Raymond Andrew DELANCY, Appellant, v. The STATE of Oklahoma, Appellee.
No. F-78-347.
Court of Criminal Appeals of Oklahoma.
June 20, 1979.
596 P.2d 897
“Q. Okay. I ask you secondly, officer on direct because I instructed you as to previous acquaintance with the Defendant. I‘ll ask you now this question: Did you have occasion to know or be familiar with the Defendant at any time prior to the related incident?”
“* * *”
“What is that personal knowledge of the Defendant?
“A. I filed a State charge on him for rape and oral sodomy.
“Q. When was that?
“A. This was approximately two to three years ago.” [Tr. 264-266].
The record further reflects that the trial court had previously instructed the prosecuting attorney to not allow the officer to testify as to any prior relationship. The trial court subsequently ruled that the defendant had “opened the door” by testifying that he had known Detective Harrison for a year or so, and that they lived in the same neighborhood and their children played together. We are of the opinion that defendant‘s testimony as to his relationship with the officer was really collateral and does not serve as justification for the highly inflammatory and prejudicial evidence that the defendant had previously been charged with rape and sodomy. See Galindo v. State, Okl.Cr., 573 P.2d 1217 (1978) and Atnip v. State, Okl.Cr., 564 P.2d 660 (1977).
The prejudicial effect of the officer‘s testimony was even more aggravated when on cross-examination the following occurred:
“Q. Officer Harrison, do you know the disposition of that case?
“A. Yes, sir.
“Q. What was it?
“A. It was dismissed on a technicality.
“Q. It was dismissed, was it not, by the Court?
“A. That‘s right, on a technicality.
“Q. You don‘t know whether it was a technicality or not, do you?
“A. I was advised that it was.
“Q. You do not know of your own personal knowledge, do you?
“A. Well, I wasn‘t in the courtroom.”
[Tr. 266].
Considering the conflicting evidence, as to the defendant‘s guilt, we can arrive at no other conclusion except that the inference that the defendant had committed other sexual offenses but was set free by legal technicalities would have caused a devastating effect on the minds of the jurors.
The judgment and sentence is accordingly REVERSED and REMANDED.
James L. Sontag, Nowata, for appellant.
Larry D. Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., Kay Jacobs, Legal Intern, for appellee.
MEMORANDUM OPINION
CORNISH, Presiding Judge:
The appellant, Raymond Andrew Delancy, appeals from a conviction in the District Court of Nowata County, Oklahoma, for the offense of Lewd Molestation, After Former Conviction of a Felony. His punishment was assessed at twenty (20) years’ imprisonment.
The question presented is whether an accused has the right to predicate error upon the fact of his voluntary and temporary absence from the courtroom during the progress of the trial.
“If the indictment or information is for a felony, the defendant must be personally present at the trial; but if for a misdemeanor not punishable by imprisonment, the trial may be had in the absence of the defendant;
if, however, his presence is necessary for the purpose of identification, the court may, upon application of the county attorney, by an order or warrant, require the personal attendance of the defendant at the trial.”
This case came on for jury trial on November 1, 1977. At the conclusion of the testimony of the State‘s first witness, the court recessed the trial until 9:30 a. m., November 2. The trial reconvened on that date, and defense counsel informed the court that the appellant was not present because his wife was hospitalized in the maternity ward at the Sand Springs hospital. When informed the appellant could be present within an hour and a half, the court granted a recess until 11:00 a. m. The court reconvened at that time, and the appellant was still absent. Over defense counsel‘s objection, it was ordered that the trial proceed. Between 11:00 a. m. and the noon recess, direct and cross-examination of the physician who examined the victim and the direct examination of the arresting officer took place. At 1:30 p. m. when the trial reconvened, the appellant was once again present in the courtroom and remained throughout the trial.
The appellant‘s sole contention is that the trial court deprived him of his fundamental right to a fair trial by proceeding with the felony trial, after objection, when his absence had been explained. The State urges that due to the voluntary nature of the appellant‘s absence, the trial court was justified in proceeding with the trial.
The statutory language of
“By enacting
22 O.S. § 583 requiring the presence of a defendant at his trial, the Legislature intended to guarantee the right of the accused to appear at his own trial and, thereby, to be protected from trial during his involuntary absence. We do not feel compelled to extend the meaning of the statute to guarantee an accused the right to voluntarily absent himself from his trial, thereby affectuating a mistrial. Such a strained view would force the retrial of numerous cases which would otherwise lead to judgments. . . .” (Emphasis ours, citations omitted)
We find the logic of Roberts v. State, supra, persuasive.2 In the instant case, the trial court did consider the appellant‘s request for a one and one-half hour recess to allow him to return to Nowata from Sand Springs, Oklahoma. The court granted this request when informed the appellant would return immediately. By all accounts, sufficient time was allowed for the return trip. No extenuating circumstances necessitating a further delay are reflected by the record. If the attendant circumstances had been otherwise, it would have been within the sound discretion of the court to have granted additional time to the appellant before the proceedings reconvened.
We find no abuse of discretion in the trial judge‘s decision to reconvene the trial in absentia. The appellant waived his right to be present throughout all proceedings, by voluntarily absenting himself during a portion of the trial. See Ware v. State, Okl.Cr., 556 P.2d 1073 (1976); Warren v. State, Okl.Cr., 537 P.2d 443 (1975).3
While the appellant makes no allegation of error concerning the sentence imposed, we feel compelled to point out that twenty (20) years is not excessive in view of the appellant‘s prior conviction for Rape in the First Degree.
Finding no error which would justify modification or reversal, the judgment and sentence is, accordingly, AFFIRMED.
BUSSEY, J., concurs.
BRETT, Judge, dissenting.
Notwithstanding my concurrence in Roberts v. State, supra, I now feel compelled to follow my position stated in Warren v. State, supra. I believe the statute means what it says and should be followed, as stated in my dissent to Warren, supra. The State possesses the mechanics and authority to obtain the presence of the defendant and to assure his future participation in the trial. That is what should have been done in this case. It is too easy to move from one position of permitting a trial in absentia to yet another position that will subsequently allow the trial without the defendant‘s presence at any stage of the trial. Therefore, I respectfully dissent to this decision.