Pinkney v. State

RAKER, Judge.

In this criminal case, Appellant Eric Pinkney, a pro se defendant, was tried and convicted in a jury trial in absentia, having failed to appear at the scheduled time and place of *206trial. We conclude that the trial judge erred in finding that Pinkney waived his right to be present at trial and, accordingly, we shall reverse the judgment of the circuit court.

I.

Pinkney was convicted of theft in violation of Maryland Code (1957,1996 Repl.Vol., 1997 Supp.), Article 27, § 342.1 At trial, the State produced a single witness, Darin Young. Young was an employee of the Music Liberated store located at the intersection of Park Avenue and Saratoga Street in Baltimore City.

Young testified that at 3:00 p.m. on May 20, 1996, he was performing his regular sales duties at Music Liberated when Pinkney entered the store. Pinkney lingered in the store for 15 minutes, and Young became suspicious when Pinkney pulled a compact disc from an inventory case and “cuffed it in his hands and pulled it close to his body.” Young then retrieved two compact discs from inside Pinkney’s sweat pants.

As a result of this incident, the State filed a criminal information charging Pinkney with a single count of theft of property having a value of less than $300 in violation of Article 27, § 342. Released on his own recognizance, Pinkney signed a form informing him of his right to counsel, and he was advised by the District Court Commissioner that his trial would commence July 2, 1996, in the District Court of Maryland, sitting in Baltimore City.

On July 2nd, Pinkney appeared in the District Court before Judge Martin A. Kircher, who granted Pinkney a continuance for the purpose of obtaining counsel. The “Pre-Trial Docket” form signed by Judge Kircher indicates the following: that Pinkney was advised of the right to, and the importance of, counsel; that Pinkney was advised that his next appearance without counsel could result in a waiver of that right; *207and that Pinkney was advised of the nature of the charge and the potential consequences flowing therefrom. Because Pinkney prayed a jury trial, the case was rescheduled in the Circuit Court for Baltimore City on August 14, 1996. On August 14th, Pinkney appeared in the circuit court, again without counsel. The trial judge found that Pinkney waived his right to counsel by inaction. Nonetheless, the circuit court once more continued Pinkney’s case until October 1, 1996. At the conclusion of the August 14th proceeding, the trial judge both informed Pinkney of the October 1st trial date and advised Pinkney, “You don’t get any [more] postponements to get a lawyer.” The docket entries reflect that Pinkney was served with notice of the new trial date.

On October 1st, Pinkney’s case was called for trial, but he was not present. At that time, the court ascertained that Pinkney was not incarcerated. At a bench conference, the prosecutor expressed concern that Young might not appear as a witness in the future, and suggested, “I think 1 can wrap it up in like 30 to 45 minutes as a trial in absentia” The circuit court agreed to try Pinkney in absentia before a jury later that afternoon.

At 2:40 p.m. on October 1st, the circuit court called Pinkney’s case for trial, and proceeded to try him in his absence, and, because Pinkney was pro se, without an attorney present. The State took 70 minutes to empanel a jury and present its case. After the jury had retired to deliberate, the prosecutor approached the bench, and, apparently in reference to trying Pinkney in absentia, engaged in the following colloquy with the trial judge:

[PROSECUTOR]: I don’t think I’ll ever suggest that again. That’s the weirdest thing, I think.
THE COURT: We do it all the time.
[PROSECUTOR]: Oh, it’s weird.
THE COURT: I’ve done it before.

After 25 minutes of deliberation, the jury found Pinkney guilty on one count of theft of property having a value of less than *208$300. The trial judge then issued a bench warrant for Pinkney’s arrest.

On March 18, 1997, Pinkney, now represented by counsel, appeared before the same judge in the circuit court. The trial judge informed Pinkney that a jury, on October 1, 1996, had convicted him in his absence of one count of theft under $300. At the March 18th proceeding, Pinkney’s counsel attempted to explain Pinkney’s absence during trial:

[DEFENSE COUNSEL]: Well, Your Honor, Mr. Pinkney was explaining to me that the reason why he missed his Court date was because he had a seizure and there was an ambulance that was called to his house, but he refused to go to the hospital, but he wasn’t in the right frame of mind and—
THE COURT: Well, I’m sorry.
[DEFENSE COUNSEL]: And, he needed a postponement to get that verified.
THE COURT: Well, I’m sorry. He could have come late. He could have come the next day. He could have done something____ So, is he ready for disposition?

The court proceeded to sentencing, and asked Pinkney if he had anything to say before sentenced was imposed. Pinkney answered: “Yes, I would like to say that—can I get found guilty with a jury not being here? I wasn’t at my jury trial.” The judge responded by noting that Pinkney had “failed to come,” and then sentenced Pinkney to a term of incarceration of one year.

Pinkney filed a timely notice of appeal to the Court of Special Appeals. Prior to consideration by the intermediate appellate court, we granted certiorari on our own motion.

II.

Maryland has long recognized the right of a criminal defendant to be present at all stages of a trial. Stewart v. State, 334 Md. 213, 224, 638 A.2d 754, 759 (1994). As the United States Supreme Court observed, the right of a criminal defendant to be present at every stage of trial is “scarcely less *209important to the accused than the right of trial itself.” Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 254, 56 L.Ed. 500 (1912). The right to be present at trial is a common law right guaranteed by Article 5 of the Maryland Declaration of Rights, and is also “to some extent protected by the Fourteenth Amendment to the United States Constitution, and is guaranteed by Maryland Rule [4-231].” Williams v. State, 292 Md. 201, 211, 438 A.2d 1301, 1306 (1981); see Bunch v. State, 281 Md. 680, 683-84, 381 A.2d 1142, 1144 (1978).

The constitutional right of a defendant to be present at trial is rooted largely in the right to confront witnesses and is also protected in some situations by the Due Process Clause where the right of confrontation is not implicated. United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985); Wildermuth v. State, 310 Md. 496, 528, 530 A.2d 275, 291 (1987). The right to be present at trial implicates a panoply of rights and vindicates two primary interests: enabling the defendant to assist in the presentation of a defense, and ensuring the appearance of fairness in the execution of justice. State v. Hudson, 119 N.J. 165, 574 A.2d 434, 438 (1990); see Brown v. State, 272 Md. 450, 480, 325 A.2d 557, 573 (1974) (“Trials must ... not only be fairly conducted but must ... give every appearance of so being conducted.”). As the Supreme Court of New Jersey observed in Hudson:

A defendant’s right to be present at trial provides protections on both an individual and institutional level. It affords a defendant the ability to communicate with counsel during trial, assist in presentation of a defense, and in the process of cross-examination. It includes the independent right of a defendant to represent himself or herself at all stages of a criminal proceeding, if he or she elects to do so. Institutionally, the defendant’s right to be present at trial ensures public confidence in the courts as instruments of justice.

Hudson, 574 A.2d at 438 (internal citations omitted); see In re Cardinal, 162 Vt. 418, 649 A.2d 227, 229 (1994).

The earliest cases decided by this Court construing the scope of the right to be present resolved questions involving the denial of a defendant’s right to be present at specific *210stages of a criminal trial. See Hughes v. State, 288 Md. 216, 221-27, 421 A.2d 69, 72-75 (1980) (reviewing cases); La Guardia v. State, 190 Md. 450, 456-60, 58 A.2d 913, 916-18 (1948); Duffy v. State, 151 Md. 456, 472-77, 135 A. 189, 195-97 (1926); Dutton v. State, 123 Md. 373, 386-90, 91 A. 417, 422-24 (1914). Formerly, a criminal defendant had the right to be present at all “stages of trial,” and that right could neither be waived by counsel nor by the defendant’s mere acquiescence. Porter v. State, 289 Md. 349, 352-53, 424 A.2d 371, 374 (1981). Because a criminal defendant’s absence during a “stage of trial” ordinarily warranted reversal, earlier cases usually revolved around the crucial question of which procedural phases of the criminal litigation process were in fact “stages of trial.” Id. at 353, 424 A.2d at 374; see, e.g., Bunch, 281 Md. at 684-88, 381 A.2d at 1144-46; Brown v. State, 225 Md. 349, 351-54, 170 A.2d 300, 301-02 (1961), cert. denied, 372 U.S. 960, 83 S.Ct. 1017, 10 L.Ed.2d 13 (1963).

In Williams v. State, 292 Md. 201, 217-20, 438 A.2d 1301, 1308-10 (1981), however, we prospectively modified the common law, and held that “[w]here the right of confrontation is not implicated, and where there is involved no other right requiring intelligent and knowing action by the defendant himself for an effective waiver,” a defendant could ordinarily waive the right to be present, either through counsel or by inaction. Id. at 219, 438 A.2d at 1310. Yet, it is important to bear in mind that Williams modified the common law only with respect to the waiver of the right to be present; we explicitly declined to diminish the scope of the right itself. Id.

In Barnett v. State, 307 Md. 194, 512 A.2d 1071 (1986), we considered the decision of the trial court to try the defendant in absentia when the defendant absconded after the case had been called for trial, but before jury selection began the following day. Id. at 198-99, 512 A.2d at 1073-74. We approved the decision of the trial judge to try Barnett in his absence. We initially noted the trial court’s efforts to ensure that Barnett’s absence was in fact voluntary.2 The judge had *211his law clerk telephone 29 area hospitals to confirm that the defendant had not been admitted, and also indicated to defense counsel that, upon receiving any information that Barnett’s absence was other than voluntary, the court would declare a mistrial. Id. at 199-200, 512 A.2d at 1074. Under these circumstances, we found no error in the trial court’s determination that Barnett knowingly and voluntarily waived his right to be present at trial. Id. at 204, 512 A.2d at 1076.

In Barnett, we recognized that the defendant’s waiver of the right to be present was not the only relevant component of a trial court’s decision to try a defendant in absentia:

Obviously a trial court which has concluded that a defendant is voluntarily absent is not compelled to conduct a trial in absentia. The court has a discretion to postpone the trial while awaiting return on a bench warrant.

Id. at 213, 512 A.2d at 1080-81. The Barnett court then listed various factors which the United States Court of Appeals for the Second Circuit had previously concluded were appropriate for the trial court to consider in deciding whether to proceed with a trial in the defendant’s absence. Id. at 213, 512 A.2d at 1081 (citing United States v. Tortora, 464 F.2d 1202, 1210 (2nd Cir.), cert. denied sub nom. Santoro v. United States, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972)). Finally, we warned courts against too hastily trying an absent criminal defendant, thus affecting “a waiver of rights that are to be carefully safeguarded.” Barnett, 307 Md. at 213, 512 A.2d at 1081.

Recently, in Walker v. State, 338 Md. 253, 658 A.2d 239, cert. denied, 516 U.S. 898, 116 S.Ct. 254, 133 L.Ed.2d 179 (1995), this Court applied the principles of Barnett in reviewing the decision of the trial judge to try two defendants in absentia when the defendants had been informed of the trial date, and when their attorney was present but the defendants *212failed to appear in court on the trial date.3 We noted the careful inquiry conducted by Judge Ann S. Harrington in determining that appellants Walker and Lee had knowingly waived their right to be present: the trial court found as a fact that appellants had been notified of the trial date and location; the court took testimony that Walker and Lee had not been heard from in eight days; and Judge Harrington also heard testimony that an agent of the Pre-Trial Services Unit had searched appellants’ apartment and discovered that most of their possessions had been removed. Id. at 255-56, 658 A.2d at 240. We affirmed the trial court’s finding that the absence of Walker and Lee was knowing and voluntary.

Although our discussion in Walker focused primarily on the question of the defendants’ waiver of their right to be present at trial, our decision in that case also implicitly recognized the importance of the trial court’s exercise of discretion in proceeding to try the defendants in absentia after the finding of such a waiver. We explained the reasoning behind the trial court’s decision to try Walker and Lee in their absence:

Judge Harrington ... conducted a hearing concerning the appellants’ absence.... The Assistant State’s Attorney represented to the court that the State would be calling between forty and forty-five witnesses during the trial. $$$$$$
Judge Harrington ruled that the trial of ... the appellants would proceed and the appellants would be tried in absentia. In explaining the rationale for this ruling, the court noted the slim probability that Walker and Lee could be located quickly and the burden on the State of severing and rescheduling such a complex case and recalling all the witnesses for a second trial.

*213Id. at 256, 658 A.2d at 240. Again, as in Barnett, we acknowledged and approved of the trial court’s decision to weigh all relevant factors in exercising the discretion to proceed in trying two defendants who had knowingly and voluntarily absented themselves from their criminal trial.

In this case, we must balance two competing interests: the right of the defendant to be present at trial, and the need for the orderly administration of the criminal justice system. Before trying a defendant in absentia, the trial court must both (i) find a knowing and voluntary waiver of the right to be present at trial and (ii) exercise sound discretion in determining whether to proceed with the trial of an absent criminal defendant. See Walker, 338 Md. at 256, 259-61, 658 A.2d at 240, 242; Barnett, 307 Md. at 207, 213, 512 A.2d at 1077-78, 1080-81; see also Tortora, 464 F.2d at 1209.

As we have indicated, before the trial court may try a criminal defendant in absentia, the court must first determine that the defendant has knowingly and voluntarily waived the constitutional right to be present. Williams, 292 Md. at 216, 438 A.2d at 1308; see Taylor v. United States, 414 U.S. 17, 19-20, 94 S.Ct. 194, 195-96, 38 L.Ed.2d 174 (1973) (per curiam). In Barnett we said:

“Before a trial may proceed in the defendant’s absence, the judge must find that the defendant has had adequate notice of the charges and proceedings against him.... It must clearly appear in the record ... that the defendant was advised when proceedings were to commence and that he voluntarily, knowingly, and without justification failed to be present at the designated time and place before the trial may proceed in his absence.”

Barnett, 307 Md. at 210, 512 A.2d at 1079 (quoting Tortora, 464 F.2d at 1209); see also Noble v. State, 293 Md. 549, 563, 446 A.2d 844, 851 (1982). The waiver of a criminal defendant’s right to be present is specifically governed by Maryland Rule 4-231(c),4 which states the circumstances under which a waiv*214er may be found: (1) if the defendant is “voluntarily absent” after the proceeding has commenced, whether or not informed by the court of the right to remain; (2) if the defendant engages in conduct that justifies exclusion from the courtroom; or (3) if the defendant, either personally or through counsel, agrees or acquiesces in being absent. This case implicates the third circumstance.

The principle that voluntary absence must be clearly established and will not be presumed is especially pertinent in a criminal case where the entire trial is conducted without the presence of the defendant. In addition to involving the right to be present, a trial in absentia implicates other State and federal constitutional guarantees. In Williams, 292 Md. at 219, 438 A.2d at 1310, we expressly emphasized this distinction by holding that a criminal defendant could ordinarily waive the right to be present, either through counsel or by inaction, if such a waiver did not implicate the right to confrontation or any other right requiring a knowing and intelligent waiver. Although, in this case, Pinkney does not contest the finding that he waived his right to counsel through inaction, Pinkney’s trial in absentia implicated, for instance, his right to confront *215witnesses against him. When the denial of the right to be present embraces other constitutional guarantees, the standard used to find a waiver of the right to be present must properly rise to the level of the standard to be applied in finding a waiver of the specific constitutional guarantees embraced by the common law right to be present.

Regarding waiver of the right to be present, some courts have spoken, not in terms of waiver, but in terms of forfeiture. For example, the Court of Appeals of New York held that a defendant who is deliberately absent from trial after having been advised of the trial date forfeited his right to be present at trial. People v. Sanchez, 65 N.Y.2d 436, 492 N.Y.S.2d 577, 580-81, 482 N.E.2d 56, 59-60 (1985). Defining forfeiture in this context, the court said: “Forfeiture, unlike an express waiver which involves an evaluation of defendant’s state of mind, occurs by operation of law and as a matter of public policy.” Id. at 580, 482 N.E.2d at 59 n. * (citing, inter alia, People v. Thomas, 53 N.Y.2d 338, 441 N.Y.S.2d 650, 652, 424 N.E.2d 537, 539 n. 2 (1981)); see Cruz v. Com., 24 Va.App. 454, 482 S.E.2d 880, 883 (1997) (en banc) (“Under the modern rule, ... an accused may forfeit both the constitutional right and the statutory right to be present at trial.”); see also Flowers v. State, 608 So.2d 764, 766 (Ala.Crim.App.1992). Commentators have also described the relinquishment of the right to be present in terms of forfeiture. 3 Wayne R. LaFave & Jerold H. Israb;l, Criminal Procedure § 23.2(b), at 7 (1984) (reasoning that, with regard to an absent defendant’s right to be present, “it would seem preferable to view the matter in terms of forfeiture of a right”); Charles H. Whitebread & Christopher Slobogin, Criminal Procedure § 28.03, at 720 (3rd ed. 1993) (“[T]he defendant himself can waive the right, or forfeit it through misconduct, in a number of situations.”).

Whether we speak in terms of waiver or forfeiture, before a court may find an agreement or an acquiescence to trial in absentia, the court must generally be satisfied of two primary facts: that the defendant was aware of the time and place of trial, and that the non-appearance was both knowing *216and sufficiently deliberate to constitute an agreement or acquiescence to the trial court proceeding in his or her absence. Usually, as in this case, the defendant’s awareness of the time and place of trial will be easily established. Evidence, in the form of a summons or other document, will appear in the record to substantiate the State’s burden of showing that the defendant was notified of the time and place of trial. See Barnett, 307 Md. at 210, 512 A.2d at 1079 (“Obviously there can be no voluntary relinquishment of a known right to be present at one’s trial if the accused does not know of the accusation and of the trial date.”).

In most cases, the more difficult question presented will be why the defendant is not in court. In determining whether a defendant’s absence is truly voluntary, many trial courts have prudently taken investigatory measures before finding a waiver of the right to be present at trial. That information could come in the form of a direct or indirect statement from the defendant; it could come from a statement by another person, or such information could come from other evidence that the defendant has, in fact, absconded. For instance, in Barnett, 307 Md. at 199-200, 512 A.2d at 1074, we noted with approval the trial court’s efforts to locate the defendant by delaying the proceedings one day, questioning defense counsel as to the whereabouts of the defendant, and contacting area hospitals. A telephone call to the defendant’s place of employment, if that information is available, would also be a prudent investigatory measure. See also Sorrell v. State, 315 Md. 224, 229 n. 2, 554 A.2d 352, 354 n. 2 (1989) (suggesting that it may be helpful for the trial court to contact the defendant’s family).

If, through such an investigation, the trial court discovers that the defendant could have appeared, but simply made a decision not to do so, the court may, of course, find a waiver of the right to be present from that affirmative information. More frequently, however, the court will not have an affirmative confirmation that the defendant’s absence is voluntary, but will instead only possess information suggesting the non-existence of alternative explanations. If reasonable inqui*217ry does not suggest that the defendant’s absence was involuntary, and if the information before the court implicitly suggests no other reasonable likelihood of involuntary absence, the court may, as in Walker, draw the initial inference that the defendant’s absence was a knowing one and was sufficiently deliberate so as to constitute an acquiescence to being tried in absentia.

The Court of Special Appeals has correctly observed that “voluntary absence must be clearly established and will not be presumed.” Haley v. State, 40 Md.App. 349, 361, 392 A.2d 551, 557, cert. denied, 284 Md. 744 (1978). If the trial court presumes waiver from a virtually silent record, and thus consciously proceeds in ignorance, then a lack of alternative explanations as to the defendant’s presence at the time of trial cannot support the finding of a knowing and voluntary waiver of the right to be present.

We do not set forth a litany which the trial court must slavishly follow in order to establish that a defendant’s absence is knowing and voluntary. Nonetheless, the record must reflect that adequate inquiry has been made to ensure that a defendant’s absence is not in fact involuntary. A court cannot presume waiver from a silent record. State v. Collins, 265 Md. 70, 80, 288 A.2d 163, 168 (1972).

Additionally, we conclude that the trial court has an obligation at a subsequent court proceeding to allow a criminal defendant the opportunity to explain the circumstances surrounding an absence at trial. To be sure, a modicum of uncertainty will often accompany a trial court’s finding that a defendant has waived this right because the trial court will usually be required to find a negative: that an absent defendant is not involuntarily absent. Thus, when the defendant appears before the court at a later time, the judge must allow a defendant the opportunity to establish that the prior absence at trial was other than voluntary. If the defendant, through a motion for new trial or other appropriate objection, takes issue with the finding of waiver and presents evidence which, if known to the court initially, would have *218precluded a finding of waiver, then the trial judge must vacate any adverse verdict and grant the defendant a new trial. See Stone v. State, 344 Md. 97, 106, 685 A.2d 441, 445 (1996) (“[T]he right to be present at a trial de novo cannot be considered waived by nonappearance, that is, withdrawn, when the trial court has information that the appellant’s failure to appear was neither -wilful nor voluntary.”). Other courts have reached the conclusion that the trial court has an obligation at a subsequent court proceeding to allow a criminal defendant the opportunity to explain the circumstances surrounding an absence at trial. State v. Butler, 674 A.2d 925, 927 (Me.1996); State v. Thomson, 123 Wash.2d 877, 872 P.2d 1097, 1100 (1994); Kimes v. United States, 569 A.2d 104, 109 (D.C.1989); State v. Elliott, 126 Idaho 323, 882 P.2d 978, 983 (App.1994).

The trial court’s finding that the defendant waived the right to be present does not end the inquiry. A trial in absentia should not follow, ipso facto, every time the trial court finds that the defendant waived the right to be present at trial. A finding by the trial court of a waiver of the right to be present does not require the court to proceed with a trial in absentia; it is merely a first step which permits the court to do so. The court has discretion not to proceed until the defendant is located and brought before the court, or until the court has more information as to the defendant’s whereabouts and circumstances. “It is obviously desirable that a defendant be present at his own trial.” Tortora, 464 F.2d at 1210. After resolving the question of waiver, the trial court must exercise its discretion and decide whether to proceed in the defendant’s absence. Trial in absentia is not favored.

The discretion of the trial court to try an absent defendant should be exercised after a review of all the appropriate concerns and with the recognition that the public interest and confidence in judicial proceedings is best served by the presence of the defendant at trial. See State v. Kirk, 699 S.W.2d 814, 820 (Tenn.Crim.App.1985), cert. denied, 475 U.S. 1023, 106 S.Ct. 1215, 89 L.Ed.2d 327 (1986). Other countervailing interests limiting the exercise of a trial court’s discre*219tion in such circumstances include the State’s interests both in an accurate determination of guilt and in public confidence in the judiciary as an instrument of justice. Hudson, 574 A.2d at 438; see Maupin v. State, 694 P.2d 720, 723 (Wyo.1985) (“ ‘The defendant’s right to be present at all proceedings of the tribunal which may take his life or liberty is designed to safeguard the public’s interest in a fair and orderly judicial system.’ ” (quoting Bustamante v. Eyman, 456 F.2d 269, 274-75 (9th Cir.1972))); see also State v. McCrimmon, 187 Ariz. 169, 927 P.2d 1298, 1300 (1996). Moreover, the defendant’s presence “assures that the trial court is ‘keenly alive to a sense of [its] responsibility and to the importance of [its] functions.’ ” United States v. Canady, 126 F.3d 352, 361 (2nd Cir.1997) (quoting Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 2215, 81 L.Ed.2d 31 (1984)), cert. denied, -U.S.-, 118 S.Ct. 1092, 140 L.Ed.2d 148 (1998).

In Tortora, the United States Court of Appeals for the Second Circuit set out cogent principles to guide the trial court’s discretion in deciding whether to proceed in absentia.5 Writing for the court in Tortora, Chief Judge Lombard observed:

Whether the trial will proceed will depend upon the trial judge’s determination of a complex of issues. He must weigh the likelihood that the trial could soon take place with the defendant present; the difficulty of rescheduling, partic*220ularly multiple-defendant trials; the burden on the Government in having to undertake two trials, again particularly in multiple-defendant trials where the evidence against the defendants is often overlapping and more than one trial might keep the Government’s witnesses in substantial jeopardy.

Tortora, 464 F.2d at 1210 (footnote omitted). The factors noted in Tortora were not meant to be exhaustive; rather, the list merely reflects the principle that the trial court should take into consideration the relevant, substantial factors in determining whether to try a voluntarily absent defendant. See United States v. Muzevsky, 760 F.2d 83, 85 (4th Cir.1985) (“[Consideration of the government’s difficulty in reassembling its proof may dictate an immediate trial.”); United States v. Benavides, 596 F.2d 137, 140 (5th Cir.1979) (recognizing that, in addition to the factors listed by Tortora, inconvenience to jurors is also a consideration).

Although not constitutionally required, courts from other jurisdictions have also concluded that a trial court should balance the relevant, respective interests in deciding whether to proceed to trial when the defendant is voluntarily absent. Clark v. Scott, 70 F.3d 386, 388-89 (5th Cir.1995), cert. denied, 517 U.S. 1147, 116 S.Ct. 1444, 134 L.Ed.2d 564 (1996); United States v. Guyon, 27 F.3d 723, 727 (1st Cir.1994); United States v. Watkins, 983 F.2d 1413, 1419 (7th Cir.1993); Kimes, 569 A.2d at 109-10; People v. Parker, 57 N.Y.2d 136, 454 N.Y.S.2d 967, 970-71, 440 N.E.2d 1313, 1317 (1982); State v. Okumura, 58 Haw. 425, 570 P.2d 848, 852 (1977); Cruz, 482 S.E.2d at 885; State v. Rodriguez, 114 N.M. 265, 837 P.2d 459, 461-62 (App.1992); accord United States v. Nichols, 56 F.3d 403, 417 (2nd Cir.1995). The State’s legitimate interest in “keeping the trial calendar moving” is not, standing alone, sufficient justification to try a defendant in absentia.6 Campbell v. United States, 295 A.2d 498, 503 n. 3 *221(D.C.1972); see also United States v. Rezaq, 134 F.3d 1121, 1132 (D.C.Cir.1998); United States v. Wright, 932 F.2d 868, 879 (10th Cir.), cert. denied, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448 (1991).

We do not today adopt a rule mandating consideration of the Tortora factors as a condition of the trial court’s exercise of discretion in proceeding with a trial in absentia. Accord Commonwealth v. Wilson, — Pa.-, 712 A.2d 735, 738-39 (Pa.1998). Circumstances exist when an accused’s voluntary absence and defiance of the court is itself sufficient to justify a trial in the defendant’s absence. Nonetheless, routinely conducting a trial in the absence of the accused, particularly when the trial has not yet commenced, is not condoned. Trial in absentia should be the extraordinary case, “undertaken only after the exercise of a careful discretion by the trial court.” In re Dunkerley, 135 Vt. 260, 376 A.2d 43, 48 (1977).

Further, we believe that the commencement of trial vel non is a significant factor which properly informs the trial court as to whether to exercise its discretion to proceed with the trial of a criminal defendant after the court has found a *222voluntary relinquishment of the right to be present. Yet, we do not believe that the point at which the trial commences is a sacrosanct line of demarcation. Barnett, 307 Md. at 208, 512 A.2d at 1078 (“[N]o talismanic properties attach to the point at which the trial begins.”) (internal quotation marks and citations omitted); see Hudson, 574 A.2d at 443 (“We see no principled reason to distinguish ‘between the misconduct of a defendant who deliberately leaves the courtroom shortly after the trial begins and that of a defendant who does so after he has been told that the trial is about to begin.’ ” (quoting Sanchez, 492 N.Y.S.2d at 581, 482 N.E.2d at 60)). Forbidding the trial of a defendant who absented him or herself prior to the commencement of trial, while allowing the trial of that same defendant to proceed if the absence had occurred one minute after the trial commenced, would impermissibly cede control of judicial administration to the criminal defendant, as well as encourage a defendant to abscond prior to trial if the defendant believes a guilty verdict is likely. Commonwealth v. Sullens, 533 Pa. 99, 619 A.2d 1349, 1351 (1992).

Recognition of the significance of the commencement of trial reflects the common sense notion that a defendant who is present on the day of trial would generally be aware of the obligation to be present, and thus more culpable in his or her absence. In addition, once the trial has commenced, the State’s interest in a timely conclusion to that trial significantly increases due to the expenditure of judicial and other resources. Crosby v. United States, 506 U.S. 255, 261, 113 S.Ct. 748, 752, 122 L.Ed.2d 25 (1993); see LaFave & Israel, supra, § 23.2(b), at 7-8.

III.

Initially, we conclude that the trial court erred in finding a waiver of Pinkney’s right to be present at trial. When Pinkney failed to appear on the morning of trial, the court determined only that he had been properly informed of the time and place of trial and that he was not incarcerated. Although his address was known and Pinkney had appeared as required for all previous court proceedings, no one called his *223home; nor was any inquiry made of area hospitals. Based on what his attorney later told the court at sentencing, there is a reasonable possibility that, had such inquiries been made, the court would have determined that Pinkney “had a seizure and there was an ambulance that was called to his house, but he refused to go to the hospital, ... he wasn’t in the right frame of mind.” If the trial judge had been informed of these facts, the court could not have properly found, without further investigation, that Pinkney’s absence constituted an agreement or acquiescence by him to be tried in absentia.’7 Simply stated, the trial court’s inadequate inquiry into Pinkney’s whereabouts on the morning of trial did not give it a sufficient basis to conclude that his absence was the product of voluntary choice.

Moreover, in this case, an additional factor, of great significance, also existed. Pinkney elected to represent himself. That was, of course, his choice; but the fact that no one was present on his behalf had an impact on his opportunity to defend. For example, no one was present on his behalf to object to inadmissible evidence, to cross-examine witnesses, to move for judgment of acquittal, or to request, review, and, if necessary, object to jury instructions. See People v. Morales, 80 N.Y.2d 450, 591 N.Y.S.2d 825, 829, 606 N.E.2d 958, 957 (1992) (“[B]ased on our own body of State law, we look to the effect that defendant’s absence might have on the opportunity to defend.”). We do not suggest that the trial can never proceed in absentia when the defendant is unrepresented, but the lack of an attorney, even when occasioned by a knowing and voluntary waiver of counsel, is a weighty factor for the *224court to consider in deciding whether to proceed in the defendant’s absence.

Even if the trial court erred in trying Pinkney in his absence, the State argues in the alternative that Pinkney waived any claim of error by not objecting at the sentencing proceeding to the conduct of his trial. Pinkney appeared with counsel for sentencing on March 18, 1997. The earlier quoted colloquy at the sentencing proceeding, between the trial court and Pinkney and his counsel, demonstrates that the court did not permit Pinkney a meaningful opportunity to explain his absence from the trial. The court’s response to the explanation offered by counsel for Pinkney’s absence was to rule, essentially, that the explanation was irrelevant: “Well, I’m sorry. He could have come late. He could have come the next day. He could have done something.” That was not an adequate response.

Pinkney’s trial took less than two hours. Had he appeared “late” or the next day, the trial would have been over. Whether Pinkney could have come to court the next day, or the day after, may have been relevant to a determination of his true state of mind on the morning of trial, but such a failure cannot transform an involuntary absence into a voluntary one.

As importantly, if the court had fairly considered the explanation for Pinkney’s absence, and believed that Pinkney had in fact suffered a seizure and that an ambulance had been called as a result, the court should have placed itself in the same position as if that information had been learned before proceeding with the trial in absentia. If a finding of waiver would have been inappropriate when the trial commenced, such a finding would have been equally inappropriate at the later point once the court learned the relevant information. Pinkney’s conduct fell short of the “knowing, voluntary” absence that is required to constitute his acquiescence to a trial in his absence by a waiver of his common law and constitutional right to be present during trial. For these reasons, we hold that the trial court erred in trying Pinkney in absentia.

*225 JUDGMENT REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR A NEW TRIAL. COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF BALTIMORE.

CATHELL, J., dissents.

. All statutory references shall be to Maryland Code (1957, 1996 Repl. Vol, 1997 Supp.), Article 27.

. Defense counsel told the court that his client was to have met him at 9:00 a.m. that morning in his office, and that at 9:15 a.m. that day, *211Barnett had telephoned defense counsel’s secretary and stated that he was on his way. Barnett again failed to appear in court the next day when his trial commenced at 9:35 a.m. Barnett v. State, 307 Md. 194, 198-99, 512 A.2d 1071, 1073-74 (1986).

. In Walker v. State, 338 Md. 253, 658 A.2d 239, cert. denied, 516 U.S. 898, 116 S.Ct. 254, 133 L.Ed.2d 179 (1995), trial counsel refused to participate in the trial. We did not address Walker and Lee’s claim of ineffective assistance of counsel, leaving that issue for consideration on post conviction, should Walker or Lee choose to pursue the matter. Id. at 261-62, 658 A.2d at 243.

. Maryland Rule 4-231 states in pertinent part:

*214Rule 4-231. PRESENCE OF DEFENDANT
(a) When Presence Required.—A defendant shall be present at all times when required by the court....
(b) Right to Be Present—Exceptions.—A defendant is entided to be present at a preliminary hearing and every stage of the trial, except
(1) at a conference or argument on a question of law; (2) when a nolle prosequi or stet is entered pursuant to Rules 4-247 and 4-248; or (3) at a reduction of sentence pursuant to Rules 4-344 and 4-345.
(c) Waiver of Right to Be Present.-—The right to be present under section (b) of this Rule is waived by a defendant:
(1) who is voluntarily absent after the proceeding has commenced, whether or not informed by the court of the right to remain; or
(2) who engages in conduct that justifies exclusion from the courtroom, or
(3) who, personally or through counsel, agrees to or acquiesces in being absent.

Implicit in our decision in Barnett was the conclusion that subsection (c) of Rule 4-231 imposes the same substantive standard regarding the voluntariness of a criminal defendant’s absence as that imposed by subsection (a). See Barnett, 307 Md. at 204, 512 A.2d at 1076, In either circumstance, a proper waiver must be found.

. The United States Court of Appeals for the Second Circuit in United States v. Tortora, 464 F.2d 1202, 1210 (2nd Cir.), cert. denied sub nom. Santoro v. United States, 409 U.S. 1063, 93 S.Ct. 554, 34 L.Ed.2d 516 (1972), affirmed the trial court’s decision to try two criminal defendants in absentia after they voluntarily absented themselves prior to the commencement of trial. Subsequently, in Crosby v. United States, 506 U.S. 255, 262, 113 S.Ct. 748, 753, 122 L.Ed.2d 25 (1993), the Supreme Court interpreted Federal Rule of Criminal Procedure 43 to prohibit absolutely trial in absentia when the defendant is not present at the commencement of the trial. Nevertheless, the decision in Tortora still retains validity as persuasive authority regarding a trial court’s exercise of discretion when determining whether to proceed with the trial of a voluntarily absent defendant. See Clark v. Scott, 70 F.3d 386, 390 (5th Cir.1995), cert. denied, 517 U.S. 1147, 116 S.Ct. 1444, 134 L.Ed.2d 564 (1996); United States v. Nichols, 56 F.3d 403, 417 (2nd Cir.1995).

. A base premise of the dissenting opinion is that trying' Pinkney, and others similarly situated, in their absences, will conserve judicial resources. In our view, that premise is too speculative, and thus un*221sound. Footnote 4 of the dissenting opinion offers various hypotheses—based on information outside the record in this case—as to the scope of the problem of criminal defendants failing to appear as scheduled for trial, alternately estimating the extent of such failures to appear as: 13.5% of the criminal caseload; or, over 20,000 cases per year.

Since all of these defendants presumably would have been informed of their trial dates, implicit in the reasoning of the dissent is the conclusion that all of these defendants could be tried in absentia. These trials, with no possibility of plea bargaining, would have the potential to deplete judicial resources. Moreover, additional resources would be expended on both post-trial hearings and appeals to resolve the issue of whether the defendant’s absence at trial was knowing and voluntary. Finally, we note that additional federal resources would be expended on a corresponding increase in the number of habeas corpus petitions challenging the constitutionality of these trials. Accordingly, we reject the notion that the rule of law suggested by the dissenting opinion would conserve judicial resources. The legal standard advocated by the dissent would also undermine the public interest in the legitimacy and accuracy of criminal trials.

. Had the court been informed on the morning of trial that Pinkney’s absence was due to a seizure, the court could have ascertained whether there was any truth to that explanation. If not satisfied with the explanation, the court, as an alternative to proceeding in absentia, could have issued a bench warrant and had Pinkney brought promptly before the court; if satisfied that the failure to appear was not an acquiescence to being tried in absentia, the court would necessarily have continued the proceeding.