State v. Cassidy

¶1dissenting.

¶2I vigorously dissent. In my view, the record is more than adequate to demonstrate that the trial court properly exercised its discretion in proceeding with the trial in the absence of the defendant.

¶3The majority concedes that a defendant waives his or her constitutional right to be present at trial when the defendant voluntarily and without justification absents him or herself from the trial. The majority also concedes that the defendant bears the burden of showing that his or her absence from the trial was involuntary. Using the majority’s own reasoning, therefore, Cassidy had the burden of establishing, on the record and to the satisfaction of the trial court, sufficient facts to support his claim that his absence was involuntary. Any failure to adequately establish such a record must necessarily result in a ruling against the defendant. Instead, the majority somehow reaches the conclusion that an inadequate record required the trial court to rule in the defendant’s favor.

¶4Even accepting as true the majority’s contention that an inadequate record must result in a ruling favorable to the defendant, the facts show that the record was anything but inadequate. The record established that the state presented its entire case on the first of two days set aside by the court, with Cassidy present in the courtroom. It also established that when court reconvened on the second day, Cassidy did not appear. The record also established that Cassidy did not contact the court until about 9:15 a.m., at which time he arranged a telephone conversation between himself, his attorney, the prosecutor, and the judge. According to the record, the judge gave Cassidy an opportunity to explain his reason for not being in court, and Cassidy stated that on the previous evening he had driven an hour’s drive north to pick up a witness. According to the record, Cassidy went on to explain that the car he had borrowed to travel from his home to the courtroom for the first day of trial no longer was available because of an emergency in the car owner’s family. Cassidy’s attorney then asked Cassidy if he had tried to get another vehicle, and Cassidy stated he had tried until 3 a.m., but was unsuccessful.

¶5After a discussion regarding the rights of a defendant to be present at trial, the record shows that the defense attorney asked Cassi-dy if he would permit the trial to go forward in his absence. Cassidy first stated that he would, but upon further questioning by the court, Cassidy stated, “Your honor, for the record I want to be there for the whole trial.” After Cassidy hung up, his attorney said he believed Cassidy desired to be present in court and that his desire, as evidenced by the telephone conversation, was an informal request for a continuance. The state objected, arguing that Cassidy was aware he was to be present at trial and that there would be no prejudice if the trial proceeded in his absence. Upon these facts, the district court denied Cassidy’s motion on the grounds that his absence was voluntary and ordered the trial to proceed.

¶6The record also shows that the court explained its decision as follows:

[T]he defendant knew and was aware that we were going to start at 9 a.m. today; that he voluntarily left here, went back to Canada, again placing himself outside the jurisdiction of this court, and didn’t bother to call us or get a hold of anybody until 9:15 a.m. this morning. This court had, upon the agreement or the understanding with both counsel that this case was going *712to take two days, committed itself to other matters on Friday, that is tomorrow, and so that we were in a position that if we were to continue it, we were going to continue it for a fairly lengthy time.

¶7It is clear that the record indicates Cassidy attended the first day of trial and was aware that judge, jury, witnesses, and lawyers were ready to continue the second day. The majority does not dispute that the record also shows that Cassidy decided to voluntarily leave the area of the trial following the first day. The majority also does not dispute that the record shows that the defendant’s lone reason for failing to return to trial was that the car he had planned on using for the trip no longer was available. Yet somehow the majority concludes that the trial court:

failed to set forth with sufficient specificity its rationale for finding that Cassidy voluntarily and without justification failed to return for the remainder of the trial and therefore waived his right to be present on the second day of his trial. The trial court also failed to set forth sufficient facts to support that finding.

¶8What more could the trial court have done to insure an adequate record without transferring the burden of proving the involuntariness of Cassidy’s absence to the state or the court itself?

¶9Given the sufficiency of the record, it would appear that the majority is instead disregarding the trial court’s ultimate decision that Cassidy’s failure to acquire transportation was not a sufficient justification to qualify his absence as involuntary. As the majority correctly states, however, we review a decision to proceed with a trial in absentia under an abuse-of-discretion standard. See United States v. Camacho, 955 F.2d 950, 953 (4th Cir.1992); United States v. Mackey, 915 F.2d 69, 72 (2d Cir.1990). As a result, the majority avoids stating that the trial court erred in concluding that Cassidy’s excuse was not sufficient to meet his burden of proving his absence to be involuntary. But even taking as true the defendant’s contention that he wanted to return for the second day of trial, the fact remains that after the first day of trial, Cassidy voluntarily left not only the county, but the state and country as well. Certainly the trial court was within its discretion to conclude that Cassidy’s excuse for failing to return was not sufficient to render his absence involuntary.1

¶10Once a trial court properly finds waiver, we must determine whether it appropriately exercised its discretion in concluding that there was a controlling public interest in the continuance of the trial in the absence of the defendant. Mackey, 915 F.2d at 72-73; see also Camacho, 955 F.2d at 955. A number of factors help to determine if there is a controlling public interest in the continuation of a trial. United States v. Watkins, 983 F.2d 1413, 1418-19 (7th Cir.1993) (citing United States v. Tortora, 464 F.2d 1202 (2d Cir.), cert, denied sub nom, Santoro v. United States, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972)). These factors include “the likelihood that the trial can take place with the defendant present, the difficulty of rescheduling, the burden on the government and inconvenience to jurors* ….” Id.(Citation omitted).

¶11The majority states that it appreciates “the additional burdens, waste and expenses inflicted on the court, the government [and] witnesses,” but I do not believe that the majority fully understands the burdens it has imposed with this ruling. This trial took *713place in a rural county in a huge judicial district. To tell jurors, who might have come to the courthouse from as far away as 60 to 80 miles, that they might have to sit around for part of a day, or that they might have to return another day simply because the defendant voluntarily has left the country in the middle of a trial is intolerable. The jurors might have taken time from their families and their jobs to be present at the trial. That scenario is repeated many times in rural courthouses throughout the state every week. I also note that there are 11 judges trying to do the work in this vast, 17-county judicial district. When a trial cannot be completed on schedule, there is a domino effect in regard to trials and hearings that have been scheduled weeks or months in advance. Witnesses, litigants, jurors and attorneys in other cases are required to try to adjust their schedules, often for proceedings that have been scheduled weeks and months in advance. The record is clear that the judge in the case at bar was not available for a continuance. In addition, Cassidy offered no evidence concerning his ability to return to the area. Given the fact that a jury already had been seated and heard the entirety of the state’s case and a portion of the defense’s case, it is easy to conclude that an indefinite continuation would have provided both a substantial burden to the government and a serious inconvenience to the jurors.

¶12I recognize that we “must indulge every reasonable presumption against the loss of constitutional rights.” Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 1060, 25 L.Ed.2d 353 (1970). I also must recognize, however, that “the defendant cannot take advantage of his own wilful wrong (failing to appear) to defeat the ends of justice, and must be held to have waived, by his misconduct, his right to be present ….” State ex rel. Shetsky v. Utecht, 228 Minn. 44, 48, 36 N.W.2d 126, 128(1949). As Justice Black wrote in Allen:

[Ojur courts … cannot be treated disrespectfully with impunity. Nor can the accused be permitted by his disruptive conduct indefinitely to avoid being tried on the charges brought against him. It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humiliated and their orderly progress thwarted and obstructed by defendants brought before them charged with crimes.

¶13397 U.S. at 346, 90 S.Ct. at 1062. Based upon the entirety of his conduct, we must presume that Cassidy waived his right to be present for the second day of his trial. His subsequent failure to provide sufficient evidence that his absence was involuntary requires this court to affirm the conviction, and even more importantly, block future criminal defendants from thwarting the efficient advancement of justice.

¶14(dissenting).

¶15I join the dissent of Justice TOML JANO-VICH.

¶16(dissenting).

¶17I join the dissent of Justice TOML JANO-VICH.