# Respondents Briefmm — Tacon v. Arizona

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1558%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Briefmm
- **Published:** January 1, 1973
- **Citation:** 410 U.S. 351

## Text

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

~

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

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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-

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1558%3A3. Public record. Not legal advice.