room during the days his trial was proceeding, but with some form of clairvoyance he failed to appear on Wednesday when his trial was completed and did not thereafter appear.
The testimony elicited at the hearing also indicated that the defendant knew he had to be present in court during his trial and the only explanation proffered for his absence was that he was waiting in the witness room to be called. The government presented evidence to indicate that the defendant had been arrested on numerous occasions and either forfeited collateral or was convicted for minor offenses. However, one of these arrests resulted in a felony conviction. It is obvious from the record that the defendant is extremely familiar with the judicial process and knew that he had a right and an obligation to be present at trial.
The defendant also testified that he knew his attorney's telephone number, but failed to contact him to inform him of his whereabouts or to inquire as to the results of the trial. He also failed to inform his attorney as to his change of address. On his personal recognizance release form he had given his grandmother's address; however, subsequent to his release, he claimed to have lived with his brother,
The defendant was released on personal recognizance subject to the condition that he report to the Number Two Precinct each day. He could give no clear explanation as to his failure to report to the precinct station as required, except that he had gone there once subsequent to his disappearance from the courtroom, and could not register since he lacked personal identification. He also claims that he inquired at the precinct whether or not he was wanted by the police; however, he was informed that there was no fugitive warrant outstanding against him. His brother's testimony substantiated these statements; however, the Deputy Marshal testified that an FBI flyer had been issued for the defendant pursuant to the bench warrant and that this had been circulated in the District of Columbia.
His brother's testimony also substantiated defendant's claim that he was living with his brother subsequent to his release on personal recogizance. His brother also testified to the fact that the defendant had worked with him prior to the defendant's arrest on April 22, 1967.
The defendant's grandmother testified that he stayed with his brother subsequent to his release corroborating the brother's testimony. However, the Deputy Marshal's testimony indicated that when the grandmother was interviewed on February 13th or 14th she had no knowledge of the defendant's whereabouts or whether he was then living with any relative.
The defendant remained at large until he was arrested on an independent charge of assault on April 22, 1967. His name was noted by the Deputy Marshal on the jail admission sheet on April 24, 1967.
From the testimony obtained at the hearing in combination with statements made at the trial, it can be readily ascertained and reasonably concluded that the defendant voluntarily absented himself from the trial. His claim that he was present in the witness room waiting to be called was refuted not only by the Deputy Marshal's testimony but also by his own attorney. A diligent search of the courthouse was conducted and he could not be found. An inquiry made at the address which was on his personal recognizance release form proved to be futile, since he was not living there at the time.
The defendant was familiar with our judicial system. He had been tried previously for a felony offense. His actions at the time of trial indicate to this court that he voluntarily absented himself. This conclusion is premised on all the evidence presented at the hearing in conjunction with the statements made at the trial.
At the commencement of the hearing on remand, counsel for the defendant filed a brief, the thrust of which was that a defendant has the right to be confronted with witnesses called against him as guaranteed by the Sixth Amendment. There is no dispute over this isssue. However, the court is of the opinion that a defendant has the right voluntarily to absent himself and may not, by doing so, prevent the trial from going forward.
The record in this case conclusively establishes that the defendant knowingly and voluntarily absented himself from the courtroom during the trial which he knew was then in progress; that he failed to comply with the instructions of his lawyer and failed to communicate with his lawyer at any time following the recess on the first day of the trial; that he made it impossible for his lawyer or other authorities to communicate with him by living at an address other than the one which he had furnished at the time of his release on personal recognizance and where he was required to live as one of the conditions of his release, thus being in violation of the terms of his release; that he failed to communicate with the police precinct as he was required to do, and that this absence and these violations of the conditions of his release continued over a period of more than two months during which he could not be located and that his apprehension was finally accomplished when he was arrested on a charge of assault for which he was subsequently charged, tried and convicted. It was only after this apprehension that it finally became possible for the court to impose sentence.
It is true that Rule 43 does not impose a mandatory order upon the trial judge to continue the trial upon the absence of the defendant; however, it does empower the trial judge to continue when it is affirmatively determined that the defendant voluntarily absented himself from the proceedings. It is the conclusion of this court that the defendant's absence was voluntary, that he was aware of the processes taking place, that he knew of his right and of his obligation to be present, and that he had no sound reason for remaining away.
In view of the conclusions stated above, the judgment will remain in effect.
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