STATE of Minnesota, Respondent, v. Derek Jay CASSIDY, Petitioner, Appellant.
No. C2-95-831.
Supreme Court of Minnesota.
Aug. 14, 1997.
Rehearing Denied Sept. 18, 1997.
567 N.W.2d 707
Hubert H. Humphrey, III, Minnesota Attorney General, St. Paul, Michael D. Williams, Marshall County Attorney, Warren, for Respondent.
OPINION
PAGE, Justice.
On January 19, 1995, Derek Jay Cassidy was convicted by a Marshall County jury of the crime of transporting unstamped packages of сigarettes in violation of
At Cassidy‘s trial, the state presented its entire case on the first day, with Cassidy in attendance. After the prosecution rested, the defense called and completed the testimony of its first witness after which the trial was recessed until 9:00 a.m. the next morning. Cassidy returned to his home in Canada that evening to spend the night and to pick up a witness who was to testify on his behalf the next day. When the trial resumed the next morning, Cassidy was not present. At approximately 9:15 a.m. that morning,
The basic principles governing the right of an accused person to be present at trial are well-settled. “[A]n accused has a [constitutional] right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.” Faretta v. California, 422 U.S. 806, 819 n. 15 (1975). The right to be present during trial is based on the confrontation clause of the Sixth Amendment2 аnd is applicable to the states through the Fourteenth Amendment. State v. Grey, 256 N.W.2d 74, 76 (Minn.1977). The right to be present is also “protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him.” United States v. Gagnon, 470 U.S. 522, 526 (1985).
Like any constitutional right, the right to be present at trial may be waived by the accused. Snyder v. Massachusetts, 291 U.S. 97, 106 (1934); see also Taylor v. United States, 414 U.S. 17, 20 (1973) (“The right at issue is the right to be present, and the question becomes whether that right was effectively waived by [defendant‘s] voluntary absence.“) “A waiver is an intentional relinquishment of a known right or privilege, and its validity depends upon the particular facts and circumstances surrounding the case . . . .” State v. Richards, 456 N.W.2d 260, 264 (Minn.1990). Typically, courts will imply a waiver when a defendant is absent without explanation. See United States v. Mackey, 915 F.2d 69, 73 (2d Cir.1990). Courts will also imply a waiver from a defendant‘s conduct. Illinois v. Allen, 397 U.S. 337, 342-43 (1970). A defendant‘s “voluntary absence without compelling justification . . . constitutes a waiver of the right to be present.” United States v. Rogers, 853 F.2d 249, 252 (4th Cir.1988). Howevеr, in determining whether a constitutional right has been waived, “courts must indulge every reasonable presumption against the loss of constitutional rights.” Allen, 397 U.S. at 343.
The Minnesota Rules of Criminal Procedure also speak directly to the issue before us.
The further progress of a trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to waive the right to be present whenever:
1. a defendant voluntarily and without justification absents himself or herself after trial has commenced . . . .
We review a decision to proceed with trial in аbsentia under an abuse-of-discretion standard, and we will not disturb the trial court‘s factual findings unless clear-
Clearly, a defendant bears the burden of showing that his or her absence from trial was involuntary. That burden is a heavy one to meet, and rightly so. Our judicial system could not function if defendants were allowed to pick and choose when to show up for trial. However, when the constitutional right to be present at trial is involved, the trial court must be extremely cautious in determining whether that absence is voluntary and should set forth with specificity its rationale for finding the right waived and the facts supporting that rationale. See, e.g., Mackey, 915 F.2d at 73-74 (finding reversible error where the trial court continued the trial when thе defendant‘s absence was not clearly voluntary).
To determine whether the trial court properly exercised its discretion in finding that Cassidy voluntarily waived his right to be present at the entirety of his trial, we must examine the court record. On the limited facts one can glean from the record before us, it is clear that Cassidy‘s decision to leave the jurisdiction by going home for the evening and to pick up a witness for the next day‘s procеedings was voluntary, but the record is not clear that his failure to return for trial the next morning was voluntary and without justification. Voluntarily leaving the jurisdiction of the court, with plans to return, in order to go home3 during the evening while the trial is in recess and to pick up a witness who is to testify at trial the next day, only to discover that you have lost your transportation back to the trial, is not necessarily the same as voluntarily absenting yourself from the trial.
Here, while the trial court discussed the voluntariness of Cassidy‘s return home, it failed to set forth with sufficient specificity its rationale for finding that Cassidy voluntarily and without justification failed to return for the remainder of the trial and therefore waived his right to be present on the second day of his trial. The trial court also failed to set forth sufficient facts to support that finding. Thus, the problem we are faced with in this case is that the record before us is insufficient to mаke a determination as to the voluntariness of and lack of justification for Cassidy‘s failure to return for the remainder of the trial.4 Absent an adequate record, it is virtually impossible for this court, on review, to determine whether Cassidy voluntarily waived his right to be present or whether the trial court abused its discretion in going forward with the trial.
In reaching this conclusion, we do not mean to condone Cassidy‘s failure to be present on the second dаy of his trial. Nor do we fail to appreciate “the additional burdens, waste and expense inflicted upon the court, government [and] witnesses . . . and the public‘s interest in seeing the accused brought to trial as well as the court‘s responsibility to do so speedily.” United States v. Pastor, 557 F.2d 930, 934 (2d Cir.1977).
TOMLJANOVICH, Justice, dissenting.
I vigorously dissent. In my view, the record is more than adequatе to demonstrate that the trial court properly exercised its discretion in proceeding with the trial in the absence of the defendant.
The majority concedes that a defendant waives his or her constitutional right to be present at trial when the defendant voluntarily and without justification absents him or herself from the trial. The majority also concedes that the defendant bears the burden of showing that his or her absence from the trial was involuntary. Using the majority‘s own reasoning, therefore, Cassidy had the burden of establishing, on the record and to the satisfaction of the trial court, sufficient facts to support his claim that his absence was involuntary. Any failure to adequately establish such a record must necessarily result in a ruling against the defendant. Instead, the majority somehow reaches the conclusion that an inadequate record required the trial court to rule in thе defendant‘s favor.
Even accepting as true the majority‘s contention that an inadequate record must result in a ruling favorable to the defendant, the facts show that the record was anything but inadequate. The record established that the state presented its entire case on the first of two days set aside by the court, with Cassidy present in the courtroom. It also established that when court reconvened on the second day, Cassidy did not appear. The record also established that Cassidy did not contact the court until about 9:15 a.m., at which time he arranged a telephone conversation between himself, his attorney, the prosecutor, and the judge. According to the record, the judge gave Cassidy an opportunity to explain his reason for not being in court, and Cassidy stated that on the previous evening he had driven an hour‘s drive north to pick up a witness. Aсcording to the record, Cassidy went on to explain that the car he had borrowed to travel from his home to the courtroom for the first day of trial no longer was available because of an emergency in the car owner‘s family. Cassidy‘s attorney then asked Cassidy if he had tried to get another vehicle, and Cassidy stated he had tried until 3 a.m., but was unsuccessful.
After a discussion regarding the rights of a defendant to be present at trial, the reсord shows that the defense attorney asked Cassidy if he would permit the trial to go forward in his absence. Cassidy first stated that he would, but upon further questioning by the court, Cassidy stated, “Your honor, for the record I want to be there for the whole trial.” After Cassidy hung up, his attorney said he believed Cassidy desired to be present in court and that his desire, as evidenced by the telephone conversation, was an informal request for a continuance. The state objected, arguing that Cassidy was aware he was to be present at trial and that there would be no prejudice if the trial proceeded in his absence. Upon these facts, the district court denied Cassidy‘s motion on the grounds that his absence was voluntary and ordered the trial to proceed.
The record also shows that the court explained its decision as follows:
[T]he defendant knew and was aware that we were going to start at 9 a.m. today; that he voluntarily left here, went back to Canada, again placing himself outside the jurisdiction of this court, and didn‘t bother to call us or get a hold of anybody until 9:15 a.m. this morning. This court had, upon the agreement or the understanding with both counsel that this case was going
to take two days, committed itself to other matters on Friday, that is tomorrow, and so that we were in a position that if we were to continue it, we were gоing to continue it for a fairly lengthy time.
It is clear that the record indicates Cassidy attended the first day of trial and was aware that judge, jury, witnesses, and lawyers were ready to continue the second day. The majority does not dispute that the record also shows that Cassidy decided to voluntarily leave the area of the trial following the first day. The majority also does not dispute that the record shows that the defendant‘s lone reasоn for failing to return to trial was that the car he had planned on using for the trip no longer was available. Yet somehow the majority concludes that the trial court:
failed to set forth with sufficient specificity its rationale for finding that Cassidy voluntarily and without justification failed to return for the remainder of the trial and therefore waived his right to be present on the second day of his trial. The trial court also failed to set forth sufficient facts to support that finding.
What more could the trial court have done to insure an adequate record without transferring the burden of proving the involuntariness of Cassidy‘s absence to the state or the court itself?
Given the sufficiency of the record, it would appear that the majority is instead disregarding the trial court‘s ultimate decision that Cassidy‘s failure to acquire transportation was not a sufficient justification to qualify his absence as involuntаry. As the majority correctly states, however, we review a decision to proceed with a trial in absentia under an abuse-of-discretion standard. See United States v. Camacho, 955 F.2d 950, 953 (4th Cir.1992); United States v. Mackey, 915 F.2d 69, 72 (2d Cir.1990). As a result, the majority avoids stating that the trial court erred in concluding that Cassidy‘s excuse was not sufficient to meet his burden of proving his absence to be involuntary. But even taking as true the defendant‘s contention that he wanted to return for the second day of trial, the fact remains that after the first day of trial, Cassidy voluntarily left not only the county, but the state and country as well. Certainly the trial court was within its discretion to conclude that Cassidy‘s excuse for failing to return was not sufficient to render his absence involuntary.1
Once a trial court properly finds waiver, we must determine whether it appropriately exercised its discretion in concluding that there was a controlling public interest in the continuance of the trial in thе absence of the defendant. Mackey, 915 F.2d at 72-73; see also Camacho, 955 F.2d at 955. A number of factors help to determine if there is a controlling public interest in the continuation of a trial. United States v. Watkins, 983 F.2d 1413, 1418-19 (7th Cir.1993) (citing United States v. Tortora, 464 F.2d 1202 (2d Cir.), cert. denied sub nom., Santoro v. United States, 409 U.S. 1063 (1972)). These factors include “the likelihood that the trial can take place with the defendant present, the difficulty of rescheduling, the burden on the government and inconvenience to jurors* * *” Id. (Citation omitted).
The majority states that it appreciates “the additional burdens, waste and expense inflicted оn the court, the government [and] witnesses,” but I do not believe that the majority fully understands the burdens it has imposed with this ruling. This trial took
I recognize that we “must indulge every reasonable presumption against the loss of constitutional rights.” Illinois v. Allen, 397 U.S. 337, 343 (1970). I also must recognize, however, that “the defendant cannot take advantage of his own wilful wrоng (failing to appear) to defeat the ends of justice, and must be held to have waived, by his misconduct, his right to be present * * *” State ex rel. Shetsky v. Utecht, 228 Minn. 44, 48, 36 N.W.2d 126, 128 (1949). As Justice Black wrote in Allen: “[O]ur courts * * * cannot be treated disrespectfully with impunity. Nor can the accused be permitted by his disruptive conduct indefinitely to avoid being tried on the charges brought against him. It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humiliated and their orderly progress thwarted and obstructed by defendants brought before them charged with crimes.” Id. at 346. Based upon the entirety of his conduct, we must presume that Cassidy waived his right to be present for the second day of his trial. His subsequent failure to provide sufficient evidence that his absence was involuntary requires this court to affirm the conviction, and even more importantly, block future criminal defendants from thwarting the efficient advancement of justice.
STRINGER, Justice (dissenting).
I join the dissent of Justice TOMLJANOVICH.
KEITH, Chief Justice (dissenting).
I join the dissent of Justice TOMLJANOVICH.