IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 6, 2001
STATE OF TENNESSEE v. RICHARD M. FAR, JR.
Appeal as of Right from the Circuit Court for Rutherford County
No. F-45893 James K. Clayton, Jr., Judge
No. M1999-00644-CCA-R3-CD - Filed April 4, 2001
On August 5, 1998, Richard M. Far, Jr., the Defendant and Appellant, was indicted by a Rutherford
County Grand Jury for one count of arson and one count of setting fire to personal property. The
Defendant was tried in absentia. At the close of the State’s proof, the trial court granted the
Defendant’s motion for acquittal regarding setting fire to personal property. Following trial, the jury
convicted the defendant of arson. After a subsequent sentencing hearing, also conducted in absentia,
the trial court sentenced the defendant as a Range III, persistent offender to fourteen years
incarceration. On appeal, the Defendant argues (1) that the trial court erred in excluding him from
his trial, and (2) that the trial court erroneously sentenced the defendant. Because we find that rule
43 of the Tennessee Rules of Criminal Procedure prohibits trial in absentia when the defendant is
not present at the beginning of trial, we reverse the judgement of the trial court and remand for a new
trial.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed and
Remanded.
JERRY SMITH, J., delivered the opinion of the court, in which JOSEPH M. TIPTON, J., and JOE G.
RILEY, J., joined.
Gerald L. Melton, District Public Defender; Russell N. Perkins, Assistant Public Defender,
Murfreesboro, Tennessee, for the appellant, Richard M. Far, Jr.
Paul G. Summers, Attorney General & Reporter; David H. Finley, Assistant Attorney General,
Nashville, Tennessee; William C. Whitesell, Jr., District Attorney General, Murfreesboro,
Tennessee, for the appellee, State of Tennessee.
OPINION
Factual Background
The Defendant was indicted for one count of arson and one count of setting fire to personal
property. At a pre-trial hearing, the Defendant informed the court that he was dissatisfied with his
appointed counsel:
THE COURT: Mr. Far, I’ve got a letter from you and got it yesterday, didn’t have a
chance to read it until this morning. What’s the problem?
DEFENDANT: I don’t want to be represented by Mr. what’s his-name right there.
I don’t feel that Mr. whatever --
THE COURT: Perkins.
DEFENDANT: -- Mr. Perkins has got my best interest at heart. I don’t think he’s
representing me proper, and I’m not going in the courtroom with him. It’s just that
plain and simple.
THE COURT: You’re not going into the courtroom?
DEFENDANT: I don’t think he’s giving me the best representation. I don’t think
he’s representing me proper. You read my letter.
THE COURT: I read your letter. What concerns me about the whole thing, in your
letter you were talking about wanting a speedy trial, that you’ve been in jail now for
some months, --
DEFENDANT: Ten months, to be exact, sir.
THE COURT: We are ready to try the case this morning at your request from last
week. Mr. Perkins has worked on your case for quite some time, is prepared to try
the case this morning. We’re ready to try it.
DEFENDANT: Okay. Let me just ask you. Let me ask Mr. Perkins a couple of
questions.
MR. PERKINS (DEFENSE ATTORNEY): No, sir; I’m not going to answer your
questions.
DEFENDANT: You’re not going to answer my questions?
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MR. PERKINS: No, sir; I’m not going to answer your questions here, not in front of
all these people, no, sir.
THE COURT: He can’t. That would be a violation.
DEFENDANT: Can me and Mr. Perkins talk in private then? I’m pretty sure me and
him can get this settled if we can just talk in private for just one moment, Your
Honor. We can go in a little room, Mr. Perkins.
MR. PERKINS: Rather than run the risk – if everybody could just excuse us.
MR. FAR: Please understand, Your Honor, there is no possible way that I want to go
to trial with Mr. Perkins.
THE COURT: Well, you’re going to have to go to trial with Mr. Perkins or represent
yourself. You’ve got competent counsel here. I’ve observed Mr. Perkins over a
number of years, and he’s extremely competent.
MR. FAR: He probably is an excellent attorney, but I don’t think he’s got my best
interest at heart. You see what I’m saying? He might represent a European or
Caucasian the best way he can, but as far as a black man, I don’t think he’s got my
best interest at heart.
THE COURT: Well, I’ve seen him represent all colors.
COURT REPORTER: Do you need me to step out, too?
MR. PERKINS: Yes, ma’am. I need you to step out.
DEFENDANT: You don’t have to step out because – you need to understand if I live
long enough, I --
MR. PRICE (PROSECUTOR): Mr. Far, I would suggest that you not threaten me.
DEFENDANT: I’m not threatening you.
MR. PERKINS: Judge, I’ve explained – for purposes of the record, I’ve explained
to Mr. Far that it’s not my decision whether I represent him or not, that that’s yours.
THE COURT: You’ve been appointed by the Court and I don’t change that.
For the purposes of the record, the court then placed the Defendant under oath, and the Defendant
testified that he was dissatisfied with his court-appointed lawyer, Mr. Perkins, because Mr. Perkins
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had not filed any pre-trial motions. After the Defendant explained why he did not want Mr. Perkins
to represent him, the colloquy continued as follows:
MR. PRICE: Mr. Far, the trial goes forward today. Are you wanting to go into the
courtroom yourself, or do you want to stay outside the courtroom?
DEFENDANT: I’m not a lawyer. What would I look like going in there trying to
represent myself?
MR. PRICE: Do you want to go in or do you want to stay out? Do you want to
answer the question?
DEFENDANT: Do you think I’m stupid?
MR. PRICE: I’m just asking you the question.
DEFENDANT: Do you? That’s what I’m asking you. Do you think I’m stupid?
MR. PRICE: Mr. Far, we’re going to ask you a couple of questions.
DEFENDANT: Could you answer my question?
MR. PRICE: No sir, I’ll not answer that question.
THE COURT [to the Defendant]: You’ll answer his questions.
MR. PRICE: I’m just asking you, do you want to go into the courtroom during the
trial, or do you want to be outside the courtroom during the trial?
DEFENDANT: I do not want to go to trial without proper representation.
MR. PRICE: All right, Your Honor, in light of all that’s gone on here, if Mr. Far does
not want to go into court --
DEFENDANT: How do you want to force me to go to trial?
....
MR. PRICE: Mr. Far, do you want to stay here for the trial?
DEFENDANT: Look, can I go back? I’m ready to go back. Can you tell these
people to take me back, please?
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MR. PRICE: Mr. Far, do you understand that we’re going forward with the trial?
MR. FAR: I don’t understand nothing. Do I sound like I understand anything?
The argument continued until the Defendant suggested that he might be able to resolve his problems
with his attorney:
DEFENDANT: Why don’t you just let me talk with Mr. Perkins in private. We’ll
just – we’ll just – let me just – we’ll just go down the hall and talk, Mr. Perkins.
MR. PERKINS: I don’t know what’s going to be accomplished by that.
DEFENDANT: I don’t know neither, but –
***
THE COURT: That’s the only thing we can do but have a trial. I’ll get out of here.
DEFENDANT: I think I’ll just talk to Mr. Perkins for just a minute.
MR. PERKINS: Be glad to.
DEFENDANT: I really don’t think that it’s going to change, but it don’t hurt to try
to work things out.
The record indicates that Mr. Perkins then met privately with his client and that jury selection
began shortly after that. During jury selection, the court informed the potential jurors that “the
Defendant has chosen not to be here.” After jury selection but prior to opening statements, Mr.
Perkins told the court “I just wanted to put on the record that I have just tried to check with my client
and check on his status. I was informed by the officers who were in charge of him that he is asleep.
So I didn’t wake him.” The court proceeded to try the Defendant in absentia. At the close of the
State’s proof, Mr. Perkins went to speak with the Defendant, but the Defendant refused to talk to
Mr. Perkins. Mr. Perkins then moved the court to enter a judgment of acquittal regarding the second
count, setting fire to personal property, because there was no proof of damage. The trial court agreed
and granted the defense motion. Before the jury deliberated on the remaining count, Mr. Perkins
again tried to determine whether the Defendant wanted to be present, but the Defendant had
informed the officers guarding him that he did not want to speak with Mr. Perkins.
The jury found the Defendant guilty of arson. At a subsequent sentencing hearing, a deputy
informed the court that the Defendant refused to attend his sentencing hearing. Following the
hearing, the trial court sentenced the defendant as a Range III, persistent offender to fourteen years
incarceration.
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Right to Be Present at Trial
First, the Defendant claims that he was erroneously excluded from attending his trial. We
must agree. Rule 43 of the Tennessee Rules of Criminal Procedure, entitled “Presence of the
Defendant” provides, in relevant part,
(a) Presence Required. Unless excused by the court upon defendant's motion,
the defendant shall be present at the arraignment, at every stage of the trial including
the impaneling of the jury and the return of the verdict, and at the imposition of
sentence, except as otherwise provided by this rule.
(b) Continued Presence Not Required. The further progress of the trial to and
including the return of the verdict and imposition of sentence shall not be prevented
and the defendant shall be considered to have waived the right to be present
whenever a defendant, initially present:
(1) voluntarily is absent after the trial has commenced (whether or not he or
she has been informed by the court of the obligation to remain during the trial), or
(2) after being warned by the court that disruptive conduct will cause the
defendant to be removed from the courtroom, persists in conduct which is such as to
justify exclusion from the courtroom. If a trial proceeds in the voluntary absence of
the defendant or after the defendant's removal from the courtroom, he or she must be
represented in court by competent counsel; and, if the defendant has been removed
from the courtroom, he or she shall be given reasonable opportunity to communicate
with counsel during the trial. If a trial is proceeding with the defendant excluded
from the courtroom because of disruptive conduct, the court shall periodically
determine at reasonable intervals whether the defendant will then signify willingness
to avoid creating a disturbance if allowed to return to the courtroom and shall permit
such return when the defendant so signifies and the court reasonably believes the
defendant.
Tenn. R. Crim. P. 43. Based on the clear language of the rule, this Court has previously held that
“the clear implication from the language ‘initially present’ and ‘to be removed from the courtroom’
is that Rule 43(b)(2) only allows the trial court to prevent a defendant from continued attendance at
his or her trial when the defendant was initially permitted to attend the trial, but engaged in
disruptive behavior during the trial.” State v. Ballard, 21 S.W.3d 258, 261 (Tenn. Crim. App.
2000)(emphasis added).
Furthermore, in State v. Richard M. Far, Jr., another panel of this Court reversed the
judgment of the trial court under circumstances similar to those in this case. No. M1999-01998-
CCA-R3-CD, 2001 WL 208513, at *3 (Tenn. Crim. App. at Nashville, March 1, 2001).1 In that case,
the defendant engaged in extremely disruptive behavior prior to trial, and the defendant was tried and
1
As the name suggests, that case involved the same defendant as the case sub judice.
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sentenced in absentia. The State argued there, as it does here, that the defendant had notice of the
time and place of his trial but voluntarily left the pre-trial meeting and thus waived his right to be
present pursuant to State v. Kirk, 699 S.W.2d 814, 819 (Tenn. Crim. App. 1985) and State v. Marcus
Anthony Robinson, No. 03C01-9512-CR-00410, 1997 WL 396241 (Tenn. Crim. App. at Knoxville,
July 16, 1997). However, this Court found Kirk and Robinson “clearly distinguishable” from Far,
as the defendants in those cases voluntarily fled while the defendant in Far was in custody and thus
unable to voluntarily flee. State v. Richard M.. Far, Jr., 2001 WL 208513, at * 4. Such is the case
here as well.
The Court in Far also noted that the holding in Kirk is suspect, because the federal cases on
which Kirk based its holding have been overruled by the United States Supreme Court in Crosby v.
United States, 506 U.S. 255, 260, 113 S. Ct. 748, 752, 122 L. Ed. 2d 25 (1993). State v. Richard M.
Far, Jr., 2001 WL 208513, at *4.2 Indeed, Judge Byers, the author of the Kirk decision, later
indicated that the analysis in Crosby required a reexamination of Kirk “in the proper case.” State v.
Marcus Anthony Robinson, 1997 WL 396241, at *4 (Byers, J., concurring). This is such a case.
Like the defendant in Kirk, the defendant in Crosby voluntarily fled prior to the commencement of
his trial. Crosby, 506 U.S. at 256-57. Justice Blackman, writing for the unanimous Court, held that
the plain language of rule 43 of the Federal Rules of Criminal Procedure (which substantially mirrors
rule 43 of the Tennessee Rules of Criminal Procedure) “prohibits the trial in absentia of a defendant
who is not present at the beginning of trial.” Id. at 262. Although the Court in Crosby only
concerned itself with a defendant who voluntarily left, rather than a defendant who was removed for
disruptive behavior, Ballard mandates that the analysis is the same for a Defendant who is removed
for disruptive behavior. Ballard, 21 S.W.3d at 261. Therefore, we hereby overrule the holding of
State v. Kirk and adopt the reasoning of the United States Supreme Court in Crosby. We hold that
Rule 43 only allows a trial in absentia when the defendant is first present at trial and then leaves,
voluntarily or otherwise. In this case, because the record is unclear, we cannot determine whether
the Defendant voluntarily left or was prohibited from entering the trial initially. However, as noted
above, it makes no difference, because the key inquiry is whether the defendant was present at the
beginning of trial. In this case, the Defendant was absent when trial commenced.
We also note that, if the defendant was excluded for disruptive behavior, rule 43 mandates
that “the court shall periodically determine at reasonable intervals whether the defendant will then
signify willingness to avoid creating a disturbance if allowed to return to the courtroom and shall
permit such return when the defendant so signifies and the court reasonably believes the defendant.”
Tenn. R. Crim. P. 43(b)(2). In this case, although the Defendant’s attorney, Mr. Perkins, made at
least three attempts to communicate with the defendant, all of the attempts were unsuccessful. Most
importantly, Mr. Perkins’s first attempt was unsuccessful because the Defendant was asleep and Mr.
Perkins did not want to wake the Defendant. Although the Defendant subsequently refused to speak
with Mr. Perkins, the trial was virtually over by the time Mr. Perkins again tried to communicate
with the Defendant. This is not the type of periodic determination envisioned by the rule.
2
Recently, the Tennessee Supreme Court in State v. Carruthers, 35 S.W.3d 516, 567 -68 (Tenn. 2000) appeared
to cite Kirk with approval. However, the Carruthers opinion makes no mention of Crosby. Further, the facts of
Carruthers involve a defendant who was initally present at trial, but absented h imself prior to sentencing. Under these
circumstanc es we believe that Carruthers does not control the holding in this case.
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Nor can we find the error harmless. A defendant’s presence at trial permits the defendant to
confront and observe witnesses; to make suggestions to his lawyer; to observe evidence introduced
by the State; to absorb information that may be important on appeal or in a later petition for post-
conviction relief; and to exercise his right to testify if necessary. We conclude that the error in this
case involved a substantial right, the denial of which would result in prejudice to the judicial process.
Tenn. R. App. P. 36 (b); see also State v. Muse, 967 S.W.2d 764, 768 (Tenn. 1998)(holding that a
defendant’s absence from jury selection was not subject to harmless error analysis and required
automatic reversal). Accordingly, we must reverse this case and remand it to the trial court for a
new trial.
Because the language of rule 43 mandates reversal, resolution of the Defendant’s
constitutional claims is unnecessary. However, in order to provide further clarification and in the
event of further review, we will briefly address the merits of the Defendant’s claim that he was
denied his constitutional right to be present at trial.
The right of an accused to be present at his own trial is fundamental and derives from several
sources, including the Tennessee and United States Constitutions. Muse, 967 S.W.2d at 766. There
is a presumption against waiver of fundamental constitutional rights. Id. at 767 (citing Johnson v.
Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938)). Moreover, such rights may
only be waived personally, and the relinquishment of such rights will not be presumed from a silent
record. Id. (citing House v. State, 911 S.W.2d 705, 714 n. 20 (Tenn. 1995)). In order to waive the
right to be present at trial, the record must reflect that the accused had knowledge of his right and
personally waived the right either in writing or in open court. Id. at 768; see also Far, 2001 WL
208513, at *7. The record in this case reflects no such waiver. Indeed, the record only reflects that
the Defendant retired with Mr. Perkins to discuss the case, and jury selection began shortly
thereafter. Although much of the pre-trial hearing transcript indicates that the court and the
prosecutor threatened to try the defendant in absentia, the Defendant expressly stated that he did not
understand his right, and in fact indicated that he might wish to exercise it. In short, the facts in this
case indicate that the defendant did not effectively waive his constitutional right to be present at his
trial.3 Thus, even if Rule 43 of the Tennessee Rules of Criminal Procedure had not mandated
reversal, the Tennessee and United States Constitutions would.
Sentencing
3
The Defenda nt has not spe cifically challenge d his absence at the sentencing hearing. However, we emphasize
that in the event there is another conviction and a necessary sentencing hearing upon remand, that the
trial court should ensure that the Defendant is aware of his constitutional and statutory rights to attend
his sentencing hearing, prior to holding the sentencing he aring in Defe ndant's absen ce. . . .
Furthermore, prudence might dictate that the trial c ourt exercise its right to require th e Defend ant to
attend his sentencing hearing, subject to being removed if he becomes disruptive.
State v. Richard M. Far, Jr., No. M1999-01998-CCA-R3-CD, 2001 WL 208513, at *3 (Tenn. Crim. App. at Nashville,
March 1, 2001).
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The Defendant also challenges his sentence. Although this issue is technically moot, we elect
to address it in case of further review and to provide the trial court with some guidance in the event
of another conviction.
At the sentencing hearing, the State’s proof consisted of the testimony of two witnesses. The
first witness was Jennifer Brittain, a probation officer. Ms. Brittain testified that, although the
Defendant was unwilling to speak with her, her investigation of the Defendant’s background
indicated a relatively lengthy criminal history spanning several states. Her investigation also
revealed that the Defendant had used six or seven social security numbers and twenty-five aliases.
Ms. Brittain testified that the Defendant had been convicted of forgery in Wyoming in 1981, forgery
in California in 1985,4 and forgery in Indiana in 1994, and she produced documentation of those
convictions. She then introduced an abstract received from Indiana which indicated that the
Defendant had also been convicted of fraud on a financial institution in Indiana in 1995.5 Ms.
Brittain also testified that the Defendant had been convicted of assault with intent to rob in Maryland
in 1975 and attempted larceny and pickpocketing in Maryland in 1976, although she did not have
documentation that reflected those convictions.
The State’s next witness was Darene Steadman, a transportation officer for the Rutherford
County Sheriff’s Office. Officer Steadman testified that she had transported the Defendant to and
from jail recently, and while doing so, she heard him threaten her, the Defendant’s attorney, the
judge and the prosecutor in this case.
At the conclusion of the hearing, the trial court held as follows:
I do feel that [the Defendant] had prior convictions that would make him a
persistent offender and a Range III offender, as previously put into evidence and
marked. Therefore, I would sentence him to 14 years as a persistent 45 percent,
Range III offender to the Tennessee Department of Corrections.
The Defendant was convicted of arson, a class C felony. As a Range III offender, the
Defendant was eligible for a sentencing range of between ten and fifteen years. Tenn. Code Ann.
§ 40-35-112. Other than the difference in the class of felony, the sentencing hearing in this case
appears to have been conducted in an identical manner as the sentencing hearing in Far. As this
Court noted in that case,
In order to have [the Defendant] found to be a ‘persistent offender’ pursuant to
Tennessee Code Annotated section 40-35-107, the State must show that he has a
combination of ‘five (5) or more prior felony convictions within the conviction class
or higher, or within the next two (2) lower felony classes, where applicable.’ Tenn.
Code Ann. § 40-35-107(a)(1). Furthermore, Tennessee Code Annotated section
40-35-107(b)(5) states that ‘ ’prior convictions’ includes convictions under the laws
4
Actually, while the exhib it indicates that the Defendant served his federal sentence in California, he pled guilty
to forgery in the United States District Court in the Southern District of Ohio.
5
The prosecutor argued that the abstract contained two qualifying felonies: the fraud on a financial institution
and one coun t of forgery. From our reading of the record, however, it appears that the forgery charge was the same one
she had testified about pre viously.
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of other any other state . . . if committed in this state, would have constituted an
offense cognizable by the laws of this state.’ If the conviction in the other state is not
a named felony in Tennessee, the elements of the offense committed in the other state
must be used to determine what classification the offense is given in a Tennessee
court. Tenn. Code Ann. § 40-35-107(b)(5) (1997). Tennessee Code Annotated
section 40-35-107(b)(3) states that when an offense is committed as a juvenile, it
cannot be considered as a prior conviction unless the juvenile is convicted of a felony
in criminal court. At most, Defendant has convictions for seven prior felonies.
However, the information in the pre-sentence report is sketchy and questionable. It
is impossible to tell from the record whether the convictions for offenses committed
as a juvenile and the convictions in states other than Tennessee, meet the
requirements necessary to classify Defendant as a ‘persistent offender’ under
40-35-107(b)(3) and (b)(5). In the event of another sentencing hearing, in order to
uphold the sentence of ‘persistent offender,’ the trial court should make additional
findings of fact based upon more conclusive evidence than what is presently
contained in the pre-sentence report. We note that before a Defendant can be
sentenced within Range III, the court must find him, ‘beyond a reasonable doubt,’ to
be a persistent offender. Tenn. Code Ann. § 40-35-107(c). In addition, the trial court
did not state the specific enhancement factor used to elevate the sentence . . . . In
State v. Jones, 883 S.W.2d 597, 599-600 (Tenn. 1994), our supreme court said that
‘[t]o facilitate meaningful appellate review . . . the trial court must place on the
record its reasons for arriving at the final sentencing decision, identify the mitigating
and enhancement factors found, state the specific facts supporting each enhancement
factor found, and articulate how the mitigating and enhancement factors have been
evaluated and balanced in determining the sentence.’
State v. Richard M. Far, Jr., 2001 WL 208513, *11-*12.
Accordingly, the judgment of the trial court is REVERSED and the case is REMANDED
for further proceedings consistent with this opinion.
___________________________________
JERRY L. SMITH, JUDGE
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