OPINION OF THE COURT BY
PADGETT, J.This is an appeal by the State from an order granting a new trial to the appellee on her petition under Hawaii Rules of Penal Procedure (HRPP) 40 for relief on the ground of ineffective assistance of counsel on her original appeal.
The alleged ground of ineffective assistance of counsel is that he failed to contend, on appeal, that appellee’s rights had been violated under the State and Federal Constitutions when she was *148not present during the closing argument of her co-defendant, the rebuttal argument of the prosecuting attorney, the delivery of the court’s instructions to the jury, and the announcement of the verdict in open court.
Two basic legal principles are undisputed in this case: (1) the accused, in a criminal trial, has a constitutional right to be present at all stages of the trial, and (2) that right, like any other constitutional right, may be waived. These principles are embodied in HRPP 43(a) and (b), which provide:
(a) Presence Required. Except as otherwise provided by this rule, the defendant shall be present at the arraignment, at the time of plea, at evidentiary pretrial hearings, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence.
(b) Continued Presence Not Required. The further progress of a pretrial evidentiary hearing or of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived his right to be present whenever a defendant, initially present,
(1) voluntarily absents himself after the hearing or trial has commenced (whether or not he has been informed by the court of his obligation to remain during the trial); or
(2) engages in conduct which is such as to justify his being excluded from the courtroom.
In this case, the judge hearing the HRPP 40 motion found:
3. The petitioner refused to attend the final two days of her jury trial, and, accordingly, was absent during the closing argument of her co-defendant, the rebuttal argument of the prosecuting attorney, the delivery of the *149court’s instructions to the jury, and the announcement of the verdict in open court.
Since Rule 43(b) says that a defendant shall be considered to have waived the right to be present whenever having been initially present, he or she voluntarily absents himself or herself after the hearing or trial has commenced, in our view, there was a waiver. We so held in State v. Caraballo, 62 Haw. 309, 615 P.2d 91 (1980).
Appellee contends that Caraballo is inapposite because, in this case, she was in custody, and cites State v. Okumura, 58 Haw. 425, 570 P.2d 848 (1977). However, the facts in Okumura were that during the trial the appellant unsuccessfully attempted to escape from custody and was injured. It was necessary for the appellant to receive medical treatment and counsel asked for a continuance of the trial for that purpose. The court refused and went on with the trial in the absence of the appellant. The request for a continuance, because of the necessity of medical treatment certainly negated any contention that the absence from the trial was voluntary.
In our case, a continuance also was asked for, but there is no assertion that appellee’s refusal to attend further trial proceedings was conditioned on a continuance being granted, or was conditional at all.
We are aware that the United States Court of Appeals for the District of Columbia in dealing with Federal Rules of Criminal Procedure 43, which is to all intents and purposes identical with our rule, concluded that where a defendant is in custody no waiver can be found, unless the defendant is brought into the courtroom, and his or her refusal to attend further proceedings is made a matter of record, in open court. Cross v. United States, 325 F.2d 629 (D.C. Cir. 1963). That holding was followed in United States v. Gordon, 829 F.2d 119 (D.C. Cir. 1987). There was however a strong dissent in Gordon which pointed out that under Stricklin v. *150Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), a court, in holding counsel ineffective, must resolutely avoid the omniscience of hindsight.
In Cross, the trial court had only the statement of the attorney that the defendant had declined to return to the courtroom. In Gordon, there was a dispute in the evidence as to whether or not the defendant understood that the proceedings were going forward in his absence.
The facts here are quite different. Appellee’s trial counsel reported to the court that she refused to return to the courtroom, and he brought with him the matron in charge of the holding cell, who confirmed, in explicit terms, that that was the situation. The appellee refused to come out of the holding cell and talk to the attorney, and she informed the matron that she was not going to return to the court that, or any other, day.
Appellee had attended the trial all the way through the partial final argument when her co-defendant, through counsel, asked to take the stand and testify, apparently to attempt to exonerate appellee with respect to the crime. The court refused to receive such testimony and took a recess. During the recess, the refusal to return to the courtroom occurred.
The question we are presented with is whether, despite the fact that it is undisputed that the appellee refused to return to the courtroom, and the court below, on the HRPP 40 proceedings, so found, we are going to apply a rigid rule of law that, so long as a defendant is in custody, the right to be present at the trial can only be waived in open court. That is not what HRPP 43 says, and we perceive no reason why such a rule should be imposed in this case.
As the Supreme Court of the United States said in Taylor v. United States, 414 U.S. 17, 94 S. Ct. 194, 38 L. Ed. 2d 174 (1973):
Petitioner had no right to interrupt the trial by his voluntary absence, as he implicitly concedes by urging only that he should have been warned that no such right *151existed and that the trial would proceed in his absence. The right at issue is the right to be present, and the question becomes whether that right was effectively waived by his voluntary absence.Caroline M. Mee, Deputy Prosecuting Attorney, for appellant. Peter Van Name Esser for appellee.
Id. at 20, 94 S. Ct. at 196, 38 L. Ed. 2d at 177-78. HRPP 43(b)(1) expressly so provides.
Since appellee’s trial counsel, who was also her counsel on appeal, obviously believed that appellee had refused to attend the further proceedings, since that belief was in fact true, and since the rule provides that voluntary absence is a waiver, we cannot say that appellee’s counsel, on the original appeal, was ineffective in failing to raise the contention that she had not waived her right to be present during the further argument, instructions and jury verdict.
Accordingly, the order appealed from is reversed.