State v. Durkin

Foti, J.,

dissenting. I must respectfully disagree with the view of the majority. Although I agree that the controlling issue in this case is whether the defendant effectively waived his right to be present at his probation hearing, the facts in this case compel me to conclude that the defendant waived that right by voluntarily leaving Connecticut.

An effective waiver presupposes full knowledge of the right or privilege waived and a knowing or purposeful act done to relinquish it. State v. Ramos, 201 Conn. 598, 603, 519 A.2d 9 (1986). The question of waiver must be determined by the particular facts and circumstances that surround the case. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). There is no question that the defendant had full knowledge of his right to be present at the revocation of probation hearing. The only question is whether the court abused its discretion in proceeding to complete the *654hearing absent the defendant, having found a waiver of that presence by his voluntarily leaving the state.

As the majority has stated, waiver of the right to be present need not be express, but rather may be inferred from the totality of the defendant’s acts and conduct. The issue of determining whether a waiver took place is ultimately factual; State v. Frazier, 185 Conn. 211, 219, 440 A.2d 916 (1981), cert. denied, 458 U.S. 1112, 102 S. Ct. 3496, 73 L. Ed. 2d 1375 (1982); but a reviewing court must scrupulously examine the record to ascertain whether such a factual finding of a waiver is supported by substantial evidence. State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089,103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983). In considering the validity of a waiver, we must look to the totality of the circumstances surrounding the claimed waiver. State v. Whitaker, 215 Conn. 739, 760, 578 A.2d 1031 (1990).

Although most individuals have the right to leave Connecticut as they please, the defendant had no such right because he was on probation in this state. The defendant was charged with violating a special condition of his probation — to remain drug free. In addition to that and other special conditions, the defendant, like all others placed on probation, also received general conditions of probation in writing. The defendant indicated to his probation officer that he understood the conditions of his probation, both special and general, and he signed the written conditions of probation.1 Those written conditions of probation were before the court as a state’s exhibit. One of the general conditions prohibited the defendant from leaving the state of Connecticut without permission. The court was also aware that the defendant did not' have permission from the probation department to leave the state of Connecticut.

*655Because the state did not charge the defendant with a violation of that general condition of probation, it was under no burden to prove that the defendant had left the state voluntarily. Conversely, it was the defendant who would have to carry this burden. Because of the defendant’s admission that he left Connecticut, he would have to show that his departure was involuntary, such as that effected by a bail bondsman, in order to succeed on a motion for mistrial or continuance. The defendant never claimed that he was forced to leave Connecticut. The trial court, therefore, could have reasonably inferred, as the defendant conceded at oral argument, that he voluntarily left the state.

Under the particular circumstances of this case, his voluntary departure constituted a waiver of his right to be present for the completion of his hearing. The defendant was afforded written notice of the alleged probation violation and a hearing in which he participated. He heard the state’s evidence and was given the opportunity to present evidence on his own behalf including his own testimony. He was aware that he was not free to leave the state without his probation officer’s approval. He was also aware that his probation revocation hearing was being continued at his request until October 11, 1989, so that he might present his defense. He knew that by entering a plea in South Carolina he would be sentenced and not be able to return to Connecticut to complete his hearing on October 11, 1989. He was not in custody either in Connecticut or in South Carolina prior to the plea.

Although it may be true that the defendant intended to return to Connecticut to complete his hearing when he left,2 the court was correct in finding that the *656defendant’s statutory and constitutional rights were not violated, because the defendant, by his actions, had waived his right to be present.

The defendant himself created the circumstances that led to his incarceration in South Carolina by voluntarily leaving the state of Connecticut during the pendency of the hearing, knowing this constituted a violation of a general condition of his probation. This is not a case where the defendant was absent because of a subsequent arrest that caused him to be incapable of knowingly and voluntarily waiving his right to be present, but rather one where the defendant’s own voluntary act of improperly leaving the state, followed by his voluntary entering of a plea in another state caused him to lose the opportunity to be heard and present a defense in a matter that had already commenced.

Under these circumstances I cannot find, as the majority has found, that the trial court abused its discretion in proceeding to complete the hearing without the defendant’s presence.

For the foregoing reasons, I respectfully dissent.

The defendant also received a copy of those conditions.

The defendant, at his sentencing in South Carolina, requested that his sentence there be imposed to run concurrently with the sentence he would be receiving on his probation revocation hearing. While this was not a fact before the trial court, it shows that the defendant was aware and expected *656that the revocation hearing would be proceeding without his presence. The majority states that “there was enough on the record to show this was not a classic case of an unexplained absence from trial, where, it can be presumed the defendant flees to avoid punishment or to change the course of proceedings in his favor.” The only true issue is waiver; the state has never claimed that the defendant fled to avoid prosecution, nor is that a prerequisite to waiver.