Kimes v. United States

ever, express non-statutorily also by based causing ra- reference the number of acts supporting tionales their assume, therefore, result. death. Even we that striking pedes- act of Williams’s the seven First, courts a meaningful find distinc killing only trians and them constituted tion between the manslaughter offense of act, single the trial court not err in did and the reckless leading act to the deaths. sentencing Williams seven counts of Allen, 378, See 368 Ill. at 14 N.E.2d at 403. manslaughter. They stress that enactment of offense is protect every intended to life and to Affirmed. punish killing person. of each See Mi randa, Ariz.App. at 416 P.2d at 452. gravamen offense, therefore, is killing person, of another not the acts

leading killing. to the Dunlop, P.2d at

609; Miranda, Ariz.App. at 416 P.2d 452; 667;

at Whitley, Jep 382 S.W.2d at pesen, 613; 154 Neb. at at N.W.2d KIMES, Appellant, Sante Martin, 154 Ohio atSt. 96 N.E.2d at 778; Rathmell, Thus, 717 S.W.2d at 35. STATES, Appellee. manslaughter each by offense is identified UNITED proof particular of the death of a victim. No. 86-1267. Miss, Burton, See 79 So.2d at of Appeals. District Court Columbia 246; Martin, 154 Ohio St. at 96 N.E.2d 778; Seidschlaw, 304 N.W.2d at 106. Argued Jan. 1989. Second, rejected courts argu- have Decided Oct. ment defining by the offense refer- ence to each disproportion-- death leads to punishment

ate They for reckless acts.

have multiple reasoned that deaths are a act,

foreseeable result of a reckless only

that the fact person, one rather several,

than may have died should be re-

garded a fortuity prevents what expected otherwise would be justi- an —and greater punishment. Dunlop, See fied— 610; McFadden,

721 P.2d at N.W.2d at

618; Irvin, 124; Myers, 603 S.W.2d at

S.E.2d at 816. very These courts reason persuasively,

simply, but that a defendant’s

culpability greater persons if more die Irvin, act. the reckless See 124; 816;

S.W.2d at Myers, 298 S.W.2d Holder,

see (noting also 219 S.W.2d at 626 multiple courts which find offenses do

so on basis of natural “the inclination to greater gravity killing

attach of sev- persons one”). killing

eral than to the agree reasoning

We these rule, the majority

cases. In line with manslaughter

hold that the offense District Columbia is determined

reference to the number of victims who die actions,

as a result of the defendant’s Metzger, Smith, Washing-

H. and David B. ton, D.C., also filed briefs on behalf appellant. Atty., Sprague,

Sharon A. Asst. U.S. Atty., Jay Stephens, with whom B. Farrell, Atty., and Michael W. Asst. U.S. D.C., Washington, the time the at brief was filed, brief, appellee. were on the for MACK,* FERREN, Before SCHWELB, Judges. Associate FERREN, Judge: Associate A jury appellant grand convicted lar- ceny, (1981), D.C.Code 22-2201 for theft § full-length of a mink coat from the Town and Country Lounge Mayflower at the Ho- Appellant (through tel. counsel w"howere counsel) ap- not trial raises five issues on peal. questions She admissibility alleged evidence, “other crimes” a trial the propriety joint instruction on pretrial among government discussions wit- nesses, and the of a requested denial con- requiring tinuance. She claims errors also resentencing. sig- a remand for The most error, however, nificant appel- claim of lant’s other contention: the trial proceeding appellant’s to verdict ab- sence, her under the violated Consti- tution present and local statutes to be every stage trial. of the Because the trial court failed to make finding factual as to the voluntari- appellant’s ness—or involuntariness —of absence, we are unable decide this claim Accordingly, error. we remand the evidentiary record to the court for an hearing surrounding on the circumstances appellant’s absence the return of the verdict and a as to whether her voluntary involuntary. absence was respects all other affirm the conviction. I.

A. D.C., Frey, Washington, Appellant Andrew L. throughout had been Drennan, appellant. Joseph July although Peter Michael but on * Judge Retired, MACKwas an Oct. Judge Judge, Court ate Associate argument. at the time of She became an Associ- a.m., The record reveals some information at 10:00 court when the trial resumed surrounding appel- the circumstances about luncheon re- appear she failed to after a re- Medical lant’s the verdict. begun At 11:20 a.m. cess. appellant’s application ports attached to p.m. judge At 12:17 deliberations. of conditions review and modification jury for lunch until 1:20 had excused the sentencing, filed in late release pending also p.m. had excused counsel July that on September indicate cautioning appellant, specifically appel- rendered, at the time verdict vicinity lant “to be available being after appellant hospitalized after 1:30.” courtroom from and Arlington, Virginia, by a car struck lunchbreak, the the after court Sometime According 1:45 approximately p.m. to inform them about reconvened counsel in the appellant remained reports, these Appellant had jury Stincer, [I]f Kentucky v. charge.’ 482 may his trial the court 730, [or her] 745, 2658, 2667, U.S. 107 S.Ct. 96 proceed provided clearly it is established (quoting Snyder, (1987) 631 L.Ed.2d 291 voluntary. that his absence is [or her] 105-06, 332). at Although 54 U.S. S.Ct. at pro- He must be aware of the [or she] right presence of constitutionally this is not “ taking place, right cesses of his [or her] guaranteed ‘when be use- obligation his to and of be [or or, her] shadow,’ less the benefit ... due present, and he must no have [or she] process clearly guarantees that the defen- remaining away. sound reason present dant be allowed to ‘to the be extent just hearing a fair and that would be 3, Taylor, 414 at 19 n. 196 U.S. 94 S.Ct. at ” Id. by thwarted his absence.’ According Court, “wholly [or her] n. 3. it is (quoting Snyder, 291 U.S. at 106-07, 108, suggest that a defendant at incredible” 332-33). sum, at In defendant is liberty opening on bail who attended an constitutionally “guaranteed right to be trial, opinion duty of and who had a be present at stage pro- of the criminal trial, Boyle, see Stack v. present 342 at ceeding that is critical to its if his outcome 1, 4-5, 1, 3, (1951), 72 U.S. S.Ct. 96 L.Ed. 3 presence would contribute to the [or her] right know of his to be would not or Id. procedure.” fairness of the present every stage at of trial or that trial would continue the defendant’s absence. requirement The of a defendant’s 20, Taylor, 414 at 196.4 94 S.Ct. at presence at whether derived otherwise, Constitution or proceeding can be deemed It follows that before defendant, waived defendant’s absence the with trial in the absence of a courts, trial determines that the defendant trial accordance with local voluntarily See appear Super.Ct.Crim.R. failed to trial. similar at federal rules 43(b)(1) (waiver Super.Ct.Crim.R. right 43(b)(1), required of con findings are to make defendant, present initially cerning whenever voluntariness of the defendant’s Hernandez, United States v. present, “voluntarily himself See absents absence. [or States, 1135, preliminary 2. also Boone v. United 483 A.2d trial court See 4.When has made a (D.C.1984) (en banc) (Rule 43(a) 1139 “'incor- the defendant tri- was absent from protections porates the afforded the Sixth al, must evi- the defendant come forward with Clause, Amendment the Fifth Confrontation Brown, finding. dence to rebut that See 399 Clause, Amendment Due and the Process presence’ com- however, government, A.2d has at 1225. ”) right (quoting law mon Welch v. establishing ultimately the burden States, 829, (D.C.1983)). United 466 A.2d 838 right defendant has waived the at trial. Id. Black, (in assessing also 3. See 529 A.2d at 324 presence, violations court distin- guishes between cases where constitutional are, not, involved). rights and are

109 82, Cureton, (5th Cir.1988); custody and before sentence F.2d returned 842 85 673; 24, imposed”). U.S.App.D.C. at 396 F.2d at 130 135, State, 136 Charliaga v. 758 P.2d Appeals for The United States Court

(Alaska Connolly, Ct.App.1988); People v. has Circuit the District of Columbia 409, 379, 382, Cal.Rptr. 111 Cal.App.3d 36 stressed, moreover, the trial court’s (1973).5 However, question the crucial 411 pe- inquiry throughout extends duty of “rarely —“Why is the defendant It sentencing. suggested up to riod absent?” — sentencing the time court must can be answered at trial court at that the Cureton pro- the trial should “explore determine whether the reason the defendant should Cal.App.3d develop People Connolly, 36 so á record basis ceed.” absent” prop- Accordingly, determining 412. whether Cal.Rptr. 111 at at absence, erly in the defendant’s continued customarily delay proceed- trial courts U.S.App.D.C. at 396 F.2d at mar- ings to enable and court’s counsel Later, Gaither United attempt missing to locate a defen- shals U.S.App.D.C. 413 F.2d dant, see, Cureton, e.g., U.S.App.D.C. (1969),the court stated that “where same 673; Staples, 396 F.2d at State v. involuntary absence question of some (Me.1976), appellate A.2d record a deter- sentencing, a arises at encourage delay, see, e.g., courts such Con- can should be made at mination Cal.Rptr. nolly, Cal.App.3d point.” 413; State, Ind.App. Gilbert v. (1979); may short, though a 395 N.E.2d Common- even trial court why a Mass.App.Ct. until after trial Kane, v. 19 not be able learn wealth will (1984). appear, the court 1343, Reviewing failed to 472 N.E.2d 1347 defendant permitting the in courts, deemed to have erred urge de- be courts also trial when the retroactive, im- it a continue—call trial to ultimately appears, inquire fendant under circumstances puted error —if findings concerning make and conclusions said have volun- defendant cannot be from tri- the circumstances absence present. to be tarily right waived Hernandez, 873 al. See United v. States 516, Cir.1989) (2d (when appel- F.2d 519 Furthermore, though a defen even objection pro- registered lant’s counsel right to be voluntarily waived the dant has ceeding appellant’s appel- absence and at trial6 —whether constitutional present appeared, later “it incumbent lant was issue not—there present is at right to be requisite the trial upon court to conduct the court question the trial still the whether is inquiry into the circumstances of his ab- trial ordering its discretion has abused sence”); 760 Muzevsky, United v. States v. San States in absentia. See United (4th Cir.1985)(if prelim- court F.2d 83 after (2d Cir.), 245, chez, cert. F.2d 250-51 790 trial, inary inquiry proceed 584, chooses to with 989, 93 denied, 107 479 S.Ct. U.S. withhold decision on motion question it should is re (1986). That 587 L.Ed.2d sentencing trial and until it can learn considering new such factors solved right voluntarily efforts whether defendant waived the trial court’s reasonableness of whereabouts, (due 354 at 776 defendant’s presence); Staples, A.2d to ascertain the occur the trial could requires court to likelihood that process trial ] “affordf on present, ex- the burden adequate opportunity to the defendant an with defendant witnesses, if jurors government, he absence when plain she] [or [the] Cir.1985). determi- We the trial court's process defer to in the due Some courts have found 5. clearly requirement underlying factual facts unless clause the findings for on-the-record nation 416, erroneous, Kraisel, proceeding in the ab- before trial 466 A.2d see Auxier v. Staples, 354 of a See State v. sence defendant. (D.C.1983) (interpreting D.C.Code Brown, 771, (Me.1976); State v. A.2d 17-305(a) (1981)), ultimate and review the § 1222, 422, 399 A.2d R.I. as a de novo as to voluntariness determination Felder, law, v. see United States matter of voluntari- trial court's determination of 6. The 57, (D.C.1988). 61-62 A.2d question law. fact and ness is itself mixed (6th Rothgerber, Finney 751 F.2d See delayed, the trial appellant’s and the whether that implicated absence a constitu- being present interest in pro- right. at tional trial court has not made ceedings Hernandez, that remained. Although See either determination. the trial 85; Sanchez, verdict, 842 F.2d proceeding at at presumably 790 F.2d 250- appellant inferred that absent was volun- tarily, failing court erred When, however, a ab defendant’s an inquiry conduct on-the-record into the involuntary, sence is trial court surrounding appellant’s circumstances ab- proceeds sentencing through trial and on findings sence and to make and conclusions the basis of an incorrect of volun concerning whether the absence was volun- tariness, and right only no constitutional — tary. The trial court also erred in not issue, a statutory or rule violation—is pursuing sentencing. this issue further then we will reverse there is a reasonable appellant objected Counsel at trial possibility prejudice from defendant’s proceeding appellant to verdict when Brown, absence. See United States v. present, and thus the trial court (6th Cir.1978); F.2d 986-87 see also clearly expressed an notice of con- Alessandrello, United States 637 F.2d Moreover, ample cern. there was evidence (3d Cir.1980), denied, cert. record sentencing notably before — 68 L.Ed.2d 334 appellant’s application for review and modi- (1981)(considering only Rule not consti pending fication of release conditions of tutional, violation); Wade v. United sentencing allega- set factual forth —which 142 U.S.App.D.C. 360-61, 441 F.2d concerning tions accident that indi- auto (1971) (same). But, 1050-51 when a appellant’s may cated absence have been involuntary defendant’s absence was involuntary.7 Accordingly, because the tri- constitutional is at conduct, al failed to either at trial or issue, this court will reverse unless the sentencing, any inquiry into the circum- government proves the defendant’s ab surrounding appellant’s stances sence beyond was harmless a reasonable must remand record for States, doubt. See Kleinbart v. United necessary finding the as to voluntariness. 1236, (D.C.1989); 553 A.2d 1240 see also States, 1130, v. See Black United 506 A.2d Cardwell, 556, Bustamante v. 497 F.2d (D.C.1986). 1132 (9th Cir.1974); 558 Okumura, State v. 58 425, 430, 848, (1977); Haw. 570 P.2d 853 We turn to the issue: whether next Rice, 577, 617, State v. 110 Wash.2d 757 appellant’s implicat verdict absence at the 889, (Wash.1988) (en banc), P.2d 911 cert. right. purely ed a constitutional This is a — denied, U.S. -, 3200, 109 105 S.Ct. of question prop law which this court can (1989). State, L.Ed.2d 707 But see Lee v. erly decide the first instance. We con 403, 401, 590, (1943) 244 Ala. 13 So.2d 593 present right clude that the to “be ... at (defendant’s absence at verdict automati verdict,” Super.Ct. the return of the cally error); State, reversible Shaw v. 282 43(a), right process is a of due Crim.R. 608, (same). (Del.Super.Ct.1971) A.2d 610 fifth People under the amendment. See 319, Nelson, 313, 16, 18 Ill.2d 164 N.E.2d

C. (1960); Rice, 617, at 20 110 Wash.2d 757 911; Okumura, analysis accordingly Our on review' P.2d at see 58 also Haw. first, depend, 430, 850, must appellant’s 425, on whether (referring at 570 P.2d at 853 absence at time of present”). the verdict was to to right “constitutional be second, voluntary involuntary and, or right present on to This be at verdict “has dissenting colleague points appellant’s application Because our to the for review and reconsid- departed appellant hospital fact that against from the pending of eration tencing conditions of release sen- proceeded directly advice and medical departure in this defendant's man- to California as evidence of the voluntariness of suggests ner was "evidence that defen- which verdict, ap- her absence we believe it may instability have a which dant mental im- propriate Judge to note that herself Bacon compliance pairs with court orders.” 1984, 4, denying found in her order of October

m also See 18, substantial, 22-23 relation, to the reasonably COLUM.L.REV. Fontanez, 33, F.2d 38 [appellant’s] opportunity to de- United States v. 878 fulness of (trial (2d Cir.1989) committed reversi “a against charge,” fend and thus fair error, “psycho of depriving defendant just hearing be ble would thwarted jury, on logical his Snyder, function” of absence.” 291 U.S. 105- [her] his jury in 06, 106-07, As it instructed deadlocked at 332-33. the when S.Ct. absence). could Pennsylvania A defendant’s absence Supreme of stated Court Wade, Ashe, see speculation, cause adverse Commonwealth v. 363 Pa. 360, 441 (1950) F.2d (quoting U.S.App.D.C. A.2d Commonwealth, juror’s re (14 neutralizing a Temple Ky. thereby tentative acknowledge a verdict Bush) 769, (1879)), guilty to noting the concur- luctance Moreover, appearance of open ruled on the rence of all 36 States court. of justice by the announcement issue: is affected is not guilty defendant verdict “The presence accused [at v. United Heiligh it. See hear present to is not a mere form. It is of the verdict] (D.C.1977) 693 n. 7 379 A.2d very only essence a criminal trial underlying sixth (identifying one reason brought face that the accused shall be right prevent him amendment against face the witnesses with [or ing in courts as her], “the loss of confidence also his triers. [or her] * * * which secret trials justice at no instruments of And time the whole course States v. United engender” (quoting trial is this more valuable (4th Cir.), Gregorio, step jury than 497 F.2d at the final when the are denied, cert. S.Ct. pronounce decision is to (1974))). liberty him of a restore L.Ed.2d [or her] citizen, consign or to him her] [or possible re- suggests remand several scaffold or a felon’s cell in the state If, remand, the court deter- sults. prison.” from trial at appellant’s mines courtroom, return the verdict was volun- When a returns to the the time of accused, court, and, subject reviewing that typically, tary, faces the if this after verdict, determination, poll with the trial psychological agrees the court’s decision eye-to-eye influence of contact between we will then review only an abuse of juror may significant proceed and defendant with trial however, If, de- enough his the trial court juror change to cause a discretion. remand, pressure termines, appellant’s that ab- her mind when the of the on outside Wade, involuntary trial court room. See jury 142 the U.S.App.D.C. at sence was —or State, voluntary Lee 1050; the 441 F.2d at determines absence review, (“The as a this after concludes psychological P.2d distinc- was invol- general law that the absence poll tion a in matter of between [defendant’s] supra presumably see absence, requiring untary, an note 6—we poll and individual a new trial juror his and remand for each to assume the will reverse burden [or imputed er- say the court’s it defen- we can decision and affirm in the unless her] appellant’s in one.”); receiving ror the verdict dant’s is not a minor Gold- in beyond en, a reasonable at Rendi- harmless Presence the absence was Defendant Cases, Felony tion the in doubt.8 Verdict remand, found, ab- "presumably" that the defendant’s say apply will after 8. We we a harmless testimony reviewing the of wit- analysis trial error that the sence from because Black, involuntary. See approach have done nesses had been court’s traditional and we Interestingly, we to if comparable A.2d at 324-25. so in circumstances. on occasion record, case, Kleinbart, (trial and the trial the not the See at 1240 court error remand A.2d appellant's had been refusing permit court were involuntary, find defendant to presumably beyond the then bench conference was not harmless rea- hand, doubt). have done order a new trial—as it would the other least sonable On post-trial appear trial court had made one we to have concluded there the instance involvement. per without this court’s se the trial court that effect reversible error evidence, II. Drew, Drew see States v. United (1964), U.S.App.D.C. 331 F.2d 85 Appellant four raises other issues “substantially swayed” judg which the appeal, First, on none of has merit. jury, ment of the see Kotteakos v. United appellant argues her that conviction must States, be reversed because court erred in (1945). 1248 90 L.Ed. 1557 She contends admitting into two evidence coats which the that, although trial court the admitted police seized from her hotel shortly room probative “other coats” for its evidence after the the govern theft of fur. The establishing identity value in the ment’s appellant evidence indicates that thief, help inferring could not from stole a dark fur from Mayflower coat the missing appellant labels that stole the Country Hotel’s Town Lounge and on the and, therefore, other coats must also have night of February Appellant, who stolen the fur at issue this case. Accord was staying Mayflower, put on the ing appellant, given likelihood that fur, which had been thrown over some the jury would from the “other conclude lounge, chairs and slipped then appellant coats” possessed evidence that own full-length fur coat white over it be coats, propensity to steal trial court departing. fore directly Two witnesses ob should have determined whether the “other reported served the theft later coats” the strict test evidence met for ad police incident to detectives with the assist mitting “other crimes” evidence for identi ance of others in the bar who had-seen purposes See, fication under Drew. e.g., appellant. conferring After per hotel Bridges v. United 381 A.2d 1073 sonnel, suspected appel detectives denied, (D.C.1977), cert. lant proceeded was the thief and to her S.Ct. Although 58 L.Ed.2d seventh noting floor room. After ap agree we that the admission of the “other pellant descriptions matched they possibility coats” evidence raised the witnesses, received from the and after re appellant sug unfavorable inference ceiving permission appellant to con that, gests, conclude under the circum duct room, a search of po appellant’s stances, this evidence admission of does not lice located not fur the stolen but two other appellant’s warrant reversal of conviction. coats missing that were their labels.9 Two days later, police returned to the room that, trial, The record indicates before with a warrant seized a third coat defense preju- counsel waived claim of which also had no label. Before ap dice from admission the “other coats” pellant filed a seeking motion limine evidence, government provided the adhered exclude the admission of two of the coats stipulated ground support rules. without labels. The trial court denied appellant’s motion in limine exclude motion. evidence, argued “other coats” counsel had

Appellant argues appeal probative that the the “oth- coats were not evidence er coats” improperly expressed evidence was admitted that their concern admission therefore, result, possible States, (D.C.1989) suggests That an Davis inter- v. United A.2d 31 esting question: (en trial banc). if the court were to find do not know Because we how the appellant’s involuntary, absence had been issue, trial the court will rule on voluntariness any concluding would there be basis sound questions. we need these not consider analysis applied that a harmless error should be (instead reversal) simply of automatic because 9. One also noticed of the detectives that the by remanding we have retained case the the hotel bedroom window of the room had been next, argument, record? Assume for the sake of observed, open. forced several He stories be- that the answer is "no"—that a trial court find- low, coat; something like a that looked it was ing involuntary automatically of would later identified owner of the stolen fur the warrant a new whether we had trial remanded lining missing the of her coat. The stolen fur Assume, further, the case or the record. that later, coat itself was about two located weeks finding appellant’s the trial court that made a lining, up without its behind balled an ice ma- voluntary absence had been that this court chine near an on the elevator seventh floor

rejected that as matter of law. Would appellant staying. where had been justification analy- there be a for harmless error generally sis instead of reversal? automatic See parties’ stipulation might appellant jury failed to enforce the sua prejudice because the might missing that Accordingly, plain infer the labels review for sponte. we the stolen. Government coun- coats were error. responded sel that the “other coats” evi- so, doing not address the need the dence was relevant to the issue of the appellant’s merits of contention that identity un- of the coat thief because it is fact, were, in coats inadmissible other person possess usual for a to labelless that Drew evidence. We conclude even coat, the stolen like other items and the erroneously admitted or the evidence was coats, Appel- found without its was label. interpreted jury, any such error —in then that he not lant’s counsel stated would strong guilt the light of evidence —was object to of the coats” the admission “other clearly prejudicial not “so to substantial government stipulate evidence if the would very rights jeopardize as to the fairness there no evidence that the were was coats integrity of the trial.” Watts v. Unit- the court so the stolen and instruct (D.C.1976)(en 362 A.2d ed

jury. government agreed to such banc). The implicating appellant evidence stipulation, the appellant’s court denied testimony by included two the crime limine, offering provide motion in to eyewitnesses appellant the who saw take necessary jury to avoid confu- instruction fur, following as well as the circumstantial Later, response during sion trial. to an forced-open evidence: indication of a win- objection sponte, and then sua room, appellant’s discovery dow hotel judge jury twice instructed the the lining directly government’s case there no evi- the stolen fur’s beneath the that was window, discovery dence the other coats were stolen. The the fur itself jury court also instructed the its appellant’s before an on floor. behind ice machine that evi- circumstances, deliberations the “other coats” Supra note 9. Under these solely dence admitted to the prove was alleged trial failure to enforce the court’s identity perpetrator. of the “other parties’ agreed the use of the coats” plain evidence was not error. appeal argues Counsel on that government agreement violated its sug-

examine witnesses in a manner that III. gested stolen; the other coats were that Appellant also maintains that counsel, although objecting trial occa- prejudicial court committed error trial government’s conduct, sion was jury it it twice instructed the objec- other “napping” on occasions when government “entirely proper” for the made; pros- tion have been should that the pretrial conferences at to hold witness improperly closing ecutor used and rebuttal discussed their jointly witnesses arguments suggest the other coats were that, stolen; testimony. claims because there She trial court’s instruc- by government inadequate; differing accounts tions on the issue and were that, despite concerning recognized trial court and defense witnesses pretrial stipulation response appel- Country Lounge, at the Town and events limine, appellant pre- lant’s motion credibility govern impeaching the objection served her admission to her case. ment’s witnesses crucial into other coats evidence. however, According appellant, ability severely undermined clearly We believe record shows testimony government wit attack agreed defense counsel to admission interrupted her the court nesses when “other evidence on terms which coats” government of a crucial cross-examination trial administered with cau- court several its a final instruction on witness and issued instructions, upon tionary objection both informing jury own initiative therefore, can sponte. Appellant, and sua any impropriety from the draw inference complain only about those isolated instanc- government witnesses had es, government’s closing fact that including the ar- collectively facts before trial. guments, allegedly discussed the where the trial court perceive We no error in the trial court’s dice to a motion for a mistrial if efforts to Although instructions. appellant claims Zachery’s presence obtain July failed. On sought that she only impugn credibil- days six after the court denied the ity government witnesses, of the motion, appellant continuance moved for a specifically cross-examination her counsel mistrial appellant because both and the asked a if witness she knew that it would United States marshals had been unable to proper” “not be get for “witnesses to to- Zachery. locate The trial court denied the gether and discuss their testimony.” The motion on ground Zachery trial court’s instruction at point this unavailable for trial. The court also found important to correct counsel’s inaccurate Zachery’s testimony was available suggestion that such conferences im- were through grand jury his presentation and proper. During closing argument, defense that, although major it was “in part” cumu- argued, objection counsel without or inter- of the testimony lative of other defense ference, government’s that the witness con- witnesses, transcript a presentation of his ferences credibility cast doubt on the of its could be admitted at the trial. witnesses. While the trial in- court’s final granting “The matter of a con jury struction to perhaps was unneces- entirely tinuance is within the discretion of sary appellant’s to correct counsel’s earlier judge, rigid the trial but a insistence mischaracterization, erroneous, it was not upon court expedition of trial in the face of particularly light of the standard credi- justifiable request a delay for can render bility shortly instruction issued before it. empty formality.” defend an States, O'Connor United 399 A.2d IV. (D.C.1979). Accordingly, party a seek Appellant contends the trial ing a continuance must make a showing abused its discretion in refusing grant “ that the continuance is ‘reasonably neces pretrial (and motion for a continuance sary just for a determination of the subsequent mistrial) motion for a in order ” cause.’ (quoting Id. Brown v. United to secure the of defense witness States, (D.C.1968)). 244 A.2d We Lloyd Zachery at Zachery trial.10 had been that, minimum, have held at a party subpoena served with a ordering ap his seeking a continuance to obtain witnesses pearance at trial July July 11. On “(1) are, (2) must they show who their what appellant’s counsel received Federal Ex be, (3) testimony would the relevance and press package Zachery from which included competence testimony, (4) of such that the subpoena, ticket, an airline a voided probably witnesses can be obtained fees, check for witness and travel informa (5) granted, continuance is that due tion that counsel had mailed him. In an diligence has been used to their at obtain note, accompanying Zachery stated that (citations omitted). tendance at trial.” Id. urgent “sudden business commitments will prevent me appearing Appellant argues the court that she met all hearing.” The issued a warrant the O’Connor criteria and should therefore Zachery’s arrest and set bond in the granted have been the continuance. Al $5,000. following amount of day, ap though agree that the minimal criteria pellant’s case, counsel moved to continue the met in this satisfaction of the swearing and the commence criteria necessarily O’Connor does not ment of trial Monday, July until 15. The mandate a continuance. The trial court trial court denied the preju- which, motion without five-year-old confronted a case Appellant argues ground. also court abused not now seek reversal on this event, admitting its discretion in ery’s into evidence Zach- there was no abuse of discretion where grand jury testimony Zachery sworn because he the trial court’s was un purposes prior was not "unavailable” “plainly wrong available was not or without testimony exception hearsay recorded support evidence to it.” D.C.Code § 17-305 States, (1981); rule. See Ready Warren v. United 436 A.2d v. United 445 A.2d (D.C.1981). appellant (D.C.1982), denied, Because herself re- cert. evidence, quested may the admission of this she S.Ct. 75 L.Ed.2d 498

H5 words, respects In we af- appellant involuntary. all other counsel’s own was both firm offensively the conviction. “horrendously, old” and in- “juggling a of out-of- volved the lot [of] part in and remanded. Affirmed Under these circum- state witnesses.” stances, deny the court’s decision SCHWELB, Judge, Associate a prejudice without to mo- continuance part dissenting and concurring mistrial, enabling go trial to tion for part: efforts were di- forward while redoubled July according p.m. At 1:30 Zachery’s appear- obtaining rected toward submission, Mrs. Kimes was to her own ance, improper not an of its was exercise Virginia rather than in or near Arlington, later, When, a ef- discretion. almost week courtroom, judge. by as ordered proved forts locate witness had still thereafter, was a Shortly she brushed unsuccessful, err in the trial court did not hospitalized for several hours. Al- car and unavailable, allowing Zachery deeming ad- though hospital her as records describe Zachery’s largely cumulative

mission shaken nevertheless “oriented as to but substitute, grand testimony as a and month, name, place,” year, and she never motion. denying the mistrial attorney’s court or her office. called the and, evening, hospital left

That she reporting to flew to instead of V. any person notifying California without Finally, appellant argues that this departure. trial of her connected with the resentencing remanded for case should be telegram later, sent a days Three she judgé may have relied because Califor- and to the court from counsel in the upon inappropriate considerations disclosing nia She was her whereabouts. original argues, spe more sentencing. She subsequently arrested on warrant bench cifically, unduly that her sentence was charges.1 federal and on unrelated improperly harsh relied judge because her convic- Kimes now claims that Mrs. conviction, upon grand may theft a 1966 because, she con- tion be reversed should against her have retaliated recusal tends, was denied the she filed, may motion had and have she con already had present jury, cluded that the coats” were stolen “other verdict, had reached a announced it wrongly upon relied that conclusion. open that verdict delivered specifi Appellant This is frivolous. claim polled by judge. reaffirmed it when conviction, and, cally admitted the 1966 facts, I that reversal of On these believe suggests while the record that the constitute miscar- the conviction would planning rely was on the conviction not Although question riage justice. sentencing, legally she entitled to do was closer, Judge Ba- perhaps a remand many so. See 509 A.2d Grant United in so words con never found 1147, 1155(D.C.1986). voluntary, I As to the latter can- two Mrs. Kimes’ absence was trial court error that there was charges, appellant nothing spec agree offers I Accordingly, warranting even a remand. support them. ulation to conviction. affirm the VI. I Accordingly, remand the record to THE FACTS findings as to whether the trial court for why disagree I explain from court at the time appellant’s absence order disposition voluntary colleagues proper my as to received was the verdict was years. charged imprisonment for five in a seventeen- sentenced 1. Mrs. Kimes been holding domestic this occurred indictment with several which led to conviction count conduct involuntary awaiting servitude. She sub- workers in case. trial in the while she charges sequently all of convicted of these case, of this I necessary place, reported find it to elaborate en their observations. The called, police eventually in some and the trail extraordinary measure on the se- occupied by led to the seventh floor quence of room brought events which has There, Mrs. Kimes and her husband. issue to us. The trial was held more than police initially sign found no of the stolen years ago, four trig- and the events which mink, but did discover other fur coats two gered years it occurred and five a half missing. with their labels Visible from before that. room,3 however, window Kimes’ on evening In the February below, lobby roof five floors was a Crane, employ- Charles a Hewlett-Packard garment lining turned which out to be the California, ee acquaintance from made the Kenworthy’s from Mrs. fur coat. The coat Cusma, public of Rena administrator itself was discovered some two weeks later Oregon, Country in the Town and employee, up a hotel balled and stuffed lounge Mayflower. at The Each of these behind an ice machine on the seventh floor. just Washington, individuals had arrived in Mr. and Kimes were arrested and Mrs. chatting and the two were over drinks. charged with the theft of Mrs. Kenwor- Enjoying cocktails at another table were thy’s coat.4 Robert and Kenworthy Katherine and sev- continuances, After numerous most people. eral other Kenworthy placed Mrs. request defense,5 them at the her dark-colored mink coat over a chair. against case Mrs. Kimes came to trial Kimes, Mrs. who is described in the record Thursday, July 1985. The trial lasted a having some resemblance to Elizabeth week, undisputed and it is that Mrs. Kimes Taylor, wearing and who mink white proceedings prior attended all of the to the coat,2 lounge. Suddenly, was also jury’s return of the verdict. At the close Mr. Crane observed Mrs. Kimes take Mrs. day’s proceedings, of the first and on sev- chair, on, Kenworthy’s put coat from the it thereafter, Judge eral occasions Bacon ad- put top and her own mink white coat on statutory penalties Mrs. Kimes of the vised Cusma, nudged it. He Ms. also who appear, explained for failure to completing watched the action. After go your “this case could forward without maneuver, mink mink over Mrs. Kimes left you should not be here or should lounge. shortly She returned there- you July be late.” On after and Kenworthy par- chatted with the gave jurors, her final instructions ty departing again. before once they began their deliberations at 11:20 they a.m. When were excused for lunch at time, closing At Kenworthy Mrs. noticed p.m., Judge 12:17 Bacon stated that “we that her mink missing coat was and became would ask Mrs. Kimes to be available in the understandably agitated. Mr. Crane and vicinity of the courtroom from and after Cusma, previously Ms. who had not dis- p.m.” 1:30 they anyone closed what had seen to be- they ap- cause could not p.m., believe what At 3:55 almost a half two and hours peared happened actually supposed to have had tak- after Mrs. Kimes was to be back appears undisputed originally stealing It that Mrs. Kimes Kimes were indicted for Mr. many Unfortunately, and her husband were millionaires times Booth’s coat as well. Mr. Booth over. died before the trial and the court denied a motion to admit evidence of the deceased’s open 3. The window had been forced and the statements, making prosecution of this count police piece lock broken. The also recovered a impracticable. binding tape according expert testi- mony, probably from the coat. came stolen 5.According government pleadings, to one of the release, 4. After their Mr. and Mrs. Kimes moved approximately there were sixteen defense re- hotel. another Police searched their room continuance, quests joint for a and five more pursuant that hotel to a warrant and seized a requests. twenty attorneys At least different label, jacket, missing man’s which also had a appeared have either for Mrs. Kimes or have apparently from a dresser drawer. This coat her, representing been noted in the file as either belonged allegedly to John E. Booth appeal. at trial or on days been stolen from a different hotel two Kenworthy’s before the theft of Mrs. coat. The earlier, courtroom, thirty-nine a occurred minutes prior the and after commu- dent p.m. hospital left the at 1:41 She re- or announcing nication a verdict had been evening medical later that against advice tracted, judge the sent the a new jurors eventually to returned California. and stating the have reached note that “we allegation in the motion that There is no to be a verdict.” Mrs. Kimes was nowhere attempt any to contact Mrs. Kimes made found, to make and her counsel was unable any prior her time the court or counsel any representation her about whereabouts. cross-country journey. to her delay fur- Denying request by a counsel to following the morn- proceedings ther until 4, 1985, Judge denied October Bacon On Judge ing, Bacon received a verdict motion, observing Kimes’ bond review Mrs. the guilty, by which confirmed each of was things that there evi- among other was poll. judge The excused jurors during instability part a on of mental the dence Arling- jurors a bench for Kimes and she had “left the and issued warrant Mrs. that Hospital medical and against Kimes. ton advice Mrs. to rather than to the returned California days later, previously Three as we have Superior District of Columbia Court.” noted, a her telegram Mrs. Kimes sent Kimes held without until Mrs. was bond counsel, copy judge, a trial with July she was sentenced to Grove, revealing she that was Garden nine imprisonment years, for three to con- subsequently arrested California. She was any sentence. secutive other 5, 1985, August en- Judge and on Bacon 12, 1986, August new for On counsel modifying money tered an order bond purported to file a Mrs. Kimes “motion previously imposed in connection with the trial,” claiming that mistrial and new ordering bench warrant and that she be Mrs. Kimes’ absence from courthouse order, In her judge held without bond. involuntary, contrary as and that was ap- recited that Mrs. Kimes had been July sumption of court and counsel on prehended in California that she had This motion was 1985had been erroneous. appear “failed to remain available and to untimely, juris and the untimeliness was receive in this verdict case [had] dictional, v. Lara-Hernan United States flight point taken the country across to her (9th Cir.1978); dez, F.2d see apprehension in judge California.” The Braman, 327 A.2d also United States v. prejudice wrote her order was without (D.C.1974), denied, cert. presented reconsideration counsel (1975).7 46 L.Ed.2d 405 establishing matters Kimes was Mrs. reason, Presumably Judge for this Bacon flight. not a threat of The has never ruled on it. evidence 26, 1985, September On counsel for new relies, Mrs. Kimes show Mrs. Kimes filed a motion bond review from court when verdict setting Kimes’ forth Mrs. version of never involuntary, returned was was thus 18, attaching July events of thereto records through a brought before Arlington Hospital. records dis- motion, expressly ruled timely and never close that Mrs. Kimes was struck Lara-Hernandez, supra, her. upon by Cf. by by car driven hit and run brushed F.2d at 275. crossing driver while the street6 she was II Ar- Arlington, Virginia. She taken to lington Hospital, she where was oriented LEGAL DISCUSSION displayed anxiety and place to time and right its waiver. A. The confusion,” little “mild recollection right at 2:20 Kimes the accident. She was admitted Mrs. be right stage and that is p.m., every relate the acci- of her and the records motion, based on representation in how- motion for a new trial which 6. Counsel’s 7. A ever, newly must be within discovered evidence filed attempting to was that Mrs. Kimes was verdict, days unless ex- after the court seven hail a cab to return to the courthouse. seven-day period. Su- time tends the per.Ct.Cr.R. 33. protected by granted the Constitution to the extent that he has waived his just hearing that a fair and present. Snyder thwarted her absence. v. Mas- Supreme In the words Judicial Court sachusetts, S.Ct. Massachusetts, of 333, (1934); Rice, 78 L.Ed. 674 v. 110 State If the it commonwealth has done all that 577, 617, 889, (1988). Wash.2d 757 P.2d 911 reasonably required can be to do to se- specifically, right, More she had the se- rights, him cure his our statute and the 43(a), by Super.Ct.Cr.R. present cured to be declaratory common of it law which is rights at the return of the verdict. These ought pre- not be so construed as to waived,

may, course, of either con- vent the return of the verdict. duct, States, 223 Diaz v. United U.S. McCarthy, Commonwealth v. 163 Mass. 250, 253, (1912); 32 S.Ct. 56 L.Ed. 500 458, 460, (1895). 40 N.E. 767 States, U.S.App. Cureton v. United 130 treating The reasons for those absent 22, 25, (1968); D.C. 396 F.2d 674 and liberty differently defendants who are at 43(a), by see Rule failure to assert them. counterparts from their incarcerated 309, 339-40, Mangurn, Frank v. explained States, 582, 591-92, (1915); well in Falk v. 35 S.Ct. 59 L.Ed. 969 United Falk, supra. Gagnon, see also v. 470 a District of Columbia United States 522, 527-29, 1482, 1484-86, defendant, 84 had released on who been bail L.Ed.2d 486 being charged adultery, after had day failed to return to court on the second custody, When a defendant is in it is the of his trial and in his was convicted ab- obligation pres- of the state to ensure his comprehensive After a of sence. review trial, stages ence at all and in most authorities, the court concluded that entirely instances the matter is outside proceeded properly in rightly defendant’s control. Courts view receiving spite in the verdict of Falk’s ab- skepticism with considerable claims that an The sence.8 court further stated: incarcerated defendant has waived present question poli- any stage public of his The is one of broad grounds in cy, person, placed affirmance on waiver such an accused whether See, comparatively cases is rare. e.g., upon protected by all trial for crime and States, U.S.App.D.C. 117 Cross v. United safeguards humanity with which 56, 59-60, (1963); 325 F.2d 631-32 present sedulously our criminal of law App.D.C. Falk v. United him, impunity defy surrounds can with (1899); Okumora, State Haw. law, processes paralyze the of that 425, 426, (1977); 570 P.2d proceedings juries of courts and and turn cf. Rice, 619-21, supra, 110 Wash.2d at farce, ultimately a solemn them into (suicide attempt by P.2d at 911-12 incarcer- compel society, safety, for its own capital ated defendant which necessitated operation principle of restrict the hospitalization voluntary held to constitute liberty. in personal Neither criminal nor verdict). at return of waiver person in civil cases will the law allow a advantage wrong. to take obtains, of his own entirely An different situation however, yet precisely And this would be what it liberty when the defendant is at escape during Supreme permitted do if it an the trial. As Court of Pennsylvania absconding juris- in prison, stated Commonwealth v. or an from the Ashe, 596, 601, bail, Pa. 70 A.2d large during diction while (1950), heavily upon by the a case relied pendency jury, of a trial before a majority: prosecu- operate as a shield from further escape for the crime. An is itself a

If he out on bail and is not tion is offense, rarely although is rendered it is taken criminal now when the verdict App.D.C. but to 8. What can be done call him? Is 456-57. so, appears, he to be held until and if how long? being custody, Not he cannot be had.

H9 of notice return punished independently principal within fifteen minutes party is offense for which held. Can though jury; sustained ver conviction act, it be an is in itself a of the defendant dict was taken offense, criminal be allowed law counsel); Malloy, 41 People and his Cal. operate as a release from criminal Cal.Rptr. 592, App.3d prosecution, ultimately therefore (1974) (verdict properly received defen liability? from criminal We can not go he excused dant’s absence where was guarantee think that the constitutional did to cafeteria deliberations and practical application its will lead us to return, phone calls failed after series so conclusion absurd. Constitu- whereabouts); disclose defendant’s tion shield guilty was not intended to the State, 112 132 Wis. N.W. Stoddard crime, consequences from the of (1907)(conviction 453 sustained where bell protect the innocent. rung notify that jury defendant had App.D.C. at 460-61. a thirty reached verdict and court waited liberty, key Where the defendant is at a receiving minutes it without defen before inquiry has is the court taken all whether Annotation, being present);9 dant Absence steps reasonable to ensure he had the felony accused return verdict in at of of opportunity present. McCarthy, to be su- (1952), case, 23 A.L.R.2d 478-90 here however, pra. judge may, properly The accused, and inafter Absence authorities of require promptness cooperation and on the there cited. part State, In the accused. Clemens v. (1921), 176 Wis. 185 N.W. 209 the trial mean, course, These do not decisions judge the defendant and advised his coun- free on that a defendant is bail and who that, jury reported sel agreement if the own, who, through his is no fault of unable evening, before or 10 o’clock in the he present during automatically to be his the The receive verdict. defendant rights by forfeits the Constitution secured and his counsel were be available at the Cureton, by supra, Rule U.S. nearby. latter’s At p.m., office 8:45 the 25-27, App.D.C. 396 F.2d at 674-76. Re jury announced that it had reached its ver- however, obliges surely a de lease on bail dict and office of defense the counsel was fendant, least, undertake best efforts immediately by telephone. notified punctual comply and to to be in attendance judge fifteen waited about minutes and the court. with directions of See Unit then outside pres- received verdict Clemons, F.2d ed States ence of and his the accused counsel. The (5th Litteral, Cir.1982); People v. Mich. Supreme Court Wisconsin affirmed the App. 254 N.W.2d conviction, observing “it would be un- Rice, Given the of a waiver su fair, circumstances, to expect under the defendant pra, capital which a was in length court to an unreasonable wait I custody, opinion am of the where the time.” Id. at 185 N.W. 217. See directly defendant’s results Friedman, also F.2d United States v. part, an on the defendant’s unlawful act Cir.1979) (defendant (9th dis- right this constitutes waiver regarded instruction judge’s to remain present. enough near to court to be able to return

9. In error courtroom and its immediate In upon reasonable bell manner that report effect, inform Stoddard, present, if he can in law so this case the facts announcing a verdict. voluntarily this the verdict him that conduct is a waiver of search, were not able he did not hear the court The court’s absented they show that jury stated: had himself from jury agreed vicinity, officers, waive it. The usual call had to find him prepared plaintiff his upon. after a agreed such In 132 Wis. at The defendant was not decisions being present when the verdict was rendered. he of his He self, on ted.) prevented by any improper account of such voluntarily ^[******] power he cannot are not uniform to so waive it. 112 N.W. at 455. wrongfully now claim absence. imprisoned, upon (Citation any advantage absented him- means from question nor omit- degree B. The prejudice. century Almost a ago, in Common- McCarthy, supra, Supreme wealth v. prejudice, any, The amount of which Judicial Court of Massachusetts had this to defendant has suffered aas result of not say importance about the or lack thereof of being present part at some of the trial depends substantially particular presence on the chap- defendant’s at this last stage proceedings he which or she proceedings against ter of the him: has missed. Where the defendant was ab jury nothing This final act of the more sent following from all that occurred jury than a formal announcement of the re- selection, Cureton, as in supra, preju up point sult of a trial which to that has obviously dice was substantial. Wines proceeded unquestionable regulari- (D.C. tock v. United 429 A.2d 519 ty. There very important is no reason 1981), hand, on the other the defendant and requiring the defendant’s his counsel had not been notified of a there, It then. is well that he should be note and were not ready to receive the sentence of the judge responded to it. held in We Wines- possibility but the of his absence is although tock that improper commonwealth, risk neces- ly impaired the defendant’s to be sarily results from his admission to bail. present throughout proceedings, the er beyond ror was harmless a reasonable ¡k }¡S sjs !j! sH St! recently, doubt. Id. at 528-30. More suggestion The jurors that the should be Kentucky Stincer, 730, 747, 107 required him, upon to look when about (1987), S.Ct. 96 L.Ed.2d 631 verdict, return their possibility with the Supreme Court sodomy sustained the con they may something ap- that see in his viction of a defendant had who been ex pearance that time cluded from which will affect competency hearing accusers, children who were his noting performance duty, that them the of their is there was no evidence that Stincer could upon any important not principle founded anything have done useful to his defense at good practical of law or reason in the hearing gained anything by attend justice. administration ing. prejudice ato defendant seems to Mass, Accord, 460-61, 40 N.E. at 767.10 me significantly less than it was in ce, supra, 615, 110 Wash.2d at Ri where, here, Winestock and in Stincer as (jurors P.2d at 910 individually polled; jurors already upon had decided a ver nothing observed that “there is in the defendant, dict partici and the had who record which indicates that the result pated prior in all proceedings, was absent any would have been different had Rice only from the return of the verdict and the present”); Friedman, been supra, 593 poll that it. followed (multi-defendant F.2d at 121 case in which My colleagues critically impor- think it jury defendant was absent when returned jurors tant that the inbe verdict; court held that he had not shown they the accused report when a verdict on prejudice that he suffered from his absence they previously which agreed. have There trial, portion any from this and that support is some case theory, for this beyond error was harmless reasonable apparently predicated is perceived on the doubt); State, Foster v. 722 P.2d psychological jurors influence on the (Okl.Crim.1986)(defendant taken ill and ab possible eye contact them between and the stage” sent when received “second accused. Hundreds of trials in the verdict; “although the trial court erred Court, however, Superior have not made manner, difficult, proceeding in this it is hypothesis, me an adherent of this persuasive impossible, imagine not support my appel there is case how this empirical skepticism. prejudiced”). lant was Although opin- he was not the writer of the in it was Justice Oliver Wendell Holmes. ion, joined one of the members of the court who it, interpreted prop- have the court we take our seats on bench “When the trial in the defen- blindness, erly continued with for we are not struck with dant’s absence. judges see as bidden to know as what we Habib, men Edwards v. U.S.App.D.C. [and women].” 396 F.2d at 676. F.2d U.S.App.D.C. Muzevsky, 760 See also United States (1968), denied, 393 U.S. Cir.1985), cert. (4th in which the F.2d (1969). In my S.Ct. 21 L.Ed.2d 560 the de- court affirmed a conviction where bar, bench, I have entire career on the or at from his fendant had been absent juror perman judges that revisit the suggested never seen a case which but cases or her assent to a issue of voluntariness such ently11 withdrew his trial or at deciding a motion for a new beholding the defen reported verdict after sentencing. Neither nor Muzev- Cureton there must dant one last time. I am sure majority, sky, nor case cited cases, I such have never have been expressly decides the court has whether Although one. I acknowl even heard of inquiry obligation to make such an sua experience is edge my that own anecdotal expect- sponte, or whether the defendant conclusive, surely in statistically it is not it. ed to initiate there is compatible theory with the any appreciable possibility looking recognized at a “It has held or been again after the make his defendant once verdict where the defendant fails to ab of the verdict in a change juror’s vote. sence at the rendition been reached would ground trial in Moreover, felony case ... a for a new suggest my cited cases appellate he cannot in the that, the lower atypical. I experience is conclude deprived of his complain that he was these,12 possi at least on facts such as the right present_” to be Absence ac bility prejudice extremely remote. cused, supra, 23 A.L.R.2d at and see cited. In Frank v. Man- authorities there right. Preservation C. had failed to gum, supra, the defendant Cureton, In in supra, which the defen- grounds for among include the numerous dant absent for almost all of his was trial his contention his motion for new proceed- the court remanded for further right present to be that he was denied ings, explained and against him returned. when the verdict go long way It would to avoid uncer- held that the courts of Supreme The Court tainty in such cases were the trial court properly point find that the Georgia could sentencing explore at the time of 338-40, 35 S.Ct. was waived. 237 U.S. As reason defendant was absent. Accord, State, 110 at 591-92. Cassius seen, permits have Rule 43 a trial which 7 S.W.2d Tex.Crim. in has commenced defendant’s 47, -, Beard, (1928); Ky. Boreing v. continued in the event of his volun- be (1928); 447, 451 Coates v. Law 10 S.W.2d tary including “to the return absence (S.D.Ga.), rence, aff'd, F.Supp. The defendant must denied, verdict.” be (5th Cir.1942), cert. 131 F.2d 110 sentencing. opportuni- An present at his 87 L.Ed. 318 U.S. ty the defendant could then be afforded Gagnon, supra, See also (defendant’s any explanation may 527-28, 105 make he have for S.Ct. at 1484-85 judge’s in camera development right present his and also for by non-asser meeting juror waived upon the record of a basis which to deter- with tion). whether, consistently Rule 43 mine which, single poll a case in which the evidence was 12. This is not

11. I recall a case in sufficient, only marginally where a defen- through guilty or jurors, voted and No. 4 Nos. 1 government guilty and the will- guilty. been dant was incarcerated A verdict of had voted not bring fully recklessly court. jurors failed to him to or checked on the verdict form. deliberations, question, report- of situation raises the The latter kind directed to continue their here, later, again whether reversal would agreement some time and all not ed appropriate prophylactic to dis- guilty as a measure verdict twelve confirmed the government. wrongful courage conduct poll. second undoubtedly appropriate upon jurors It is already agreed, for a trial which the had judge, sponte, already sua to make the kind of where defendant had been ab- inquiry contemplated long, appears altogether sent so to me un- Cureton Mu- judges reasonable. If zevsky warn defendants of sentencing, particularly before consequences consequences and these are where the defendant has been absent from imposed, warnings heeded, will not be important part an light of his trial. In prejudice judicial pro- of the entire cases, however, Frank and similar I con- juror overnight, cess. If a had ill become upon clude that it is incumbent the defen- example, might the entire trial well timely dant to raise the issue in fashion in have had to be abandoned. court, judge’s the trial and that the failure to do so on his or her own initiative follow- In Raper, U.S.App. United States ing apprehension the defendant’s is not er- (1982), D.C. 676 F.2d ror in the injustice. absence of manifest which one of the defendants was some

forty judge minutes late the trial him, resumed the trial without the court principles D. The applied. spite affirmed his conviction in of the fact Applying foregoing considerations to this defendant missed some of the bar, the facts at I conclude that neither testimony. The court held that the late appropriate, reversal nor remand would be postponement defendant’s interest in the Judge Bacon did not commit error outweighed a severance was presented relation to the issue or other- by “the burdens that such action would wise. impose government, on the witnesses, view, codefendant, my pub and the had the exception lic.” With the that there no obligation to receive the verdict when Mrs. codefendant, apply the same considerations nearly Kimes was absent two and a half here, jurors, and we must add some of hours after she had been directed to return service, completed whom their terms of p. court. authorities cited at See persons the list who would be incon opinion. of this Mrs. Kimes had been ex if venienced or worse the court could not plicitly appear, warned that if she failed to proceed here Mrs. Kimes’ absence. late, proceedings or if she was would itself, continue without her. Her absence Moreover, requested Mrs. Kimes’ counsel circumstances, under these created at least following delay morning. a until the Mrs. strong a inference that it was willful. that, Kimes’ own submission reveals if that States, Raymond v. United 396 A.2d request granted, had she still would been (D.C.1979). notify Her failure to coun available, not have been nor would counsel regarding sel or the court her whereabouts have known where to find her. Even if the further reinforced that inference. United taking judge’s refusal to defer the verdict Ott, (8th States v. F.2d Cir. morning until the next had error—and been 1984). suggest Judge To that Bacon it not—such error would have been was accepting demonstrably should have deferred a harmless.13 verdict My colleagues say Judge colleague that Bacon erred "in sented to the court that a had been failing inquiry making "fairly to conduct an on the record into continuous” efforts to locate Kimes, surrounding appellant's the sence,” ab- circumstances had Mrs. been unsuccessful. Under circumstances, making appropriate findings. and in I these I do not see what else the done, differently. read the record judge could have or what additional in- Although quiry she could have undertaken. during the Defense counsel advised the court Judge explicit finding Bacon made no that Mrs. day on which the verdict was afternoon of voluntary, simply Kimes’ absence was there was taken that he was unable to locate Mrs. Kimes. suggest no evidence available to otherwise. See explained He stated that he had to his client that Robinson v. United A.2d responsibility she had the to be available for the (D.C.1974) (failure appear ap- judge try after notice of asked lo- verdict. counsel client, pearance agreed. prima cate his and counsel About an date is evidence of willful- facie later, recess, ness); following 23-1327(b) (1989). repre- hour a counsel § D.C.Code been I cation the verdict would have Judge also conclude Bacon had no that that it had been sentencing any different she obligation, at or other was, returned, at the and her absence apprehension, time after Mrs. Kimes’ least, her very partially own fault. inquiry, sponte, ques- make an into sua tion Mrs. Kimes’ absence from the whether wrong, convic- has done Where the state voluntary. taking of the verdict was This persons sometimes be guilty tions of must like Muzevsky, case is not Cureton or acting un- reversed in to deter those order which the absent from defendants were their denying der color citizens of law Although of their Mrs. most or all trials. rights. this is my opinion, constitutional attorneys presented her Kimes’ medical of a purpose not such case. The central bearing and other on the records materials question of criminal is to decide the trial voluntariness, only relief issue of innocence, guilt appellate reversal they requested that connection was a error, per- of a for an real or conviction sug- modification of Mrs. Kimes’ bond. I ceived, played bringing which has no role gest expect it is unreasonable litigants judgment “encourages about the competent judge to read minds of coun- process judicial to abuse the and bestirs sel, supplant them, or to and to consider or public to it.” ridicule Delaware Van grant requested. relief which has not been Arsdall, by said defense Not word was counsel partic- This is L.Ed.2d suggest sentencing to the issue of where, ularly here, as defendant is true involuntary being raised, complaining of circumstances which would for a motion new trial came far too complied if she never have existed late.14 the order of the court. It is the combina- powerful tion of here—the evidence factors willing if I Even to assume—which guilt, disregard Kimes’ of a Mrs. I not—that a specific am order, after her failure to contact the court required voluntariness was accident, flight, subsequent appropriate request without an from coun- meaningful in the any lack of role for her sel, that it was to sentence error Mrs. attend, the she proceeding which did not one, in the I am Kimes absence of satisfied and the improbability prejudice, of actual error such would have been harm- paid by steep price have McCarthy, less. See Commonwealth following a for a reversal people innocent supra, pp. and the authorities cited 120- out-of-town lengthy trial with numerous against this dissent. The evidence so to militate seems me witnesses—that compelling. Kimes was Her Mrs. trial was strongly government’s favor. in the every stage fair. She a fair was not proceedings anything at which was Mrs. Kimes had trial. She Clark, slightest perfect one. Rose v. There is not the indi- entitled to a contested. Judge orders relation to Mrs. from Bacon's We know Mrs. Kimes’ own submission 14. Virginia supposed that she was in when she was that her Kimes' came close to a bond She to be in or near the courtroom. had no voluntary. improbable, It seems knowing way of whether the verdict would be least, say have found that the would thereafter, immediately returned at 1:30 or contrary the issue if Mrs. Kimes had raised courtroom at the her failure return to the timely appropriately fashion time she was directed to do so demonstrated from advanc- court. should foreclose her This disregard responsibility of her obvious ing appeal. it on Moreover, own documents show court. her recognition judge’s errat- that Mrs. Kimes’ returning without that she left California instability bespoke possible ic mental conduct court, any inquiry apparently without compliance orders” impairs “which with court Obviously, on her own the status of case. view, not, my conclu- detract does events, Kimes did far less than version Mrs. insanity claim of or incom- sion. Absent have done that she be she could present to assure problems petence, obvious mental Mrs. Kimes’ might verdict whenever the question of voluntariness. do not bear on Clemons, supra, 676 F.2d returned. See at 126. 3101, 3106, L.Ed.2d 460 I would affirm her

conviction.15 SPEIGHT, Jr., Appellant,

Freeman STATES, Appellee.

UNITED

No. 85-385. Appeals.

District of Columbia Court of

Argued En Banc Oct. 1988.

Decided Nov. Liebross, L. appointed by

Robert this appellant. Trosman, Atty. Elizabeth Asst. U.S. diGenova, Joseph whom E. Atty. U.S. filed, the time the brief was and Michael Farrell, Atty., W. Asst. Washington, D.C., filed, at the time the brief was brief, appellee. ROGERS, Judge,* Before Chief NEWMAN, FERREN, BELSON, TERRY, SCHWELB, STEADMAN and Judges, PRYOR,** Associate ** agree majority Judge Pryor 15. I with the that Mrs. Judge Kimes’ was Chief of this court at unpersuasive. other claims of error are argument. the time of He was commissioned as * Judge Rogers Judge Judge was an Associate of this a Senior on November 1988. argument. court at the time of Her status Judge changed to Chief on November notes sent. two the evening when she hospital until 8:30 that present. The her not court noted ab- was record against left medical advice. The sence, presence her for counsel waived 21, days July three also indicates on accepting notes. The purpose the the verdict, a appellant telegram sent after the said, note, p.m., at “We first received 2:37 trial her from her home California second, a verdict.” The have counsel, copy the describ- with a reach[ed] said, later, asking only injuries minutes “Please ing sent four the and her accident on of her case. disregard the last note.” told the for information the status Counsel (Aside the re- telegram, this record appellant looked for court he had for by appellant to com- attempt other veals no seen her three or four minutes but had not reason for her absence municate the appellant’s since before lunch. Aware that 3, 1985, counsel.) August On court or to courtroom, counsel was in trial another Jolla, La appellant arrested in Califor- judge him if else anyone the asked could on warrant and on unrelated nia the bench locating appellant to inform her assist charges. federal appel- that she be After should available. replied lant’s he call of- counsel his B. help, fice to see could whether someone present at “The defendant shall counsel were excused. ... stage including every the ... the its p.m., jury At about 3:55 sent final verdict,” unless he or she the return announcing note it had reached a verdict. “[voluntarily himself absents [or herself].” The trial then recalled the ease to 43(a), (b)(1); v. Super.Ct.Crim.R. see Diaz Appellant take the was still verdict.1 ab- 442, 455, States, 223 32 S.Ct. U.S. United reported Her sent. counsel that when he (1912); 250, 253, v. 56 L.Ed. 500 Black previously, he had left the courtroom 323, (D.C. States, 529 A.2d 323 United general for area for appellant looked the the 1987). like requirement, Rule 43 This to ten minutes and that he believed his five requirement, is comparable federal rule probably assistant had continued look clause of rooted in the confrontation for her the next hour. Counsel amendment, v. Gor States sixth United delay receiving asked court ver- 334, 338, F.2d don, U.S.App.D.C. 829 264 following day so that dict at least until “the 119, (1987), premised on but is 123 try appellant’s he could to ascertain where- in some situations Clause Due Process presence. The trial abouts and assure actually not con defendant is where the judge replied jurors had al- against several him fronting or evidence witnesses completed ready Gagnon, their terms of service and 470 v. United States [or her].” 1482, 1484, 526, in the 84 proceeded jury, 522, to call which deliv- 105 S.Ct. U.S. curiam). dismissing Rule 43 ju- (1985) (per After ered verdict. L.Ed.2d right law rors, a warrant also “common trial court issued bench embraces Washington, v. presence.” appellant’s arrest. United States interim, counsel was a recess. Defense out a note authorized 1. In the had sent time, break, appellant. asking this nor was at for a coffee at 3:38 U.S.App.D.C. 184, 191, 705 F.2d after the trial has commenced herself] (1983) (citing Massachusetts, Snyder ...”). 43(b)(1) Rule reflects teaching 97, 107, States, Taylor v. United 54 S.Ct. 78 L.Ed. “ ” (1934)).2 ‘protective scope’ 18-20, 195-96, L.Ed.2d 43, therefore, (1973), Rule “is than the the Supreme Court, uphold broader in which' Gordon, right Diaz, constitutional alone.” 264 ing “longstanding a rule” set forth in U.S.App.D.C. (citing 829 F.2d at 123 stated that defendant out bail Washington, 227 U.S.App.D.C. non-capital at 192-93 n. case who voluntarily fails to 5).3 705 F.2d at n. appear 497-98 at a trial at which the defendant initially present has waived or her his Court, According to Supreme a con- Taylor, present. right the Court implicated stitutional whenever a quoted test voluntariness articu criminal defendant’s trial or “ Cureton United lated in relation, proceedings trial-related ‘has U.S.App.D.C. 396 F.2d substantial, reasonably to the fullness of (1968), controlling “the rule”: opportunity against his to defend [or her] ” liberty away a defendant remains

Case Details

Case Name: Kimes v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Oct 31, 1989

Citation: 569 A.2d 104

Docket Number: 86-1267

Court Abbreviation: D.C.