About a year and a half ago I did a blog post here about trial in the defendant’s absence. The recent Court of Appeals case, State v. Anderson, suggests that a quick update is in order.
As noted in my earlier post, the right to be present at trial is a personal right that may be waived in all cases except capital prosecutions. The waiver may be express or implied. Among the circumstances where implied waivers come into play is when the defendant voluntarily absents himself or herself from court after the trial has begun. This typically occurs when the defendant flees, shows up late to court, or leaves for some portion of the trial. To support an implied waiver in this context, the defendant’s absence must be voluntary. So, for example, if the defendant had a massive heart attack and is in the emergency room, the absence isn’t voluntary and there is no implied waiver. Also, for an implied waiver to be found, the trial must have begun. For these purposes, calling prospective jurors into the jury box as part of jury selection constitutes the beginning of the trial; the jury need not have been impanelled. State v. Richardson, 330 N.C. 174 (1991); see also State v. Russell, 188 N.C. App. 625 (2008).
Once the trial has begun and the defendant fails to appear, the defense bears the burden of explaining that the absence is involuntary. Richardson, 330 N.C. 174 (burden not satisfied). This where the new case comes in. In Anderson, the defendant went missing from the courtroom on the second day of trial. The trial court gave defense counsel time to locate the defendant but when defense counsel was unable to do so, the trial resumed without him. After the close of the State’s evidence, defense counsel moved to continue so that the defendant could have an opportunity to testify in his defense. The trial judge denied the motion. Shortly after jury deliberations began, defense counsel informed the trial judge that an individual named Stacie Wilson called to say that the defendant was in the hospital suffering from stomach pains. However, because defense counsel was unable to tell the trial judge who Stacie Wilson was, what hospital the defendant was in, or any other information, the trial continued. When the proceedings resumed on the third day, the defendant was present. Defense counsel informed the trial court that the defendant was absent the day before because he was in the hospital and moved to dismiss on those grounds. To support the assertion of illness, the defendant offered a note from a hospital indicating that he had been treated there at some point. However, the note did not contain a date or time of treatment. The defendant appealed his conviction, arguing that the trial court erred by denying his motion to dismiss. The Court of Appeals disagreed, finding that on the evidence presented, the defendant did not meet his burden of explaining his absence.
Other similar cases exist. See, e.g., Richardson, 330 N.C. 174 (defendant’s burden was not satisfied by (1) defense counsel’s speculation that defendant’s absence might be explained by a back problem; (2) defendant’s call reporting that he was at the hospital when defense counsel could not confirm that fact and defendant was seen at two other locations; or (3) a call to the Clerk by an unidentified person stating that he was the defendant’s friend and that the defendant was absent due to back problems); see also Russell, 188 N.C. App. 625 (defendant failed to explain his absence); State v. Davis, 186 N.C. App. 242 (2007) (same); State v. Skipper, 146 N.C. App. 532 (2001) (same). All of this suggests that if defense counsel is going to effectively argue that an absence is involuntary, counsel needs to have solid evidence to that effect.