*1 629 not' is opening statement missal after Appellant, CROSS, Harold S. but specifically Rules authorized vestige Rules practice is of before a America, adopted. UNITED STATES were Appellee. may be opening Since the statement No. 17775. grave entirely, arises doubt waived whether, complaint a cause if a states Appeals Court so action, opening an statement Circuit. of Columbia District afford pleading toas the formal dilute Argued Sept. Al summary disposition. a basis for though plaintiff’s a directed verdict Decided Nov. opening justified in may statement cases, case. some this not such atten From to time we have called time Supreme tion to standards which the Columbia,
Court, in Best v. District 411, 415-416, 291 78 applied (1934), held should be Daisey See, g., in these circumstances. e. Parking, Inc., D.C. No.
v. Colonial concurring 1963, p. Sept. Cir. 8; Capital opinion p. Trans Calbreath v. U.S.App.D.C. 83, Company, it Hathaway, Greene F.2d U.S.App.D.C. F.2d 656
(1951). complaint, pretrial state- Here the
ment, the Pretrial Examiner’s Statement opening and the to the statement duty appel- all claim that a was owed duty passenger, lant as con- that this throughout process
tinued of disem- barking long passenger and so as the appellee’s remained on dock or re- other premises, duty lated that was injury próximately
breached and that We, course, resulted. no intimate ruling appellant’s on the merits of claim only alleged but hold facts opening statement, as in com- plaint, claim assert a which entitles her
to adduce her evidence. Whether duty, will evidence establish a a breach of duty proximately injury caused re-
mains to be seen. Cf.
Schwartzman
Lloyd,
App.D.C. 216,
proceedings. *2 Messrs. S. Thomas Jackson and Austin Frum, P. ap- Washington, (both C.D.
pointed by court), appellant. this for Atty., Mr. Epstein, David U. Asst. S. Acheson,. with whom Messrs. David C. Atty., Q. U. Nebeker, S. and Frank Asst. Atty., ap- U. brief, S. on the were for pellee. Before Washington and Fahy, Judges. Wright, Circuit Judge. WRIGHT, Circuit Appellant was convicted on of assault police 505(a). officer. 22 D.C.Code § During his trial his counsel the advised court that the to defendant had declined return the to courtroom. At the time the custody defendant was in the the adja- United States Marshal in a room cent to the courtroom. The court ordered “proceed the trial to with the defendant Appellant absentia.”1 asks reversal asserting of his conviction, that under custody the Constitution an accused in cannot present waive at his to be trial, any that in event he had not validly present, waived his to and prosecutor suppressed in- concerning formation his mental condi- tion.
The Government contends that “voluntarily the defendant absented” himself after the trial had commenced presence that, therefore, in his un 43,2 der the second sentence of Rule F.R. Very well, colloquy “The Court: court and trial will between coun proceed with the defendant in absentia. sel follows: Honor, Go ahead.” “Me. Clarke: Your at point tbe has indicated to defendant me 2. Rule 43 “The going reads: any shall that he is not further with arraignment, every totally at he been trial and unco- stage including impanel operative happened just today. and this I ing get any of the and the return of the can’t witness. verdict, imposition sentence, and at the “The Court: he decline Did to come except provided by as otherwise into the courtroom? these prosecutions sir, In rules. “Mr. Clarke : Yes he offenses not has declined death, punishable by talk me. defendant’s vol refused to to untary “The Court: absence after He refused to come has been into presence courtroom, pr commenced in his shall not is that correct? continuing correct, including “Mr. Clarke: ent the trial to and That Your ev corporation Honor. the return of the verdict. A indulge pro- Cr.P., every ed out rea- the court authorized ‘courts was against does presumption sonable waiver’ ceed without him. The Government rights attempt explain how, not under fundamental constitutional acquiescence in person continuing physical presume cus- that we ‘do not * * * rights.’ tody “voluntarily the loss himself. fundamental absent” *3 protecting duty imposes of This purpose serious sentence the of the second weighty 43, Advisory responsibility upon Committee and the trial Rule as the judge determining clear, prevent of an make frustra- there is *4 by counsel, pres- waives his form for waiver of 9. The standard * * ent stipula- by jury A concession or reads:
($3 Judge itself,”10 procedure WASHINGTON, (con- such some Circuit curring) judge certainly a trial . indicated before determine whether It seems that neither the clear Con- intelligent competent made an stitution nor the first sentence state At an on-the-record waiver. least precludes by an accused waiver by open him the defendant ment court his trial.1 Compare required. Pear should be self question in each’case must be whether U.S.App.D.C. son v. United followed, procedures fair have been day. -, 325 F.2d decided justice interests ade- substantial being necessary, we need A new trial quately Here, served. the reasons by raised not consider the other issues concluding given by Judge Wright in the appellant. portion opinion, of his I think there must be a Reversed. new trial. *5 COR- PETROLEUM
SOUTHWESTERN PORATION, Appellant,
v. UDALL, Secretary of the L.
Stewart Interior, Appellee.
No. 17545. Appeals Court of
United of Columbia Circuit. District 8,
Argued 1963. Oct. Nov. 1963.
Decided
States,
States, supra
Parker v. United
Diaz v. United
Note
F.2d
0.1
1950);
253-254,
(4th
S.Ct. at
Cir.
Glouser v.
56 L.Ed.
United
U.S. at
States,
(8th
296 F.2d
Cir.
1961);
Davis,
United States
25 Fed.
Mangum,
(C.C.S.D.N.X.1869);
Frank
35 S.Ct.
Cas. 773
Echert v.
(1915);
Snyder
(8th
188 F.2d
Cir.
Massachusetts,
1951).
291 U.S.
Commonwealth
78 L.Ed.
Notes
is
whether
to
escape
intelligent
by
by
progress
competent
tion of a
the
and
the
trial
in
waiver
Zerbst,
absconding
accused.”
or
Since
304
the defendant.3
Johnson v.
U.S.
of
458, 464-465,
1023,
1019,
the
is
restatement
58
82 L.
Rule
to be a
S.Ct.
intended
Carnley
subject,4
(1938),
existing
quoted
the Ed. 1461
of
in
v.
the
law on this
ap- Cochran,
506, 514-515,
369
82 S.Ct.
second
no
U.S.
sentence thereof has
clear
884,
plication
custody.5
(1962).
No
8 L.Ed.2d
means
to
in
70
This
defendants
available,
Rule,
case, prior
that
even
where the
is
to
since the
or
defendant
custody,
suggested
weighty responsibility”
“the
in
serious and
that a defendant
“voluntarily
by
determining
of
escaping,
to
other than
whether
wants
he
right
his trial.6
.absent” himself
from
requires
waive a constitutional
that
brought
court,
he
advised
before the
suggests
also
The Government
right,
permitted
of that
and then
to make
any
expressly
that,
event,
appellant
in
the
intelligent
competent
“an
and
waiver.”
during
right
present
his
waived
to
practice.7 In
This has
the
been
uniform
attorney
by telling
did
he
his trial
his
by
the District Court here waivers
de-
go
On
not
to
into the courtroom.
want
rights
subject
waiver,
point-
has been
fendants
the constitutional
to
the
of
of
“It
purposes.
naturally
apprehension
may appear by
an
incident
to
counsel for all
punishable
penalty
prosecutions
follow
for
of the awful
that would
offenses
In
”
*
**
by
by
imprisonment
more
or
for not
conviction.
fine
year
court,
both,
with
than one
or
the
defendant, may
cited
Note 2
Rule
written consent of the
See cases
in
to
43.
the
6.
plea,
States,
Cir.,
permit arraignment,
im-
Evans
6
trial and
See also
v. United
393,
position
(1960); Brown
of
in
defendant’s
284 F.2d
State,
v.
sentence
the
395
(under
1962)
(Alaska
presence
not
P.2d
The defendant’s
is
372
785
absence.
43).
required
In Falk
under
state rule based on Rule
v.
at a reduction of sentence
States,
2,
supra
App.D.O.
Note
15
35.”
United
Rule
460, this
a
at
court discussed
line
459—
43,
3.
2
Note
to Rule
and cases there
See
of cases which held that
trial could not
cited;
especially
see
Diaz v. United
in
accused,
proceed
of
in the absence
the
442, 457-458,
States, 223
32 S.Ct.
U.S.
States,
370,
Lewis
146
v. United
U.S.
13
250,
quoting
(1912),