dissenting.
In my view Charlie Scott’s absence at the commencement and other critical stages of his trial for a felony not only violates RCr 8.28 and his rights protected by the constitutions of the United States and the Commonwealth, it also offends traditional notions of fair play and substantial justice. Though it is far from established, I will assume that a defendant in custody can waive his right to be present at such a trial by refusing to attend. However, that waiver must be made by the defendant personally at a hearing in open court and found by the court to have been made voluntarily, intelligently and knowingly. That was not done here. Finally, even though an ineffective waiver may not necessarily warrant reversal in the absence of a showing of prejudice, it is unfathomable that Charlie or any defendant would not be prejudiced by absence during those stages when Charlie was not there, viz., the impaneling and swearing of the jury, the presentation of the prosecution’s case in chief, the defense attorney’s opening statement, and the initial part of the defense.
A defendant’s presence at trial for a felony is unequivocally mandated by RCr 8.28(1), which states: “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 the sentence.” Sections 2 and 11 of the Kentucky Constitution and the Sixth and Fourteenth Amendments to the United States Constitution further require a defendant’s presence at trial for the protection of his rights to due process of law and confrontation of his accusers. Powell v. Commonwealth, Ky., 346 S.W.2d 731 (1961); Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). More than a century ago this Court fixed norms of fair play and substantial justice.
“The presence of the accused is not mere form. It is of the very essence of a criminal trial not only that the accused shall be brought face to face with the witnesses against him, but also with his triers. He has a right to be present not only that he may see that nothing is done or omitted which lends to his prejudice, but to have the benefit of whatever influence his presence may exert in his favor.”
Temple v. Commonwealth, 77 Ky. 769, 771 (1879).
The recognition of the right of a defendant to be present at trial leads me to ask whether that right is waivable. There is authority that a defendant in custody does not have the power to waive his right to be *44present at his criminal trial. Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912) (dictum); Cross v. United States, 325 F.2d 629 (D.C.Cir.1963); Evans v. United States, 284 F.2d 393 (6th Cir. 1960); United States v. Hudson, 313 F.Supp. 422 (D.Del.1970); Hawaii v. Okumura, Haw., 570 P.2d 848 (1977). However, there is authority to the contrary. Powell, supra; Boreing v. Beard, 226 Ky. 47, 10 S.W.2d 447 (1928); Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).
Assuming that a defendant in custody may waive his right to be present at trial, it is necessary to examine the circumstances surrounding his absence to ascertain whether the waiver was effective. Generally, the waiver of a trial-related constitutional right must be made by the defendant personally at a hearing in open court and found by the court to have been knowingly, intelligently and voluntarily. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Hartsock v. Commonwealth, Ky., 505 S.W.2d 172 (1974). See Rules of Criminal Procedure (U.L.A.) rule 713(b).
There are two situations in which a defendant waives his right to be present, or more accurately forfeits this right, and the court is not required to make a Boykin-type inquiry and may proceed with the trial in the defendant’s absence. Both of these situations have been suggested here, but in my opinion neither is found in the facts of Charlie Scott’s case.
First, a trial may continue after a defendant has been removed from the courtroom when his conduct has actually disrupted the trial. Illinois v. Allen, supra. Allen is not applicable here for two reasons. (A) Charlie Scott, unlike Allen, was never in fact disruptive at trial. (B) Contrary to the Commonwealth’s contention, the record indicates that Charlie did not threaten to be disruptive. The hearsay evidence of the sheriff and his deputies might give that impression, but when Charlie was asked twice by the court during an interview in the jail whether he would be disruptive, he said no. After one of these negative answers, Charlie added that going into a courtroom is “like walking in a church for me . .. some feeling comes over me that I respect. It is a respectful feeling.” Furthermore, the court stated on the record it was not convinced that Charlie would be disruptive and that the case should be tried with him present.
Second, a trial may continue when a defendant voluntarily absents himself. RCr 8.28(1) and its federal counterpart Criminal Rule 43 allow a trial to proceed in a defendant’s absence when the defendant voluntarily absents himself after the commencement of the trial. In this situation, for example when a defendant escapes during the trial or does not return after the trial has begun, the trial may proceed and there is no necessity of demonstrating that the defendant knew or had been expressly warned by the trial court that the trial could continue in his absence. Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973).
It is another situation entirely when a defendant in custody says that he refuses to appear for trial and the authorities make no effort to bring him to the courtroom. The question is whether such absence works the same forfeiture as actual trial disruption and voluntary absence after the trial begins. I believe that the answer is an emphatic no.
An in-custody defendant’s refusal to return to the trial after its commencement has been held not to be voluntary in the sense that a forfeiture resulted, because his refusal to attend trial is not the type of voluntary absence contemplated by the rules. Cross v. United States, supra. Additionally, this Court has held that a trial of one who escaped before the trial began and who was absent at its commencement is not valid under a Criminal Code section which authorized completion of the trial when the defendant escaped from custody after the trial commenced. Canter v. Commonwealth, 249 Ky. 474, 61 S.W.2d 9 (1933).
Therefore, refusal to attend trial is not a voluntary absence that effects a forfeiture. *45Rather, an express waiver of the right to be present at the commencement of trial is required which in turn requires the Court to make a Boykin-type inquiry into its volun-tariness. This is true even when the basis of the defendant’s refusal, e. g., hospitalization because of an attempted suicide, is a result of the defendant’s voluntary act. Drope v. Missouri, supra, in addition, this Court has specifically said that the waiver of the constitutional right to be present at trial “should be so clear and unequivocal as to indicate conscious intent.” Powell v. Commonwealth, supra at 734. See People v. Epps, 37 N.Y.2d 343, 372 N.Y.S.2d 606, 334 N.E.2d 566 (1975), cert. den. 423 U.S. 999, 96 S.Ct. 430, 46 L.Ed.2d 374 (1975).
Charlie Scott’s absence from the first two days of his trial resulted from his refusal to attend while he was in the custody of the Campbell County Jailer. This refusal was based primarily on his self-induced drugged condition.1 Nevertheless, in light of the foregoing, the trial court was required to determine on the record that Charlie waived his right to be present knowingly, intelligently and voluntarily and so unequivocally as to indicate conscious intent. It did not do so. It interviewed Charlie in jail, but concentrated during the interview on whether Charlie would be disruptive. After deciding he would not be disruptive, it ordered the trial to commence in his presence. Later the Sheriff’s deputies told the court that Charlie refused to come and said he would be violently disruptive. At the time the court sent the defense attorney, the Commonwealth Attorney and the court reporter to Charlie’s jail cell to determine whether Charlie waived his right to be present at the commencement of trial. At no time did the court make the inquiry into the voluntariness of the waiver. On the second day of the trial the court again failed to talk to Charlie, but rather asked Charlie’s attorney whether Charlie waived his right to be present. Consequently, there was no constitutionally effective waiver of Charlie’s right to be present at trial.
To those who would raise the spectre of the doctrine of harmless error, I say that no reasonable person could be convinced beyond a reasonable doubt that Charlie’s absence at the impaneling and swearing of the jury, the presentation of the prosecution’s case in chief, the defense attorney’s opening statement and the initial stage of the defense did not contribute to conviction. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The absence of a defendant at the impaneling of the jury alone has been held prejudicial because of the defendant’s inability to assist his counsel. Commonwealth v. Robichaud, 358 Mass, 300, 264 N.E.2d 374 (1970). One example from the record of Charlie’s case suffices to demonstrate the unfairness of the procedure and the probability of prejudice. During the initial questioning of the prospective jurors the court asked if anyone knew Charlie Scott, the little man who wasn’t there. The court might as well have asked them whether they recognized Harvey, the Invisible Rabbit. To my knowledge only Elwood P. Dowd could do that.
Because I am convinced that his substantial rights have been prejudiced, I would reverse Charlie Scott’s conviction of second degree burglary and grant a new trial. RCr 9.26. I am not dissuaded from this position by lack of preservation for failure to object to the complained of conduct. York v. Commonwealth, Ky., 395 S.W.2d 781 (1965). Charlie’s absence from critical stages of his trial, especially at its commencement, is error of such magnitude that it must be considered regardless of its preservation for review. See CR 61.02. A trial must not only be fair but appear to be fair. By our norms the sine qua non of a criminal trial is the defendant’s presence. Powell v. Commonwealth, supra; Temple v. Commonwealth, supra; RCr 8.28. consequently, I would act to protect the system which purports to safeguard all people from capri*46cious and arbitrary government action and limit the possibility that the authorities might “railroad” a defendant or conceal their indiscretions or improprieties.2
. One can not help but wonder how the controlled substances came into Charlie’s possession while he was confined in one of the government’s jails.
. Note 1, supra.