Respondents Briefmm — Tacon v. Arizona

INDEX

OPINION BELOW; JURISDICTION,

CONSTITUTIONAL AND REGULATORY

PROVISIONS INVOLVED

QUESTIONS PRESENTED

STATEMENT OF THE CASE

ARGUMENT

I

tS |

and

IV

IIlI

———_

C°N A DEFENDANT WHO

IS CHARGED WITH A NON-

CAPITAL FELONY AND WHO

HAS WAIVED HIS RIGHT

TO BE PRESENT AT TRIAL

BE TRIED IN ABSENTIA

CONSTITUTIONALLY?

DID THE STATE COURT

HOLD AN ADEQUATE HEAR-

ING AND MAKE A PROPER

FINDING ON THE ISSUE

OF THE VOLUNTARINESS

OF PETITIONER'S WAIVER

OF HIS RIGHT TO BE

PRESENT AT TRIAL?

WHEN A DEFENDANT WHO

HAS BEEN RELEASED FROM

CUSTODY WITHOUT BOND

VOLUNTARILY ABSENTS

HIMSELF FROM THE JURIS~-

DICTION OF THE STATE

-i-

13

27

4

2

‘

f

*

%

.

SS ee aaa aS" 0S COti*SY

INDEX

AND LATER FAILS TO

APPEAR FOR TRIAL, KNOW-

ING THAT THE TRIAL WOULD

PROCEED IN HIS ABSENCE,

IS HIS LATER UNSUBSTAN-

TIATED CLAIM OF BEING

TOO IMPOVERISHED TO

AFFORD TRAVEL EXPENSES

SUFFICIENT TO UPSET THE

STATE COURT'S FINDING OF

VOLUNTARY ABSENCE AND

THUS VOLUNTARY WAIVER OF

HIS RIGHT TO BE PRESENT

AT TRIAL?

SUMMARY OF THE ARGUMENTS

CONCLUSION

Page

37

44

48

ee PREM ETT

AEFI AOE ON NN as OS iy Re Ni

CASES AND AUTHORITIES CITED

Case Page

Boddie v. Connecticut

401 U.S. 377i

91 &.Ct. 760

28 L.Ed. 2d 113 (1971) 38,41

Bruton v. U.S.

391 U.S. i23

88 S.Ct. 1620

20 L.Ed. 2d 476 (1968) 23

Carnley v. Cochran

369 U.S. 506

82 S.Ct. 884

8 L.Ed. 2d 70 (1962) 29

Cole v. State

35 OCR 50

248 P. 347 (1926) | 20

Coleman v. Alabama

399 U.S. 1

90 S.ct. 1999

26 L.Ed. 2d 387 (1970) 22

Commonwealth v. Diehl

378 Pa. 214

107 A.2d 543 (1954) 20

Commonwealth v. Flemmi

71 AS 1909

277 NE.2d 523 (1971) 19

oe *“Lii=-

ee : te i

cr LEE LITE PLEIN LLM OIL CIB LD BILE LR ERR NGS HR aig IG De won: ny

case

Cox v. Hand

185 Kans 780

347 P.2d 265 (1959)

Diaz v. U.S.

223 U.S. 442

aa 6... €30

56 L.Ed. 500 (1912)

Draper v. Washington

372 U.S. 487 (1963)

Douglas v. California

372 U.S. 353 (1963)

Falk v. U.S.

15 D.C. App. 446 (1899)

Gideon v. Wainwright

372 U.8. 335

S63 &.Ce. 792

9 L.Ed. 2d 799 (1963)

Gilbert v. California

388 U.S. 263

SB? $.Ct. 174

18 L.Ed. 2d 1178 (1967)

Glouser v. U.S.

296 F.2d 853

(8th Cir. 1961)

Griffin v. Illinois

351 U.S. 12 (1956)

“ive

Page

19

14,15

42

38

15

38

22

18

38,42

RESO AED POITL MITTEN SS LOCATE NAGS RSE

- ee ee i

mma COUP Fw

Case Page

Hienry v. State

94 Fla. 785

114 So. 523 (1927) 18

Hopt v. Utah

110 U.S. 574

4 §.Ct. 202

28 L.Ed. 262 (18684) 14

Illinois v. Allen

397 U.S. 337

90 S.Ct. 1057

25 L.Ed. 24 353 (1970) 14,16,26

Jonnston v. State

477 Sw.2da 398 (1972) 20

Kazubowski v. Kazubowski

45 111.2d 405

259 NE.2d 282 (1970) 41

Lewis v. U.S.

146 U.S. 370

13 8.Ct. 136

36 L.Ed. 1011 (1892) 14

MacBeth v. Utah

322 F. Supp. 1191

(D.C. Utah 1971) 42

McKinney v. Commonwealth

474 Sw.2d 384 (1971) 19

Miller v. State

226 Ga. 730

179 SE.2d 265 (1970) 18

-y=

OT OR IPS TERN

_—

Case Page

Nelson v. State

190 Ark. 1027

82 Sw.2d 519 (1935) 18

parker v. U.S.

184 F.2d 488

(4th Cir. 1950) 18

eer a ey

Pelletier v. U.S.

343 F.2d 322

(D.C. Cir. 1965) 39

People v. Colon

322 NY Supp.2d 907 (1971) 19

RON OTM HEMET. «

People v. Gant

363 Mich 407

109 NW.2d 873 (1961) 19

RIE ENR CORRES

People v. Trice

127 111. A.2d 310

262 NE.2d 276 (1970) 19

te WROD ROCESS

People v. White

95 Cal. Rptr. 576 E

18 CA.2d 44 (1971) 18

Pickthall v. Steinfeld

12 Ariz. 230

100 Pp. 779 (1909) 35

Pointer v. Texas

380 U.S. 400

85 S.Ct. 1065

13 L.Ed.2d 923 (1965) 23

| -vi-

i a et

POOR COPY

ase

Smith v. Bennett

365 U.S. 708

81 S.Ct. 895

6 L.Ed.2d 39 (1961)

Snyder v. Massachusetts

291 U.S. 97

54 S.Ct. 330

8 L.Ed. 674 (1934)

State v. Benoit

219 La. 536

53 So.2d 404 (1951)

State v. Blankenship

137 W.Va. 1

69 SE.2d 398 (1952)

State v. Bramlett

114 sc 389

103 SE 755 (1920)

State v. Cumbo

96 Ariz. 835

396 P.2d 11 (1964)

State v. Drope

462 SW.2d 677 (1971)

State of Arizona v. Hunt

408 F.2d 1086

(6th Cir. 1969)

State v. Stockton

185 SE.2d 459 (1971)

State v. Taylor

104 Ariz. 264

451 P.2d 312 (1969)

-vii-

42

23,25

19

20

20

18

19

18,21

19,20

34

H

¢

z

'

;

Case

State v. Thompson

219 NW 218 (1928)

State v. Turner

182 SE.2d 244 (1971)

State ex rel Shetsky v. Utecht

228 Minn 44

36 NW.2d 126 (1949)

Stoddard v. State

132 Wisc 520

122 Nw 453 (1907)

Stokes v. State

128 So.2d 341 (1961)

Stovall v. Denno

388 U.S. 293

87 6.Ct. 1967

18 L.Ed. 2d 1199 (1967)

Sutherland v. Putnam

3 Ariz 182

24 Pp. 320 (1890)

Taylor v. American National

Insurance Co.

1 Ariz. App. 574

405 P.2d 826 (1965)

U.S. v. Bando

244 F.2d 833

(2nd Cir. 1957)

19

19

20

19

22

35

35

17,18

&

i

Fs

é

f

¢

4

$

»

DIONE A SLES ROTI ORR: RM He

ee

wey at

Case

u.S. v. Tremont

| 432 F.2d 1202

Page

tiet Gig. 1972) 17

U.S. v. Wade

388 U.S. 218

S? 5.€t. £926

18 L.Ed.2d 1149 (1967) 22

Van Houten v. People

22 Colo. 533

43 P. 137 (1895) 18

Wallace v. State

224 Ga. 255

161 SE.2d 288 (1968) 41,42

Wasson v. Trowbridge

382 F.2d 807 (CANY, 1967) 42

Wilson v. State

2 Ohio State 319 (1853) 20

Authorities

Arizona Rules of Criminal

Procedure

Rule 231 21,24,44

Rule 311 33

Federal Rules of

Criminal Procedure

Rule 43 17,20,21,24,44

Authorities

Indigent Court Costs and Bail:

Charce Tnem to Equal Protection,

Sacns, 27 Maryland Law Review

154 (1967)

United States Constitution

Fourteenth Amendment

United States Courts

of Appeals

United States Supreme Court

Page

40

25

a4

44

SESE OE oe

Pape 5 RL NL BANE LOSI BAPE RON TE SAE EE I OL AIO BRIE OG OER pi NOLITRORIT

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1971

NO. 71-6060

ANTHONY LOUIS TACON,

Petitioner,

We

STATE OF ARIZONA,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT IOF THE STATE

OF ARIZONA

BRIEF FOR THE RESPONDENT

GARY K. NELSON

The Attorney General

of Arizona

WILLIAM P. DIXON

Assistant Attorney General

Attorneys for Respondent

SR eh eee a,

on sh

OPINION BELOW; JURISDICTION,

CONSTITUTIONAL AND REGULATORY

PROVISIONS INVOLVED

The State of Arizona accepts

Petitioner's presentation of these items.

QUESTIONS PRESENTED

Respondent presents its own ques-

tions to frame the issues more exactly:

1. Can a defendant who is charged

with a non-capital felony and who has

waived his right to be present at trial

be tried in absentia constitutionally? )

2. Did the State Court hold an

adequate hearing and make a proper find-

ing on the issue of the voluntariness of

Petitioner's waiver of his right to be

present at trial?

3. When a defendant who has been

released from custody without bond volun-

tarily absents himself from the jurisdic-

tion of the State and later fails to

appear for trial, knowing that the trial

would proceesé in his absence, is his

later unsubstantiated claim of being too

impoverished to afford travel expenses

yee ee SERENE TL Ee ee

sufficient to upset the State Court's

finding of voluntary absence and thus :

voluntary waiver of his right to be

ee he

present at trial?

4. Petitioner's question four is

necessarily included in the proper

restatement of the question in 2 above.

STATEMENT OF THE CASE

Petitioner was a twenty-year old, t

married serviceman (App. p. 27) stationed

at Pt. Huachuca, Arizona (App. p. 53) who $

had been in AWOL difficulties with the

Service (App. p. 25-26). On February 24,

. +

1969, he was arrested and charged with

unlawful sale of marijuana (App. p. 53).

He was arraigned in March, 1969 (App. p.

30), pleaded “not guilty" (App. p. 9),

and trial was set for April 22, 1969. On

April 21, 1969 (App. p. 28-29), at the

request of defense counsel, the trial

date was postponed. Petitioner was pres-

ent in Court at that time (App. p. 28-29,

fol. 42). At the time of his arrest,

Petitioner was incarcerated and bond was

set in the amount of $1,000. Upon the

importuning of Petitioner's wife, the

County Attorney moved the Court that

Petitioner be released in the custody of

his commanding officer at Ft. Huachuca,

without bond and with his “orders

flagged" (App. p. 9). The Court acqui-

esced and Petitioner was so discharged in

~

LPR ET eG eth eS Cth belies ble eT Lee eee PETS AOE DST Cyan

custody. Thereafter, Petitioner was

discharged from the Army and, after noti-

fying his attorney of his forwarding

address (App. p. 42), ne returned to New

York City (App. p. 10). Subsequently,

the trial court set March 31, 1970, as

the date on which the trial was to begin.

On March 3, 1970, Petitioner's attorney

sent Petitioner a letter advising him

that his trial had been set for March 3l,

requesting Petitioner to reply as soon as

possible and to plan on being back in

Arizona at least one week prior to trial.

He also advised in this letter that the

trial probably would not be postponed

under any circumstances (App. p. 4).

Petitioner received this letter on

March 6 or 7 (App. p. 12-13) and under-

stood that the trial would go on without

-5-

bas

SORRY RMR BELO RE ea Te a aD Bee

idee. 2s. Sheet atest |

him if he did not appear (App. p. 27).

Petitioner was then twenty-one years of

age (App. p. 27). Petitioner made no

teeny to contact his attorney until the

Saturday before trial, March 28 (App. p.

5, 27, 28), at which time he was unsuc-

cessful in telephoning him. The follow-

ing Monday morning, March 30, the day

pefore trial, Petitioner did reach his

attorney by telephone. Mr. Whitney, the

attorney, told Petitioner that the Court

would proceed with the trial whether

Petitioner was present or not. Peti-

tioner told his attorney he would try to

make it to trial but did not have the

funds. Petitioner could have asked for

financial assistance from his mother in

Miami, Florida, but did not do so (App.

p. 12). On the day of trial, March 31,

-6-

ER ART RS eee

—

the Trial Judge met with Counsel in Cham-

bers for a hearing as to Petitioner's

absence. The Judge pointed out that the

County had been put to considerable ex-

pense in bringing a witness, along with

two federal marshals, from the Federal

Reformatory at El Reno, Oklahoma (App. p.

2). At this hearing, the Judge was in-

formed of the letter of March 3 from

Petitioner's attorney to Petitioner and

the phone call of the previous morning

from Petitioner to his attorney. He was

also informed that the attorney had sent

a second letter to Petitioner, dated

PES Ae ee

March 18, and a telegram, dated March 24.

Only after the trial was it determined

that the telegram had never been deliv-

ered and, at his contempt hearing,

Petitioner claimed that he had not

=Fu

EAA AF eA OS BRE IP TEEN SARIN EN BOLT LR BN OME 6 GEE DEN RENT

received the letter of March 18 until the

evening of April l. After asking Peti-

tioner's attorney to check with his office

and around the Courthouse to see whether

Petitioner had arrived (App. p. 5-6), the

trial court ordered the matter to proceed

to trial in the absence of the defendant

(App. p. 6). At about the time trial

began, Petitioner's mother, living in

Miami, Florida, found out about the

matter from Petitioner's mother-in-law

(App. p. 14). Sometime during the first

day of trial, Petitioner's mother called

Petitioner's attorney's office and indi-

cated that she had been unable to contact

Petitioner, but that she would continue

her attempt to do so and would call back

later that night. She never called back.

Early the following morning, the second

~B—

— _

SENET UE SOLE ENE RRMA AERIS RET BANE

day of trial, an attorney in Miami,

Florida, called Petitioner's attorney's

office and indicated that Petitioner could

be present the next morning, April 2 (App.

ewer

p- 6). Later that same morning the Court

met in Chambers with Counsel. Petitioner's

attorney reported the telephone calls and

moved for a one-day continuance (App. p.

al.

—=_ sy

6). The Court denied the motion on the

grounds, among others, that there was

oe hes ON Op

still no indication from Petitioner that

~<a e

he could be present and that the two phone

calls indicating that he might be had |

originated from Petitioner's mother in

Miami, Plorida. :

Petitioner‘'s father, apparently at

the instigation of the mother, had arrived —

in New York on the evening of April 1.

Petitioner and his father flew to Arizona |

-9-

the next day, arriving late in the even-

ing (App. p. 15). On the fcllowing morn-

inc, April 3, Petitioner went to his

attorney's office and, together, they

turned Petitioner in to the authorities

who arrested him on a bench warrant which

had been issued previously.

The question of whether Petitioner's

absence from his trial was voluntary was

fully iitigated on May 4, 1970, when the

trial court held a hearing on whether

Petitioner should be punished for con-

tempt by reason of his failure to appear

for trial. Petitioner was represented at

this hearing by his present attorney.

Petitioner and his court-appointed attor-

ney testified fully. At the conclusion

of this hearing, Petitioner asked to make

a statement to the Court and concluded

-10-

| >

PTS EER RRR e Lor nee

ror

ii EF ye eee

tis statement by saying:

Of course, the Court

has no way of knowing,

actually, how I really did

feel, but I tell the Court

that I had--that I had no

intentions of not coming.

The Court replied to this statement

as follows:

I might say this, Mr.

Tacon, the Court is im-

pressed not a bit by your

expressed intentions in

this case. I don't be-

lieve any of them, and I

just can't see any justi-

fication or excuse for

your conduct. That's all.

2 £2 8.2

The record may show

the filing in open court

of Application for Certifi-

cate of Probable Cause,

Notice of Appeal, and App-

lication for Admission to

Bail. All other matters

are taken under advisement.

(App. p. 50.

Petitioner did not file a Motion for

“Lie

ee eee ee

a New Trial. On appeal, however, he

raised the issue of whether his absence

from trial amounted to a voluntary waiver

of his right to be present. The Arizona

Supreme Court held as follows:

The defendant's own

testimony clearly shows

he was aware that the

trial was set for March

3lst and that the trial

would proceed without him

if he failed to appear.

The trial court was of the

opinion that Tacon's ab-

sence was voluntary and

there is substantial evi-

dence in the record to

support that opinion.

Under these circumstances,

we hold that Tacon's ab-

sence from his trial con-

stituted a knowing and

intelligent waiver of his

richt to be present at the

trial and that the trial

court, therefore, did not

err in proceeding with the

trial in his absence.

(App. p. 58.)

—_—

ee ee

SR ay ees

ETO ae ONE ee

a

ony cre

TMCS eres

Fe

é

4

4

5

r

ARGUMENT

CAN A DEFENDANT WHO IS

CHARGED WITH A NON-

CAPITAL FELONY AND WHO

HAS WAIVED HIS RIGHT

TO BE PRESENT AT TRIAL

BE TRIED IN ABSENTIA

CONSTITUTIONALLY?

The real issue under this question

is whether Arizona's rule permitting trial

in absentia differs constitutionally from

the Federal rule. In his beginning, how-

ever, Petitioner seems to be making the

argument that trial in absentia is always

constitutionally infirm. He begins his

argument on this question with the state-

ment that Arizona law permits trial in

absentia, but that this Court has held

that the right of the accused to be pres-

ent at trial cannot be waived either by

himself or by counsel. Incredibly, in

-13-

RE" ATT OURO aN

PT ete HRS Oe

support of this statement, he cites Lewis

ve. U8, ; £266 Ushi FPO, 53 8.00. 136; .%

L.Ed. 1011 (1892), Hopt v. Utah, 110 U.S.

574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), and

atas 2. 2... Bas Usehs S82, 32 8.Ct. 20,

56 L.Ed. 500 (1912), while apparently ig-

noring this Court's statement in Illinois

v. Allen (also cited by Petitioner), 397

U.S. 337, 342, 90 S.Ct. 1057, 1060, 25 L.

Ed. 2d 353, 358 (1970), that:

The broad dicta in Hopt

v. Utah, supra, and Lewis v.

U.S. [citations omitted], that

a trial can never continue in

a defendant's absence have

been expressly rejected.

Diaz v. U.S. [citations

omitted].

It is apparent from an examination

of the cases of this Court that a defen-

dant charged with a non-capital felony can,

contrary to the assertion of Petitioner,

~ ai

|

be tried in absentia. In Diaz v. U.S.,

this Court enunciated the rule as

supra,

follows:

But, where the offense

is not capital and the ac-

cused is not in custody, the

prevailing rule has been,

that if, after the trial has

begun in his presence, he

voluntarily absents himself,

this does not nullify what

has been done or prevent the

completion of the trial, but,

on the contrary, operates as

a waiver of his right to be

present and leaves the court

free to proceed with the

trial in like manner and

with like effect as if he f

were present. (223 U.S. 3

455, 32 S.Ct. 254,\56 &.Ba.

505 [1912] .) t

ial le ea Tat Cs a Me

SAE on eeer ee

The reason for this Rule was well

a

stated in Falk v. U.S., 15 D.C. App. 446

Aoewenney oo ete

(1899), which was also quoted as support-

ing the rule in Diaz, supra, and was

ETE eae gaeaeey

reaffirmed by Mr. Justice Brennan in his

concurring opinion in Jllinois v. Allen,

supra,

It does not seem to

us to be consonant with

the dictates of common

sense that an accused

person....should be at

liberty, whenever he

pleased, to break up a

trial already commenced.

Such a proposition, if

allowed to be law, would

---Tris would be a travesty

of justice which could not

be tolerated.....{wle do

not think that any rule of

law or constitutional prin-

Ciple leads us to any con-

clusion that would be so

disastrous as well to the

administration of justice

as to the true interests of

civil liberty. (Emphasis

supplied by underlining.)

Indeed, the rule is as stated by this

Court in Jllinois v. Allen. supra,: |

We accept instead the

. i |

statement of Mr. Justice

Cardozo who, speaking for

the Court in Snyder v.

Massachusetts, 291 US 97,

106, 78 L Ed 674, 678, 54

S Ct 330, 90 ALR 575 (1934),

said: ‘No doubt the privi-

lege [of personally con-

fronting witnesses] may be

lost by consent or at times

even by misconduct. '

Thus, the rule that where a defen-

dant who is present at the te of his

trial and voluntarily absents himself

therefrom may thereafter be tried in

absentia has received the judicial sanc-

tion of this Court not only by these

decisions, but also by the promulgation

by this Court of Rule 43, Federal Rules

of Criminal Procedure. This construction

has also been expressly adopted in the

lst, 2nd, 4th, 6th, and 8th Circuits:

U.S.§ v. Tremont, 438 F.2d 1202 (lst Cir.

1971); U.S. v. Bando, 244 F.2d 833, cert.

- wane:

_ —

denied, 255 U.S. 844, 78 §.Ct. 67, 2 L.Ed.

24 53 (2nd Cir. 1957); Parker v. U.S,, 184

F.2d 4€& (4th Cir. 1959); State of Arizona

y. Hunt, 408 F.2d 1086, cert. denied, 396

u.S. 845, 90 §.Ct. 81, 24 L.Ed. 2d 95

(6th Cir. 1969); Glouser v. U.S., 296 F.

24 853, cert. denied, 369 U.S. 825, 82 S.

ct. 840, 7 L.Ed. 2 d 789 (8th Cir. 1961).

The same proposition is adopted in

the following state jurisdictions:

396 P.2d 11 (1964); Arkansas - Nelson v.

;

Arizona - State v. Cumbo, 96 Ariz. 835, |

State, 190 Ark. 1027, 82 Sw 2d 519 (1935); |

California - People v. White, 95 Cal.

:

‘

;

-

Rptr. 576, 18 CA 2d 44 (1971); Colorado -

Van Houten v. People, 22 Colo 53, 43 P.

137 (1895); Plorida - Henry v. State, 94

Pla. 785, 114 So. 523 (1927); Georgia - :

Miller v. State, 226 Ga. 730, 179 SE.2d

= ra |

265 (1970); Illinois - People v. Trice,

127 111 A.2d 310, 262 NE.2d 276 (1970);

Kansas - Cox v. Hand, 185 Kans. 780, 347

p.2d 265 (1959), cert. denied, 363 U.S.

822, 80 S.Ct. 1265, 4 L.Ed.2d 1520 (1960);

Kentucky - McY’inney v. Commonwealth, 474

$v.2d 384 (1971); Louisiana - State v.

Benoit, 219 La. 536, 53 So.2d 404 (1951);

Massachusetts - Commonwealth v. Flemmi, 71

AS 1909, 277 NE.2d 523 (1971); Michigan -

People v. Gant, 363 Mich 407, 109 NWw.2d

873 (1961); Minnesota - State ex rel Shet-

sky v. Utecht, 228 Minn 44, 36 NW.2d 126

(1949); Mississippi - Stokes v. State, 128

So. 2d 341 (1961); Missouri - State v.

Drope, 462 SW.2d 677 (1971); New York -

People v. Colon, 322 NY Sup. 2d 907 (1971);

North Carolina - State v. Turner, 182 SE.

2d 244 (1971); State v. Stockton, 185 SE.

amb be

ET EN TT TENN La S eTeeP

2d 459 (1971); North Dakota - State v.

Thompson, 219 NW 218 (1928); Ohio -

Wilson v. State, 2 Ohio State 319 (1853);

Oklahoma - Cole v. State, 35 OCR 50, 248

Pp. 347 (1926); Pennsylvania - Common-

wealth v. Diehl, 378 Pa. 214, 107 A.2d

543 (1954); South Carolina - State v.

Bramlett, 114 SC 389, 103 SE 755 (1920);

Texas - Johnston v. State, 477 SW.2d 891

(1972); West Virginia - State v.

Blankenship, 137 W.Va. 1, 69 SE2d 398

(1952); Wisconsin - Stoddard v. State,

132 Wisc. 520, 112 Nw 453 (1907).

Concededly, most of the above-listed

jurisdictions are construing either Rule

43 of the Federai Rules of Criminal Pro-

cedure or comparable State rules or

statutes, and here we reach the real crux

of the argument. Petitioner attempts to

-20-

distinguish Rule 231 of the Arizona Rules

of Criminal Procedure by noting that FRCP

43 requires that a defendant be present

at the commencement of his trial whereas

ARCP 231 has no such requirement. He

would allow the waiver of presence at

trial, but only after trial has commenced.

He asserts a constitutional difference

between waiver of presence before trial

and waiver of presence after trial has

commenced.

The Sixth Circuit has had occasion

to rule on this point in State of Arizona

Supra. It was there stated:

v. Hunt,

We find little differ-

ence in substance between

that Rule [43 FRCP] and the

attacked Arizona Rule. ....

The District Court found

inapplicable Diaz v. United

States [citations omitted],

and Pearson v. United States,

147 G.8s BOS. D.C. Sa; 325-7

afi«

a

2d 625 (1963). We find

them in point upon the

principle that voluntary

absence from the trial

forecloses later claim

of constitutional depri-

vation. (408 F.2d App.

1095, 1096.) (Emphasis

supplied by underlining.)

Putting aside the consideration that

under such decisions as Coleman v. Ala-

bama, 399 U.S. 1 (1970); U,S, v. Wade,

388 US 218, 87 S.Ct. 1926, 18 L.Ed.2d

1149 (1967); Gilbert v. California, 388

US 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178

(1967); and Stovall v. Denno, 388 US 293,

87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); it

could well be argued that Petitioner's

"trial" had already begun, trial in

absentia of a felony defendant voluntarily

absent throughout all trial proceedings

other than arraignment and sentencing

does not differ in its constitutional

-22-

ia nanos

SSR PIE re RETR

REM KS My INT yc oe

BLEED THROUGH

import from Pederal Criminal Rule 43.

The constitutional rights involved are

the right of confrontation, the right to

assist in one’s own defense, and the

right of cross-examination. All of these

may be waived. The State does not ques-

tion Petitioner's right to be present at

his trial, per Snyder vy, Massachusetts,

291 U.S. 97, 54 S.Ct. 330, 8 L.Ed. 674

(1934); nor his right to cross-examination,

per Pointer v. Texas, 380 U.S. 400, 85 S.

Ct. 1065, 13 L.Ed. 24 923 (1965): nor the

right of confrontation, per Bruton v.

U.S., 391 U.S. 123, 686 &.Ct. 1620, 20 L.

Ed. 24 476 (1968). However, voluntarily

absenting oneself will have no different

effect on these constitutional rights and

their exercise whether the absence is

after trial commences or after one's

=-23-

|

-—o

oe ee

arraicanment, thereby making the practical

import of Arizona Rule 231 and Federal

rule 43 the sare.

Petitioner comments, in passing, that

it is ironic that Arizona would not per-

mit the trial of a physically present but

mentally incompetent defendant, but

recognizes no restraint in trying a defen-

dant who is physically absent. This

comment ignores, of course, the fact that

the mental incompetent is mentally not

present through no fault of his own, and

whether or not Petitioner was absent

vyolitionally and culpably is one of the

issues he is attempting to litigate in

this Court.

Petitioner also asserts that since

the State had the power to seek the

extradition of Petitioner, it should have

— _ -24- :

«

BLEED THROUGH POCR COPY

elected this remedy rather than the

remedy of trial in absentia. We should

note parenthetically here that in connec-

tion with this power of extradition,

Arizona also had the power to see that

Petitioner was additionally charged as a

fugitive. Still, this claim of Peti-

tioner’s is immaterial in this case

because it ignores the fact that the State

could have refused to allow Petitioner to

go from custody without bond. Moreover,

an election to exercise one alternative

“does not run foul of the Fourteenth

Amendment because another method may seem

to our thinking to be fairer or wiser or

to give a surer promise of protection to

the prisoner at the bar.” Snyder v.

Massachusetts, supra, 291 U.S. at 105.

Finally, Petitioner's claim that extra-

dition must be used would allow ".....a

defendant to profit from his own wrong

in this way." Illinois v. Allen, supra,

397 U.S. at 345.

SNES

a RONTEN NEPEAN are ee

. 7 aaa SEERA

Se oe Be

idiae -26- E

POOR COPY

BLEED THROUGH

ARGUMENTS

II and IV

DID THE STATE COURT HOLD

AN ADEQUATE HEARING AND

MAKE A PROPER FINDING ON

THE ISSUE OF THE VOLUN-

TARINESS OF PETITIONER'S

WAIVER OF HIS RIGHT TO

BE PRESENT AT TRIAL?

At some noints in this argument,

Petitioner seems to imply that a trial

may not be commenced until there is first

a hearing to determine if his absence is

voluntary, knowing and intelligent.

Although conceivably this could be done

in the case of a defendant who announced

his intentions beforehand, it is a mani-

fest absurdity in the case, as at bar,

where the defendant simply never shows

up for his trial. Notwithstanding this,

the record shows that before beginning

trial the trial court did conduct such a

=27=

ee,

RBILEEN TuPpcIcHU POOR COPY

hearing aS was possible under the circum-

stances. He closely interrogated defen-

dant's counsel as to his communications

with the defendant. (At this point in

the proceedings, it must be remembered

that the trial court had nothing before

it to indicate that defendant had not

received the letter of March 18 or the

telegram of March 24.) The Court had the

reports of the telephone conversations

between Petitioner and his counsel of

March 30, 1970, where Petitioner had told

his counsel that he didn't have funds

sufficient for transportation, a clear

indication that he was not going to be

present at trial (App. p. 4-5). The

Court further had Petitioner's attorney

check with his office and throughout the

Courthouse to determine if Petitioner were

-28-

a

BLEED THROUGH —

present (App. p. 6). At the conclusion of

all this, the Court stated:

It was reported that

Mr. Whitney was unable to

locate the defendant and

that it is tne order of

the Court, based on the

foregoing matter, that the

matter proceed to trial in

the absence of the defen-

dant (App. p. 6).

It is thus obvious that the Court

conducted as much of and as thorough a

ian = Me

hearing as was possible under the circum-

stances. To require that the Court, at

this point, in place of its order that

trial commence, should have made an ex-

press finding of voluntary absence is to

2 Pryter era Seer coer ge gor

enshrine form over substance. Petitioner

ease on

Sa ane

states that waiver cannot be presumed

es

from a silent record, under Carnley v.

“em

Cochran, 369 U.S. 506 (1962), and other

cited cases. Conceded. But the record

bis «25- ‘

is far from silent, and we are not

dealing here with a defendant who has

appeared and requested permission to

absent himself but with a defendant who

never appeared.

Petiticner slides by the facts of

the first hearing and goes to the second,

or contempt, hearing. He has many com-

plaints of this hearing, none of which

are valid. First he complains chat the

burden of proving that one's absence from

trial was not voluntary is "an onerous

one indeed.” But it was only “onerous”

in light of the facts that Petitioner,

himself, had created. Petitioner, through

his wife, had himself released without

bond. Petitioner, on his own, removed

himself to a far distant corner of the

country. Had he been presentinc to the

-30-

Court an emergency hospitalization or

involuntary incarceration somewhere, we

doubt if the burden would have been so

difficult. Nor is it improper in this

case that the burden of proving the

involuntariness of his absence be on Peti-

tioner. What is being litigated here is

not a State action, such as the extraction

of a confession or the failure to provide

an attorney, but the positive action of

the Petitioner in absenting himself or

absconding. Thus, the burden is properly

upon the one who asserts that his action

was involuntary.

He also attacks the findings of the

Court by stating that as soon as he ob-

tained the funds necessary to finance a

trip, he did, in fact, fly to Arizona.

He states that this is 2rhaps the best

2. -3l-

bi

COPY BOUND CLOSE IN CENTER

eve

vidence of Petitioner's intention not to

aive his right to be present at trial.

e overlooks, however, the fact that the

rial Judge, by Petitioner's own state-

ents, had evidence that he did not leave

ew York for Arizona until the appearance

rom Spain of his father. The Court also

ad the fact, again from Petitioner's own

tatements, that Petitioner was employed

though perhaps not optimally) and had 24

ays' notice of the date of trial to get

0 Arizona, during which time he under-

tood that if he did not appear trial

ould proceed without him. The Court

ould well have concluded from this evi-

ence that Petitioner's intent to return

> Arizona never materialized until his

ather appeared with the parental author-

ty to inspire the trip so that the trouble

~37=

COPY BOUND CLOSE IN CENTER

Petitioner was in dic not deepen. These

comments, however, illustrate the inap-

propriateness of deciding these issues

in the setting of this case as presented

to this Court.

Petitioner states that no "procedure

for a post trial hearing on such matters

is provided for by Arizona law." Such is

not the case. Rule 3ll, Arizona Rules of

Criminal Procedure A.R.S. 17, provides as

follows:

RULE 311. GROUNDS

FOR NEW TRIAL INVOLVING

PREJUDICE OF SUBSTANTIAL

RIGHTS OF DEFENDANT

A. The court shall grant

a new trial if any of the

following grounds is

established, provided the

substantial rights of the

defendant have been there-

by prejudiced:

1. That the defendant

was not present at any

-33-

proceeding where his

presence is required

under these Rules.

B. The court shall

also grant a new trial when

from any other cause

not due to his own

fault tne defendant

has not received a

fair and impartial

trial.

foreover, the Arizona Supreme Court

in State v. Taylor, 104 Ariz. 254, 266,

451 P.2d 312 (1969), has stated:

A trial court which

commences a trial in the

absence of a defendant

does so with the knowl-

edge that such absence

may later be shown to

be involuntary.

The Petitioner did not file a Motion

for a New Trial and his failure to do so

is unexplained. The rule in Arizona of

ancient standing is that where the trial

n -34-

COPY BOUND CLOSE IN CENTER

court is not given a chance to correct

its own error, the Appellate Court will

not consider the error on appeal,

Sutherland v. Putnam, 3 Ariz. 182, 24 P.

320 (1890); Pickthall v. Steinfeld, 12

Ariz. 230, 100 P. 779 (1909); Taylor v.

American National Insurance Co., 1 Ariz.

App. 574, 405 P.2d 826 (1965). Notwith-

standing this, the issue of whether Peti-

tioner had voluntarily absented himself

from trial was presented to the Arizona

Supreme Court on appeal. That Court re-

viewed all of the record, including the

extensive record made at the contempt

hearing, and concluded that there was

more than sufficient evidence to uphold

the actions of the trial court. Perhaps

the trial court should have made a more

explicit finding than its statement that

-35-

COPY BOUND CLOSE IN CENTER

Je was not a bit impressed by Petitioner's

expressed intentions and could see no

justification or excuse for his conduct

(App. p. 50). But the fact remains that

a voluminous hearing covering all of the

evidence necessary to the determination

of the voluntariness issue was held. If

the trial court's conclusion cannot be

said to be a finding on this issue, the

Arizona Supreme Court's resolution of it,

on the merits on appeal, can. It would

be inappropriate for this Court, on

Certiorari, on this record, to disturb

those factual findings.

-36-

ARGUMENT

II!

WHEN A DEFENDANT WHO HAS

BEEN RELEASED PROM

CUSTODY WITHOUT BOND

VOLUNTARILY ABSENTS HIM-

SELF FROM THE JURISDICTION

OF THE STATE AND LATER

FAILS TO APPEAR FOR TRIAL,

KNOWING THAT THE TRIAL

WOULD PROCZ IN HIS

RBEINCD, IS HIS LATER

UNSUBSTANTIATED CLAIM OF

BOING TOO IMPOVERISHED TO

AFFORD TRAVEL EXPENSES

SUPFICIENT TO UPSET THE

STATE COURT'S FINDING OF

VOLUNTARY ABSENCE AND THUS

VOLUNTARY WAIVER OF HIS

RIGHT TO BE PRESENT AT

TRIAL?

Petitioner has asserted in this

case the “red herring” of poverty, no

doubt in awareness of the diligence of

this Court in protecting the rights of

the poor of access to meaningful justice.

What Petitioner has overlooked, however,

is that the holdings of this Court, in

-37-

COPY BOUND CLOSE IN CENTER

cases such as Giceon v. Wainwright, 372

U.S. 335 (1963): Dovolas v. California,

372 U.S. 353 (1963): Griffin v. Illinois,

351 U.S. 12 (1956): and Boddie v.

Connecticut, 401 U.S. 371,91 S.Ct. 780,

28 L.Ed. 2d 113 (1971); have all been to

tre point that no one should be deprived

of an essential ingredient of the justice

process because he is poor. Thus, counsel

at trial or a transcript on appeal, to

take two examples, are essential ingredi-

ents of the machinery of justice; and, if

they are available to the affluent, they

must likewise-be available, as this Court

has so rightly held, to the poor. But

transportation to the site of the trial

is not now and never has been an ingredi-

ent of the justice system, nor has it

ever been supplied to the affluent by the

ty, -38-

COPY BOUND CLOSE IN CENTER

LR > See de al

a

State.

Indeed, Petitioner's complaint

here is highly ironic. He asserts a need

for travel expenses because the State had

beneficently agreed to release him from

custody without bond. The State could

have acted as it has always:

vocostn@ £iret act

of the magistrate is to

exact security from the

defendant, or, in case

of refusal, to incarce-

rate him. ...It is evi-

dent that such (a pro-

cedure) is hostile to the

poor and favorable only

to the rich. The poor

man has not always a se-

curity to pledge. ......

(1 De Tocqueville, DEMOCRACY

IN AMERICA, 55-56 [Bradley

edition, 1963] .)

Instead, in this case, it moved

commendably to remove what many think to

be an invidious discrimination (see

Petietier » 7 .f., 343 F.24 322, 323 {D.

Ce. Cat.

1965]), by releasing defendant

-39-

COPY BOUND CLOSE IN CENTER

without bond. Defendant now seeks to

turn this act against the State by claim-

ing that the State either must now fur-

nish him transportation to the site of

the trial or be powerless to try him in

the orderly processes and progressions of

its Court calendars. If such a claim

becomes prevailing law, the inevitable

result will be to chill, if not kill, the

humane modern tendency to release non-

affluent defendants on minimal or no bail.

This would be doubly unfortunate at a

time when the prevailing legal philosophy

is to liberalize policies in such areas.

(See Sachs, INDIGENT COURT COSTS AND

3SAIL: Charge Them to Equal Protection,

27 Maryland Law Review 154 [1967].)

Tre cases Petitioner relies upon, in

1is poverty claim, deal with persons too

-40-

COPY BOUND CLOSE IN CENTER

poor to afford counsel, to afford Appel-

late review, to afford a divorce, and so

forth. They set forth the proposition

that one's indigency should not result in

a disadvantage within the judicial pro-

cess. Transportation to trial is clearly

an extra-judicial matter and cannot

remotely be tied to the process of the

orderly and impartial administration of

justice.

In the end, Petitioner's claim can

be bottomed only on due process or equal

protection. It is generally understood

that at the basis of due process of law

are two elements: notice to the accused

and an opportunity to be heard, Boddie v.

Connecticut, supra; Kazubowski v.

Kazubowski, 45 I11.2d 405, 259 NE.2d 282

(1970); Wallace v. State, 224 Ga. 255, 161

-4]<

COPY BOUND CLOSE IN CENTER

PORATED LHI ORI A ATL le SIT

oY

Sey

x ee SOR

SE.2d 288 (1968); Wasson v. Trowbridge,

382 F.2d 807 (CANY, 1967); MacBeth v.

Btanh, 334 F. Sup. i191 (D.C. Utah, 197i).

There is no showing here, nor can there

be, that the State deprived Petitioner of

his opportunity to be heard. And, as

pointed out before, Petitioner had at

least 24 days' notice.

Nor can Petitioner be supported in

his claim by equal protection. It is

well settled that the essence of equal

protection is that all persons similarly

Situated be treated alike and that what

the State extends to one who is affluent

may not be withheld from one who is poor,

Smith v. Bennett, 365 U.S. 708, 81 S.Ct.

895, 6 L.Ed. 2d 39 (1°61); Draper v.

Washington, 372 U.S. 487 (1963); and

Griffin v. Illinois, supra. Transporta-

-42-

tion to trial is not something that the

State extends to any person, poor or

rich.

Indeed, if Petitioner's contention

in this setting should prevail, it would

logically result in a requirement that

the State provide indicent defendants

with free transportation to trial, whether

they be cross-town, cross-state, or cross-

country.

a3

SUMM/.RY OF THE ARGUMENTS

I

The United States Supreme Court, the

United States Courts of Appeals, Federal

Rule of Criminal Procedure 43, at least

one-half of the States, and Arizona Crim-

inal Rule 231, all hold that a defendant

charged with a non-capital felony can be

tried in absentia. The trial in absentia

of a felony defendant who is voluntarily

absent throughout all trial proceedings

(other than arraignment and sentencing)

does not differ in constitutional import

from the situation in which a defendant

waives his right to be present after the

commencement of trial. The waiver prior

to trial of the right to be present at

one’s trial or the right to confront and

cross-examine cannot logically be distin-

| ain

fie.

COPY BOUND CLOSE IN CENTER

Bis |

guished from the waiver of these same

rights after the trial has begun.

II and IV

There was a proper finding by the

Court that Petitioner had voluntarily

waived his rigtt to be present at his

trial. Before trial a hearing was held

to determine whether or not the trial

should proceed. The trial court's order

that trial proceed as scheduled and its

subsequent order denying the Motion for

Continuance were the equivalent of a

finding of a voluntary waiver by the

defendant.

The contempt proceeding after trial,

with the defendant present and testifying,

was a full evidentiary hearing on the

issue of voluntariness. The Court, at

the conclusion of this hearing, stated it

~45-

was not impressed with Petitioner's

“expressed intentions." On review, the

Arizona Supreme Court examined the entire

hearing as to the merits of the trial

court’s implicit finding that Petitioner

had voluntarily waived his right to be

present at trial. With these three

separate reviews, each as extensive as

was possible at the time it was held

(pre-trial, post-trial, and appellate),

it is clear that an adequate hearing was

held and there was a propgr finding of

fact as to the voluntary waiver, and that

finding should not be disturbed by this

Court on Certiorari.

II!I

Petitioner's unsubstantiated claim

of poverty is of no moment in the case at

bar. Transportation to trial is a wholly

preg ~46-

ae

extra-judicial activity. Petitioner can

show no invidious discrimination on the

part of Arizona in this regard as Arizona

has never provided transportation to or

from trial for any criminal defendant,

however rich or poor he or she may be.

If Petitioner's claim is upheld, it will

chill, if not kill, the move toward bail

reform.

x ¥: Z -47-

CONCLUSION

One charged with a felony may waive

his presence at trial. There is no con-

stitutional difference between Arizona's

rule, which allows a waiver by non-appear-

ance at the commencement of trial, and

the Federal rule, which requires thaf® the

jefendant be present at the commencement

oefore his voluntary absence from trial

yill be considered a waiver. There were

adequate hearings and substantial evi-

jence to support the trial court's

sonclusion that Petitioner's absence was

2 voluntary waiver. Petitioner's claim

9f poverty is irrelevant, since he him-

self caused the situation by removing

limself from Arizona to New York and

since transportation to trial is neither

1 constitutional right nor an ingredient

«40

COPY BOUND CLOSE IN CENTER

«i

oer

a Taina

FREE SORELLE GIN TON”

BEANE GD OTE

of the justice system supplied by the

State to anyone. For these reasons, the

Courts below should be affirmed.

Respectfully submitted,

GARY K. NELSON

Attorney General

of Arizona

WILLIAM P. DIXON

Assistant Attorney General

Attorneys for Respondent

LEFIDAVIT

ST/7. TE OF ARIZONA )

) ss.

County of Maricopa )

WILLIAM P. DIMON, being first duly

sworn, upon cath, deposes and says:

That he is an Assistant Attorney Gen-

eral of the State of Arizona: that as such

he servec the attorney for the Petitioner

in the foregoing case by forwarding two

exact copies of Brief of Respondent on

Writ of Certiorari to The Supreme Court

of Arizona in a sealed envelope, first

class postage prepaid, depositing same in

tre United States mail, addressed to:

Robert J. Hirsh, Esq.

Messing, Hirsh & Franklin, P.C.

509 Transamerica Building

Tucson, Arizona 85701

this 1 say of August, 1972.

William P. Dixon

SUBSCRIBED AND SWORN to before me

this Jana day of August, 1972.

Cz. ’ ‘A em f Lis. c

My commission: Notary Public

ge Te =

Tar 3 gH