I respectfully dissent from the majority opinion.
The crux of the court's holding in Part I of its opinion is that the trial judge impermissibly inferred that the appellant's absence on the fourth day of trial was voluntary. I disagree for the following reasons.
An accused's right to be present at his trial may be waived. Where I take issue is the majority's misplacement of the burden in the event of a defendant's absence. I believe the law places on the defendant the duty to justify his absence once his knowledge of the trial court's scheduling date and time is shown. See State v. Tacon (Ariz. 1971), 488 P.2d 973; State v. Taylor (Ariz. 1969), 451 P.2d 312. Furthermore, a defendant's continued absence coupled with his failure to notify the court and provide it with adequate explanation therefor constitutes waiver of his rights. See, e.g., Taylor v. State (Ind.App. 1978),383 N.E.2d 1068. A review of the trial court's decision to resume the trial under such circumstances should be limited to questioning whether an abuse of discretion has occurred. Id.
In the instant case, the appellant was present on the first day of trial. The record reflects that he was apprised of the court's intention to proceed the following day at 8:30 a.m. The judge waited thirty-five minutes after the scheduled time before commencing in appellant's absence. At some point that day, he did arrive, though the record does not reflect exactly when. At the end of the trial's third day, the judge stated that proceedings would commence the next day at 8:45 a.m. At 9:21 a.m. the following day, the judge noted the appellant's absence, and the colloquy quoted in the majority opinion took place. The appellant never showed on this fourth day of trial, nor was the judge, any officer of the court, or appellant's attorney informed at this time *Page 6 of any reason for the appellant's absence.
In the circumstances present here, I believe it was incumbent upon the appellant to inform, at the least, his own attorney so that the latter might relay such information and thereby enable the trial court to make a knowledgeable determination on the issue of the voluntariness of the appellant's absence. In fact, the defendant's own attorney stated to the court: "I don't see any excuse for his absence." Confronted with the appellant's absence for a second time, and not having been apprised of any reason to consider such absence as being anything but voluntary, the trial judge did not err in resuming trial.