Campbell v. United States

ON APPELLEE’S PETITION FOR REHEARING

Before REILLY, * Chief Judge, and KERN and NEBEKER, Associate Judges.

NEBEKER, Associate Judge.

In its petition for rehearing, the United States has invited to the attention of this court for the first time two recent decisions which it contends are authorities contrary to our holding. Those cases are State v. Tacon, 107 Ariz. 353 , 488 P.2d 973 (1971), cert. granted, 407 U.S. 909 , 92 S.Ct. 2446 , 32 L.Ed.2d 682 (1972); and United States v. Tortora, 464 F.2d 1202 (2d Cir., decided July 24, 1972). In Judge Lumbard’s opinion in Tortora , at 1208 he observes:

“Although to date, with the exception of the courts of one state, see State v. Tacon, 107 Ariz. 353 , 488 P.2d 973 (1971), cert. granted, 407 U.S. 909 , 92 S.Ct. 2446 , 32 L.Ed.2d 682 (1972), waiver has been found only if the defendant was present at least as late in the proceedings as the empanelment of the jury, we see no reason for a different result when the defendant absents himself, under the specific circumstances outlined herein, before the jury has been selected.”

On the specific facts in the Tortora case, the court held that “a defendant may waive his right to insist that his trial begin only in his presence.” Id. at 1208 . To this extent then, it is important to observe that the Second Circuit is in agreement with *502 our holding herein that under Rule 43 a trial begins with the empanelment of the jury.

In Tortora , Judge Lumbard was careful to observe that the constitutional right to be present at one’s trial can be waived only if such waiver is both knowing and voluntary. In that context he was correctly concerned whether the defendant had been given adequate notice of the trial date in advance. After concluding that the absence of the defendant was a product of a voluntary and knowing waiver, that court stated:

“We do not here lay down a general rule that, in every case in which the defendant is voluntarily absent at the empanelment of the. jury and the taking of evidence, the trial judge should proceed with the trial. We only hold that this is within the discretion of the trial judge, to be utilized only in circumstances as extraordinary as those before us. ...” [Id. at 1210.]

The factors taken into consideration in the exercise of this discretion are enumerated in the opinion. They include the fact that it was a multiple-defendant, multiple-count, multiple-counsel prosecution in which a government witness had at an earlier time been threatened. In view of those circumstances, it was concluded that the trial judge did not abuse his discretion in electing to proceed in the absence of a defendant who had earlier evinced a clear understanding that his trial was to commence on the appointed date and hour. 1

Unlike the trial judge in Tortora , the trial judge in the instant case did not purport to exercise discretion when he decided to proceed in the absence of the accused. Indeed, as we have already observed, the trial judge took the position that the trial had already commenced. That legal conclusion we hold to be in error. As observed, the Tortora opinion is in agreement with our interpretation of Rule 43 and our holding.

In order to more appropriately act on the Government’s petition for rehearing, and in view of the recentness of the two cases now brought to our attention, 2 we will assume for the sake of this petition that the decision to proceed with trial was an exercise of discretion made after a determination that the accused knowingly and voluntarily waived his right to be present initially. On this assumption, and following the criteria and standard mentioned by Judge Lumbard, we are convinced that on these facts it would have been an abuse of discretion to proceed without the accused. Unlike Tortora , this case began with a single-count information charging possession of heroin. It took less than two months for the case to reach trial, and the trial, including the Miranda hearing, took less than a day. Aside from the chemist, the only witnesses were two arresting officers. In short, no extraordinary circumstances such as found in *503 Tortora are present here. We agree with the opinion by Judge Lumbard that the judgment to proceed with jury selection without the accused should be undertaken “only when the public interest clearly outweighs that of the voluntarily absent defendant.” 3 Id. at 1210 . It might even be observed that more time and resources have been expended in litigating this issue than would have been spent had the case been put over to another day and a backup case called in its place. To be sure, there may be complex and difficult cases where, on facts like these, it would not be inappropriate to proceed without an accused being present, but this case cannot be viewed as one of them.

The petition for rehearing is

Denied.

Designated Chief Judge on July 24, 1972, pursuant to D.C.Code 1967, § 11 — 1503 (Supp. V, 1972).

. In State v. Tacon, 107 Ariz. 353 , 488 P.2d 973 (1971), cert. granted, 407 U.S. 909 , 92 S.Ct. 2446 , 32 L.Ed.2d 682 (1972), the accused, a serviceman who was not an Arizona resident, had been released on bail and had returned to his distant home. He tried to return for trial but claimed he ran out of money. The trial court disbelieved this and found the absence to be a valid waiver. The Arizona court treated the question as a factual one and refused to upset the trial judge’s finding. The Arizona court did not consider the element of discretion.

It might be argued that the trial judge here may be deemed to have found that Campbell’s absence was a valid one. No such finding appears to have been specifically made, but Campbell was permitted to explain that he became frightened and went home. We will assume Campbell’s absence was found to be a knowing and intelligent waiver of the right to be present.

. United States v. Tortora, 464 F.2d 1202 (2d Cir., decided July 24, 1972), was issued two days before our opinion herein. The grant of certiorari in State v. Tacon, supra note 1 , was six days after argument in this case.

. We add that the public interest is not limited merely to “keeping the trial calendar moving.’