The opinion of the court was delivered by: MCGARRAGHY
McGARRAGHY, Senior District Judge.
This hearing was held pursuant to an opinion of the United States Court of Appeals decided April 18, 1968, 130 U.S.App.D.C. 22, 396 F.2d 671. The hearing was held to particularly ascertain the circumstances under which the defendant absented himself from the court during the course of his trial. The primary thrust of the hearing was to determine the voluntariness of the defendant's absence.
In order to place the issue in its proper perspective, and for the sake of clarity, a review of the factual occurrences which necessitated the present hearing will be outlined. The defendant was indicted for housebreaking, arson, and malicious destruction of personal property. He was released on personal recognizance pending trial. His trial commenced on Thursday afternoon, February 9, 1967. Defendant was present and was represented by counsel, who with defendant's assistance proceeded through the voir dire examination of prospective jurors. A jury panel was selected and was sworn. Due to the lateness of the hour, and in order to avoid any prejudicial effects of the prosecutor's opening statement, since the jurors could ponder over it without the benefit of rebuttal for three days, the trial was respited until Monday morning, February 13, 1967. The jurors were instructed by the court in the presence and in the hearing of the defendant to report promptly at 10:00 o'clock on Monday morning to resume the trial. However, as the Court of Appeals pointed out, the court did not specifically address the defendant to instruct him to report on Monday morning. Although the court did not instruct the defendant to be present in the courtroom on Monday, the trial transcript (Tr. 33) makes it unequivocally clear that his attorney admonished him to be there.
When the trial was resumed on Monday at 10:00 o'clock, the defendant was absent. The court, after ascertaining that the defendant was not available for trial, issued a bench warrant and recessed the proceedings until that afternoon. The trial was reconvened at 1:45 p.m., and the court reviewed the attempts which had been made to locate the defendant. The trial transcript discloses that a Deputy United States Marshal, pursuant to the bench warrant, proceeded to the address which the defendant had given on his bail release and failed to locate him. His attorney also attempted to contact him by telephone but he was unable to find him. A police officer from Number Two Precinct testified that the defendant had not reported to the precinct station, which was one of the conditions of his release, since Friday, February 10, 1967. The record indicates that his attorney cautioned him to report to the precinct station each day (Tr. 33). The trial transcript also indicates that a diligent search of the courthouse, including the witness room, was made by his attorney and by the United States Marshal. The defendant, however, could not be found.
Before the court directed that the trial proceed, every effort was made to locate the defendant. The absence of the defendant was called to the attention of the court by his counsel and when the court stated that if the defendant deliberately absented himself, the court could proceed in his absence, and asked counsel for the defendant if he knew where the defendant lived. Said counsel responded:
"I can call his grandmother's; where I have been calling to contact him." (Tr. 28)
In response to an inquiry as to whether such call had been made, counsel stated that he had not made such a call because he was hoping the defendant would show up. There was then further discussion as to procedures that might be followed in order to locate the defendant and counsel for the defendant stated that he would call to the address of the defendant given on the order for personal recognizance and that he would also call Number Two Precinct to which the defendant was required under those conditions to report daily. Counsel for the defendant further stated:
"I called the address that I have been calling to locate him and talking to his grandmother from time to time. A party answered the phone, stating that she was a roomer there. I asked her if she knew Milton Cureton. She said she had no knowledge of him. I asked her if she knew where his grandmother was. She said that Mrs. Elliott, the defendant's grandmother, had been called to North Carolina over the weekend due to a death in the family. She thought that she would be back some time today. I then asked her if she knew anything of the whereabouts of Milton Cureton. He has brothers and sisters. She said she had no knowledge at all.
"I thereafter checked in the courtroom of Chief Judge Curran. He was not there. I went to the witness room in the Assignment Office. He was not there.
"The police officer, as Your Honor has been informed, says that he has not reported to Number Two Precinct since Friday." (Tr. 32-33)
Thereafter, counsel for the defendant stated that he would like to make a statement for the record, and then said this:
"That is that my recollection is clear that Friday I told him to be - that I would see him here Monday morning."
THE COURT: "You don't mean Friday, you mean Thursday; Thursday was the last ...