows through with the trial. The defendant, after all,
doesn’t have the exclusive interest in his criminal trial. The State also possesses
a compelling interest in the orderly disposition of justice. Barker v. Wingo,
407 U.S. 514, 519–21 (1972) (describing the “societal interest in providing a
speedy trial which exists separate from, and at times in opposition to, the
interests of the accused”). A defendant’s right to attend trial, weighty as it is,
doesn’t supply him some attendant power to turn trial scheduling orders into
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empty suggestions that he may ignore without consequence whenever he feels
the urge.
The State, in the district court, didn’t advance any specific legal doctrine
in support of its argument that Hurlbut’s knowing absence from trial abandoned
his trial rights. On appeal, the State contends that any of several legal bases
support the district court’s decision: “Whatever the term applied, a
relinquishment—or waiver, abandonment, loss, forfeiture—of trial rights are
constitutionally tolerable” under the facts of this case. We believe that forfeiture
provides the appropriate analytical framework under the circumstances of this
case. See 6 Wayne R. LaFave, Criminal Procedure § 24.2(d) (4th ed. 2015)
[hereinafter LaFave, Criminal Procedure] (finding “traditional waiver-of-rights
theory” ill-suited to the analysis in matters involving voluntary absence at trial
and thus that “it would seem preferable to view the matter in terms of forfeiture
of a right by misconduct”).
The record amply supports the conclusion that Hurlbut forfeited the right
to attend his trial through his own conduct. See id. (discussing a defendant’s
“[f]orfeiture by voluntary absence” of the right to be present (citing People v.
Sanchez, 482 N.E.2d 56, 60 n.* (N.Y. 1985) (“Forfeiture, unlike an express waiver
which involves an evaluation of defendant’s state of mind, occurs by operation
of law and as matter of public policy.”))). Hurlbut knew at least seven weeks in
advance of his trial date (at a hearing that he personally attended) both when
and where his trial would commence. Hurlbut’s multiple statements, as relayed
by his lawyer to the district court, indicated that he would appear on his trial
15
date—a date he mistakenly believed was the date of his pretrial conference. Only
after he was informed that he’d actually be appearing for his first day of trial,
and not his pretrial conference, did Hurlbut tell his lawyer that he couldn’t find
a ride to court. Hurlbut failed to present any evidence, even in his postverdict
motions, that his absence was involuntary.
Unforeseen events that prevent a defendant from attending trial might well
justify postponing a misdemeanor trial. See id. at 382–84. When a defendant
fails to appear for trial, before concluding that the defendant’s absence is
voluntary, the court usually should provide defense counsel the opportunity to
show that the defendant’s absence is involuntary. Id.; see also State v. Wanosik,
31 P.3d 615, 624 (Utah Ct. App. 2001). The district court provided this
opportunity to Hurlbut’s lawyer on both days of the trial. The only explanation
that the lawyer provided—that Hurlbut failed to secure transportation to court
(for reasons otherwise unexplained in the record)—does not suffice to show that
his absence was involuntary. Nonattendance at trial because of hospitalization,
imprisonment on a different charge, “or other unforeseen emergency will be
considered involuntary, but foreseeable problems will not.” LaFave, Criminal
Procedure § 24.2(d) (footnote omitted). A defendant’s need to arrange
transportation to court is among the foremost foreseeable steps in ensuring one’s
own participation at trial. When the State permits the release of defendants
awaiting trial, it’s the defendant’s obligation—not the State’s—to secure
transportation to the courthouse. People v. Connolly, 111 Cal. Rptr. 409, 413–14
(Ct. App. 1973) (cited with approval in People v. Concepcion, 193 P.3d 1172, 1177
16
(Cal. 2008)) (declaring the defendant’s car troubles insufficient to absolve the
defendant from his “duty to do all he reasonably could do to get to the court as
promptly as possible”); State v. Simino, 509 A.2d 1039, 1049 (Conn. 1986)
(finding lawyer’s statement that the defendant “didn’t have transportation to
court [because] his ride didn’t show up” had no bearing on “the reasonableness
of the trial court’s exercise of its discretion in finding that the defendant had
voluntarily absented himself from the trial”).
Hurlbut, for his part, didn’t mention any transportation problem, or offer
evidence of any other basis that might establish good cause for his absence,
when presented the opportunity in his posttrial motion in arrest of judgment.
See Hendren, 311 N.W.2d at 62 (considering the evidence presented with the
defendant’s motion in arrest of judgment to determine whether the defendant
absented himself without good cause). Indeed, Hurlbut’s appeal brief makes no
mention whatsoever of his motion in arrest of judgment. On the record before
us, Hurlbut has failed to demonstrate his absence was something other than a
voluntary forfeiture of his right to attend. See United States v. Ornelas, 828 F.3d
1018, 1022 (9th Cir. 2016) (stating that the absent defendant bore the burden
of offering evidence to refute the trial court’s finding of voluntariness); State v.
Bohn, 570 P.2d 187, 190 (Ariz. 1977) (in banc) (declaring it the defendant’s
burden to demonstrate his trial absence was involuntary); Hill v. State, 722
S.E.2d 708, 711 (Ga. 2012) (same).
Hurlbut would have reasonably understood his court attendance
obligations from his prior interactions with the criminal justice system. He also
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had the assistance of legal counsel to help resolve any questions on this subject.
The district court had previously warned Hurlbut in clear terms: “[Y]ou need to
be here for the trial.” Yet he had earlier refused to appear for trial on one of his
initial trial dates. And another time he hung up on the court and refused to
participate in a hearing. The district court’s conclusion about Hurlbut’s
voluntary absence is reinforced by Hurlbut’s earlier statements and actions in
the case.
When warranted, trials in absentia under rule 2.27(1) may secure timely
justice for the public and the defendant, and may prevent defendants from
playing games with the prosecution or the court and causing unreasonable
delays or other problems in the administration of justice. In this situation,
Hurlbut’s voluntary absence forfeited his right to be present at his misdemeanor
trial, and the district court appropriately moved forward with trial in his absence.
AFFIRMED.
All justices concur except Appel, J., who concurs specially.
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#20–0630, State v. Hurlbut
APPEL, Justice (concurring specially).
I. Introduction.
An examination of the record reveals that Randall Hurlbut is a difficult
defendant. On the day of his arrest for the crime for which he was charged in
this proceeding, Hurlbut declared that a snowman was on top of his car. He has
been in and out of rehabilitation. An examination of the record reveals that
Hurlbut likely has mental health issues and a history of drug abuse that impairs
his judgment.
But the question here is not whether Hurlbut is obstreperous and difficult
to manage; the question here is whether the record in this case supports the
district court’s decision to try Hurlbut in his absence. The majority says yes
based on a theory not advanced in the district court and based on facts not found
by the district court.
II. Context Overlooked by Majority.
There are aspects of the file that have been overlooked by the majority in
this case that bear on Hurlbut’s absence at trial. The record establishes that
prior to trial, Hurlbut, who did not have a driver’s license, had difficulties with
transportation to court proceedings. In a motion filed on February 27, 2019,
Hurlbut stated that he resided at the Salvation Army Adult Rehabilitation Center
in Des Moines, that he was unable to drive, and that despite his best effort, he
was unable to secure transportation from Des Moines to Plymouth County. At a
pretrial conference on February 28, 2019, Hurlbut went so far as to seek to have
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bond revoked so that he would be taken into custody and then the sheriff would
transport him to court proceedings. The district court entered an order noting
that there was no bond to revoke and denied the request. But the point is, this
shows Hurlbut’s difficulties in obtaining transportation to Plymouth County were
present prior to the scheduled trial date in February 2020.
And there were communications difficulties between Hurlbut and his
lawyers. Hurlbut did not appear for a July 12, 2019 pretrial conference as
ordered by the court. As a result, the district court entered a bench warrant for
his arrest. The district court later rescinded the bench warrant when it appeared
that a letter sent to Hurlbut by his counsel informing him of the court date may
have been sent to a facility where Hurlbut was no longer residing. So attorney–
client communications problems about court dates were apparent from the
record prior to trial.
After a number of continuances, trial was set for February 4, 2020. At a
pretrial conference on December 16, 2019, the district court stated that trial
would commence on February 4, 2020, and that a pretrial conference would be
held the prior Friday. The district court told Hurlbut that while he did not need
to attend the pretrial conference, he needed to be there for trial. To which
Hurlbut responded, “Yep.”
III. No Findings Made on Hurlbut’s Trial Absence.
Hurlbut, however, did not appear at the pretrial conference on January 31
and did not appear for the first day of trial on February 4. The district court
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noted that Hurlbut’s counsel had received communication from his client that
the district court desired to put on the record.
Counsel for Hurlbut stated that Hurlbut was “I guess I’ll just say mistaken
about what was -- what and when these matters were scheduled.” Hurlbut’s
counsel noted that “he’s currently residing in Fort Dodge and did not think he
would be able to find transportation to be able to get here this morning.”
Hurlbut’s counsel then moved for a continuance based on his client’s absence.
Counsel for the State responded:
[I]t’s my understanding that Mr. Hurlbut thought today was the
pretrial conference. It has always been the date and time set for trial;
it has never been the date and time set for pretrial conference. So I
think it was accurate that it was confusion on his part, not that any
change was made about which he had not been informed, and I
think it’s important for the record to show that.
(Emphasis added.) So, the State told the court it “[is] accurate that it was
confusion on his part.” And “based on that [confusion on his part], I would resist
a continuance.” The State then asserted that “there was a time when he thought
it was the pretrial conference when he thought he was going to be here.”
The district court turned to Hurlbut’s counsel and asked, “[D]o you believe
that your office or you have informed or had informed Mr. Hurlbut of the trial
date and the pretrial conference dates in the past?” To which counsel replied,
“Yes, Your honor.”
That is the sum and substance of the record developed on the first day of
trial. Neither Hurlbut’s counsel nor counsel for the State mentioned waiver,
forfeiture, or even the constitutional rights of Hurlbut.
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The district court then denied the motion to continue. Although the
majority states otherwise, the district court made no findings of fact on the first
day of trial. The district court ruled:
So I am going to deny the motion to continue. And so I know under
Rule 2.27 and a particular subpart under that, in a case where we
have a felony pending, we cannot proceed without the defendant’s
presence absent certain circumstances which don’t apply to
misdemeanors. This is a misdemeanor only. Actually, there are three
misdemeanors that are still pending set for today.
And so as much as I would prefer the defendant to be here,
the rule allows us to proceed without his presence, and so I intend
to do that absent very compelling circumstances or reasons.
The district court clearly stated its conclusion. But it made no factual findings.
Later in the first day of trial, the parties made an additional record. At this
point, counsel for Hurlbut stated, “Mr. Hurlbut, in our discussion, did not
consent verbally to me to waive his presence for trial. I just -- that wasn’t said
on the record. I wanted to make sure that was in there so it’s clear.” Further,
counsel now found that “there’s some distinction drawn” between the rule and
constitutional protections regarding due process and the right to confront.
The State responded not by asserting waiver, and certainly not “forfeiture,”
but by requesting that a warrant for Hurlbut’s arrest be issued, ensuring his
presence at trial. The State suggested that trial could begin as soon as the next
day upon Hurlbut’s arrest. The State’s counsel noted that an arrest warrant was
not “typically the way we do things” but that it was the State’s preference
“because it would ensure Mr. Hurlbut’s presence, and then his rights would be
protected as far as confrontation.” (Emphasis added.)
22
The position of the State, to its credit, was not to seek to forfeit Hurlbut’s
rights, but to protect them. But the majority is not satisfied with the State’s
advocacy and develops an argument not made by the State—namely, that
Hurlbut forfeited any right he may have had to be present.
So at this point, Hurlbut’s counsel has introduced due process and
confrontation issues under unspecified constitutional provisions and has made
clear that his client did not waive his constitutional right to be present. Having
already conceded in argument that it was accurate that Hurlbut was “confused,”
the State did not assert “forfeiture” or “waiver” arguments. In fact, the State’s
position implied the opposite by asking the court to issue an arrest warrant to
preserve the defendant’s right of confrontation.
The ruling on the renewed motion does not appear until the second day of
trial. At that point, Hurlbut’s counsel rose to “renew the motion or objection to
proceeding with the defendant not being present for trial at this time . . . [f]or all
the reasons previously stated as if they [are] fully restated at this time.” When
asked if the State took the same position, the State declared, “Yes, Your honor.”
And the district court declared, “The ruling will remain the same. The motion is
denied.”
The bottom line is that there were no adequate findings of fact by the trial
court and certainly no mention by the State of the new and improved doctrine of
forfeiture that the majority sees this case as an opportunity to develop. And while
the State opposed a continuance, it did not seek to have trial proceed without
23
Hurlbut but instead sought to have a bench warrant issued and have him
brought to court.
IV. Defects in Majority Legal Analysis.
A. Problems with Forfeiture. The majority sails far out to sea by
developing a doctrine of “forfeiture” that was not raised by the State below and
is developed by the majority from above. Remember that the State in the district
court (1) did not raise the doctrine of forfeiture and (2) did not claim knowing
waiver (“it [is] accurate that Hurlbut was confused”) but instead (3) sought the
issuance of a bench warrant to protect Hurlbut’s right of confrontation (and due
process, too). The majority’s work-around on appeal is to develop a forfeiture
theory not raised or sought by the State in the proceedings below.
The majority concedes that the State did not develop any legal doctrine
below, but to the majority, it appears that this does not matter. The State,
apparently, does not have to raise a legal theory in the district court to have it
preserved by this court on appeal. This courtesy is not ordinarily extended to
defendants. It seems the State is a special litigant to which ordinary error
preservation rules do not apply.
It should be noted, the injection of the forfeiture issue on appeal has its
complications. As noted by one commentator, the cases utilizing forfeiture by
wrongdoing “ha[ve] produced disparate conclusions about not only the specific
contents of the rule of forfeiture by wrongdoing, but also about when the rule
should apply, how broadly the rule should apply, and whether forfeiture by
wrongdoing addresses hearsay as well as constitutional objections.” Timothy M.
24
Moore, Forfeiture by Wrongdoing: A Survey and an Argument for Its Place in
Florida, 9 Fla. Coastal L. Rev. 525, 534 (2008). Does forfeiture require specific
intent? What is the role of prior bad acts? What is the standard of proof? The
development of the doctrine of forfeiture requires advocacy and a proper record
directed to the doctrine in the district court.
In any event, from a legal perspective, our cases speak in terms of waiver,
not forfeiture. State v. Hendren, 311 N.W.2d 61, 62 (Iowa 1981) (en banc).
Forfeiture of the right to confrontation clearly applies when there is disruptive
misconduct at trial. Illinois v. Allen, 397 U.S. 337, 343 (1970). But when a
criminal defendant is a no-show at trial, the question is usually framed as one
of waiver. Hendren, 311 N.W.2d at 62.
State v. Hendren has been cited by five unreported Iowa Court of Appeals
cases on the question of how to handle absence of a criminal defendant at trial,
and all of the cases utilized the waiver framework.1 Further, Iowa cases prior to
Hendren frame the issue as one of waiver.2 Thus, the Hendren waiver approach
is firmly found in Iowa law, both before Hendren and after it.
1See State v. Bell, No. 19–0161, 2020 WL 2487608, at *2 (Iowa Ct. App. May 13, 2020)
(“We review de novo a court’s determination that a defendant voluntarily waived his or her
constitutional right to be present at trial.”); State v. LePon, No. 18–0777, 2019 WL 2369887, at
*7 (Iowa Ct. App. June 5, 2019) (citing Hendren and reviewing his right to be present de novo
but finding any error harmless); State v. McCann, No. 17–0175, 2018 WL 1182766, at *1 (Iowa
Ct. App. Mar. 7, 2018) (citing Hendren and noting de novo review of voluntariness); State v.
Thompson, No. 15–1463, 2016 WL 6270237, at *6 (Iowa Ct. App. Oct. 26, 2016) (citing Hendren
for proposition that right to be present may be waived and reviewing de novo).
2See, e.g., State v. Anderson, 308 N.W.2d 42, 48–49 (Iowa 1981) (discussing “waiver”
issue); State v. Moore, 276 N.W.2d 437, 440 (Iowa 1979) (“Viewed as a waiver of constitutional
rights, defendant’s conduct has to meet certain criteria. His relinquishment of the right to be
present at his trial must be knowing, intelligent and voluntary.”).
25
Our law was expressed in State v. Moore:
Viewed as a matter of constitutional rights, defendant’s conduct has
to meet certain criteria. His relinquishment of the right to be present
at his trial must be knowing, intelligent, and voluntary. Courts
indulge every reasonable presumption against waiver. Collier v.
Denato, 247 N.W.2d 236, 239 (Iowa 1976). The burden is on the
State to show a valid waiver by a preponderance of the evidence.
State v. Hilpipre, 242 N.W.2d 306, 309 (Iowa 1976).
276 N.W.2d 437, 440 (Iowa 1976) (first citation omitted).
B. Problems with Waiver. Under Hendren, in order to establish waiver,
the defendant must (1) “be aware of the processes taking place,” (2) be aware of
their “right and [their] obligation to be present,” and (3) “have no sound reason
for remaining away.” 311 N.W.2d at 62 (quoting Cureton v. United States,
396 F.2d 671, 676 (D.C. Cir. 1968) (approved by the United States Supreme
Court in Taylor v. United States, 414 U.S. 17, 19–20 (1973))).
Had the prosecution raised the traditional three-pronged-waiver test
under Hendren, the district court no doubt would have focused on the third
prong of Hendren—namely, whether there was a sound reason for Hurlbut’s
absence. Based on what we know, there may have been a problem on the third
Hendren prong. It is entirely possible that a person without means might have
difficulty arranging for ninety-three miles of travel on short notice.
There is caselaw for the proposition that bona fide transportation problems
may provide the basis for absence at trial. Consider State v. Cassidy, 567 N.W.2d
707 (Minn. 1997). In Cassidy, the defendant failed to appear for the second day
of trial. Id. at 709. The defendant explained that the car he had intended to
borrow was not available because of an emergency in the owner’s family and that
26
he was not able to arrange transportation to trial. Id. In this case, the Minnesota
Supreme Court held that the trial court failed to set forth specific findings of fact
to support its conclusion that the defendant’s absence was voluntary. Id. at 710.
The Minnesota Supreme Court emphasized that when a right as fundamental as
the right to be present at one’s trial was at stake, the trial court had an obligation
to safeguard that right. Id. at 711; see also Black v. United States, 529 A.2d 323,
324 (D.C. 1987) (considering circumstances where defendant’s absence occurred
when his car battery was stolen and he had to use public transportation); United
States v. Camacho, 955 F.2d 950, 954 (4th Cir. 1992) (noting that defendant was
late to court due to traffic problems); United States v. Mackey, 915 F.2d 69, 73–
74 (2d Cir. 1990) (noting that defendant had car trouble that delayed arrival).
In short, persons without means may well have problems arranging for
transportation, particularly on short notice. Hurlbut was bouncing around from
institution to institution during the pendency of the charges. He did not drive.
He may well have worn out his welcome with friends, if he had any friends. It is
not likely that there was a bus to catch from Fort Dodge to Le Mars. Who knows
what the facts would show if there was a real effort to determine the facts and
make factual findings based on the evidence?
C. Lack of Fact-finding/Lack of Development of Facts.
1. No fact-finding by district court. Did Hurlbut have a sound reason for not
appearing at trial? See State v. Beloved, No. 14–1796, 2015 WL 8390222, at
*2–3 (Iowa Ct. App. Dec. 9, 2015). Aside from the difficulties mentioned above,
examination of the record reveals that the district court did not engage in fact-
27
finding. It did not find facts necessary to support forfeiture—perhaps because
the State did not argue forfeiture to the district court. It did not make the fact-
finding necessary to support waiver—perhaps because the State conceded
Hurlbut was “confused” and, as a result, did not press waiver but sought an
arrest warrant to protect Hurlbut’s right to confrontation. Instead, the district
court simply denied Hurlbut’s motion to continue.
That just does not cut it. The majority cites the LaFave treatise, which
describes forfeiture cases. But the majority omits LaFave’s admonition that
“[w]henever a defendant does not appear, either at trial’s outset or mid-trial, the
court must be certain that his absence was voluntary before proceeding.”
6 Wayne R. LaFave, Criminal Procedure § 24.2(d) (4th ed. 2015). I think the
Supreme Court of Minnesota got it right in Cassidy, 567 N.W.2d 707. The
Cassidy court held that “courts must indulge every reasonable presumption
against the loss of constitutional rights.” Id. at 709 (quoting Allen, 397 U.S. at
343). The Cassidy court further stated that “the trial court must be extremely
cautious in determining whether that absence is voluntary and should set forth
with specificity its rationale for finding the right waived and the facts supporting
that rationale.” Id. at 710.
The Cassidy court is not alone in this. In State v. Thomson, the Supreme
Court of Washington set out a three-part inquiry for the trial courts. 872 P.2d
1097, 1100 (Wash. 1994) (en banc). A trial court is to:
(1) [make] sufficient inquiry into the circumstances of a defendant’s
disappearance to justify a finding whether the absence was
voluntary, (2) [make] a preliminary finding of voluntariness (when
28
justified), and (3) [afford] the defendant an adequate opportunity to
explain his absence when he is returned to custody and before
sentence is imposed.
Id. (alterations in original). Obviously, no such inquiry happened here. In cases
involving defendants not being present when the trial commences, the
Washington court set the line firmly. In State v. Hammond, the Supreme Court
of Washington ruled that the federal rule and its state equivalent did not
authorize commencing trial without the defendant. 854 P.2d 637, 640
(Wash. 1993) (en banc).
The majority cites United States v. Ornelas, 828 F.3d 1018 (9th Cir. 2016),
in support of its position of “voluntary forfeiture.” But the word “forfeiture” does
not appear in the case. Additionally, in Ornelas, the district court did make a
factual finding that defendant had absented himself from the proceedings. Id. at
1021–22. Further, this finding was supported by the record. Id. Here, the district
court never made a factual finding as to the voluntariness of Hurlbut’s absence.
Upon noticing Hurlbut did not appear at his own trial, the State asked the court
to issue a bench warrant rather than proceed to trial without Hurlbut. The court
declined the State’s invitation for a warrant and instead proceeded with the trial
without even addressing Hurlbut’s reasons for his absence.
In insisting on fact-finding based on a developed record, I do not require
district courts to embrace flimsy excuses or bogus assertions as legitimate
reasons for missing a court date in a criminal matter. But the right to be present
in the courtroom is a very precious right for any criminal defendant, including
29
Hurlbut. Appropriate, methodical fact-finding is required in this case, as in any
other case, on the question of good cause for his absence.
2. Abuse of discretion standard. The majority announces an abuse of
discretion standard when reviewing decisions of a trial court to proceed to trial
in the absence of the defendant. But when findings of fact are required that
involve constitutional questions, our review is de novo. See, e.g., Bomgaars v.
State, 967 N.W.2d 41, 46 (Iowa 2021); Moon v. State, 911 N.W.2d 137, 142
(Iowa 2018); State v. Thompson, 836 N.W.2d 470, 476 (Iowa 2013). To the extent
the majority believes there are no facts to be found, but only discretion to be
exercised, it commits error. Iowa appellate cases repeatedly emphasize findings
of fact by trial court judges in connection with the absence of a criminal
defendant at trial.3
3. Burden of proof. The majority cites out-of-state cases for the proposition
that the burden of proof with respect to lack of presence rests with Hurlbut. For
instance, the majority cites Hill v. State for the proposition that it is the
defendant’s burden to show that their absence was involuntary. 722 S.E.2d 708,
711 (Ga. 2012). But according to Iowa precedent in Moore, the burden of proof
rests with the State. See 276 N.W.2d at 440 (“The burden is on the State to show
a valid waiver by a preponderance of the evidence.”). In choosing between the
Georgia authority and the Iowa authority, I would go with the Iowa authority.
3See previous footnote.
30
The majority also cites Ornelas for the proposition that an absent
defendant bore the burden of going forward and offering evidence to refute the
voluntariness finding of the trial court. 828 F.3d at 1022. Here, there was no
voluntariness finding by the district court. Moreover, the majority omits a more
important aspect of Ornelas. In Ornelas, the United States Court of Appeals for
the Ninth Circuit recognized the Seventh Circuit’s emphasis on the role of the
district court in getting to the bottom of voluntariness issues if plausible
explanations appear in the record. Id. at 1021–22. Where plausible explanations
are in the record, the district court is to explore and confirm the reasons for his
absence. Here, as I have outlined above, I see plausible reasons for
nonattendance. And it is likely the State did too. That is why the State asked the
district court to issue a bench warrant and not to charge ahead in the
defendant’s absence.
Finally, it seems to me the approach to waiver in the Seventh Circuit in
United States v. Achbani, 507 F.3d 598, 601 (7th Cir. 2007), is more consistent
with Iowa law on the burden of proof issue than Ornelas.
4. Inadequacy of statements of counsel. I am also concerned about the use
of statements from Hurlbut’s counsel as a substitute for the fact-finding
ordinarily required on constitutional questions of waiver. See United States v.
Ward, 598 F.3d 1054, 1060 (8th Cir. 2010). There is also authority for the
proposition that it is the responsibility of the trial judge to find out not only where
the defendant was but also why the defendant was absent. Ornelas, 828 F.3d at
1021; Cassidy, 567 N.W.2d at 710; United States v. Rogers, 853 F.2d 249, 252
31
(4th Cir. 1988). That did not happen here. The district court did not hear at all
from Hurlbut. Is the question of his waiver of constitutional rights something
that can be resolved by lawyers and judges in a distant courtroom without
hearing from him? Under the circumstances presented here, I think not.
D. Motion in Arrest of Judgment. The majority correctly points out that
Hurlbut filed a motion in arrest of judgment raising the due process and
confrontation issues related to his absence at trial. But Hurlbut, who was
present at the hearing, did not claim he had transportation problems and did
not put on any evidence related to his absence at trial. Under these
circumstances, it would seem odd to remand this matter for a hearing when
Hurlbut already had an opportunity to make his case regarding absence from
trial. Given the fact that he had an opportunity to be heard on the question at
the time of the hearing on the motion in arrest of judgment, I conclude that
Hurlbut cannot show that he has been prejudiced by the district court’s prior
precipitous action. As a result, I agree he is not entitled to relief.
V. Conclusion.
On balance, I would hold that the State has not preserved its argument
regarding forfeiture by misconduct by failing to raise it in the district court. But
because Hurlbut had an opportunity at the hearing in arrest of judgment to
present his case on the reasons for his absence and failed to do so, I conclude
there is no basis for a remand now for a second opportunity for a posttrial
hearing.
I therefore concur with the result in this case.