State v. BindomState v. Bindom
On or about April 26, 1983,1 a man was seen stealing jeans from the J.C. Penney Store on Plank Road in Baton Rouge, Louisiana. An employee saw this man discreetly rolling up jeans and putting them into a large bag. The man left the store and was eventually chased by a manager and security guard. He escaped, however, by entering a car driven by another man. Before they fled the area, another employee obtained the license plate number and gave the information to the security guard. Through this information and a follow-up investigation, the police arrested defendant, Grover Bindom, for the theft.
Defendant was charged by bill of information with felony theft in violation of
Defendant appeals his theft conviction and sentence, alleging nine assignments of error. Assignment of error number three was not briefed and therefore is considered abandoned. Rule 2-12.4, Uniform Rules of the Courts of Appeal; State v. Kent, 434 So.2d 1258 (La.App. 1st Cir.1983), writ denied, 440 So.2d 727 (La.1983). Since we find merit in assignment of error number one, we will consider no other assignments.
ABSENCE OF DEFENDANT
Defendant contends the trial court erred in allowing the trial to proceed, in charging the jury, and in accepting the verdict in his absence.
A defendant charged with a felony shall be present:
(1) At arraignment;
(2) When a plea of guilty, not guilty, or not guilty and not guilty by reason of insanity is made;
(3) At the calling, examination, challenging, impanelling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror;
(4) At all times during the trial when the court is determining and ruling on the admissibility of evidence;
(5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced; and
(6) At the rendition of the verdict or judgment, unless he voluntarily absents himself;
Defendant contends that, since the record reveals that his absence was not temporary,
There is limited jurisprudence on the interpretation of Article 832, especially on the meaning of the word “temporary“. Official Revision Comment (b) to Article 832 states:
(b) Rights of absent defendants, whose voluntary absence create the problem, are fully protected by the stated
limitations. The waiver is only effective if his attorney is present, and if the absence is of a temporary nature. Possibly the second limitation would apply even if it were not spelled out, for “due process” would require that the defendant should not be tried if he completely absents himself after the arraignment. Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934). The absences where a waiver has been recognized have been of fairly short duration.
In State v. Bolton, 408 So.2d 250 (La. 1981), the defendant voluntarily left the courtroom, with his attorney‘s acquiescence, during the examination of a witness. The Louisiana Supreme Court held that, under
The state also cites State v. Behn, 445 So.2d 516 (La.App. 3rd Cir.1984), a Third Circuit case interpreting Article 832. In Behn the defendant escaped from the holding room where he had been placed after closing arguments and prior to jury charges. The trial judge determined that he would proceed, and he charged the jury in the absence of the defendant. The guilty verdict was also returned without the defendant being present. In that case, the defendant conceded his absence was voluntary, but contended that he did not intend for his escape to be temporary. The Third Circuit agreed with the State that a finding that the absence did not fall within the exception of Article 832 would allow defendant to manipulate the judicial process.
In holding that Behn‘s absence was voluntary and temporary and within the ambit of Article 832, the Third Circuit stated:
In this case defendant‘s counsel was present at all proceedings in which the defendant chose to absent himself. The charging of the jury was not adversarial in nature and did not require any input by the defendant. Also the defendant‘s further presence could hardly have altered the outcome of the trial. State v. Behn, 445 So.2d at 519.
The instant case is distinguishable from Behn. Defendant was absent from the adversarial portion of the trial, including the presentation of evidence and cross examination of witnesses, which might have required his input. In addition, defense counsel only became involved when defendant‘s assigned counsel had to leave for an emergency the second day of the trial.2 Given defense counsel‘s lack of preparation, defendant‘s presence might have had an effect on the trial. Defendant was in effect tried in absentia—a patent denial of due process. Snyder v. Massachusetts, supra.
Thus, in this case, we find that defendant‘s absence does not fall within the scope of Article 832 which requires a temporary absence for an effective waiver. Since defendant was neither present as required during the important stages of trial nor waived his presence, the trial court erred in proceeding with the trial.
Because we find grounds for reversal based on this assignment of error, we find it unnecessary to discuss the merits of defendant‘s remaining assignments of error.
CONVICTION REVERSED, SENTENCE VACATED, REMANDED.