United States Court of Appeals,
Fifth Circuit.
No. 94-11125.
Rufus R. CLARK, Jr., Petitioner-Appellee,
v.
Wayne SCOTT, Director, Texas Dept. of Criminal Justice,
Institutional Division, Respondent-Appellant.
Dec. 8, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before REAVLEY, JOLLY and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal presents the question whether a state court is
constitutionally required to conduct a Benavides balancing test1
before proceeding to try a criminal defendant who voluntarily
absented himself from the trial after the jury was impaneled.
Rufus Ray Clark, Jr., represented by an attorney, was tried and
convicted in absentia of burglary by the state of Texas. Upon
being later apprehended and returned to the court, he was sentenced
to sixty years in prison, pursuant to the jury's recommendation.
In the subsequent state habeas proceedings, the Texas courts denied
relief and let his conviction stand. The federal district court,
however, granted Clark's petition for federal habeas relief. The
district court did so on the basis that the state trial judge
1
See United States v. Benavides, 596 F.2d 137 (5th Cir.1979)
(requiring an on-the-record inquiry balancing the likelihood that
the trial could soon be rescheduled with the defendant in
attendance against the burden on the government and the
inconvenience to the jury).
1
failed to conduct an on-the-record Benavides balancing test before
continuing the trial in Clark's absence, and consequently denied
Clark his Sixth Amendment right to be present at trial.
On appeal, the state argues that the Benavides balancing test
is not a constitutional rule and is required only of federal courts
under Rule 43 of the Federal Rules of Criminal Procedure;
therefore, it is not applicable to state criminal proceedings.
We hold that the district court erred in ruling that the
Benavides balancing test is applicable to state criminal
proceedings. It follows that Clark was not denied his
constitutional right to be present at trial. We therefore reverse
the district court, render for the state, and remand for entry of
judgment.
I
Clark was indicted for burglary by a Texas grand jury. He was
released on bond pending trial. Clark and his attorney were
present in court on Monday, October 15, 1990, when the jury was
selected and sworn in. Although the court instructed Clark to
return for trial on Thursday, October 18, he did not appear. The
prosecutor orally moved for a one-day continuance because the
complaining witness was absent on account of car trouble. Over the
objection of Clark's attorney, the court granted a continuance.
Out of the presence of the jury, Clark's attorney stated for the
record that he had talked with Clark the evening before and that
Clark knew to be at the trial on Thursday.
The following morning, Friday, October 19, Clark again failed
2
to appear in court. Clark's attorney informed the court that he
had not been able to contact Clark and did not know why Clark was
absent. The trial judge denied defense counsel's motion for a
continuance and found Clark to be voluntarily absent from the
trial. The judge overruled the defense counsel's objection to the
case continuing in Clark's absence. Without conducting a Benavides
balancing test, the court proceeded with the jury trial in Clark's
absence. The jury found Clark guilty and recommended a sentence of
sixty years.
Approximately two weeks later, Clark was apprehended in
Lewisville, Texas, and brought before the trial court for
sentencing on November 2. Clark explained to the court that he did
not come to trial because he did not like the way his attorney was
handling the case. The record does not reflect any other excuse
for his absence. The trial court sentenced Clark to sixty years
confinement pursuant to the jury's recommendation.
II
The judgment of the trial court was affirmed on appeal. The
state court of appeals found that the trial court did not abuse its
discretion in continuing the trial in Clark's absence. Clark did
not seek further review in the Texas Court of Criminal Appeals.
However, he did file an application for writ of habeas corpus in
state district court. The court entered written findings and
recommended that the application be denied. Clark exhausted his
state remedies after seeking review of district court's decision in
the Court of Criminal Appeals, which denied his application without
3
a written order.
Clark then filed this federal habeas petition in federal
district court. The district court adopted the findings and
recommendations of the magistrate judge granting the petition.
Clark v. Collins, 870 F.Supp. 132 (N.D.Tex.1994).
III
A
The issue presented today is whether the Constitution
requires a state court to conduct an on-the-record Benavides
balancing test before proceeding with a criminal trial against a
defendant who has voluntarily absented himself after the impaneling
of the jury.2 We review this issue of law de novo. Barnard v.
Collins, 958 F.2d 634, 636 (5th Cir.1992), cert. denied, --- U.S.
----, 113 S.Ct. 990, 122 L.Ed.2d 142 (1993).
The Sixth Amendment establishes a criminal defendant's right
to be present at trial and "to be confronted with the witnesses
against him...." U.S. Const. amend. VI; Illinois v. Allen, 397
U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970). This
right to be present, however, is not absolute and can be waived by
the voluntary absence of the defendant. Taylor v. United States,
414 U.S. 17, 19-20, 94 S.Ct. 194, 195-96, 38 L.Ed.2d 174 (1973)
(per curiam).
The Fifth Circuit, however, in United States v. Benavides, 596
2
We note at the outset that the Texas Court of Criminal
Appeals has expressly rejected the mandatory applicability of the
Benavides belancing test. Moore v. State, 670 S.W.2d 259, 261
(Tex.Crim.App.1984).
4
F.2d 137 (5th Cir.1979), held that an on-the-record balancing test
was required before proceeding with a criminal trial against a
defendant in absentia. Benavides was a direct appeal from a
criminal conviction in federal district court and thus governed by
Fed.R.Crim.P. 43. In that case, the defendant was present during
jury selection and knew of the trial date several weeks later, but
failed to appear. Id. at 138. The district court delayed the
trial overnight, but to no avail. After concluding that the
defendant was voluntarily absent, the district court proceeded with
the trial. Id. A panel of this court vacated the conviction,
however, and remanded for a new trial, declaring that a finding of
voluntary absence alone was insufficient. Id. at 139-40. The
panel explained that "the court has "only narrow discretion' in
deciding whether to proceed with a trial when the defendant is
voluntarily in absentia because the right to be present at one's
own trial must be carefully safeguarded." Id. at 139 (citations
omitted).
Following the Second Circuit's lead in United States v.
Tortora, 464 F.2d 1202 (5th Cir.), cert. denied, 409 U.S. 1063, 93
S.Ct. 554, 34 L.Ed.2d 516 (1972), Benavides concluded that whether
the trial could proceed in the defendant's absence would "depend
upon the trial judge's determination of a complex of issues" and
that the following factors must be weighed: 1) the likelihood that
the trial could soon take place with the defendant present; 2) the
difficulty of rescheduling, particularly in multi-defendant trials;
3) the burden on the government in having to undertake two trials,
5
again particularly in multi-defendant trials; and 4) the
inconvenience to the jurors. 596 F.2d at 139-40. The Fifth
Circuit reaffirmed the necessity of conducting an on-the-record
balancing test in United States v. Beltran-Nunez, 716 F.2d 287 (5th
Cir.1983), another direct appeal case based on Fed.R.Crim.P. 43.
B
Clark argues that Benavides and Beltran-Nunez concern a
constitutional right, not just a procedural one under Fed.R.Crim.P.
43. The court in Beltran-Nunez states:
The teaching of Benavides and the cited jurisprudence of other
circuits is the important constitutional right of a criminally
accused to be present at his trial cannot cursorily, and
without inquiry, be deemed by the trial court to have been
waived simply because the accused is not present when he
should have been.
716 F.2d at 291 (emphasis added). Clark urges that this language
shows that the Benavides balancing test is constitutionally
required, and thus applicable to state courts. We disagree.
The Supreme Court's decision in Taylor v. United States is
dispositive of Clark's claim. In that case, the defendant failed
to return from a lunch recess. Although the district court
recessed the trial until the following morning, the defendant still
did not reappear. The court found him to be voluntarily absent and
continued with the proceedings in accordance with the plain
language of a prior version of Rule 43.3 414 U.S. at 17-18, 94
3
The pertinent language of Rule 43 provided that "[i]n
prosecutions for offenses not punishable by death, the
defendant's voluntary absence after the trial has been commenced
in his presence shall not prevent continuing the trial to and
including the return of the verdict." Fed.R.Crim.P. 43 (amended
1974). The current version of Rule 43 provides:
6
S.Ct. at 195.
The Supreme Court held that Rule 43 was constitutional as
applied and that the defendant was not deprived of any
constitutional rights under the circumstances. Id. at 18, 94 S.Ct.
at 195. The Court declared that voluntary absence " "operates as
a waiver of his right to be present and leaves the court free to
proceed with the trial in like manner and with like effect as if he
were present.' " 414 U.S. at 18, 94 S.Ct. at 195 (emphasis added)
(quoting Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250,
254, 56 L.Ed. 500 (1912)). We stress that the Court did not
condition its holding on a Benavides-type balancing test. The
Court focused exclusively on the question of waiver. "The right at
issue is the right to be present, and the question becomes whether
that right was effectively waived by his voluntary absence.
Consistent with Rule 43 and Diaz, we conclude that it was."4 Id.
The further progress of the trial to and including the
return of the verdict shall not be prevented and the
defendant shall be considered to have waived the right
to be present whenever a defendant, initially present,
is voluntarily absent after the trial has commenced
(whether or not the defendant has been informed by the
court of the obligation to remain during the trial) [.]
Fed.R.Crim.P. 43(b)(1).
4
The Court looked to the D.C. Circuit for a statement of the
controlling rule for waiver:
[I]f a defendant at liberty remains away during his
trial the court may proceed provided it is clearly
established that his absence is voluntary. He must be
aware of the processes taking place, of his right and
of his obligation to be present, and he must have no
sound reason for remaining away.
Id. at 19 n. 3, 94 S.Ct. at 196 n. 3 (quoting Cureton v.
7
at 20, 94 S.Ct. at 196.
The Supreme Court's decision in Taylor leads us inexorably to
the conclusion that the imposition of a balancing test in Benavides
and Beltran-Nunez is not constitutionally required.5 Consequently,
our cases must be understood as an exercise of our supervisory
powers over federal courts under Rule 43.6 As such, we are
powerless to impose this test on state courts in federal habeas
actions.7
United States, 396 F.2d 671, 676 (1968)).
5
Even under our Rule 43 jurisprudence, the failure to
perform a full-blown Benavides balancing test may not be grounds
for reversal in every case. Beltran-Nunez, 716 F.2d at 291
("[H]ad an inquiry before the trial proceeded established for the
record that the defendant had deliberately absented himself and
that there was no reasonable probability he could be located
shortly, we would be loath to say that the district court abused
its discretion by failing to delay or reschedule the trial.");
United States v. Krout, 56 F.3d 643, 646 (5th Cir.1995)
("[A]lthough the district court properly engaged in the balancing
test ... that question is irrelevant now because under the
circumstances before us it is clear that pursuant to the very
language of Rule 43, the defendant waived his right to be present
at trial.")
6
This court has recognized that the right to be present
under Rule 43 is "broader than the confrontation protection of
the sixth amendment." United States v. Alikpo, 944 F.2d 206, 209
(5th Cir.1991) (citations omitted).
7
Our conclusion is supported by opinions from other circuits
involving habeas review where convictions in absentia were upheld
with no mention of any type of balancing test. See Finney v.
Rothgerber, 751 F.2d 858 (6th Cir.), cert. denied, 471 U.S. 1020,
105 S.Ct. 2048, 85 L.Ed.2d 310 (1985); Brewer v. Raines, 670
F.2d 117 (9th Cir.1982). In Finney, the Sixth Circuit looked to
Taylor and not to any type of balancing test in upholding the
state conviction. 751 F.2d at 862-63. In Brewer, the Ninth
Circuit vacated an order of habeas relief and held that the
inference of voluntariness created by the Arizona rule of
procedure was not unconstitutional as the rule provided for a
knowing and intelligent waiver. 670 F.2d at 119-20. These
decisions support our conclusion that the Benavides balancing
8
We therefore hold that the Benavides balancing test is not
constitutional in scope. Because the state trial court's
continuation of the trial against Clark in absentia after a finding
of voluntary absence comports with constitutional requirements as
set forth by the Supreme Court in Taylor, we conclude that the
district court erred by granting Clark habeas relief.
IV
In the light of the foregoing, we therefore REVERSE the
district court, RENDER for the state, and REMAND for entry of
judgment.
REVERSED, RENDERED, and REMANDED for entry of judgment.
test is a procedural rule to govern a federal judge's discretion,
rather than a constitutional mandate.
9