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12/30/92 DAVID C. FROST v. UNITED STATES

December 30, 1992

DAVID C. FROST, APPELLANT
v.
UNITED STATES, APPELLEE; GAVIN P. ROBINSON, APPELLANT V. UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Ellen Segal Huvelle, Trial Judge)

Before Rogers, Chief Judge, and Steadman, Associate Judge, and Schwelb, Associate Judge.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: Appellants David C. Frost and Gavin P. Robinson appeal their convictions of assault, D.C. Code § 22-504 (Repl. 1989), on the grounds that the trial Judge erred by proceeding with the trial in the absence of appellant Robinson, and by excluding evidence of the complainant's prior assaultive behavior and the nature of the place where the assault occurred in support of their defense of a third person. We find no error by the trial Judge in ruling that Robinson's absence from trial was voluntary, nor an abuse of discretion in proceeding with the trial in his absence. We also find no abuse of discretion in the trial Judge's exclusion of evidence. Accordingly, we affirm.

I

These appeals arise from an incident in which Oscar Leon was beaten outside a bar by three men -- Pelcie Richardson, David Frost, and Gavin P. Robinson -- after he was asked by the manager to leave the bar as a result of making threats while inside the bar against Robert Perry, a sixty-four year old man, who worked security at the bar. Based on Leon's identifications, Richardson and appellants were arrested and charged with assault. *fn1

Trial for the three defendants was set to begin on Wednesday, January 2, 1991. Richardson did not appear, however, and when he had not appeared by the afternoon session, the trial Judge issued a bench warrant for his appearance. In the meantime, that afternoon, Robinson disappeared for several hours. When he returned, the jury was selected, given preliminary instructions, and released until the next day. Before recessing, the trial Judge admonished Robinson that if he failed to show up the next morning the trial would continue without him; Robinson signed a notice to appear the next day. *fn2

The next day Robinson did not appear, although Richardson did. As the trial was set to begin, the trial Judge was informed by the Pretrial Services Agency that Robinson had been placed on escape status the day before from a half-way house where he was being held pending trial. The Judge was also advised that the Mayor's Command Center had been unable to locate Robinson in area hospitals or at the jail. The Warrant Squad had been notified and was looking for Robinson. The Judge issued a bench warrant and set bond at $10,000.

The trial Judge observed that in view of her warnings to Robinson and the signed notice to appear, it appeared that his absence was voluntary. *fn3 The Corrections Department advised that the information about Robinson had gone out the night before, but his name was still on the list of outstanding bench warrants. Robinson's attorney stated that he knew of no reason why his client was not present. Nevertheless, although concluding that she had the authority to continue in Robinson's absence, the Judge decided to take another recess. That afternoon the Judge was also informed by a representative of the Department of Corrections that there was no answer at the emergency telephone number that Robinson had given to the Department. She questioned defense counsel about his client's whereabouts, and after hearing counsel's statement that he had "no idea" where his client was and that Robinson was "basically a homeless person" who wanders around and has a drug problem, the Judge decided to recess until the following day. *fn4

The next morning, Friday, January 4, the trial Judge continued to inquire about Robinson. The Warrant Squad informed the Judge of the efforts to locate Robinson; two efforts had been made to serve the warrant at Robinson's home address. The Judge also inquired again of defense counsel if he was aware of any circumstances that would indicate an involuntary absence by Robinson. Counsel for Richardson then informed the Judge that he had spoken with the manager of the bar, Eugene Roberts, the night before and that Robinson was present at the bar at that time. Richardson's counsel had told Robinson that he should contact his lawyer and the Pretrial Services Agency and that he should arrange to be in court the next day. According to Richardson's counsel, Robinson stated that he had not been in court because he had personal problems to deal with and that he would be present the next day. The manager of the bar, who was present in the courtroom, informed the Judge that he had last seen Robinson in the bar the night before at 7 p.m., but he did not know where he was now and did not know of any way to contact him. The Judge suggested that the Marshals and the Corrections Department visit the bar to see if Robinson could be found. *fn5

The trial Judge then concluded:

Given [the co-defendant Richardson's counsel's] conversation which has been repeated this morning with Mr. Robinson, there is no question in the Court's mind that Mr. Robinson was fully aware of his obligation to be here. He was aware of the process; knew that he had a duty to be present. The Court warned him of that duty on Wednesday afternoon.

He's been again been told by his counsel -- by Mr. Allen. And nothing he said to Mr. Allen on the phone and nothing that I have heard here indicates any reason for this absence that would make it involuntary.

And the Court finds at this time that this is a voluntary absence by Mr. Robinson without justification and a highly extraordinary conduct. Mr. Robinson was placed in a halfway house knowing full well his obligations, having been warned not only by this Court but by the Department of Corrections.

The Judge noted that continuing efforts were being made to find Robinson, but in view of the conversation with the co-defendant's counsel, the Judge did not believe that Robinson would voluntarily show up and that hence it was unlikely that the Marshals or the Corrections Department would "be able to find him in a reasonable time." The Judge made further findings on the time the jury and witnesses had been waiting, and the right of Frost to go to trial. Deciding that she had waited "more than a reasonable period," the Judge ordered that the trial would proceed in Robinson's ...


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