# Kimes v. United States

> District of Columbia Court of Appeals · October 31, 1989 · 569 A.2d 104

URL: https://www.frixlaw.com/law-library/cases/9704597

## Case

- **Full name:** Sante KIMES, Appellant, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** October 31, 1989
- **Citations:** 569 A.2d 104; 1989 D.C. App. LEXIS 220; 1989 WL 168095
- **Precedential status:** Published
- **Opinion:** Concurring in part by Schwelb
- **Judges:** MacK, Ferren, Schwelb
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9704597

## How later opinions describe it (automated extraction)

- holding that even if a defendant is deemed to have waived their right to presence under then Rule 43(b)(1)—now Rule 43(f)(1)(A)—because they voluntarily absented themselves from trial after it began, “there is still the question whether the trial court has abused its discretio…

## Opinion text

SCHWELB, Associate Judge,
concurring in part and dissenting in part:
At 1:30 p.m. on July 18, 1985, according to her own submission, Mrs. Kimes was in Arlington, Virginia rather than in or near the courtroom, as ordered by the judge. Shortly thereafter, she was brushed by a car and hospitalized for several hours. Although the hospital records describe her as shaken but nevertheless “oriented as to month, year, name, and place,” she never called the court or her attorney’s office. That evening, she left the hospital and, instead of reporting to the court, flew to California without notifying any person connected with the trial of her departure. Three days later, she sent a telegram to her counsel and to the court from California disclosing her whereabouts. She was subsequently arrested on a bench warrant and on unrelated federal charges. 1
Mrs. Kimes now claims that her conviction should be reversed because, she contends, she was denied the right to be present when the jury, which had already announced that it had reached a verdict, delivered that verdict in open court and reaffirmed it when polled by the judge. On these facts, I believe that reversal of the conviction would constitute a miscarriage of justice. Although the question of a remand is perhaps closer, for Judge Bacon never found in so many words that Mrs. Kimes’ absence was voluntary, I cannot agree that there was trial court error warranting even a remand. Accordingly, I would affirm the conviction.
I
THE FACTS
In order to explain why I disagree with my colleagues as to the proper disposition *116 of this case, I find it necessary to elaborate in some measure on the extraordinary sequence of events which has brought the issue to us. The trial was held more than four years ago, and the events which triggered it occurred five and a half years before that.
In the evening of February 4, 1980, Charles Crane, a Hewlett-Packard employee from California, made the acquaintance of Rena Cusma, a public administrator from Oregon, in the Town and Country lounge at The Mayflower. Each of these individuals had just arrived in Washington, and the two were chatting over drinks. Enjoying cocktails at another table were Robert and Katherine Kenworthy and several other people. Mrs. Kenworthy placed her dark-colored mink coat over a chair. Mrs. Kimes, who is described in the record as having some resemblance to Elizabeth Taylor, and who was wearing a white mink coat, 2 was also in the lounge. Suddenly, Mr. Crane observed Mrs. Kimes take Mrs. Kenworthy’s coat from the chair, put it on, and put her own white mink coat on top of it. He nudged Ms. Cusma, who also watched the action. After completing her mink over mink maneuver, Mrs. Kimes left the lounge. She returned shortly thereafter and chatted with the Kenworthy party before departing once again.
At closing time, Mrs. Kenworthy noticed that her mink coat was missing and became understandably agitated. Mr. Crane and Ms. Cusma, who had not previously disclosed what they had seen to anyone because they could not believe that what appeared to have happened had actually taken place, reported their observations. The police were called, and the trail eventually led to the seventh floor room occupied by Mrs. Kimes and her husband. There, the police initially found no sign of the stolen mink, but did discover two other fur coats with their labels missing. Visible from the window of the Kimes’ room, 3 however, on the lobby roof five floors below, was a garment which turned out to be the lining from Mrs. Kenworthy’s fur coat. The coat itself was discovered some two weeks later by a hotel employee, balled up and stuffed behind an ice machine on the seventh floor. Mr. and Mrs. Kimes were arrested and charged with the theft of Mrs. Kenwor-thy’s coat. 4
After numerous continuances, most of them at the request of the defense, 5 the case against Mrs. Kimes came to trial on Thursday, July 11, 1985. The trial lasted a week, and it is undisputed that Mrs. Kimes attended all of the proceedings prior to the return of the jury’s verdict. At the close of the first day’s proceedings, and on several occasions thereafter, Judge Bacon advised Mrs. Kimes of the statutory penalties for failure to appear, and explained that “this case could go forward without your presence should you not be here or should you be late.” On July 18, 1985, the judge gave her final instructions to the jurors, and they began their deliberations at 11:20 a.m. When they were excused for lunch at 12:17 p.m., Judge Bacon stated that “we would ask Mrs. Kimes to be available in the vicinity of the courtroom from and after 1:30 p.m.”
At 3:55 p.m., almost two and a half hours after Mrs. Kimes was supposed to be back *117 in the courtroom, and after a prior communication announcing a verdict had been retracted, the jurors sent the judge a new note stating that “we the jury have reached a verdict.” Mrs. Kimes was nowhere to be found, and her counsel was unable to make any representation about her whereabouts. Denying a request by counsel to delay further proceedings until the following morning, Judge Bacon received a verdict of guilty, which was confirmed by each of the jurors during a poll. The judge excused the jurors and issued a bench warrant for Mrs. Kimes.
Three days later, as we have previously noted, Mrs. Kimes sent a telegram to her trial counsel, with a copy to the judge, revealing that she was in Garden Grove, California. She was subsequently arrested and on August 5, 1985, Judge Bacon entered an order modifying the money bond previously imposed in connection with the bench warrant and ordering that she be held without bond. In her order, the judge recited that Mrs. Kimes had been apprehended in California and that she had “failed to remain available and to appear to receive the verdict in this case and [had] taken flight across the country to her point of apprehension in California.” The judge wrote that her order was without prejudice to reconsideration if counsel presented any matters establishing that Mrs. Kimes was not a threat of flight.
On September 26, 1985, new counsel for Mrs. Kimes filed a bond review motion setting forth Mrs. Kimes’ version of the events of July 18, attaching thereto records from Arlington Hospital. The records disclose that Mrs. Kimes was struck or brushed by a car driven by a hit and run driver while she was crossing the street 6 in Arlington, Virginia. She was taken to Arlington Hospital, where she was oriented as to time and place but displayed anxiety and “mild confusion,” with little recollection of the accident. She was admitted at 2:20 p.m., and the records relate that the accident occurred thirty-nine minutes earlier, or at 1:41 p.m. She left the hospital against medical advice later that evening and eventually returned to California. There is no allegation in the motion that Mrs. Kimes made any attempt to contact the court or her counsel at any time prior to her cross-country journey.
On October 4, 1985, Judge Bacon denied Mrs. Kimes’ bond review motion, observing among other things that there was evidence of mental instability on the part of Mrs. Kimes and that she had “left Arlington Hospital against medical advice and returned to California rather than to the District of Columbia Superior Court.” Mrs. Kimes was held without bond until July 24, 1986, when she was sentenced to imprisonment for three to nine years, consecutive to any other sentence.
On August 12, 1986, new counsel for Mrs. Kimes purported to file a “motion for mistrial and a new trial,” claiming that Mrs. Kimes’ absence from the courthouse was involuntary, and that the contrary assumption of court and counsel on July 18, 1985 had been erroneous. This motion was untimely, and the untimeliness was jurisdictional, United States v. Lara-Hernandez, 588 F.2d 272, 275 (9th Cir.1978); see also United States v. Braman, 327 A.2d 530, 534 (D.C.1974), cert. denied, 423 U.S. 1032 , 96 S.Ct. 562 , 46 L.Ed.2d 405 (1975). 7 Presumably for this reason, Judge Bacon has never ruled on it. The evidence on which Mrs. Kimes relies, to show that her absence from court when the verdict was returned was involuntary, was thus never brought before the trial judge through a timely motion, and never expressly ruled upon by her. Cf. Lara-Hernandez, supra, 588 F.2d at 275 .
II
LEGAL DISCUSSION
A. The right and its waiver.
Mrs. Kimes had the right to be present at every stage of her trial, and that right is *118 protected by the Constitution to the extent that a fair and just hearing would be thwarted by her absence. Snyder v. Massachusetts, 291 U.S. 97, 108 , 54 S.Ct. 330, 333 , 78 L.Ed. 674 (1934); State v. Rice, 110 Wash.2d 577, 617 , 757 P.2d 889, 911 (1988). More specifically, she had the right, secured by Super.Ct.Cr.R. 43(a), to be present at the return of the verdict. These rights may, of course, be waived, either by conduct, Diaz v. United States, 223 U.S. 442, 455 , 32 S.Ct. 250, 253 , 56 L.Ed. 500 (1912); Cureton v. United States, 130 U.S.App. D.C. 22, 25, 396 F.2d 671, 674 (1968); and see Rule 43(a), or by failure to assert them. Frank v. Mangurn, 237 U.S. 309, 339-40 , 35 S.Ct. 582, 591-92 , 59 L.Ed. 969 (1915); see also United States v. Gagnon, 470 U.S. 522, 527-29 , 105 S.Ct. 1482, 1484-86 , 84 L.Ed.2d 486 (1985).
When a defendant is in custody, it is the obligation of the state to ensure his presence at all stages of the trial, and in most instances the matter is entirely outside the defendant’s control. Courts rightly view with considerable skepticism claims that an incarcerated defendant has waived the right to be present at any stage of his trial, and affirmance on waiver grounds in such cases is comparatively rare. See, e.g., Cross v. United States, 117 U.S.App.D.C. 56, 59-60 , 325 F.2d 629, 631-32 (1963); Falk v. United States, 15 App.D.C. 446, 457 (1899); State v. Okumora, 58 Haw. 425, 426 , 570 P.2d 848, 851 (1977); but cf. Rice, supra, 110 Wash.2d at 619-21 , 757 P.2d at 911-12 (suicide attempt by incarcerated capital defendant which necessitated hospitalization held to constitute voluntary waiver of presence at return of verdict).
An entirely different situation obtains, however, when the defendant is at liberty during the trial. As the Supreme Court of Pennsylvania stated in Commonwealth v. Ashe, 363 Pa. 596, 601 , 70 A.2d 625, 628 (1950), a case heavily relied upon by the majority:
If he is out on bail and is not present when the verdict is rendered it is taken for granted that he has waived his right to be present.
In the words of the Supreme Judicial Court of Massachusetts,
If the commonwealth has done all that it can reasonably be required to do to secure him his rights, our statute and the common law of which it is declaratory ought not to be so construed as to prevent the return of the verdict.
Commonwealth v. McCarthy, 163 Mass. 458, 460 , 40 N.E. 766, 767 (1895).
The reasons for treating those absent defendants who are at liberty differently from their incarcerated counterparts were well explained in Falk v. United States, supra. In Falk , a District of Columbia defendant, who had been released on bail after being charged with adultery, had failed to return to court on the second day of his trial and was convicted in his absence. After a comprehensive review of the authorities, the court concluded that the trial judge had proceeded properly in receiving the verdict in spite of Falk’s absence. 8 The court further stated:
The question is one of broad public policy, whether an accused person, placed upon trial for crime and protected by all the safeguards with which the humanity of our present criminal law sedulously surrounds him, can with impunity defy the processes of that law, paralyze the proceedings of courts and juries and turn them into a solemn farce, and ultimately compel society, for its own safety, to restrict the operation of the principle of personal liberty. Neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong. And yet this would be precisely what it would do if it permitted an escape from prison, or an absconding from the jurisdiction while at large on bail, during the pendency of a trial before a jury, to operate as a shield from further prosecution for the crime. An escape is itself a criminal offense, although now rarely *119 punished independently of the principal offense for which the party is held. Can it be that an act, which is in itself a criminal offense, is to be allowed in law to operate as a release from criminal prosecution, and therefore ultimately from criminal liability? We can not think that the constitutional guarantee in its practical application will lead us to any conclusion so absurd. The Constitution was not intended to shield the guilty from the consequences of crime, but to protect the innocent.
15 App.D.C. at 460-61 .
Where the defendant is at liberty, a key inquiry is whether the court has taken all reasonable steps to ensure that he had the opportunity to be present. McCarthy, supra. The judge may, however, properly require cooperation and promptness on the part of the accused. In Clemens v. State, 176 Wis. 289 , 185 N.W. 209 (1921), the trial judge advised the defendant and his counsel that, if the jury reported agreement before 9 or 10 o’clock in the evening, he would receive the verdict. The defendant and his counsel were to be available at the latter’s office nearby. At 8:45 p.m., the jury announced that it had reached its verdict and the office of defense counsel was immediately notified by telephone. The judge waited for about fifteen minutes and then received the verdict outside the presence of the accused and his counsel. The Supreme Court of Wisconsin affirmed the conviction, observing that “it would be unfair, under the circumstances, to expect the court to wait an unreasonable length of time.” Id. at 314 , 185 N.W. at 217 . See also United States v. Friedman, 593 F.2d 109, 121 (9th Cir.1979) (defendant disregarded trial judge’s instruction to remain near enough to court to be able to return within fifteen minutes of notice of return of jury; conviction sustained though verdict was taken in absence of the defendant and his counsel); People v. Malloy, 41 Cal.App.3d 944, 954 , 116 Cal.Rptr. 592, 598 (1974) (verdict properly received in defendant’s absence where he was excused to go to cafeteria during deliberations and did not return, after series of phone calls failed to disclose defendant’s whereabouts); Stoddard v. State, 132 Wis. 520 , 112 N.W. 453 (1907) (conviction sustained where bell was rung to notify defendant that jury had reached a verdict and court waited thirty minutes before receiving it without defendant being present); 9 Annotation, Absence of accused at return of verdict in felony case, 23 A.L.R.2d 456 , 478-90 (1952), hereinafter Absence of accused, and authorities there cited.
These decisions do not mean, of course, that a defendant who is free on bail and who, through no fault of his own, is unable to be present during his trial, automatically forfeits rights secured by the Constitution or by Rule 43. Cureton, supra, 130 U.S.App.D.C. at 25-27 , 396 F.2d at 674-76 . Release on bail however, surely obliges a defendant, at least, to undertake best efforts to be punctual in attendance and to comply with the directions of the court. See United States v. Clemons, 676 F.2d 124, 126 (5th Cir.1982); People v. Litteral, 75 Mich.App. 38, 43 , 254 N.W.2d 643, 646 (1977). Given the finding of a waiver in Rice, supra, in which a capital defendant was in custody, I am of the opinion that where the defendant’s absence results directly from an unlawful act on the defendant’s part, this constitutes a waiver of the right to be present.
*120
B. The degree of prejudice.
The amount of prejudice, if any, which a defendant has suffered as a result of not being present at some part of the trial depends substantially on the particular stage of the proceedings which he or she has missed. Where the defendant was absent from all that occurred following jury selection, as in Cureton, supra, the prejudice was obviously substantial. In Winestock v. United States, 429 A.2d 519 (D.C.1981), on the other hand, the defendant and his counsel had not been notified of a jury note and were not present when the trial judge responded to it. We held in Wines-tock that although the judge had improperly impaired the defendant’s right to be present throughout the proceedings, the error was harmless beyond a reasonable doubt. Id. at 528-30 . More recently, in Kentucky v. Stincer, 482 U.S. 730, 747 , 107 S.Ct. 2658, 2667 , 96 L.Ed.2d 631 (1987), the Supreme Court sustained the sodomy conviction of a defendant who had been excluded from the competency hearing of the children who were his accusers, noting that there was no evidence that Stincer could have done anything useful to his defense at the hearing or gained anything by attending. The prejudice to a defendant seems to me to be significantly less than it was in Winestock and in Stincer where, as here, the jurors had already decided upon a verdict and the defendant, who had participated in all prior proceedings, was absent only from the return of the verdict and the poll that followed it.
My colleagues think it critically important that the jurors be in the presence of the accused when they report a verdict on which they have previously agreed. There is some case support for this theory, which is apparently predicated on the perceived psychological influence on the jurors of possible eye contact between them and the accused. Hundreds of jury trials in the Superior Court, however, have not made me an adherent of this hypothesis, and there is persuasive case support for my empirical skepticism.
Almost a century ago, in Commonwealth v. McCarthy, supra, the Supreme Judicial Court of Massachusetts had this to say about the importance or lack thereof of the defendant’s presence at this last chapter of the proceedings against him:
This final act of the jury is nothing more than a formal announcement of the result of a trial which up to that point has proceeded with unquestionable regularity. There is no very important reason for requiring the defendant’s presence then. It is well that he should be there, ready to receive the sentence of the court, but the possibility of his absence is a risk to the commonwealth, which necessarily results from his admission to bail.
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The suggestion that the jurors should be required to look upon him, when about to return their verdict, with the possibility that they may see something in his appearance that time which will affect them in the performance of their duty, is not founded upon any important principle of law or good reason in the practical administration of justice.
163 Mass, at 460-61, 40 N.E. at 767 . 10 Accord, Rice, supra, 110 Wash.2d at 615 , 757 P.2d at 910 (jurors individually polled; court observed that “there is nothing in the record which indicates that the result would have been any different had Rice been present”); Friedman, supra, 593 F.2d at 121 (multi-defendant case in which defendant was absent when jury returned verdict; court held that he had not shown that he suffered prejudice from his absence from this portion of the trial, and that any error was harmless beyond a reasonable doubt); Foster v. State, 722 P.2d 714, 716 (Okl.Crim.1986) (defendant taken ill and absent when judge received “second stage” verdict; “although the trial court erred in proceeding in this manner, it is difficult, if not impossible, to imagine how this appellant was prejudiced”).
*121 “When we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men [and women].” Edwards v. Habib, 130 U.S.App.D.C. 126 , 140, 397 F.2d 687, 701 (1968), cert. denied, 393 U.S. 1016 , 89 S.Ct. 618 , 21 L.Ed.2d 560 (1969). In my career on the bench, or at the bar, I have never seen a case in which a juror permanently 11 withdrew his or her assent to a reported verdict after beholding the defendant one last time. I am sure there must have been such cases, but I have never even heard of one. Although I acknowledge that my own anecdotal experience is not statistically conclusive, it is surely incompatible with the theory that there is any appreciable possibility that looking at a defendant once again after the verdict had been reached would change a juror’s vote. Moreover, the cases cited suggest that my experience is not atypical. I conclude that, at least on facts such as these, 12 the possibility of prejudice is extremely remote.
C. Preservation of the right.
In Cureton, supra, in which the defendant was absent for almost all of his trial, the court remanded for further proceedings, and explained that
It would go a long way to avoid uncertainty in such cases were the trial court at the time of sentencing to explore the reason the defendant was absent. As we have seen, Rule 43 permits a trial which has commenced in defendant’s presence to be continued in the event of his voluntary absence “to and including the return of the verdict.” The defendant must be present at his sentencing. An opportunity could then be afforded the defendant to make any explanation he may have for his absence and also for development on the record of a basis upon which to determine whether, consistently with Rule 43 as we have interpreted it, the court properly continued with the trial in the defendant’s absence.
130 U.S.App.D.C. at 27 , 396 F.2d at 676 . See also United States v. Muzevsky, 760 F.2d 83, 85 (4th Cir.1985), in which the court affirmed a conviction where the defendant had been absent from his entire trial, but suggested that judges revisit the issue of voluntariness in such cases when deciding a motion for a new trial or at sentencing. Neither Cureton nor Muzev-sky, nor any case cited by the majority, expressly decides whether the court has the obligation to make such an inquiry sua sponte, or whether the defendant is expected to initiate it.
“It has been held or recognized that where the defendant fails to make his absence at the rendition of the verdict in a felony case ... a ground for a new trial in the lower court, he cannot in the appellate court complain that he was deprived of his right to be present_” Absence of accused, supra, 23 A.L.R.2d at 477 , and see authorities there cited. In Frank v. Man-gum, supra, the defendant had failed to include among the numerous grounds for his motion for a new trial his contention that he was denied the right to be present when the verdict against him was returned. The Supreme Court held that the courts of Georgia could properly find that the point was waived. 237 U.S. at 338-40 , 35 S.Ct. at 591-92 . Accord, Cassius v. State, 110 Tex.Crim. 456, 459 , 7 S.W.2d 530, 532 (1928); Boreing v. Beard, 226 Ky. 47 , -, 10 S.W.2d 447, 451 (1928); Coates v. Lawrence, 46 F.Supp. 414, 422 (S.D.Ga.), aff'd, 131 F.2d 110 (5th Cir.1942), cert. denied, 318 U.S. 759 , 63 S.Ct. 532 , 87 L.Ed. 1132 (1943). See also Gagnon, supra, 470 U.S. at 527-28 , 105 S.Ct. at 1484-85 (defendant’s right to be present at judge’s in camera meeting with juror waived by non-assertion).
*122 It is undoubtedly appropriate for a trial judge, sua sponte, to make the kind of inquiry contemplated in Cureton and Mu-zevsky before sentencing, particularly where the defendant has been absent from an important part of his trial. In light of Frank and similar cases, however, I conclude that it is incumbent upon the defendant to raise the issue in timely fashion in the trial court, and that the judge’s failure to do so on his or her own initiative following the defendant’s apprehension is not error in the absence of manifest injustice.
D. The principles applied.
Applying the foregoing considerations to the facts at bar, I conclude that neither reversal nor remand would be appropriate, for Judge Bacon did not commit error in relation to the issue presented or otherwise.
In my view, the judge had the right and obligation to receive the verdict when Mrs. Kimes was absent nearly two and a half hours after she had been directed to return to court. See authorities cited at p. 119 of this opinion. Mrs. Kimes had been explicitly warned that if she failed to appear, or if she was late, the proceedings would continue without her. Her absence itself, under these circumstances, created at least a strong inference that it was willful. Raymond v. United States, 396 A.2d 975, 977 (D.C.1979). Her failure to notify counsel or the court regarding her whereabouts further reinforced that inference. United States v. Ott, 741 F.2d 226, 228 (8th Cir.1984). To suggest that Judge Bacon should have deferred accepting a verdict upon which the jurors had already agreed, where the defendant had already been absent so long, appears to me altogether unreasonable. If judges warn defendants of consequences and these consequences are not imposed, warnings will not be heeded, to the prejudice of the entire judicial process. If a juror had become ill overnight, for example, the entire trial might well have had to be abandoned.
In United States v. Raper, 219 U.S.App.D.C. 243, 248 , 676 F.2d 841, 846 (1982), in which one of the defendants was some forty minutes late when the trial judge resumed the trial without him, the court affirmed his conviction in spite of the fact that this defendant missed some of the testimony. The court held that the late defendant’s interest in the postponement of the trial or in a severance was outweighed by “the burdens that such action would impose on the court, the government, the witnesses, the codefendant, and the public.” With the exception that there was no codefendant, the same considerations apply here, and we must add the jurors, some of whom had completed their terms of service, to the list of persons who would be inconvenienced or worse if the court could not proceed here in Mrs. Kimes’ absence.
Moreover, Mrs. Kimes’ counsel requested a delay until the following morning. Mrs. Kimes’ own submission reveals that, if that request had been granted, she still would not have been available, nor would counsel have known where to find her. Even if the judge’s refusal to defer taking the verdict until the next morning had been error — and it was not — such error would have been demonstrably harmless. 13
*123 I also conclude that Judge Bacon had no obligation, at sentencing or at any other time after Mrs. Kimes’ apprehension, to make an inquiry, sua sponte, into the question whether Mrs. Kimes’ absence from the taking of the verdict was voluntary. This case is not like Cureton or Muzevsky , in which the defendants were absent from most or all of their trials. Although Mrs. Kimes’ attorneys presented her medical records and other materials bearing on the issue of voluntariness, the only relief which they requested in that connection was a modification of Mrs. Kimes’ bond. I suggest that it is unreasonable to expect the judge to read the minds of competent counsel, or to supplant them, and to consider or grant relief which has not been requested. Not a word was said by defense counsel at sentencing to suggest that the issue of involuntary absence was being raised, and the motion for a new trial came far too late. 14
Even if I were willing to assume — which I am not — that a specific finding by the trial judge as to voluntariness was required without an appropriate request from counsel, and that it was error to sentence Mrs. Kimes in the absence of one, I am satisfied that any such error would have been harmless. See Commonwealth v. McCarthy, supra, and the authorities cited at pp. 120-121 of this dissent. The evidence against Mrs. Kimes was compelling. Her trial was fair. She was present during every stage of the proceedings at which anything was contested. There is not the slightest indication that the verdict would have been different if she had been present when it was returned, and her absence was, at the very least, partially her own fault.
Where the state has done wrong, convictions of guilty persons must sometimes be reversed in order to deter those acting under color of law from denying citizens their constitutional rights. In my opinion, this is not such a case. The central purpose of a criminal trial is to decide the question of guilt or innocence, and appellate reversal of a conviction for an error, real or perceived, which has played no role in bringing about the judgment “encourages litigants to abuse the judicial process and bestirs the public to ridicule it.” Delaware v. Van Arsdall, 475 U.S. 673, 681 , 106 S.Ct. 1431, 1436 , 89 L.Ed.2d 674 (1986). This is particularly true where, as here, a defendant is complaining of circumstances which would never have existed if she had complied with the order of the court. It is the combination of factors here — the powerful evidence of guilt, Mrs. Kimes’ disregard of a court order, her failure to contact the court after the accident, her subsequent flight, the lack of any meaningful role for her in the proceeding which she did not attend, the improbability of actual prejudice, and the steep price that would have to be paid by innocent people for a reversal following a lengthy trial with numerous out-of-town witnesses — that seems to me to militate so strongly in the government’s favor.
Mrs. Kimes had a fair trial. She was not entitled to a perfect one. Rose v. Clark, *124 478 U.S. 570, 579 , 106 S.Ct. 3101, 3106 , 92 L.Ed.2d 460 (1986). I would affirm her conviction. 15
. Mrs. Kimes had been charged in a seventeen-count indictment with holding several domestic workers in involuntary servitude. She was subsequently convicted of all of these charges and sentenced to imprisonment for five years. The conduct which led to this conviction occurred while she was awaiting trial in the present case.
. It appears to be undisputed that Mrs. Kimes and her husband were millionaires many times over.
. The window had been forced open and the lock broken. The police also recovered a piece of binding tape which according to expert testimony, probably came from the stolen coat.
. After their release, Mr. and Mrs. Kimes moved to another hotel. Police searched their room at that hotel pursuant to a warrant and seized a man’s jacket, which also had a missing label, from a dresser drawer. This coat apparently belonged to John E. Booth and had allegedly been stolen from a different hotel two days before the theft of Mrs. Kenworthy’s coat. The Kimes were originally indicted for stealing Mr. Booth’s coat as well. Unfortunately, Mr. Booth died before the trial and the court denied a motion to admit evidence of the deceased’s statements, making prosecution of this count impracticable.
.According to one of the government pleadings, there were approximately sixteen defense requests for a continuance, and five more joint requests. At least twenty different attorneys have either appeared for Mrs. Kimes or have been noted in the file as representing her, either at trial or on appeal.
. Counsel’s representation in the motion, however, was that Mrs. Kimes was attempting to hail a cab to return to the courthouse.
. A motion for a new trial which is not based on newly discovered evidence must be filed within seven days after verdict, unless the court extends the time during the seven-day period. Super.Ct.Cr.R. 33.
. What can be done but to call him? Is the jury to be held until he appears, and if so, how long? Not being in custody, he cannot be had.
15 App.D.C. at 456-57 .
. In Stoddard , the court stated:
In this case the facts show that plaintiff in error voluntarily absented himself from the courtroom and its immediate vicinity, in such manner that he did not hear the usual call by bell announcing that the jury had agreed upon a verdict. The court’s officers, after a reasonable search, were not able to find him to inform him that the jury were prepared to report the verdict they had agreed upon. In effect, this conduct is a waiver of his right to be present, if he can in law so waive it. The decisions are not uniform upon the question of his power to so waive it.
******
The defendant was not imprisoned, nor was he prevented by any improper means from being present when the verdict was rendered. He voluntarily and wrongfully absented himself, and he cannot now claim any advantage on account of such absence. (Citation omitted.)
132 Wis. at 526 , 112 N.W. at 455 .
. Although he was not the writer of the opinion, one of the members of the court who joined in it was Justice Oliver Wendell Holmes.
. I recall a single case in which, in a poll of the jurors, Nos. 1 through 3 voted guilty and No. 4 voted not guilty. A verdict of guilty had been checked on the verdict form. The jurors were directed to continue their deliberations, reported agreement again some time later, and all twelve confirmed the guilty verdict during the second poll.
. This is not a case in which the evidence was only marginally sufficient, or where a defendant was incarcerated and the government willfully or recklessly failed to bring him to court. The latter kind of situation raises the question, not present here, whether reversal would be appropriate as a prophylactic measure to discourage wrongful conduct by the government.
. My colleagues say that Judge Bacon erred "in failing to conduct an on the record inquiry into the circumstances surrounding appellant's absence,” and in making appropriate findings. I read the record differently.
Defense counsel advised the court during the afternoon of the day on which the verdict was taken that he was unable to locate Mrs. Kimes. He stated that he had explained to his client that she had the responsibility to be available for the verdict. The judge asked counsel to try to locate his client, and counsel agreed. About an hour later, following a recess, counsel represented to the court that a colleague had been making "fairly continuous” efforts to locate Mrs. Kimes, but had been unsuccessful. Under these circumstances, I do not see what else the judge could have done, or what additional inquiry she could have undertaken. Although Judge Bacon made no explicit finding that Mrs. Kimes’ absence was voluntary, there was simply no evidence available to suggest otherwise. See Robinson v. United States, 322 A.2d 271, 273 (D.C.1974) (failure to appear after notice of appearance date is prima facie evidence of willfulness); D.C.Code § 23-1327(b) (1989).
. We know from Mrs. Kimes’ own submission that she was in Virginia when she was supposed to be in or near the courtroom. She had no way of knowing whether the verdict would be returned at 1:30 or immediately thereafter, and her failure to return to the courtroom at the time she was directed to do so demonstrated obvious disregard of her responsibility to the court. Moreover, her own documents show that she left for California without returning to court, and apparently without any inquiry as to the status of her case. Obviously, on her own version of events, Mrs. Kimes did far less than she could have done to assure that she would be present in court whenever the verdict might be returned. See Clemons, supra, 676 F.2d at 126.
Judge Bacon's orders in relation to Mrs. Kimes' bond came close to a finding that her absence was voluntary. It seems improbable, to say the least, that the judge would have found the contrary if Mrs. Kimes had raised the issue appropriately and in timely fashion in the trial court. This should foreclose her from advancing it on appeal.
The judge’s recognition that Mrs. Kimes’ erratic conduct bespoke possible mental instability “which impairs compliance with court orders” does not, in my view, detract from that conclusion. Absent a claim of insanity or incompetence, Mrs. Kimes’ obvious mental problems do not bear on the question of voluntariness.
. I agree with the majority that Mrs. Kimes’ other claims of error are unpersuasive.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9704597. Public record. Not legal advice.