COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia
JESSE HUTCHINGS
MEMORANDUM OPINION * BY
v. Record No. 2935-98-2 JUDGE MARVIN F. COLE
FEBRUARY 8, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
John W. Parsons (Law Office of Wood & Wood,
P.C., on brief), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Jesse Hutchings (appellant) contends the trial court erred in
finding that he waived his right to be present at trial and in
proceeding to trial without him. We disagree, and affirm the
convictions.
On December 28, 1997, police arrested appellant for
third-offense concealment of goods. On April 29, 1998, appellant,
appellant's attorney and the prosecutor signed a document entitled
"AGREEMENT SETTING CASE(S) FOR TRIAL" in which a June 9, 1998
trial date was scheduled "[i]n the event the Grand Jury returns
the bill of indictment A True Bill." Above the signatures is the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
following statement: "The Defendant is WARNED that failure to
appear for trial may result in your being tried and convicted in
your absence."
The grand jury indicted appellant on May 18, 1998 for
concealment and for possessing cocaine. On June 9, 1998, the
day scheduled for trial, appellant's court-appointed attorney
indicated that appellant was not present. Defense counsel told
the trial court that he had not heard from appellant and did not
know where he was. Appellant's attorney also informed the trial
court that appellant "had a case out here a couple of weeks ago.
And I know from his lawyer in that case that he failed to appear
in that also." Noting the presence of the executed agreement in
the file and the uncertainty of appellant's whereabouts and
whether "we can get him anytime soon to be able to try this
case," the trial court found that appellant "waived his right to
be present" and decided "to try him in his absence." At the
conclusion of the evidence, the trial court found appellant
guilty as charged. However, the trial court added that "[i]f
[appellant] is picked up fairly soon and he's got some
reasonable explanation of why he was not present today, the
Court will set these judgments aside and he will be granted a
new trial."
On September 14, 1998, appellant appeared before the trial
court without his attorney. The trial court scheduled
sentencing for November 19, 1998. At the November 19, 1998
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sentencing hearing, in response to the trial court's invitation
to proffer a reason for appellant's absence at trial, defense
counsel declined to provide any explanation regarding why
appellant failed to appear at the June 9, 1998 trial. The trial
court then imposed sentence on the earlier obtained finding of
guilt.
LEGAL STANDARD
"An accused's right to be present at trial arises from both
the Sixth Amendment and Code § 19.2-259. . . . Under the modern
rule, however, an accused may forfeit both the constitutional
right and the statutory right to be present at trial." Cruz v.
Commonwealth, 24 Va. App. 454, 460, 482 S.E.2d 880, 883 (1997)
(en banc) (citations omitted).
[B]efore proceeding in absentia, the court
must first determine that the absence of the
accused denotes a waiver of the right to be
present at trial. Additionally, in the case
of an accused who fails to appear at the
start of trial, the court must also
determine whether a continuance would be
"prejudicial to the Commonwealth's case."
Id. at 461, 482 S.E.2d at 883 (citations omitted). "[T]he
decision to proceed to trial in the absence of the defendant
calls for the exercise of sound discretion by the trial judge."
Id. at 467, 482 S.E.2d at 886.
VOLUNTARY WAIVER
"[A] knowing and voluntary waiver of the right to be
present by a defendant who is voluntarily absent from the entire
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trial cannot be shown unless the defendant (1) has been given
notice of his trial date; and (2) has been warned that his
failure to appear could result in a trial in his absence." Id.
at 463, 482 S.E.2d at 884.
Here, appellant and his attorney signed a document entitled
"AGREEMENT SETTING CASE(S) FOR TRIAL." The document included
the scheduled trial date of June 9, 1998, and warned appellant
"that failure to appear for trial may result in your being tried
and convicted in your absence." The executed document proved
that appellant "had notice both of the trial date and the
possibility he would be tried in his absence if he failed to
appear." Id. at 464, 482 S.E.2d at 885. Therefore, there was
sufficient evidence that appellant voluntarily absented himself
from trial and waived his right to be present.
CONTINUANCE PREJUDICIAL TO COMMONWEALTH
The record fails to show that appellant's attorney ever
requested a continuance. Assuming without deciding that a trial
court must consider whether a continuance would be prejudicial
to the Commonwealth even where a continuance is not sought, we
find sufficient prejudice existed to support the trial court's
decision.
A "crucial factor to be considered" in determining whether
a continuance would prejudice the government "is the likelihood
that the accused would appear and the trial could take place at
a later date." Id. at 465, 482 S.E.2d at 886. Thus, absent
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"any assurance" that an accused "would be available in the
future," a trial court does not abuse its discretion "in
proceeding with the trial in the defendant's absence." Id. at
466, 482 S.E.2d at 886.
At the time of appellant's June 9, 1998 trial, appellant's
attorney had no idea where appellant was, much less whether he
would or could appear at a future date. In fact, defense
counsel acknowledged that appellant had earlier absented himself
from another proceeding. The record contains sufficient
evidence of prejudice by defense counsel's acknowledgement that
appellant's whereabouts were unknown and the lack of any
assurance that appellant could be located and would be present
at a future date.
Accordingly, the trial court did not abuse its discretion
in proceeding to trial in appellant's absence.
Affirmed.
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