Pinkney v. State

711 A.2d 205 Eric PINKNEY Maryland. STATE 88, Sept. Term, No. 1997. Appeals Maryland.

Court of

June 1998. Joy Phillips, Harris, L. Public (Stephen Asst. Defender E. Defender, Public brief), Baltimore, on appellant. (J. Landis, Curran, Jr.,

M. Atty. Joseph Jennifer Asst. Gen. Atty. Gen., brief), Baltimore, on for appellee. BELL, C.J., ELDRIDGE,

Argued RODOWSKY, before CHASANOW, JJ, WILNER, RAKER and and DALE R. CATHELL, Judge, Specially Assigned.

RAKER, Judge. case,

In this Appellant criminal Eric Pinkney, pro se defendant, absentia, jury was tried and convicted in having place failed scheduled time in finding that judge We that the erred

trial. conclude and, according- at trial Pinkney waived his of judgment shall the circuit court. ly, we reverse I. Maryland in of

Pinkney of theft violation was convicted 27, § At (1957,1996 Supp.), Article 342.1 Repl.Vol., Code witness, Young. Darin produced single a State Music located Young employee an of the Liberated store was in Saratoga of at the Park Avenue and Street intersection City. Baltimore 20, 1996, May that on he was

Young p.m. testified at 3:00 regular duties at Music Liberated when performing his sales Pinkney store for Pinkney lingered entered the store. minutes, Pinkney when Young suspicious became an case and “cuffed it inventory a disc from pulled compact then body.” Young close to his pulled his hands and it Pinkney’s from sweat compact retrieved two discs inside pants. incident, filed criminal

As a of this State a result count theft of charging Pinkney single with information than in violation Article having a value of less property $300 signed on recognizance, Pinkney § 342. his own Released counsel, him his he was informing a form Commissioner that his trial advised the District Court 2, 1996, Mary- in the July commence District Court of would land, City. sitting in Baltimore 2nd, Pinkney District before July appeared Court

On Kircher, Pinkney a granted A. who continuance Judge Martin counsеl. The “Pre-Trial obtaining for the purpose Dock- following: Kircher by Judge form indicates signed et” to, importance was Pinkney advised of, counsel; his Pinkney appear- was advised that next right; of that ance counsel could result waiver without (1957, Repl. Maryland statutory All references be to Code 1. shall Vol, Supp.), Article 27. Pinkney and that was advised of the charge nature the and flowing the potential consequences therefrom. Because Pink- trial, prayed jury a the in ney case was rescheduled the City August 14, Circuit Court Baltimore on 1996. On 14th, court, in August Pinkney appeared the circuit again trial judge Pinkney without counsel. The found that waived Nonetheless, right to by his counsel inaction. the circuit court Pinkney’s once more continued case until October 1996. At August the 14th proceeding, judge conclusion the trial Pinkney both informed the October 1st trial date and Pinkney, advised “You don’t get any postponements [more] get lawyer.” a The Pinkney docket entries reflect that was served with notice of the new trial date. 1st, trial, Pinkney’s

On October case was called for but he time, present. was not At that the court ascertained that Pinkney conference, was not At a incarcerated. bench prosecutor concern expressed Young might as future, a witness in the suggested, “I think 1 can it wrap up in like 30 to 45 minutes as a trial in absentia” The circuit agreed court to try Pinkney in a jury absentia before later that afternoon. 1st,

At 2:40 on p.m. October the circuit court called Pink- ney’s proceeded absence, case for him in his try se, and, Pinkney because an pro attorney present. was without The empanel jury State took 70 minutes to its deliberate, jury case. After the had prosecutor retired bench, and, approached apparently in to trying reference absentia, Pinkney engaged following colloquy with judge: the trial I don’t think I’ll suggest

[PROSECUTOR]: ever that again. thing, That’s the weirdest I think.

THE COURT: We do it all the time. Oh, it’s

[PROSECUTOR]: weird.

THE I’ve it COURT: done before. deliberation, After minutes of the jury Pinkney found guilty on one count of property theft of having value less than Pink- warrant for trial then issued a bench judge

$300. ney’s arrest. counsel, 18, 1997, Pinkney, represented March now

On circuit court. The judge the same appeared before 1, 1996, on October had Pinkney jury, that a informed judge of one count of theft under him his absence $300. convicted attempted counsel Pinkney’s 18th proceeding, At the March Pinkney’s during trial: explain absence Well, Honor, Pinkney Your Mr. COUNSEL]: [DEFENSE why he missed his to me that reason was explaining there was an he had a seizure and Court was because date house, go his he refused to but ambulance was called right of mind the he wasn’t in the frame hospital, to but and— Well, sorry.

THE I’m COURT: And, postponement he needed a COUNSEL]: [DEFENSE get verified. to Well, have late. sorry. I’m He could come

THE COURT: He next could have done day. have come the He could So, ready disposition? is something____ he if sentencing, Pinkney to and asked he The court proceeded Pinkney imposed. sentenced was anything say had before “Yes, I say get that—can found I would like answered: trial.” my jury here? I wasn’t at jury being with a not guilty had “failed to by noting Pinkney judge responded The come,” Pinkney to a term of incarceration and then sentenced year. of one the of timely appeal filed a notice of Court

Pinkney by Prior consideration the intermediate Special Appeals. court, on own motion. granted certiorari our we appellate

II. long recognized right the of a criminal Maryland has of a trial. v. stages to be at all Stewart present defendant (1994). 224, 754, State, 213, As 334 Md. 638 A.2d 759 observed, the of criminal Supreme right Court United States every “scarcely of trial is less present stage

209 to the than important right accused of trial itself.” Diaz States, 455, 254, 442, 250, 32 v. United 223 U.S. S.Ct. 56 L.Ed. (1912). right present 500 The at trial is a common law guaranteed by 5 right Maryland Article of Declaration of is Rights, protected by also “to some extent the Four Constitution, teenth Amendment to the is United States State, by v. guaranteed Maryland Rule Williams [4-231].” 211, 1301, 201, (1981); 292 Md. 438 A.2d 1306 see Bunch v. State, (1978). 680, 683-84, 1142, 1144 281 Md. 381 A.2d of right

The constitutional a defendant to be largely at trial is rooted to confront witnesses and protected is also some situations Due Process Clause implicated. where the confrontation United 522, 526, 1482, v. Gagnon, 1484, States 470 U.S. S.Ct. State, (1985); 528, L.Ed.2d 486 Wildermuth Md. (1987). 275, 291 530 A.2d be at trial implicates panoply rights and primary vindicates two enabling interests: the defendant to presentation assist defense, ensuring appearance of a fairness in the Hudson, justice. execution of State v. N.J. A.2d (1990); State, see Brown v. 272 Md. 325 A.2d (1974) (“Trials 557, 573 must ... not only fairly conducted conducted.”). give every but must ... appearance being so the Supreme As Court of Jersey New observed Hudson:

A right defendant’s to be present provides protec at trial on tions both an individual and institutional It level. affords ability a defendant the to with during communicate counsel trial, defense, assist in presentation of a process and in the of cross-examination. It independent right includes the aof defendant represent to or stages himself herself at all of a criminal if proceeding, he or she to elects do so. Institu tionally, the defendant’s to right present be at trial ensures public confidence the courts as justice. of instruments Hudson, (internal omitted); 574 A.2d at 438 see citations In re Cardinal, 418, (1994). 227, 162 Vt. 649 A.2d 229

The by earliest cases decided this construing Court the of scope right the present questions be resolved involving denial a the of defendant’s right at specific 210 State, 216, v. Hughes criminal trial. 288 Md.

stages of a See (1980) cases); 221-27, 69, La Guar (reviewing 421 A.2d 72-75 (1948); State, 450, 456-60, 913, 190 58 A.2d 916-18 v. Md. dia 189, (1926); State, 456, 472-77, A. v. 151 Md. 135 195-97 Duffy (1914). State, 373, 386-90, 417, A. 422-24 91 v. 123 Md. Dutton right to be at Formerly, criminal had the a defendant by be trial,” right and that could neither waived “stages all acquiescence. Porter v. by the defendant’s mere counsel nor (1981). 371, State, 352-53, 424 Because A.2d 374 Md. of trial” during “stage absence ordi criminal defendant’s reversal, usually cases revolved narily warranted earlier procedural phases crucial of which the question around the Id. of trial.” at litigation “stages criminal were fact process see, Bunch, 684-88, 374; at 353, 424 at 281 Md. e.g., A.2d State, 349, 351-54, 1144-46; Brown v. 225 Md. A.2d at denied, (1961), 372 U.S. 83 S.Ct. A.2d 301-02 cert. (1963). 1017, 10 L.Ed.2d 13 State, 201, 217-20, Md. A.2d Williams (1981), however, the com- prospectively we modified

1308-10 law, right the of confrontation is mon and held “[w]here right no there is involved other implicated, and where the intelligent knowing by action defendant requiring waiver,” a ordinarily for an defendant could himself effective or present, through either counsel waive Yet, at it is important inaction. 438 A.2d 1310. Id. the common law only mind that modified bear Williams present; respect with the waiver we itself. Id. scope declined to diminish explicitly State, (1986), 194, 512 In Barnett v. 307 Md. A.2d we try of the trial court to considered the decision case the defendant absconded after the had in absentia when jury began but been called before selection 198-99, 512 A.2d at 1073-74. following day. Id. We try his judge Barnett approved decision initially noted the trial court’s efforts to ensure absence. We judge in fact had voluntary.2 that Barnett’s absence was that to have at 2. Defense counsel told the court his client was met him office, morning day, that a.m. that in his and at 9:15 a.m. 9:00

211 29 telephone his law area to confirm that the hospitals clerk admitted, had not also to de- been and indicated that, upon receiving ‍​‌​​​​​​​‌​​​‌‌​​‌​‌​‌‌​​‌​​​​‌​​‌‌​​‌‌‌​‌‌‌​‌​‌‍any fense counsel information that Bar- voluntary, was than nett’s absence other court would 199-200, declare mistrial. Id. at 512 A.2d at 1074. Under circumstances, these we found no error the trial court’s that Barnett knowingly voluntarily determination waived 204, present his at trial. Id. 512 at 1076. A.2d Barnett, we recognized the defendant’s waiver not the of a only component was relevant try trial court’s decision to a defendant in absentia: Obviously a trial court which has concluded that a defendant voluntarily is not compelled absent conduct a trial has a to postpone absentia. court discretion the trial awaiting while return on a bench warrant. 213,

Id. at 512 A.2d at 1080-81. The Barnett court then listed various factors which the United States Court of for Appeals the Second Circuit previously appropriate had concluded were court to in deciding the trial consider whether to proceed 213, with a trial in the Id. at defendant’s absence. 512 A.2d at (2nd Tortora, (citing 1202, 1081 United v. States 464 F.2d 1210 Cir.), States, cert. denied sub nom. v. Santoro United 409 1063, (1972)). 554, U.S. Finally, S.Ct. L.Ed.2d 516 we warned courts against hastily too an trying absent criminal defendant, thus affecting rights “a waiver of that are to be Barnett, carefully safeguarded.” 213, atMd. 512 A.2d at 1081. State,

Recently, 253, Walker v. 338 Md. 658 A.2d denied, cert. U.S. S.Ct. 133 L.Ed.2d 179 (1995), this Court applied principles Barnett in review ing the decision of trial judge try two defendants absentia when the defendants had been informed of the trial date, when attorney their was but the defendants telephoned secretary Barnett had defense counsel’s that he stated way. again was on his day Barnett failed to in court next State,

when his commenced 9:35 a.m. Barnett 307 Md. 198-99, (1986). A.2d 1073-74 the trial noted the in court on date.3 We failed Harrington Ann S. in by Judge inquiry careful conducted Lee knowingly Walker and had determining appellants that as fact trial court found present: their the waived location; been notified of the trial date and that had appellants not been testimony took that Walker and Lee had the court days; in and also heard eight Judge Harrington from heard of the Pre-Trial Services Unit had testimony agent that an that most of appellants’ apartment searched and discovered 255-56, 658 removed. Id. at A.2d possessions their had been finding affirmed the trial court’s that the absence at 240. We voluntary. knowing of and Lee was and Walker on the primarily our in focused Although discussion Walker their of the defendants’ waiver of question trial, recognized in the implicitly at our decision that case also pro- of in importance of the trial court’s exercise discretion finding in after the ceeding try the defendants absentia the explained reasoning the such a waiver. We behind in try and Lee their absence: court’s decision Walker hearing ... the Harrington concerning conducted a Judge Attorney State’s absence.... Assistant appellants’ calling the State to the court would represented during the trial. forty forty-five and witnesses between $$$$$$ appellants that the trial of ...

Judge Harrington ruled and the would be tried absentia. proceed appellants would ruling, rationale for this the court noted explaining In probability slim that Walker and Lee could be located severing re- quickly and the burden on State and all scheduling complex recalling case and the wit- such nesses for a second trial. denied, State, 658 A.2d 516 U.S.

3. In Walker Md. cert. (1995), trial 116 S.Ct. 133 L.Ed.2d 179 counsel refused participate in did not address Walker and Lee’s claim of the trial. We counsel, leaving issue on assistance of for consideration ineffective conviction, pursue post Walker or Lee choose to the matter. Id. should 261-62, at at 243. A.2d Barnett, Id. at 658 A.2d 240. as we acknowl- Again, edged weigh of the trial court’s decision to all approved relevant exercising proceed factors discretion to trying two who knowingly voluntarily defendants had from criminal absented themselves their trial. case, competing this we must balance two interests: the defendant to be the need orderly justice system. administration the criminal absentia, a trying

Before defendant the court in trial must (i) knowing both voluntary right find a and waiver of the (ii) in at trial and sound discretion determin exercise ing proceed whether to trial an with the of absent criminal Walker, 259-61, 256, defendant. See 338 Md. at 658 A.2d at 240, Barnett, 242; 207, 213, 1077-78, 307 Md. at 512 A.2d at 1080-81; Tortora, see also 464 F.2d at 1209. indicated,

As we have the may try before trial court a absentia, criminal defendant in the court first must determine that the has knowingly voluntarily and waived the Williams, right 216, constitutional to be present. 292 Md. at 1308; States, 438 17, A.2d at see United 414 Taylor v. U.S. 19-20, 194, (1973) curiam). 195-96, 38 94 (per S.Ct. L.Ed.2d In Barnett we said: in may proceed absence,

“Before a the defendant’s judge the must find that the defendant has had adequate charges notice proceedings against the him.... It must in ... clearly the record that the defendant was when proceedings advised were to commence and that he voluntarily, knowingly, justification without failed to be at the designated place time and before the trial may proceed in his absence.” Barnett, 210, Tortora, atMd. 512 A.2d at (quoting 1209); State, F.2d at see also Noble 293 Md. (1982). 446 A.2d The waiver a criminal defendant’s right to be present governed is specifically by Maryland Rule 4-231(c),4 which states the circumstances which a under waiv- Maryland 4. pertinent part: Rule 4-231 states in (1) “voluntarily if er be found: the defendant is absent” commenced, has whether or not informed proceeding after (2) remain; if right court the defendant by from the court- justifies exclusion engages conduct (3) defendant, room; through or personally or if the either counsel, absent. This case agrees acquiesces being or circumstance. implicates third clearly must be principle voluntary absence especially pertinent presumed will not be established and without the a where the entire trial is conducted criminal case In involving right addition to presence the dеfendant. trial absentia other State and implicates present, Williams, 292 Md. at guarantees. federal constitutional this distinction expressly emphasized 438 A.2d at we ordinarily waive the by holding that a criminal defendant could inaction, through or if right present, either counsel to confrontation or implicate such a waiver did waiver. right requiring knowing intelligent any other case, finding Pinkney in this does not contest Although, inaction, through Pinkney’s to counsel that he waived his instance, trial in absentia his to confront implicated, OF Rule 4-231. PRESENCE DEFENDANT (a) present Required.—A When defendant shall be at all Presence required by when the court.... times (b) Right Present—Exceptions.—A Be defendant is entided to be to hearing every stage except present preliminary at and a law; (2) (1) argument question on of a at a or a when conference 4-248; pursuant prosequi stet is entered to Rules 4-247 nolle or (3) pursuant a of to Rules 4-344 and 4-345. or at reduction sentence (c) right present Right to Present.-—The to be under Waiver of Be (b) by a Rule is waived defendant: section of this commenced, (1) voluntarily proceeding after has who is absent the remain; right by the or or not informed the court of whether (2) justifies the engages who in conduct that exclusion from court- room, or who, counsel, (3) through agrees acquiesces personally or to or in being absent. Implicit in decision in Barnett was the conclusion that subsection our (c) imposes regarding standard the of Rule 4-231 the same substantive imposed by as voluntariness of a criminal defendant’s absence 1076, 204, (a). Barnett, at See 307 Md. at 512 A.2d subsection circumstance, proper a waiver found. either must be

215 against of right witnesses him. When the denial the be guarantees, present embraces other constitutional the stan- of right present dard used find a waiver the to be must of in properly rise to the level to be applied standard specific of finding guarantees a waiver constitutional em- right present. braced common law to be Regarding right present, of waiver to be some courts waiver, not in of spoken, have terms but terms of forfeiture. For of York example, Appeals Court of New held that deliberately defendant who is from trial having absent after of his right been advised the trial date forfeited Sanchez, 436, 577, People at trial. v. 65 492 N.Y.2d N.Y.S.2d (1985). 580-81, 56, 59-60 Defining 482 N.E.2d forfeiture context, “Forfeiture, this express the court said: unlike an waiver which involves an evaluation of state of defendant’s mind, by operation public occurs of law as a matter * 580, alia, policy.” Id. 482 N.E.2d at n. (citing, 59 inter Thomas, 338, 652, People N.Y.2d N.Y.S.2d (1981)); Com., N.E.2d 539 n. 2 see 24 Va.App. Cruz v. (1997) (en banc) (“Under rule, S.E.2d the modern ... an accused forfeit both the constitutional trial.”); statutory right see be also Flowers v. State, 608 So.2d Commentators (Ala.Crim.App.1992). have also relinquishment described the Wayne present in terms of R. forfeiture. 3 LaFave & Jerold (reason- (1984) 23.2(b), H. § at 7 Israb;l, Criminal Procedure ing that, regard with to an absent defendant’s present, preferable “it would seem to view the matter terms right”); forfeiture Charles H. Whitebread & Christo- pher Slobogin, (3rd 28.03, § at 720 ed. Criminal Procedure 1993) (“[T]he right, defendant himself can waive the forfeit or situations.”). misconduct, it through in a number of speak forfeiture, waiver Whether we terms of or an may agreement before a court find or an acquiescence absentia, trial in the court must of generally be satisfied two primary facts: that the aware of defendant was the time and place of knowing and that the was non-appearance both 216 sufficiently agreement acqui- deliberate to constitute an or

and trial in his or her proceeding escence to the court absence. case, of Usually, in this the defendant’s awareness the time as Evidence, in the easily trial will established. place be document, in the form of or other will a summons showing that the the burden of record to substantiate State’s time of trial. See place notified of the defendant was Barnett, A.2d at 1079 there (“Obviously Md. of a known voluntary relinquishment can be no trial accused not know of the at one’s if the does present date.”). accusation and of the trial cases, question be presented In the more difficult will most determining a why the is not court. whether defendant voluntary, many is trial courts have truly defendant’s absence finding before a waiv- investigatory taken measures prudently at trial. That information could er the form of a or statement from the come direct indirect defendant; from a another person, it could come statement such come from evidence that the or information could other Barnett, has, fact, instance, in absconded. For 199-200, 512 approval Md. at A.2d we noted with by delaying efforts to locate the defendant court’s day, one counsel as to the proceedings questioning defense defendant, area contacting hospitals. whereabouts place of if telephone employment, A call to the defendant’s available, a investi- prudent that information is would also be State, 315 Md. 229 n. gatory measure. See also Sorrell (1989) it be (suggesting A.2d n. family). the trial court to contact the defendant’s helpful for If, through an the trial court investigation, such could appeared, simply discovers that the defendant have but so, course, may, not to made decision do court find from that affirmative infor waiver however, frequently, mation. More court will have an absence volun confirmation that the defendant’s affirmative tary, only possess suggesting but will instead information If explanations. inqui- non-existence of alternative reasonable

217 was involun- that the defendant’s absence ry suggest does sug- the court implicitly if information before tary, and absence, involuntary reasonable likelihood gests no other Walker, that the initial inference as draw may, the court knowing a one and was sufficient- absence was the defendant’s tried acquiescence being constitute an so as to ly deliberate in absentia. observed that Special Appeals correctly has

The Court not be clearly must be established and will absence “voluntary State, 349, 361, 392 A.2d Md.App. presumed.” Haley (1978). denied, 551, 557, If the trial court cert. 284 Md. record, and thus virtually from a silent presumes waiver then a lack of alternative consciously ignorance, proceeds presence the defendant’s at the time of trial explanations as to voluntary waiver finding knowing of a support cannot present. сourt must litany not set forth a which the trial We do ab slavishly follow in order to establish that a defendant’s Nonetheless, voluntary. the record knowing sence is adequate inquiry has been made to ensure must reflect that involuntary. in fact A court that a defendant’s absence is not Collins, from a record. State v. presume cannot waiver silent (1972). 70, 80, 288 A.2d Md. trial court has Additionally, we conclude subsequent proceeding an at a court to allow a obligation opportunity explain criminal the circum defendant sure, surrounding an absence at trial. To be a stances uncertainty will often a trial court’s accompany modicum has trial finding that a defendant waived this because the usually required negative: court will find a that an Thus, involuntarily absent defendant is not absent. when the time, court at a appears judge before the later a that the opportunity must allow defendant the establish prior voluntary. absence at trial was other than If the defendant, through appropriate a motion for new trial or other objection, finding presents takes issue with the of waiver and which, if initially, evidence known to the court would have waiver, judge the trial must vacate finding then precluded trial. See any grant adverse verdict and the defendant new (1996) State, 97, 106, Stone v. 344 Md. 685 A.2d (“[T]he de novo cannot be at a withdrawn, is, when nonappearance, considered waived appellant’s trial court has information that failure have voluntary.”). was neither -wilfulnor Other courts obligation an the conclusion that the trial court has reached criminal subsequent proceeding сourt to allow a defendant surrounding circumstances an opportunity explain the to the Butler, v. 925, (Me.1996); absence at trial. State A.2d 927 674 Thomson, 877, 1097, State v. 123 872 P.2d 1100 Wash.2d States, (D.C.1989); Kimes v. (1994); 104, United 569 A.2d 109 Elliott, 978, v. 323, State (App.1994). 126 Idaho 882 P.2d 983 finding

The trial court’s that the defendant waived A trial in not right present inquiry. the to be does end the follow, ipso facto, absentia should every time the trial present court finds that the defendant waived the of finding by at trial. A the trial court of a waiver the require a trial present proceed be does not the court to with absentia; permits the court merely step it is a first which until proceed to do so. The court has discretion not to the court, brought is located and before the or until the court has more information as to the defendant’s whereabouts obviously and circumstances. “It is desirable that a defendant Tortora, 464 at 1210. After at his own trial.” F.2d waiver, trial court must exercise resolving question proceed its and decide whether to the defendant’s discretion in absentia is not favored. Trial absence. try of the trial court an absent

The discretion of all appro defendant should be exercised after review that the inter priate recognition public concerns and with the judicial est confidence in is best served proceedings Kirk, of the defendant at trial. See State v. 699 presence denied, cert. 814, (Tenn.Crim.App.1985), S.W.2d 820 475 U.S. (1986). 1023, 1215, 89 L.Ed.2d 327 Other counter S.Ct. vailing limiting interests the exercise of a trial court’s discre- both in tion in such circumstances include the State’s interests guilt public confidence accurate determination an Hudson, justice. an 574 A.2d at judiciary as instrument (“ 438; State, (Wyo.1985) 694 P.2d ‘The Maupin see v. at all proceedings defendant’s liberty designed life or tribunal which take his orderly judicial in a fair and safeguard public’s interest ” 274- (quoting Eyman, Bustamante v. F.2d system.’ (9th McCrimmon, Cir.1972))); v. 187 Ariz. see also State (1996). Moreover, the defendant’s 927 P.2d ‘keenly the trial court is alive to a presence “assures importance responsibility [its] sense of [its] ” (2nd 352, 361 Canady, functions.’ United States v. 126 F.3d Cir.1997) 39, 46, 104 (quoting Georgia, 467 U.S. S.Ct. Waller 2210, 2215, (1984)), denied, -U.S.-, 81 L.Ed.2d 31 cert. (1998). 118 S.Ct. 140 L.Ed.2d 148 Tortora, Appeals the United Court of for the States cogent principles guide Second Circuit set out the trial deciding proceed court’s discretion in whether to in absentia.5 Tortora, in Writing Judge for the court Chief Lombard ob- served: proceed depend upon

Whether the trial will will the trial judge’s complex determination of issues. He must weigh place the likelihood that the trial could soon take with present; difficulty rescheduling, partic- the defendant Appeals 5. The United States Court of for the Second Circuit in United Tortora, 1202, Cir.), (2nd States v. 464 F.2d 1210 cert. denied sub nom. States, 1063, 554, Santoro v. United 409 U.S. 93 S.Ct. 34 L.Ed.2d 516 (1972), try affirmed the trial court’s decision to two criminal defendants they voluntarily prior in absentia after absented themselves to the States, Crosby Subsequently, commencement of trial. in v. United 506 255, 262, 748, 753, (1993), Supreme U.S. 113 S.Ct. 122 L.Ed.2d 25 interpreted prohibit Court Federal Rule Criminal Procedure 43 to absolutely in absentia when the defendant is not at the Nevertheless, commencement of the trial. the decision in Tortora still validity persuasive authority regarding retains as a trial court’s exercise determining proceed of discretion when whether to with the trial of a 386, Scott, (5th voluntarily absent defendant. Clark v. 70 F.3d 390 See Cir.1995), denied, 1147, 1444, rt. 116 L.Ed.2d 564 517 U.S. S.Ct. 134 ce (1996); Nichols, 403, Cir.1995). (2nd United States v. 56 417 F.3d 220 trials; the burden on the Govern-

ularly multiple-defendant trials, in having again particularly ment in to undertake two against trials where the evidence multiple-defendant and more than one trial overlapping defendants is often in jeop- the Government’s witnesses substantial might keep ardy. (footnote omitted).

Tortora, The factors 464 F.2d at 1210 exhaustive; rather, in not meant to be noted Tortora were court merely principle list reflects the that the trial should relevant, into substantial factors take consideration absent defendant. determining try voluntarily whether to Cir.1985) (4th 83, Muzevsky, v. 760 F.2d 85 See United States (“[Consideration government’s difficulty reassem trial.”); an United bling proof may its dictate immediate (5th Cir.1979) Benavides, 137, 140 (recogniz v. 596 F.2d States Tortora, that, factors inconve ing addition to the listed consideration). jurors nience to is also a constitutionally courts from Although required, a trial jurisdictions have also concluded that court other relevant, respective deciding should balance the interests voluntarily trial when the proceed whether to (5th Scott, 386, Cir.1995), v. 70 F.3d 388-89 absent. Clark denied, 1147, 1444, 564 cert. 517 U.S. 116 S.Ct. 134 L.Ed.2d (1st (1996); 723, Guyon, v. 27 F.3d 727 Cir. United States (7th 1994); Watkins, 1413, 1419 United States v. 983 F.2d Kimes, Parker, Cir.1993); 109-10; People 569 A.2d at 136, 967, 970-71, 1313, 440 N.E.2d N.Y.2d N.Y.S.2d (1982); Okumura, 58 Haw. 570 P.2d State v. Cruz, (1977); 885; Rodriguez, 482 S.E.2d ‍​‌​​​​​​​‌​​​‌‌​​‌​‌​‌‌​​‌​​​​‌​​‌‌​​‌‌‌​‌‌‌​‌​‌‍at State v. N.M. accord States v. (App.1992); 837 P.2d 461-62 United (2nd Cir.1995). Nichols, legiti 56 F.3d The State’s not, moving” in the trial “keeping mate interest calendar alone, standing justification try sufficient a defendant States, 498, absentia.6 v. 295 A.2d 503 n. 3 Campbell United dissenting opinion trying' Pinkney, premise 6. A base of the is that and situated, absences, judicial similarly in their will conserve re- others view, premise speculative, is too and thus un- sources. In our 1121, 134 F.3d (D.C.1972); Rezaq, States v. seе also United 868, (D.C.Cir.1998); Wright, v. 932 F.2d United States (10th denied, Cir.), 112 S.Ct. cert. 502 U.S. (1991). L.Ed.2d 448 consideration today adopt mandating not a rule

We do of the trial court’s Tortora factors as a condition of the with a trial in absentia. proceeding of discretion exercise — Wilson, Pa.-, 712 A.2d Accord Commonwealth (Pa.1998). exist when an accused’s 738-39 Circumstances of the court is itself sufficient voluntary absence and defiance Nonetheless, a trial in the defendant’s absence. justify accused, a trial the absence of the routinely conducting commenced, is not particularly yet when the trial has case, extraordinary Trial in absentia should be the condoned. by of a only “undertaken after the exercise careful discretion Dunkerley, the trial court.” In re 135 Vt. 376 A.2d (1977).

Further, commencement of trial we believe properly vel non is factor which informs the trial significant proceed court as to whether to exercise its discretion to with the trial of a criminal defendant after the court has found a dissenting opinion hypothe- sound. Footnote 4 of the offers various the record in ses—based on information outside this case—as scope problem failing of the of criminal defendants as trial, alternately estimating scheduled for of such failures to extent caseload; or, 20,000 per appear as: of the criminal over cases 13.5%

year. presumably all of these defendants would have been informed Since dates, implicit reasoning is the of their trial dissent conclusion that all of these defendants could be tried in absentia. trials, possibility plea bargaining, These with no would have the Moreover, potential deplete judicial resources. additional resources expended post-trial hearings appeals would be on both to resolve knowing the issue of whether the defendant’s absence trial was voluntary. Finally, we note that additional federal resources would be expended corresponding corpus on a increase in the number of habeas petitions challenging constitutionality Accordingly, of these trials. reject suggested by dissenting we law the notion that the rule of opinion judicial legal would conserve resources. The standard advocat- public ed the dissent would also undermine the interest in the legitimacy accuracy criminal trials. Yet, we present. of the to be voluntary relinquishment a at which the trial commences is point not believe that the do Barnett, 208, 512 307 Md. at line of demarcation. sacrosanct (“[N]o point attach to the properties at 1078 talismanic A.2d (internal marks and cita begins.”) quotation trial which the (“We Hudson, omitted); no 574 A.2d at 443 see tions see of a distinguish ‘between the misconduct principled reason shortly after deliberately leaves the courtroom defendant who of a does so after he and that defendant who begins ” begin.’ (quoting the trial is about has been told 60)). Sanchez, Forbidding 482 N.E.2d at 492 N.Y.S.2d at prior him or herself the trial of a defendant who absented trial, while the trial of that allowing the commencement if the had occurred one proceed absence same defendant commenced, cede impermissibly the trial would minute after defendаnt, to the criminal as judicial control of administration to trial if the encourage prior as a defendant abscond well likely. verdict is Commonwealth guilty defendant believes (1992). Sullens, 1349, 1351 Pa. 619 A.2d of the commencement of trial Recognition significance of the notion that a who is reflects the common sense day generally on the of trial would be aware thus more his or her obligation present, culpable commenced, addition, once the trial has absence. to that trial timely significantly interest conclusion State’s judicial and other re- expenditure increases due to the States, 255, 261, 113 v. United 506 U.S. S.Ct. Crosby sources. (1993); 748, 752, supra, see LaFave & L.Ed.2d Israel, 23.2(b), § at 7-8.

III. the trial court erred Initially, we conclude at trial. finding Pinkney’s right a waiver of Pinkney morning failed to on the When properly that he had informed of only court determined been that he not incarcerated. place the time and of trial and was Pinkney appeared was known and had as Although his address no his previous proceedings, for all court one called required Based on home; hospitals. of area any inquiry nor was made is a sentencing, there attorney his later told the court what made, that, inquiries possibility had such been reasonable Pinkney “had would determined that a seizure court have house, to his but he an that called was ambulance was there frame go hospital, to ... he wasn’t the refused to the facts, informed judge If trial been of these of mind.” the had found, further have without properly court could not agree an Pinkney’s that absence constituted investigation, Simply him in absentia.’7 acquiescence by to be tried ment or Pinkney’s stated, inquiry court’s into inadequate the trial give of not it a sufficient morning on the trial did whereabouts product was the of volun to that his absence basis conclude tary choice. factor,

Moreover, case, great of in this an additional him to Pinkney represent elected significance, also existed. course, choice; was, no one That of his but fact that self. to had on his impact opportunity on his behalf an was on to For no his behalf example, one was defend. witnesses, evidence, to to to cross-examine object inadmissible and, review, if acquittal, request, or to judgment move Morales, necessary, jury People instructions. See object 825, 829, N.Y.2d 591 N.Y.S.2d N.E.2d (“[B]ased (1992) law, own State look to the body on our we on might opportunity that absence have effect defendant’s defend.”). never not the trial can suggest We do but when the is unrepresented, absentia proceed by knowing of an even occasioned attorney, the lack when counsel, weighty is a factor for the voluntary waiver morning Pinkney’s 7. Had court been informed on the seizure, was have whether absence due to a court could ascertained explanation. If with the absentia, any there was truth to that not satisfied court, explanation, proceeding as an alternative to Pinkney brought promptly have had could issued a bench warrant and court; was not an before the if satisfied that the failure absentia, necessarily acquiescence being tried in the court would proceeding. have cоntinued the court in deciding consider whether to proceed in the defendant’s absence.

Even if the trial court erred in trying Pinkney in his absence, the argues State Pinkney alternative that any waived claim of by error not objecting the sentencing proceeding to the conduct of his trial. Pinkney appeared with counsel for sentencing on March 1997. The earlier quoted colloquy at the sentencing proceeding, between the trial court counsel, and Pinkney and his demonstrates that the court did permit Pinkney a meaningful opportunity to explain his absence from the trial. The court’s response to the explana tion offered Pinkney’s rule, counsel for absence was to essentially, that the explanation “Well, was irrelevant: I’m sorry. He could have come late. He could have come the next day. He could have done something.” That was not an adequate response.

Pinkney’s trial took less than two hours. Had he appeared or day, “late” the next the trial would have been over. Whether Pinkney could have come to court day, the next or after, day may have been relevant to a determination of his true state of mind on the of morning but such a failure cannot transform an involuntary absence into a volun- tary one.

As if importantly, the court had fairly expla- considered the absence, nation for Pinkney’s and Pinkney believed that in had fact suffered a seizure and that an ambulance had been called result, as a the court placed should have itself the same position if as that information hаd been learned pro- before ceeding with the trial If absentia. a finding of waiver would have inappropriate been commenced, when the trial such a finding would have been equally inappropriate at the point later once the court learned the relevant information. Pinkney’s conduct fell short of the “knowing, voluntary” ab- sence that required is to constitute his acquiescence to a trial in his aby absence waiver of his common law and constitution- al right during reasons, trial. For these we hold the trial court erred in trying Pinkney in absentia. REVERSED; THE TO CASE REMANDED

JUDGMENT A NEW CITY FOR FOR BALTIMORE COURT CIRCUIT AND CITY BE PAID BY MAYOR THE TRIAL. COSTS TO OF BALTIMORE. COUNCIL

CATHELL, J., dissents.

CATHELL, Judge, dissenting. of in which The thousands instances respectfully I dissent. Maryland, for in the of appear fail to State defendants later, of the disrupt the calendars seriously I will note which jurors of witnesses. a multitude and and inconvenience courts witnesses, including of of potentially are tens thousands There duties, persons fulfilling their civic jurors, officers and police they perform services occupations lives and and the whose needlessly seriously by and disrupted are public, appear. fail to willfully conduct of defendants who life single case concerns the witness whose Although this majori- seriously holding disrupted, and income was potential goes beyond far the instant case terms ty who, disruption caused like the defendant societal those case, his or her voluntarily this fail to knowingly justice trial. last in this State. criminal We are the arbiters scholarly opinion all for the respect With due learned I colleague majority, for the do not believe that my writing justice by permitting is served recalcitrant and obstructive only home stay voluntarily disrupt defendants the lives citizens of judicial system, but of the civic-minded this State. believe, cognizant I nature of appropriate,

It begin I rights. provisions constitutional with certain relevant Rights. Maryland of It is to note important Declaration of Requirements. it is not a that Declaration Maryland Rights provides Article 5 of the Declaration are entitled to ... by Maryland “Inhabitants added.) (Emphasis respect 21 states Jury.” Article with right every person cases that “hath a to be informed criminal counsel; him; ... to be against of the accusation allowed (Em- to be [and] confronted with the against witnesses him.” added.) phasis Maryland Part of the constitutional to be present at one’s trial grounded is in an individual’s confront the against witnesses him or Again, her. this is an individual’s right to confront that a court must afford a defendant; it is not a mandatory constitutional requirement of confrontation because a criminal defendant can waive that right.

Article of the Maryland Declaration Rights, Mary- clause, land’s process due provides that person no shall be “imprisoned life, or ... deprived of his liberty or property, but by ... the Law of the respect land.” With to this due process right, we noted the civil case of v. Maryland Racing Heft Commission, 257, 270-71, Md. (1991), A.2d which involved an administrative hearing, that though may

[e]ven one have a constitutional right to a particular procedure, subjected be to a requirement reasonable that some action be taken within a specified time in order to right. exercise the The failure to take such action in timely manner constitutes a waiver of the right. [Citations omitted.] In Maryland, generally, a defendant is required to appear for a criminal trial provisions reason of the of his arrest and subsequent release pending trial. Some relevant provi- sions include sections 594B to 594D of Article relating to 616)6 arrests; section bail; Article relating to Maryland 4-216, Rule regarding pretrial release of a criminal 4-231, defendant. Maryland Rule the rule affording a crimi- nal defendant the right trial, imposes also requirement upon a criminal defendant that he or she be present for trial. It states:

Rule 4-231. Presence of defendant.

(a) presence When required. A defendant shall pres- ent at all times when required by the court....

(b) Right to be present—Exceptions. A defendant entitled at a preliminary hearing every (1) stage of except at a conference or argument on (2) stet is nolle or law; prosequi when a of question a (3) 4-248; at a 4-247 and or pursuant to Rules entered 4-345. 4-344 and Rules pursuant of sentence reduction emphasis added.] [Some into right present to be a criminal defendant’s

To transmute a direction requirement presence, of absolute type the same leads, my is in view opinion majority’s I in which believe Maryland and Constitu- States by not United required statutes, Maryland rules. tions, Maryland or the was his trial. He present a to be at Pinkney right had his trial and trial court scheduled right. that The afforded It is date, time, of trial. place and him of notified trial date. was aware of his uncontradicted that he absolutely on the date provided place court that time and The trial to stand required and it the State its witnesses scheduled Pinknеy clearly which had ready participate in the court, point, that right The constitutional to attend. constitutions, statutes, rules re- all that performed for him to necessary afforded to all that was quire; Pinkney it him It a full right presence. gave his constitutional assert absolutely no to be for trial. There is opportunity himself, Pinkney any person thing, or other than evidence Ac- right present. of his to be interfered with exercise because sentencing, to his statement cording attorney’s trial, he of seizure before Pinkney type shortly suffered some trial was to right in the frame of mind on the date was not commence. connotes, if it is to concept right something to do some- not not to do right requirement, right

be a right, right incorpo- thing. When one has a constitutional not right or the something rates the do constitutional Pinkney voluntarily chose not something. to do When he his constitutional present, exercised other required His under being present. presence not one to provisions mandating statutory constitutional and/or a criminal offense. These charged stand trial when with however, generally requirements, rights are the the State present. require presence, not the exercise one’s in absentia In considering issues, we great should take care confusing concepts. the two If every time one of the tens of thousands of criminal going through defendants our court system to appear failed trial, the trial courts required were to hold pretrial investi- gations and hearings voluntariness, on the issue of during which the courts required its officials to contact hospitals, doctors, offices, homes, friends, in order to determine absent, whether the defendant was voluntarily an already beleaguered system and overworked would become more bur- Barnett, notes, majority dened. The approvingly, that in trial court’s law clerk twenty-nine hospitals called in an effort to find Barnett. What in happens county a with hospitals? no Does the trial judge Denton call hospitals Delaware? many How hospitals enough? is many jails How should be many called? How of a defendant’s friends should be called? To impose upon the trial courts the extra burden of a finding date, defendant who is aware of his trial but is absent none- theless, is, I respectfully suggest, neither constitutionally re- quired nor wise. show,

It is I possible, as will fully protect to of a present defendant to be imposing without an extensive obli- gation on the trial courts guarantee to the voluntariness of all non-appearances defendants’ and to balance an almost unlimit- interests, ed public number of virtually impossible task. that respect, I believe it helpful to discuss jurisdic- how other tions have addressed this problem and then attempt place to their efforts into different At classifications. least twenty- three state courts addressed Arizona, the issue recently: Colorado, Florida, Illinois, Indiana, Kansas, Kentucky, Louisi- ana, Minnesota, Michigan, Nevada, Mississippi, New Hamp- shire, York, Jersey, Ohio, Oklahoma, New New Oregon, Penn- sylvania, Carolina, Utah, South Virginia, Washington. Additionally, numerous federal circuit appeal, courts of as well Supreme States, as the Court of the United have addressed this relatively issue recently. into elsewhere, however, does coalesce case

This law aspect voluntariness respect to the single standard with any compartmentalize It is left this Court absentia trials. that are from several standards select the decisions and holdings, their what constitutional, a combination of or Maryland. and for Maryland defendants appropriate for of a criminal defendant’s In this discussion two, concepts. The first I will address three interrelated, holding of in absentia are concern the which or waived his finding that a criminal defendant trials two issues will be at trial. These her remedy together. The third issue relates discussed when he or she be entitled which criminal defendant he or she did not and later asserts was tried absentia right present his or her constitutional to be voluntarily waive at trial. ABSENTIA, VOLUNTARINESS,

TRIAL IN

AND WAIVER The of a criminal trial without defendant’s holding to be right waiver of one’s constitutional presence and the inseparable concepts. at are two interrelated and present trial determination is No trial can held in absentia unless his or her to be right that a criminal defendant waived made himself or herself by voluntarily absenting at present then, inquiry, is under proceedings. from the relevant voluntary will a waiver be found such what circumstances place. a trial in take absentia right pres- to be addition to a defendant’s constitutional states, including Maryland, ent at federal most of a regarding courts have rules or statutes enacted trial. rules or present criminal to be at These extent, affect, ability that a statutes to some a court’s to find present. his or to be For criminal defendant waived her discussion, rules regarding this case law these purposes regard statutes to in trials can be divided with absentia (A) general jurisdictions into two classifications: which defendant’s presence required at the commencement of the (B) proceedings, jurisdictions in which the defendant’s presence is not required proceed- commencement of the ings. classifications,

Within each of these two broad there are further regarding distinctions the circumstances under which a waiver of a defendant’s constitutional right to be present at trial may be found. These respect distinctions with to waiver will be examined along with the regarding discussion the two general classifications. Required

A. Presence at Commencement Proceedings The federal courts and some state courts interpret their rules or regarding statutes the presence of the defendant at a criminal trial as prohibiting the commencement of a trial without the criminal presence. defendant’s Stated another way, in jurisdictions these no finding waiver of a criminal defendant’s right at trial can be found when the defendant fails to up show the commencement of the trial. States,

Crosby v. United U.S. 113 S.Ct. (1993), L.Ed.2d 25 is the leading case in jurisdictions those requiring that a trial be in progress with the defendant present in order to find subsequent waiver of a defendant’s when he absconds later during pro- ceedings. Although these cases are not directly relevant in that the trial in the case sub judice absentia, commenced in the cases discussing this view are helpful in their treatment of the issue of voluntariness and waiver.

The Supreme Court in Crosby interpreted Rule 43 of the Federal Rules of Criminal Procedure as requiring the trial to have commenced with the defendant present for the trial to continue in absentia after the defendant had absconded. Prior to Crosby, several federal circuit courts interpreting Rule See, 43 construed it broadly. more e.g., United-States v. Houtchens, (9th Cir.1991) (‘We 926 F.2d 826-27 ... hold that a defendant may when, be tried in absentia after suffi- notice, cient he or she knowingly voluntarily and fails otherwise, allow an accused To hold ‘would for trial. appear commencement of bail to immobilize the large upon at sys- judicial overtaxed already trial and frustrate an ‍​‌​​​​​​​‌​​​‌‌​​‌​‌​‌‌​​‌​​​​‌​​‌‌​​‌‌‌​‌‌‌​‌​‌‍criminal meets, ever, if his pleasure trial date with until the tem Islands v. Virgin (quoting Government convenience.’” (3d Raines, Cir.1975))); Brown, Brewer v. 507 F.2d Cir.1982) (9th that (rejecting argument 670 F.2d if only trial the present to be at defendant can waive commenced). after the trial has defendant absconds hear- preliminary attended several Crosby, the defendant date, his trial but he received notice of ings during which day of his trial. On the at the commencement failed to trial, present. were and numerous witnesses codefendants Crosby day that that court some indication The trial received absconded. may have appear, for the defendant waiting days several

After court, waived his finding Crosby had from the commence- voluntarily absenting himself present by days five after its begin the trial ment of ordered present was Crosby’s attorney initial scheduled date. was сonvict- Crosby ultimately absentia. objected to a trial in ed. upon interpretation based its Supreme Court reversed provided: rule. That rule the federal

(a) shall be REQUIRED. PRESENCE The defendant plea, every arraignment, at the at the time provided by ... this except of the trial as otherwise stage rule.

(b) REQUIRED. The PRESENCE NOT CONTINUED including the return of progress further of the trial to and shall prevented shall not be verdict be considered to have waived defendant, initially present, whenever (1) trial has commenced. voluntarily absent after the 751, 122 L.Ed.2d 25 113 S.Ct. at Crosby, U.S. added). (emphasis rule, language its decision on the

Although basing Court, argument Supreme rejecting government’s law, the common merely the rule was intended restate that the Court had modified the common law Diaz v. noted States, (1912), 223 U.S. 32 S.Ct. 56 L.Ed. 500 United Diaz, voluntarily only ongoing as to trials. the defendant in progress. himself on two occasions from a trial absented court’s rea- Supreme The Court also addressed the lower “ which had stated that would be anomalous to soning, ‘[i]t com- significance attach more to a defendant’s absence at more substan- during important mencement than to absence ” 113 S.Ct. portions Crosby, tive of the trial’ U.S. 752, 122 25(quoting Crosby, L.Ed.2d United States (8th Cir.1990)). Supreme responded: The Court F.2d properties it be true that there are no ‘talismonic “While commencement of a trial from later which differentiate the pretrial we not find the distinction between and stages,’ do so as to us that Rule 43 flight midtrial farfetched convince omitted). (citation says.” cannot mean what it Id. The Court interpretation its reasons for its of the rule: explained practical distinguishing There are additional reasons for Diaz, trial. flight flight during between before and a As did voluntary flight knowing the Rule treats midtrial as or not present. waiver of the Whether constitutionally may be waived other circumstances— subject—the we no here on that defen- express opinion any initial serves to waiver is presence dant’s assure knowing. indeed (citations omitted) added). (emphasis

Id. The Court then concluded: language, history, logic supports of Rule 43

straight interpretation prohibits forward the trial in beginning absentia of a defendant who is not at the dispositive, of trial. Because we find Rule 43 we do not Crosby’s reach claim that his trial in absentia was also prohibited by the Constitution. 262, 113 753,

Id. at S.Ct. at L.Ed.2d 25. course, have, Supreme The federal circuits followed the reasoning Crosby. Court’s Some state courts also have or Cases in their rules statutes. Crosby interpreting followed to waiver at the com regard a similar rule with following La States v. proceedings mencement of the include: United United, (10th Arias, 586, Cir.1993); v. States cey, 990 F.2d 586 (11th denied, 979, Cir.), 1139, 1141-42 cert. 508 U.S. 984 F.2d (1993); 3062, 676, 932, 2979, 125 744 Mead 113 S.Ct. L.Ed.2d State, 1342, (Ala.Crim.App.1994); 644 1345-46 ows v. So.2d State, 467-68, 334, 335-36 Reece v. 325 Ark. 928 S.W.2d State, (1996); (Fla.Dist.Ct.App. Jarrett v. 654 So.2d 975 State, (Miss.1996); 1995); State v. v. 673 So.2d Villaverde (1997); Meade, v. 687 N.E.2d 278 State Ohio St.3d Hammond, 787, 791-92, P.2d 639-40 Wash.2d (1993); 98, 101-02, v. 863 P.2d Crafton, Wash.App. State (1993). 620, 622 following Crosby may these

Although cases and others they prohibit be relevant to the extent that the commence- criminal fails to appear, ment of a trial when the defendant they they are relevant to the extent discuss waiver They the commenced. proceedings after have also trial procedure are relevant as be utilized the courts in determining whether a criminal defendant waived his or her procedural at trial and as to the requirements a criminal defendant must undertake to chal- lenge proceed the trial court’s decision to in absentia. Required

B. Presence Not at Commencement Proceedings A jurisdictions interpret number their rules or statutes regarding a criminal so presence defendant’s trial as to make no distinction between the absence of a criminal defen- dant the commencement of trial of a absence jurisdictions defendant at some point during the trial. These do not interpret restricting their rules or statutes as holding of a only trial absentia when a defendant absconds after his or her trial group has commenced. It is this to which Maryland belongs. (1997). State,

Walker 338 Md. 658 A.2d 239 rejected Crosby reason- explicitly This Court Walker 4-231(c). Walker, interpreting Maryland Rule ing Eight days on to trial. prior defendants were released bond from their begin, they disappeared their trial was to before Montgomery County. The cases were called apartment date, and the defendants failed to trial on scheduled attorneys, After a with the defendants’ appear. discussion court the defendants had notice of the trial found that and location of the trial. It then ruled that the defen- date would be tried in absentia. dants convicted, they appre- After the defendants were were They in Zambia. were returned to the United States hended set forth sentencing, appealed and after their convictions. We parties: the issue and contentions of the the of whethеr a trial court presents question This case proceed a criminal trial to in the defendant’s may permit if the is informed of when the trial will absence voluntarily fails to on that date. commence and then answer in the affirmative. We overruled, that Barnett should be argue Walter and Lee 4-231(c). that this Court misconstrued Rule on the basis Barnett, that, in They contrary holding contend to our this only trial in absentia when a defendant ab- permits Rule sconds after trial has commenced. 4- appellants suggest

... The that this Rule Rule [Md. 231(c) after Federal Rule of Criminal Proce ] was modeled interpretation Maryland provi and that our dure guided by pronounce sion should therefore be federal court regarding Crosby ments the Federal Rule. United States, ^[506] U.S. [255], 113 S.Ct. 748, 122 L.Ed.2d 25 (1993), Barnett, the Supreme decided after United States Court permit that Rule 43 does not a trial in absentia held Federal to the commencement of prior when the defendant absconds that this argue interpretation trial. Walker and Lee under vitality mines the continued Barnett. (footnotes

Walker, 255-60, 338 Md. at 658 A.2d at 240-42 omitted). initially Supreme interpretation

We noted Court’s of a not bind this in interpretation federal rule does Court its Rule, of a even if Maryland Maryland patterned Rule is after the federal rule. We then held: reasoning Crosby

This Court in Supreme [of ] 4-231(c). inapposite interpretation Maryland to our Rule 4-231(c)(3), rule, which no analog Rule has the federal trial court permits to find a waiver defendant, present whenever the “personally through or counsel, to or agrees acquiesces being absent.” We on this provision relied to find а waiver of common-law rights Barnett. 307 Md. at at 1076. A.2d We nothing Crosby see that invites a reexamination of that conclusion. added).

Id. at at 242 (emphasis A.2d category this permit Within cases that in absentia trials commencement, when a not present defendant is at the some require states an additional hurdle for a trial to commence presence without the of a criminal defendant. These states require that the knowledge defendant have trial commence in his or her absence in order proceed.

Notice That Trial In Absentia May Be Held All jurisdictions that require a defendant have notice of the trial in date order to find the defendant waived his or her at jurisdictions trial. require Some also i.e., that the defendant have notice of the that if consequences, he or she fails to appear, he or she will be tried in absentia. instance, For Appeals the Court of in Virginia Hunter v. Commonwealth, 187, (1991), 13 Va.App. 409 S.E.2d 483 held individual, that an if even notified of or his her trial date and time, could not be tried in absentia unless he or she also had been advised that if or he she failed to appear, he or she would be tried in absentia. It was clear that Hunter had actual Additionally, the trial court found knowledge of the trial date. voluntarily absented himself. he had of a in case1 in which the condition court noted that one The stated, your result in appear “Failure to defendant’s bond Id. at absence,” your in being tried and convicted his 485, it held that a defendant had waived S.E.2d at had however, case,2 In a the court held later present. be in a was not a sufficient basis to language that similar bond notice he could defendant had nonappearing find that court then held in Hunter: tried in absentia. The intelligent waiver ... could be shown voluntary A to the explained that an officer of the court has establishing at trial could result his appear that failure to defendant Here ... no Sisk warnings were being tried his absence. absence, voluntary standing ...' hold that given.... We waiver. alone, knowing intelligent not constitute a does Id. at 486. 409 S.E.2d Commonwealth, 454, 482 v. Cruz Va.App.

Similarly, (1997), defendant, arrest, after his was released S.E.2d signed The form he recognizance. recognizance on his own trial, the court could appear that if he failed to for provided another form signed convict him his absence. He try and the same information and arraignment acknowledging at his subsequently furnishing the exact date. defendant trial and was tried in absentia over his failed to court, the trial objection. reasoning The trial counsel’s continue, coming we don’t have witnesses “[S]o should stated: ready for trial. don’t everybody in here. don’t have We We and a decides that he jury sitting have a around Id. 482 S.E.2d at 882. to be somewhere else.” prefers absence did not The trial court further stated Cruz’s Commonwealth, witnesses, Jury mean “the Commonwealth, (1986), Va.App. 348 S.E.2d 423 1. Head v. Commonwealth, overruled, Va.App. 482 S.E.2d 880 Cruz (1997). Commonwealth, 459, (1986). Va.App. S.E.2d 676 2. Sisk v. any prejudice.” suffer further Id. When Cruz Court should objected to sentencing, again his counsel the in appeared trial, night that Cruz drank too much the proffering absentia overslept. before trial and had law, Virginia court that under “an accused can noted 461,

waive the for the entire trial.” Id. at court, however, that a S.E.2d 888. The noted defen- dant must be notified of his date and that he will be tried if for trial: appear even he does not “[Vjoluntary waiver ... cannot shown be unless the defen- (1) (2) date; given dant has been notice of his trial has his to appear warned that failure could result in a trial been in his absence. explanation

Cruz’s that he missed trial because he drank too much overslept clearly supports the trial court’s was, indeed, finding voluntary.” that his absence Id. 482 S.E.2d at 884. imposes requirements.

Arizona similar v. State Muniz- Caudilto, 185 Ariz. 914 P.2d 1354 (Ariz.Ct.App. 1996), the Arizona of Appeals Court noted: “The trial court may infer that a defendant’s absence is if voluntary personal knowledge proceed defendant had of the time of his ing, his present, warning proceed and the that the ing place would take his absence if appear.” he failed to Sainz, (Ariz.Ct. See also State v. 186 Ariz. 924 P.2d 474 App.1996).

Voluntary Absence to Find Sufficient a Waiver A number of state courts are of the that a trial may view commence without the if presence defendant’s the defendant voluntarily absents or himself herself from the trial. The State, Supreme Lampkins Court of Indiana 682 N.E.2d (Ind.1997), on part reh’g, 685 N.E.2d 698 modified defendant, examined situation which the who was for his initial hearing, failed to for the scheduled trial date. The trial court rescheduled the and the defendant again failed to appear. The defendant then was tried in absentia.

238 not asserted that because he did appeal,

On the defendant date, improp- trial was tried notice of the rescheduled he have stating: court erly disagreed in absentia. The if ... be tried in absentia the trial court A defendant knowingly voluntarily and determines that the defеndant best evidence that a right. waived that The defendant ‍​‌​​​​​​​‌​​​‌‌​​‌​‌​‌‌​​‌​​​​‌​​‌‌​​‌‌‌​‌‌‌​‌​‌‍be voluntarily waived his or her to knowingly and presence is the present [absent] at trial “defendant’s trial.” day court the matter is set on for to ... fact that he knew of his trial date and failed The voluntarily knowingly ... that he appear is evidence was absent. omitted). (citations

Id. at 1273 322, (1996), Finklea, 211, In 147 N.J. 686 A.2d State v. — denied, -, 118 S.Ct. 139 L.Ed.2d cert. U.S. that a (1997), Jersey Supreme Court held “once the New trial given actual notice of a scheduled defendant has been date, adjourned trial date on the scheduled or nonappearance during the trial.” is a waiver of the be deemed Hudson, 574 A.2d 434 See also State v. N.J. in absentia where defendants’ convictions (1990)(upholding knowledge place of the time and of trial both defendants had inexcusable); showing up their for not were State reasons denied, Ellis, cert. N.J.Super. v. 691 A.2d (1997)(upholding 697 A.2d 546 defendant’s conviction N.J. date, time, trial knowledge he had in absentia where a for his proffer and failed to valid reason and location absence). an Pennsylvania Court of reversed intermedi- Supreme

The decision, an court’s which had held that accused appellate ate if appear his he failed did waive Sullens, 99, 619 A.2d 1349 trial in 533 Pa. Commonwealth (1992). That court said: appellate court] Court intermediate Superior [an proceedings to halt the permit

reasoned that to encourage him to avoid an by absconding during would apply- It that expected guilt. equally apparent verdict is all, rule when a defendant fails ing different encourages it a defendant ... has the samе effect: precisely guilty if thinks a verdict is his summons to trial he ignore cannot convicted knowledge in the he likely, secure of the late Mr. the words apprehended. until he on more than society “No earth offers Justice McDermott: of those held for protect rights preserve we do It not to attend. simple discourtesy trial. It is more than many have contempt everything so is an anarchical preserve.” died to a is without

... hold that when defendant absent We begin, may to he be cause at the time his trial is scheduled in absentia. tried 103-04, at 1351-52. also Commonwealth

Id. at 619 A.2d See Martinez, 454, 457, 811, 813, 605 A.2d cert. Pa.Super. (1992) (“The denied, of 618 A.2d 399 effect this 533 Pa. to and allowing appellant explanation Court abscond without judicial process to the at her conve to reintroduce herself legal to in command of the place appellant nience would be system.”). voluntary may

This line of cases demonstrates that a waiver time, during trial or any be found either before commences trial, voluntarily a criminal himself or when absents has proceedings provided herself from the the defendant of trial. place notice of the time and FINDING WAIVER OF RIGHT OF PRESENCE that must a trial court The next issue be examined is how to that a criminal make determination defendant voluntari- at I ly right waived his or her to be trial. have already requiring discussed the line of cases defendants to be may proceed notified the trial his or her absence for courts or voluntarily right to find that he or she waived his her to be Barnett, trial. he could present at the defendant asserted not tried in absentia unless he had “bеen informed in some be of the of for trial.” consequences appear manner failure rejected that conten- at 1077. We 307 Md. at A.2d tion, Supreme those persuaded “We are not stating: authority proposition are for the Court decisions requires knowledge at trial rights involving presence of waiver ” at Id. consequences failing trial[.]’ of ‘the trial court Accordingly, Maryland, 512 A.2d 1080. voluntarily absented himself or may that the defendant find or therefore waived his her herself from knowledge the defendant’s lack present, despite failing consequences appear.

Voluntary waiver of a defendant’s be has notice of the time trial be shown where the defendant Moreover, appear. he her she fails to place of trial and or Rule and even those prior the federal cases to Federal abscond after their Crosby, since which defendants voluntariness, commences, seem, with compatible as to (1) state courts: that the voluntariness of position many itself, if absence can be shown the absence defendant’s (2) post that a defendant’s satisfactorily explained, properly why failure to assert reasons his absence conviction of his involuntary may be a further waiver was present. (5th Davis, Cir.1995), F.3d cert. States v. United States, nom. v. United 516 U.S.

denied sub Jefferson (1996), codefendants, of Davis’s 133 L.Ed.2d 883 one S.Ct. McBride, was was when the commenced. She absent, however, because, during the second week of trial as court, to the she was parties hospitalized was known to all and attempt. as a result of a suicide The remainder of the trial held, McBride, as to in absentia. The trial court had was her sui ingestment pills during found that McBride’s the Therefore, voluntary. was the court held that attempt cide also was resulting hospitalization her absence due the verdict, voluntary.3 jury hearing After the returned was portion days of the case 3. The trial court continued McBride’s for two requested lawyers hospital that McBride’s visit her in the her upon for Trial” based “Motion New held on McBride’s voluntary. was whether her absence from trial and absence during testify. presented Evidence was McBride chose not before her Friday said on the hearing that she had coming was not back. from court that she Monday absence rule, Circuit, noting quoted the federal The Fifth after Tortora, policy for the case of 464 F.2d Second Circuit voluntary absence rule: behind the that he of a defendant who knows The deliberate absence trial will in a criminal case and that stands accused nothing less than an day on a certain indicates begin justice. No orderly processes to obstruct the intention to set the time or circum- defendant has a unilateral stances under which cases will be tried.... on the accused the obligation disposition

Without this subject to whims of criminal cases would be defendants justice by satisfaction of speedy who could frustrate the trials. absenting themselves from their Davis, 61 F.3d at 302. court, in adopting position,

The the Second Circuit’s dis- procedure cussed the to be used order continue absentia: deciding proceed despite whether ... the defen-

[I]n (1) court must determine whether [trial] dants’ absence (2) if knowing voluntary, absence is defendant’s so, proceеd whether in the need to public interest clearly outweighs voluntarily that of the absent defendant attending finding the trial. We review the district court’s voluntary is clear error. the defendant’s absence voluntarily The decision to without a absent defen- proceed for an abuse of dant reviewed discretion. (citations omitted) added). (emphasis

Id. at 302 Davis factually, step: court observed as to the first upon importance being impress her the in attendance at trial and proceed that would even in her absence. it depressed that McBride was The record evidence reveals prospect not wish to face trial and the of a convic- and did A cannot a trial for these reasons. disrupt tion. knowing refusal to attend the trial was McBride’s to be voluntary pres- and constitutes waiver her ent.

Id. 303. The contention that a trial court should take evidence or as to a defendant’s in order to inquiry make some absence or voluntarily whether a defendant waived his her determine rejected trial courts. to be has been some (1991), In Galloway, Kan.App.2d State v. P.2d trial. appear day the defendant failed to on the last of his His were An issue on upheld. trial and conviction absentia Galloway the trial court had found appeal was but not made as to voluntarily inquiry absent had “sufficient causing the circumstances the absence.” Id. at 817 P.2d at hearing 1125. At a trial on defendant’s motion for post acquittal or new the defendant asserted he was absent day to a on of trial. There gone hospital because he had was, howеver, Galloway no evidence the record that had Galloway the court gone hospital notify because failed or his of his The trial court attorney whereabouts. denied defendant’s motions. waiver, the trial discussing finding appel- court’s

late court noted: defendant,

[Vjoluntary absence can be found when the bond, custody is not in was not prevented released on being present. any from There does not why that the court as to the defendant requirement inquire is absent or whether someone has tried to contact or locate the defendant.

Id. at at 1126. 817 P.2d Harris, Oregon Supreme Court State v. 291 Or. (1981), contention, rejected stating: 630 P.2d 332 also such a Neither the defendant nor the Court of Appeals has suggested that the court had to take evidence to afford voluntarily for the decision that defendant had a basis proceed himself. The trial court’s decision to was absented or other evi- upon testimony not based sworn obviously Rather, dence, judge’s trial upon as such. it was based him, the knowledge transpired own of what had before counsel, own judge’s of defendant’s the trial statements and, believe, a judicial in matters of this kind we experience judgment. sense certain measure common omitted). (footnote 185-86, Id. at 630 P.2d at 335 Commonwealth, Donta v. 858 S.W.2d See also has the bur- (Ky.Ct.App.1993) (“[Although the commonwealth ... that a may den to it be [as voluntariness] inferred absence met this standard where it is shown that defendant’s knowledge such had the trial date and to failed Finklea, added); appear.”) (emphasis 147 N.J. at (rejecting required A.2d at 327 contention that trial court was to hearing priоr proceeding hold a as the issue of waiver absentia). I espoused believe that the view in these cases is the appropriate Maryland. course for Trial courts should not be requirement burdened with the to take evidence or make some into type inquiry Voluntary the defendant’s absence. ab- sence from may inferred the defendant’s failure for if trial he or she has notice of the time and date of the trial. Once the trial court has found that the defendant trial, voluntarily or from court absented himself herself able, chooses, proceed try should be if it the defendant absentia.

DEFENDANT’S REMEDY Although holding proceed that allows a trial to in absentia whenever a criminal defendant is found to have absented unusual, voluntarily himself or herself from trial seem it Moreover, is not unconstitutional. its effect has been tem- pered jurisdictions by in other allowing a defendant who was from hearing, absent trial to evidence at a later either on a motion for mistrial or motion for new or other that his or her absence was not volun- appropriate pleading, tary. Finklea, 220-21, instance, A.2d at

For N.J. Court, rules Jersey Supreme discussing the New its court waiver, voluntary stated: Rule 3:20-2 a defendant who wishes to assert requires appearance he or not waive his or her she did At a prior sentencing. to make a motion for new trial has a the burden motion, to show hearing on the ... voluntary receiving absence after why defendant’s a volun- knowing actual notice ... does not constitute Where, here, as tary present.... waiver ... motion appropriate ... a defendant fails to file the waiver, challenging appropriate the failure to make the Rule pursuant motion ... constitutes a second waiver 3:16(b). emphasis [Some added.] Sainz, (“If 473, also at 924 at 477 See 186 Ariz. P.2d that a absence subsequently discovered facts show defendant’s voluntary, ignore reality not then it is error to was facts situation and adhere to the limited known to the absence.”); Sullens, court at the time of the defendant’s J., (Papadakos, concurring)(“At Pa. at 619 A.2d at 1353 if appears, when the defendant he can establish sentencing, at be good that he had cause his absence he would People Reyna, trial.”); Ill.App.3d to a new entitled (1997)(“A 114, 116, 838, 225 Ill.Dec. 682 N.E.2d defendant who is tried in absentia is entitled to a new if he establishes that his failure to was both proceeding beyond his con by not his fault and caused circumstances trol.”); Cruz, 886(“No Va.App. S.E.2d prejudice would result to a defendant who was absent as a unanticipated emergency---- result of a medical or other ... until ... Sentencing stayed would have been he was guilt his absence from the opportunity justify accorded the if Upon hearing, of trial. the Court was satisfied that stage waiver, the defendant’s absence did not constitute new ordered.”). trial could be

CONCLUSION I is what believe I have last illustrated approach of the failure magnitude practice given the better courts should be I the trial proffer appear problem.4 relating any to the exact statistics unable to obtain 4. I have been occurring in the Appear on a state-wide basis Failures to number of courts, attempt Nor hаve I although I later shall to estimate. circuit Appear that occur in number of Failures to been able to obtain the Nonetheless, even appear” cases in the District Court. "must traffic problem potential magnitude of the can be figures, the without these Appear reflected in the number of Failures to surmised from the Disposition July Filing Statistics for of 1996 Criminal District Court basis, estimating, through on a statewide June of 1997 and County. figures from available statistics from Wicomico circuit court 11,661 July there were During period from 1996 to June 170,000 approximately cases Appear in criminal cases out of Failures to Court, (The approximately percent. statis- District seven heard in the perfectly If a defendant was to stand trial in accurate. tics case, Appear, day one in each two cases on the same two Failures entered.) Additionally, certainly, would be a almost there would be Appear in District Court “must number of Failures to substantial cases, cases, in circuit court criminal where appear” traffic and also generally penalties more severe. are level, potential problems the circuit court I example of the As an County. Appear statistics in Wicomico have obtained Failure to Appear in criminal year there were 260 Failures to calendar County. Report the The 1996-1997 Annual cases alone in Wicomico July through Judiciary period from 1 30 June indicates that in the county. For the criminal cases were filed in that a total of 1922 estimating, presume year statistics purpose of I will that calendar so, County, the approximate statistics. If in Wicomico 1996-1997 Interestingly, filings. Appear rate was of the rate of Failure to 13.5% 1997(260) Appear trials County had more Failures to than Wicomico 1996-1997(117). figure Again, this as to criminal trials 13.5% Appear. to When the rate of not include other Failures 13.5% Appear the 1996-1997 statewide circuit court Failures to is extended to 69,121 expect filings, figure staggering. We can there to criminal is 9,331 According- Appear in circuit court criminal cases. Failures to 20,000 expect Appear Courts ly, one can over Failures to in the District = 11,661 (9,331 20,992). year. + and circuit courts each apparent majority the substance of this footnote is not notes that from the in this case. The data discussed in this footnote was record Courts, Office the rec- obtained from either the Administrative Maryland, Court of the records of the Clerk of Court ords of the District County from The Annual for Wicomico Report Maryland and/or of tile below, Realizing they part of the record I were not Judiciciary. footnote, appropriate and consider it to do so. have discussed them in a they to in absentia if can establish from permitted proceed (1) time, the defendant had actual notice of the the record (2) date, trial; the defendant did not place and (3) time, trial; place the trial court knew of no date reason, weather, why such as inclement a defendant’s absence (4) the trial court was with no involuntary; presented was evidence that would create an inference that the absence was established, If is I no other involuntary. vоluntariness believe test At that inquiry balancing necessary. point, or no balancing defendant has waived his undo, undo, that Upon test can nor should waiver. defen- he or she seek a new trial subsequent appearance, dant’s could mistrial, trial, reconsideration, etc., motions for new filing proffer any relating in which he or she could evidence voluntariness.

I that I have no with the by noting again quarrel conclude I majority’s policy today to create the it establishes. power dissent, am, however, compelled respectfully perceive as I it be, I inappropriate policy, given, to be an what believe to magnitude appear problem of the failure this State. Moreover, judicial past. we have taken notice in the of similar facts instance, Diener, 659, 682, For in In re 268 Md. 304 A.2d (1973), Maryland cert. denied sub nom. Broccolino v. Comm’n on Judi Disabilities, (1974), cial 415 U.S. 94 S.Ct. 39 L.Ed.2d 885 we closing eyes reality stated: "We should be our were we to fail or judicial notice of the fact that Traffic Division of the refuse to take Court, Court, Municipal Parking place even the was where the have, first, average likely certainly citizen was if not his his most frequent judicial system.” similarly contact with our Other courts have judicial taken notice of such facts. See Renard v. District Columbia Servs., ("The Dep't Employment (D.C.App.1996) 673 A.2d facts, readily particularly contents of a court’s records are ascertainable Thus, appropriate judicial generally, notice. a court take records.”(citations ‍​‌​​​​​​​‌​​​‌‌​​‌​‌​‌‌​​‌​​​​‌​​‌‌​​‌‌‌​‌‌‌​‌​‌‍omitted)); judicial notice of its own District of Howie, (D.C.1967) ( A.2d Columbia v. is common ”[I]t knowledge that the Juvenile Court handles a tremendous number of .”). proceedings various

Case Details

Case Name: Pinkney v. State

Court Name: Court of Appeals of Maryland

Date Published: Jun 15, 1998

Citation: 711 A.2d 205

Docket Number: 88, Sept. Term, 1997

Court Abbreviation: Md.