State v. Michael Grace, 165 A.3d 122

On Nov. 19, 2013, Vermont State Police stopped Michael Grace after an officer visually estimated excessive speed and observed the truck cross the centerline. Grace was charged with DUI (third offense).
Grace moved to suppress evidence from the stop; a suppression hearing was held in March 2015 while Grace was absent. Defense counsel said the absence was his office’s fault and did not confirm a knowing waiver by Grace.
The court proceeded after noting V.R.Cr.P. 43 permits absence for "argument on a question of law," heard officer testimony, and denied the suppression motion. No contemporaneous objection by defense counsel to proceeding was made.
At trial, officers testified to speed, crossing the centerline, furtive movement, box-cutter dropped, bloodshot eyes, admission to a glass of wine, and sobriety tests. Grace testified inconsistently with officers (only one glass of wine, bad back, routinely bloodshot eyes, denied speeding/crossing).
A jury convicted Grace; he appealed arguing, among other things, that the suppression hearing was improperly conducted in his absence and that any purported waiver was not voluntary or knowing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether proceeding with an evidentiary suppression hearing in defendant’s absence violated his right to be present	State: absence was not an obstacle; counsel was present and prosecutor saw no problem proceeding	Grace: suppression hearing was a critical stage requiring his presence to confront witnesses and assist counsel	Court: Suppression hearing was a critical stage; proceeding without Grace was error because factual issues were litigated
Whether the defendant voluntarily waived his right to be present	State: a general written waiver and defense counsel’s acquiescence supported proceeding	Grace: waiver was not knowing or voluntary; counsel had failed to inform him he needed to appear in person	Court: Waiver was ineffective—written form tracked rule language but did not show Grace knowingly relinquished the right; counsel’s statement showed absence was counsel’s fault
Whether the unobjected-to error warranted reversal under plain-error review	State: no contemporaneous objection; trial record and counsel’s conduct mitigated prejudice	Grace: error was obvious, affected substantial rights, and prejudiced outcome because factual testimony at suppression hearing could have been contradicted by his presence	Court: Plain error established—error was obvious, affected substantial rights, and undermined fairness; reversal and remand required for a new suppression hearing unless waived knowingly

Illinois v. Allen, 397 U.S. 337 (recognizing defendant’s right to be present at every stage of trial)
Kentucky v. Stincer, 482 U.S. 730 (right to be present applies at critical stages where presence contributes to fairness)
United States v. Law, 528 F.3d 888 (suppression hearing can be a critical stage requiring presence)
People v. Anderson, 213 N.E.2d 445 (N.Y. 1965) (suppression hearing significance justifies defendant’s presence; presence may determine conviction vs. acquittal)
State v. Grey, 256 N.W.2d 74 (Minn. 1977) (reversible error to hold suppression hearing outside defendant’s presence; undermines due process)
United States v. Dalli, 424 F.2d 45 (2d Cir. 1970) (right to be present at suppression hearing exists but may be waived voluntarily)