[Editor’s note: Sorry there was no post yesterday. I was out of town and had technical trouble that made it impossible to access the blog.]
Can a defendant be tried in absentia? In this post, I will answer that question.
The Right to be Present at Trial
A criminal defendant has a constitutional right to be present at every stage of his or her trial. State v. Braswell, 312 N.C. 553 (1985); State v. Daniels, 337 N.C. 243 (1994); State v. Huff, 325 N.C. 1 (1989), vacated on other grounds, 497 U.S. 1021 (1990). The right applies once the trial has begun. See, e.g., State v. Golphin, 352 N.C. 364 (2000); State v. Hyde, 352 N.C. 37 (2000).
Waiver of the Right to be Present at Trial
The right to be present at trial is a personal right that may be waived in all cases except capital prosecutions. Daniels, 337 N.C. 243; Braswell, 312 N.C. 553; Huff, 325 N.C. 1; State v. Hayes, 291 N.C. 293 (1976). A waiver of the right to be present may be express or implied. The best practice for the trial judge before proceeding in the defendant’s absence is to obtain an express waiver. Braswell, 312 N.C. 553. G.S. 15A-1011(d) provides the relevant procedure. However, in some circumstances this is not possible or appropriate, such as when the defendant flees mid-trial. In those circumstances, a waiver may be implied.
A waiver of the right to be present may be implied when the defendant voluntarily absents him- or herself from court after the trial has begun. State v. Tedder, 169 N.C. App. 446 (2005); State v. Skipper, 146 N.C. App. 532 (2001). This typically occurs when the defendant flees, shows up late to court, or leaves for some portion of the trial. To support such a waiver, the absence must be voluntary. Hayes, 291 N.C. 293 (new trial; prosecutor told defendant and counsel that they could leave the courtroom and would get a half day’s notice before the case was called; trial began after only two hours’ notice to counsel and in defendant’s absence); State v. Shackleford, 59 N.C. App. 357 (1982) (new trial; defendant was not present for jury selection because of “misinformation” about when the case would be called). In order for waiver to apply in this context, 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); see also Russell, 188 N.C. App. 625) (defendant failed to explain absence); State v. Davis, 186 N.C. App. 242 (2007) (same); Skipper, 146 N.C. App. 532 (same). As noted, the right to be present may not be waived in a capital case. When a defendant voluntarily fails to appear in a capital case, the options seem to be: (1) a mistrial; (2) a continuance if the defendant can be brought back without undue delay; or (3) for the prosecutor to declare the case non-capital and proceed in absentia. See State v. Mulwee, 27 N.C. App. 366 (1975) (prosecutor declared case non-capital).
A defendant also can waive the right to be present by engaging in disruptive behavior in the courtroom. Illinois v. Allen, 397 U.S. 337 (1970); State v. Ash, 169 N.C. App. 715 (2005). G.S. 15A-1032 provides a procedure for removing disruptive defendants. When a pro se defendant’s disruptions require removal, the judge should consider appointing counsel. The U.S. Supreme Court has recognized that the right to proceed pro se is not absolute and may be terminated if the defendant engages in serious and obstructionist misconduct. Farretta v. California, 422 U.S. 806 (1975). Although a judge should be cautious when terminating pro se representation on this basis, there may be no other option when removal is required. As noted, a capital trial may not be held in the defendant’s absence. The N.C. Supreme Court has not ruled on whether “there can be ‘constructive’ presence made necessary by reason of defendant’s disruptive conduct.” Huff, 325 N.C. at 28 n.2. Thus, when a capital defendant refuses to cease disruptive behavior, the judge may need to consider physical restraints, if the trial is to proceed.
Although a defendant may be tried in absentia, a defendant may not be sentenced in absentia when “corporal punishment” is imposed. State v. Stockton, 13 N.C. App. 287 (1971) (citing State v. Pope, 257 N.C. 326 (1962)); State v. Brooks, 211 N.C. 702 (1937); State v. Cherry, 154 N.C. 624 (1911)). But see State v. Miller, 142 N.C. App. 435 (2001) (no error to sentence in absentia when the defendant absconded; not citing any of the case law listed above). This right is a common law right, separate and apart from the right to be present at trial, Pope, 257 N.C. 326, and it extends to the entire sentencing hearing, not just pronouncement of sentence. Id; Davis, 186 N.C. 242. Corporal punishment includes punishment inflicted on the body, including imprisonment. Thus, a sentence can be imposed in the defendant’s absence if it involves only payment of costs and a fine. State v. Ferebee, 266 N.C. 606 (1966). The rule that a defendant may not be sentenced in absentia means that it is error for the trial court to change a judgment rendered in open court without the defendant being present when the change is made. See State v. Mims, 180 N.C. App. 403 (2006); State v. Davis, 167 N.C. App. 770 (2005); State v. Crumbley, 135 N.C. App. 59 (1999); State v. Beasely, 118 N.C. App. 508 (1995); see also State v. Hanner, 188 N.C. App. 137 (2008). When a guilty verdict is returned after a trial in absentia, the trial judge should enter a prayer for judgment continued, until the defendant can be brought before the court for sentencing.