Cruz v. Commonwealth

Tuesday 25th

March, 1997.

Jose Luis Cruz, Appellant,

against Record No. 0749-95-4
Circuit Court No. CR94-1408

Commonwealth of Virginia, Appellee.

Upon Rehearing En Banc

Before Chief Judge Moon, Judges Baker, Benton, Coleman,
Willis, Bray, Fitzpatrick, Annunziata and Overton

Sean D. O'Malie (Pelton, Balland, Young,
Demsky, Baskin & O'Malie, on brief), for
appellant.

Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

By opinion dated September 3, 1996, a majority of a panel of

this Court affirmed the decision of the trial court. Cruz v.
Commonwealth, 23 Va. App. 113, 474 S.E.2d 835 (1996). Upon motion of

Jose Luis Cruz, we granted a hearing en banc. Upon such rehearing,

the judgment of the trial court is affirmed. We adopt as the opinion

of this Court en banc the following from the panel opinion:

Following a jury trial conducted in his absence, appellant,

Jose Luis Cruz ("Cruz"), was convicted of malicious wounding,

sentenced to seven years imprisonment, and fined $20,000. On appeal,

Cruz argues that the court erred by proceeding in his absence. We

disagree and affirm.
 I

Following his arrest, Cruz was released on bond after he

signed a recognizance form on which he acknowledged that, if he failed

to appear at trial, the court could try and convict him in his

absence. Subsequently, Cruz was indicted and arraigned. Cruz was

again released after he signed another form entitled, "Appearance at

Trial," in which he acknowledged that if he failed to appear at his

trial, scheduled for October 31, 1994, the court could try him in his

absence. 10

Cruz failed to appear at trial on October 31, and the court

stated that it was prepared to proceed without him. Defense counsel

objected and requested a continuance. However, counsel was unable to

proffer an explanation for Cruz's absence and stated that Cruz "lives

with the knowledge and that he realizes his failing to appear is a

waiver."
10
The form reads as follows:

APPEARANCE AT TRIAL

I understand that I must appear in Circuit Court at
9:30 a.m. on the date set for my trial/disposition which is
_____________________________.

I understand that if I fail to appear on the date set
for trial, I may be tried in my absence and may be indicted for
the felony offense of Failure to Appear which carries a sentence
of up to five years in the penitentiary.

________________________________
Defendant

________________________________
Date

- 2 -
 Faced with both the "Appearance at Trial" form signed by

Cruz and Cruz's unexplained absence, the court found that Cruz had

voluntarily waived his right to attend trial. The court stated that

the reason for the "Appearance at Trial" form was
so we don't have witnesses coming in here.
We don't have everybody ready for trial. We
don't have a jury sitting around and a
defendant decides that he prefers to be
somewhere else.

The court empathized with the difficulty Cruz's absence presented

defense counsel but observed that Cruz was responsible for counsel's

predicament and that Cruz's absence did not mean "the witnesses, the

Commonwealth, the Jury and the Court should suffer any further

prejudice." The court further stated that "[w]itnesses, jurors, court

systems depend upon everybody showing up, including the defendant."

For these reasons, the court proceeded with trial in Cruz's absence. 11

On December 2, 1994, Cruz appeared for sentencing. Defense

counsel renewed his objection and proffered Cruz's excuse. He stated

that Cruz was concerned about the trial and that he drank too much the

night before trial and overslept. The court denied Cruz relief,

stating that Cruz's explanation demonstrated his awareness of the

trial date and its importance.

11
The court informed both the venire and the jury panel that
Cruz was absent and instructed them not to speculate on the
reasons. The court further instructed the panel that, in his
absence, Cruz would be afforded the same constitutional
protections as if he were present.

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 II

An accused's right to be present at trial arises from both

the Sixth Amendment 12 and Code § 19.2-259. 13 Hunter v. Commonwealth,

13 Va. App. 187, 190, 409 S.E.2d 483, 485 (1991); Head v.

Commonwealth, 3 Va. App. 163, 168, 348 S.E.2d 423, 426 (1986). At

common law, the right to be present at trial could not be waived.

Noell v. Commonwealth, 135 Va. 600, 608-09, 115 S.E. 679, 681 (1923),

overruled by Jones v. Commonwealth, 227 Va. 425, 317 S.E.2d 482

(1984); Crosby v. United States, 506 U.S. 255, 259 (1993). 14 Under

the modern rule, however, an accused may forfeit both the

constitutional right and the statutory right to be present at trial.

Head, 3 Va. App. at 168-69, 348 S.E.2d at 426-27; see also Sisk v.

Commonwealth, 3 Va. App. 459, 463, 350 S.E.2d 676, 679 (1986).

An accused, present at the start of trial, can waive the

right to be present for further proceedings once the trial begins.

Taylor v. United States, 414 U.S. 17, 20 (1973) (defendant absconded

12
"In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him."
U.S. Const. amend. VI. "The Fourteenth Amendment makes the
guarantees of this clause obligatory upon the States." Illinois
v. Allen, 397 U.S. 337, 338 (1970).
13
Code § 19.2-259 provides, in part, "[a] person tried for
felony shall be personally present during the trial."
14
This canon was premised on the notion that a fair trial
could take place only if the jurors met the defendant
face-to-face and only if those testifying against the defendant
did so in his presence. It was thought "contrary to the dictates
of humanity to let a prisoner `waive the advantage which a view
of his sad plight might give him by inclining the hearts of the
jurors to listen to his defence with indulgence.'" Crosby, 506
U.S. at 259 (citations omitted).

- 4 -
mid-trial); Barfield v. Commonwealth, 20 Va. App. 447, 449-53, 457

S.E.2d 786, 787-89 (1995) (same); see also Illinois v. Allen, 397 U.S.

337, 343 (1970) (defendant removed from trial after refusal to refrain

from disorderly, disruptive, and disrespectful conduct); Quintana v.

Commonwealth, 224 Va. 127, 144-45, 295 S.E.2d 643, 651-52 (1982),

cert. denied, 460 U.S. 1029 (1983) (same). Moreover, under Virginia

law, an accused can waive the right to be present for the entire

trial. Head, 3 Va. App. at 170, 348 S.E.2d at 428; Hunter, 13 Va.

App. at 190, 409 S.E.2d at 485.
However, as one of the most basic rights guaranteed by the

Confrontation Clause, Allen, 397 U.S. at 338, an accused's right to be

present at trial must be carefully safeguarded. United States v.

Beltran-Nunez, 716 F.2d 287, 290 (5th Cir. 1983). Therefore, before

proceeding in absentia, the court must first determine that the

absence of the accused denotes a waiver of the right to be present at

trial. See, e.g., Barfield, 20 Va. App. at 449-50, 457 S.E.2d at

787-88; Hunter, 13 Va. App. at 191, 409 S.E.2d at 485. Additionally,

in the case of an accused who fails to appear at the start of trial,

the court must also determine whether a continuance would be

"prejudicial to the Commonwealth's case." Hunter, 13 Va. App. at 191,

409 S.E.2d at 485; Head, 3 Va. App. at 170, 348 S.E.2d at 428; cf.

Barfield, 20 Va. App. at 453, 457 S.E.2d at 789 ("Commonwealth not

required to prove prejudice when defendant absconds after trial has

commenced.").

A presumption exists against the waiver of a constitutional

right. Hunter, 13 Va. App. at 191, 409 S.E.2d at 485; Sisk, 3 Va.

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App. at 462, 350 S.E.2d at 678. Such a waiver must be a voluntary,

knowing, and intelligent act "done with sufficient awareness of the

relevant circumstances and likely consequences." Hunter, 13 Va. App.

at 191, 409 S.E.2d at 485 (quoting Brady v. United States, 397 U.S.

742, 748 (1970)).

In determining whether there has been a "voluntary waiver"

of the defendant's right to be present at trial, the implications

which can be derived from a defendant's voluntary absence are fact

specific. "[V]oluntary absence, standing alone, does not

[necessarily] constitute a knowing and intelligent waiver." Hunter,

13 Va. App. at 193, 409 S.E.2d at 486.

Three panels of this Court have considered the circumstances

under which a defendant who is voluntarily absent from the entire

trial may be found to have waived his right to be present at trial.

In Head, 3 Va. App. at 170, 348 S.E.2d at 428, the defendant was

present at arraignment where his trial date was read in open court.

After he signed a recognizance form on which he acknowledged that his

failure to appear could result in his being tried in his absence, the

defendant was released on bond. Id. When the defendant failed to

appear at trial, the trial court conducted a hearing to determine if

he had notice of his trial date, if he was absent by choice, and if

his absence was justified. Id. Defense counsel had no explanation

for the defendant's absence and stated that notification had been sent

to his address. Id. For these reasons, we upheld the trial court's

determination that the defendant had voluntarily and knowingly waived

his right to be present.
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 In Sisk, 3 Va. App. at 460, 350 S.E.2d at 677, the defendant

was present at arraignment and signed a bond form indicating that if

he failed to appear he could be tried in his absence. Although the

defendant appeared for trial on the date it was originally scheduled,

he failed to appear on the ultimate trial date, after the trial court

had granted a number of continuances. Id. at 461, 350 S.E.2d at 678.

The defendant was convicted in his absence. Id. We found no

evidence that the defendant had notice of the ultimate trial date or

that he was warned that his failure to appear at any further stage

would be deemed a waiver of his right to be present. Id. at 461, 463-

64, 350 S.E.2d at 678, 679-80. 15 For these reasons, we reversed the

trial court's determination that the defendant had knowingly and

voluntarily waived his right to be present.

In Hunter, 13 Va. App. at 193, 409 S.E.2d at 486, while the

defendant clearly had knowledge of his trial date and was absent

voluntarily, we held that the defendant had not knowingly and

voluntarily waived his right to be present. Distinctly absent was any

evidence that the defendant had been warned he could be tried in his

absence if he failed to appear. Id. We stated that "[a] voluntary

and intelligent waiver of the right to be present at trial could be

shown by establishing that an officer of the court has explained to

the defendant that failure to appear at trial could result in his

15
Refusing to apply Head, since it was decided subsequent to
the defendant's trial, the Sisk Court found that the bond form
did not provide sufficient warning. Sisk, 3 Va. App. at 465, 350
S.E.2d at 680.

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being tried in his absence." Id. 16

These three cases establish the rule that a knowing and

voluntary waiver of the right to be present by a defendant who is

voluntarily absent from the entire trial cannot be shown unless the

defendant (1) has been given notice of his trial date; and (2) has

been warned that his failure to appear could result in a trial in his

absence.

Cruz's explanation that he missed trial because he drank too

much and overslept clearly supports the trial court's finding that his

absence was, indeed, voluntary. The "Appearance at Trial" form

provided Cruz both notice of his trial date and a warning that his

failure to appear could result in a trial in his absence. That

warning
provide[s] the basis for [our] subsequent
finding that [Cruz] knew and understood that
he ha[d] a right to be present at trial and
that he might waive or forfeit that right by
his absence. [Thus], the record [provides]
prima facie evidence of [Cruz's] knowing
forfeiture or waiver of his right to be
present.

Hunter, 13 Va. App. at 192, 409 S.E.2d at 486 (quoting Sisk, 3 Va.

App. at 466, 350 S.E.2d at 680). 17 Thus, we conclude the trial court
16
The Hunter decision did not "limit the manner in which the
trial court may determine that the appellant has made a knowing
and intelligent waiver of the right to be present at trial," 13
Va. App. at 193, 409 S.E.2d at 486, and it specifically did not
determine the circumstances under which the execution of a bond
form would be sufficient to show a voluntary and intelligent
waiver. Id. at 193 n.4, 409 S.E.2d at 486 n.4.
17
Because we find the "Appearance at Trial" form to have
provided sufficient notice and warning, we, like the panel in
Hunter, do not address what provisions in a bond recognizance
form or under what circumstances the execution of such a form

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properly found that Cruz was voluntarily absent from trial and that he

had notice both of the trial date and the possibility he would be

tried in his absence if he failed to appear.

We now turn to the more difficult issue of the nature of the

prejudice which a continuance causes the Commonwealth. We do not

believe the Commonwealth can establish prejudice only by showing that

witnesses may be lost or not available for a second trial. 18

All of the cases dealing with this subject recognize that

each case turns upon "a complex of issues, including the likelihood

that the trial could soon take place with the defendant present."
United States v. Peterson, 524 F.2d 167, 185 (4th Cir. 1975), cert.

denied, 423 U.S. 1088 (1976). In Head, 3 Va. App. at 169-70, 348

S.E.2d at 427, we cited the holding by the United States Court of

Appeals for the Fourth Circuit in Peterson which recognized that, in

the exercise of sound discretion, the trial judge should consider

various factors in determining whether to proceed. Other circuits

agree and have created a similar, nonexclusive list of factors that

indicate prejudice.
Where the court finds that the defendant has
voluntarily absented himself from the
proceedings, it may decide to proceed in his
absence only after balancing a "complex of
issues" including the additional burdens,
waste and expense inflicted upon the court,
government, witnesses, and co-defendants,
and the public's interest in seeing the
would be sufficient to show a voluntary and intelligent waiver.
18
To the extent that our holding here conflicts with our
holding in Head, 3 Va. App. at 169-70, 348 S.E.2d at 428,
regarding prejudice caused by a defendant's failure to appear for
trial, we overrule Head.

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 accused brought to trial as well as the
court's responsibility to do so speedily.

United States v. Pastor, 557 F.2d 930, 934 (2d Cir. 1977).

In Clark v. Scott, 70 F.3d 386 (5th Cir 1995), cert. denied,

116 S. Ct. 1444 (1996), the United States Court of Appeals for the

Fifth Circuit recently reversed the grant of habeas relief by a

district court and held that state courts are not constitutionally

required to perform the balancing test announced in United States v.

Benavides, 596 F.2d 137 (5th Cir. 1979), and the later case of
Bertran-Nunez. The Court explained:
The Supreme Court's decision in Taylor [v.
United States, 414 U.S. 17 (1973),] leads us
inexorably to the conclusion that the
imposition of a balancing test in Benavides
and Bertran-Nunez is not constitutionally
required. Consequently, our cases must be
understood as an exercise of our supervisory
powers over federal courts under Rule 43.
As such, we are powerless to impose this
balancing test on state courts in federal
habeas actions.
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.

Clark, 70 F.3d at 389-90.

In some cases, the Commonwealth's claim of prejudice may be

stark and dramatically evident as when a crucial witness would be

unavailable, for whatever reason, in the future. In such an instance,

the ability of the Commonwealth to prove its case would be clearly

- 10 -
prejudiced. However, in most cases such prejudice cannot be shown nor

should it be required.

Both Peterson and Head recognize that a crucial factor to be

considered is the likelihood that the accused would appear and the

trial could take place at a later date. This same reasoning was

applied by the Fifth Circuit in Beltran-Nunez:
[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 [trial] court
abused its discretion by failing to delay or
reschedule the trial.

716 F.2d at 291.

In United States v. Muzevsky, 760 F.2d 83 (4th Cir. 1985),

the trial court faced a situation similar to the one before the trial

judge here. The trial court did not know the reason for the

defendant's absence, and it had no basis to believe that the trial

could be rescheduled within a reasonable time. Id. at 84. For those

reasons, the Fourth Circuit affirmed the trial court's decision to

proceed in the defendant's absence. Id. at 85.

The record in this case is totally devoid of any assurance,

or even hint, that the defendant would be available in the future. As

far as the trial court was aware, the defendant could have fled the

jurisdiction or the country for parts unknown, never to be heard from

again. Under such circumstances, we find no abuse of discretion in

proceeding with the trial in the defendant's absence.

No prejudice would result to a defendant who was absent as

- 11 -
the result of a medical or other unanticipated emergency, because his

trial would not have been completed. Sentencing would have been

stayed, as we directed in Head, until he appeared and was accorded the

opportunity to justify his absence from the guilt stage of his trial.

Upon hearing, if the Court was satisfied that the defendant's absence

did not constitute a waiver, a new trial could be ordered.

We further do not agree with the argument that the economic

cost to the court or the disruption of its docket is never sufficient

to justify proceeding in absentia. It seems unwise and indeed

unnecessary to establish such a rule that would apply to all cases, in

the future, regardless of the cost involved. Most crimes involve the

direct testimony of the victim, usually a local resident, who normally

would be available in the event of a continuance. In all such cases,

if the economic prejudice considered along with other factors, such as

the absence of any evidence showing a reasonable likelihood that the

trial could soon take place with the defendant's presence, is not

sufficient to try a voluntarily absent appellant, then a defendant

could avoid trial at least once because the Commonwealth would not be

able to establish that a delay would prejudice its ability to prove

its case. Moreover, a defendant would be allowed to circumvent the

trial court's authority to control the scheduling of trials and the

granting of continuances. We do not read our decisional law as

subscribing to such a result.

We caution that the decision to proceed to trial in the

absence of the defendant calls for the exercise of sound discretion by

the trial judge. Undoubtedly there will be many instances where such
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discretion will require a continuance. If however, after carefully

considering all factors, the exercise of sound discretion leads to a

trial in the defendant's absence, it would facilitate appellate review

if the court insures that the factors which were considered appear in

the record.

For these reasons, the conviction appealed from is affirmed.

Accordingly, the stay of this Court's September 3, 1996 mandate is

lifted.
It is ordered that the trial court allow counsel for the

appellant an additional fee of $200 for services rendered the

appellant on the rehearing portion of this appeal, in addition to

counsel's costs and necessary direct out-of-pocket expenses. This

amount shall be added to the costs due the Commonwealth in the

September 3, 1996 mandate.

____________________
Annunziata, J., with whom Benton, J., joins, concurring in part, and
dissenting in part.

While I concur with the majority opinion that Cruz, by his

action, waived his right to be present at his trial, I cannot join in

the holding that trial properly proceeded in his absence.

An accused's right to be present at trial is one of the most

important and basic rights guaranteed by the Confrontation Clause,

Illinois v. Allen, 397 U.S. 337, 338 (1970), and must be carefully

safeguarded. United States v. Beltran-Nunez, 716 F.2d 287, 290 (5th

Cir. 1983). As the majority recognizes, the accused was not permitted

at common law to waive the right to be present at trial. Noell v.

- 13 -
Commonwealth, 135 Va. 600, 608-09, 115 S.E. 679, 681 (1923), overruled

by Jones v. Commonwealth, 227 Va. 425, 317 S.E.2d 482 (1984); Crosby

v. United States, 506 U.S. 255, 259 (1993).
This canon was premised on the notion that a
fair trial could take place only if the
jurors met the defendant face-to-face and
only if those testifying against the
defendant did so in his presence. It was
thought "contrary to the dictates of
humanity to let a prisoner `waive the
advantage which a view of his sad plight
might give him by inclining the hearts of
the jurors to listen to his defence with
indulgence.'"

Crosby, 506 U.S. at 259 (citations omitted). Under modern principles,

however, an accused may forfeit both the constitutional right and the

statutory right to be present at trial. Head v. Commonwealth, 3 Va.

App. 163, 168, 348 S.E.2d 423, 426 (1986); see also Sisk v.

Commonwealth, 3 Va. App. 459, 463, 350 S.E.2d 676, 679 (1986).

In light of the historic requirement to protect an accused's

right to be present at trial, a dichotomy emerged between the

principles applicable to a defendant who has waived the right to be

present after trial begins and the principles applicable to a

defendant who fails to appear at the commencement of trial. See

Crosby, 506 U.S. at 261-62; Barfield v. Commonwealth, 20 Va. App. 447,

453, 457 S.E.2d 786, 789 (1995). This distinction, which the majority

appears to ignore, is well-founded:
As a general matter, the costs of suspending
a proceeding already under way will be
greater that the cost of postponing a trial
not yet begun. . . . [Additionally,] the
defendant's initial presence serves to
assure that any waiver is indeed knowing.
"Since the notion that trial may be
commenced in absentia still seems to shock

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 most lawyers, it would hardly seem
appropriate to impute knowledge that this
will occur to their clients." It is
unlikely, on the other hand, "`that a
defendant who flees from a courtroom in the
midst of a trial--where judge, jury,
witnesses and lawyers are present and ready
to continue--would not know that as a
consequence the trial could continue in his
absence.'" Moreover, a rule that allows an
ongoing trial to continue when a defendant
disappears deprives the defendant of the
option of gambling on an acquittal knowing
that he can terminate the trial if it seems
that the verdict will go against him--an
option that might otherwise appear
preferable to the costly, perhaps
unnecessary, path of becoming a fugitive
from the outset.

Crosby, 506 U.S. at 261-62 (citations omitted).

As noted by the majority, an accused, present at the start

of trial, clearly can waive the right to be present for further

proceedings once trial has begun. Taylor v. United States, 414 U.S.

17, 20 (1973) (defendant absconded mid-trial); Barfield v.

Commonwealth, 20 Va. App. 447, 449-53, 457 S.E.2d 786, 787-89 (1995)

(same); see also Illinois v. Allen, 397 U.S. 337, 343 (1970)

(defendant removed from trial after refusal to refrain from

disorderly, disruptive, and disrespectful conduct); Quintana v.
Commonwealth, 224 Va. 127, 144-45, 295 S.E.2d 643, 651-52 (1982),

cert. denied, 460 U.S. 1029 (1983) (same). Where an accused is found

to have voluntarily waived the right to be present after trial is

underway, the court may proceed in absentia without having to justify

specifically its denial of a continuance. E.g., Barfield, 20 Va. App.

at 453, 457 S.E.2d at 789. In such cases,
when the defendant absconds after the trial
has begun, the prejudice to the Commonwealth

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 is clear and substantial. Both jurors and
witnesses will have their lives further
disrupted by having to be on call until the
capture or return of the defendant.
Witnesses's memories will fade.
Prosecutors, defense counsel and judges, who
need to work on other cases, will later have
to interrupt their present case load to
familiarize themselves with the defendant's
case which was put on hold. The general
disruption to the proper administration of
the criminal justice system is such that the
Commonwealth should not have to prove any
special prejudice when the defendant
absconds after the trial has commenced.

Id. (emphasis added).

The federal courts have extended the rule allowing trial to

proceed in the absence of a defendant found to have absconded

mid-trial to trials in absentia of defendants who failed to appear at

the commencement of trial. E.g., United States v. Tortora, 464 F.2d

1202 (2d Cir.), cert. denied sub. nom. Santoro v. United States, 409

U.S. 1063 (1972). 19 However, the Tortora Court held that an accused's

voluntary absence at the start of trial is not alone sufficient to

warrant proceeding with trial. Id. at 1210. Rather, under the
Tortora approach, the decision to proceed in the absence of the

defendant who fails to appear at the start of trial is a matter for

the discretion of the trial court, and should be exercised only in

"extraordinary" circumstances where the "public interest clearly

outweighs that of the voluntarily absent defendant." Id. This

balancing turns on a "complex of issues" including
19
Tortora has been cited as the leading federal case upholding
a trial in absentia of a defendant who took flight before the
trial commenced. 3 LaFave & Israel, Criminal Procedure § 23.2(b)
(1984).

- 16 -
 the likelihood that the trial could soon
take place with the defendant present; the
difficulty of rescheduling, particularly in
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.

Id. The Tortora Court further noted, "[i]t is difficult for us to

conceive of any case where the exercise of this discretion would be

appropriate other than a multiple-defendant case." Id. at n.7.

Indeed, "[i]n virtually all of the cases in which a conviction of a

defendant obtained in absentia has been affirmed, other co-defendants
were present for the trial." United States v. Latham, 874 F.2d 852,

859 (1st Cir. 1989).

The federal circuits never agreed that such a balancing test

was appropriate and, in fact, contested whether the trial court should

have narrow, broad, or complete discretion to proceed in absentia once

voluntary waiver was found. See United States v. Houtchens, 926 F.2d

824, 827 (9th Cir. 1991) (discussing disagreement among circuits and

adopting rule requiring no further determination of prejudice once

voluntary waiver found).

The Fourth Circuit, however, adopted Tortora's balancing
test in a multiple defendant case involving a "set of extraordinary

factors." United States v. Peterson, 524 F.2d 167, 185-86 (4th Cir.

1975), cert. denied, 423 U.S. 1088 (1976). Later, in United States v.
Muzevsky, 760 F.2d 83 (4th Cir. 1985), the Fourth Circuit extended the

rule of Peterson and Tortora to a single-defendant trial. In so

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doing, the Muzevsky Court reaffirmed the Peterson/Tortora balancing

approach, stating,
when the court does not know the reasons for
the defendant's absence and has no basis to
believe that the trial can be rescheduled
within a reasonable time, consideration of
the government's difficulty in reassembling
its proof may dictate an immediate trial.
This determination should be undertaken in
accord with Peterson.

Muzevsky, 760 F.2d at 85. 20

Subsequently, this Court adopted the Fourth Circuit's

approach to conducting trials in absentia of defendants absent at the
commencement of trial. See Head, 3 Va. App. at 170, 348 S.E.2d at

428; Hunter v. Commonwealth, 13 Va. App. 187, 190, 409 S.E.2d 483, 485

(1991). Thus, an accused can waive the right to be present for the

entire trial under Virginia law. Id. However, in line with the

Fourth Circuit, this Court adopted the Peterson/Tortora balancing

approach and directed trial courts, before proceeding in absentia, to

consider
inter alia, the likelihood that the trial
could soon take place with the defendant
present, the difficulty of rescheduling, the
20
The United States Supreme Court's decision in Crosby
effectively overruled Tortora, Peterson, and Muzevsky on the
proposition that, under the federal rules, trial could proceed in
the absence of a defendant who failed to appear at the
commencement of trial. Following Crosby, trial may not proceed
in the absence of a defendant who fails to appear at its
commencement under any circumstance. Decided solely on the basis
of the federal rule without reaching the constitutional question,
Crosby does not preclude state courts from proceeding in the
absence of a defendant who fails to appear at the start of trial.
Also, because it precludes trial in absentia of a defendant
absent when the trial commences under any circumstance, the
Crosby Court did not address the necessity of a balancing test to
protect the rights of such a defendant.

- 18 -
 burden on the Commonwealth in securing the
attendance of witnesses on another date, and
any other factors given to explain the
defendant's absence.

Id. at 169-70, 348 S.E.2d at 427-28.

The majority seeks to avoid the result of this Court's

adoption of the balancing test by relying on federal cases which held

that such a test is not mandated by the federal constitution. It is

not the mandate of the federal constitution which compels the result

here but, rather, the dictates of Virginia law. The rule resulting

from the decisions of this Court is that trial may proceed in the

absence of a defendant who fails to appear for the entire trial only

if the court finds (1) that the defendant voluntarily waived the right

to be present; and (2) "that the burden of a continuance would be

prejudicial to the Commonwealth's case." Head, 3 Va. App. at 170, 348

S.E.2d at 428 (emphasis added); see also Hunter, 13 Va. App. at 191,

409 S.E.2d at 485; Barfield, 20 Va. App. at 453, 457 S.E.2d at 789.

Recently, in Barfield, this Court affirmed the distinction between the

principles applicable to cases involving a defendant who absconds mid-

trial and the principles involved in a case where the defendant fails

to appear for the entire proceeding. Thus, while
[t]he general disruption to the proper
administration of the criminal justice
system is such that the Commonwealth should
not have to prove any special prejudice when
the defendant absconds after the trial has
commenced, . . . prejudice to the
Commonwealth's case due to a continuance
must be shown in order for the court to
proceed in the defendant's absence [in]
those cases where the trial ha[s] not yet
commenced.

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Barfield, 20 Va. App. at 453, 457 S.E.2d at 789 (emphasis added).

I concur with the majority opinion that appellant, by his

action, knowingly and voluntarily waived his right to be present at

his trial. However, in light of principles developed by this Court, a

finding that an accused who fails to appear for the entire trial has

voluntarily waived his right to be present at trial is, alone,

insufficient to justify proceeding in his absence. I cannot join in

holding that the trial court properly proceeded in appellant's absence

without the Commonwealth having proffered sufficient reasons why its

case would have been prejudiced by a continuance.
Indeed, the Commonwealth failed to proffer any reason why

its case would be prejudiced by a continuance. Instead, the trial

court considered as its basis for proceeding the general disruption to

the proper administration of the criminal justice system of Cruz's

failure to appear. 21 While such disruption is clearly sufficient to

justify proceeding in the absence of a defendant who absconds

mid-trial, it is not sufficient to establish "prejudice to the

21
The court indicated that the reason for the Appearance at
Trial form was

so we don't have witnesses coming in here. We
don't have everybody ready for trial. We
don't have a jury sitting around and a
defendant decides that he prefers to be
somewhere else.

Later, the court indicated that although Cruz's failure to appear
impinged his attorney's ability to defend him, that did not mean
the "the witnesses, the Commonwealth, the Jury and the Court
should suffer any further prejudice" and that "[w]itnesses,
jurors, court systems depend upon everybody showing up, including
the defendant."

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Commonwealth's case" to justify proceeding in the absence of a

defendant who fails to appear at the commencement of trial. Barfield,

20 Va. App. at 453, 457 S.E.2d at 789.

As the majority points out, the likelihood that the trial

could soon take place with the defendant present is one of the factors

the trial court must consider. However, although the majority asserts

that this case must turn on a "complex of issues," its holding

actually turns on its application of a single factor--that "[t]he

record in this case is totally devoid of any assurance, or even hint,

that the defendant would be available in the future." While I agree

that there was no assurance Cruz would be available in the near
22
future, this factor alone is not determinative.
The majority's reference to United States v. Muzevsky to

support its holding is misplaced. To say, as the majority does, that

"the Fourth Circuit [in Muzevsky] affirmed the trial court's decision

to proceed in the defendant's absence" because "[t]he trial court did

not know the reason for the defendant's absence, and it had no basis

to believe that the trial could be rescheduled within a reasonable

time" relates only a fraction of the record. In Muzevsky, the trial
court
explained that it had proceeded with the
trial because it was concerned that delay
would lead accomplices testifying against
Muzevsky to change their testimony and that
the other witnesses, mostly transient hotel
employees, would not be available for a
second court appearance. Moreover, the
22
I also note the record reflects that the trial court did not
issue a bench warrant for Cruz or attempt in any way to secure
his presence for trial in the immediate future.

- 21 -
 court noted that at the time of the trial no
information was available that would have
allowed the court to predict if Muzevsky
would appear in a reasonable time--if at
all.

Muzevsky, 760 F.2d at 84 (emphasis added). The Fourth Circuit

affirmed the trial court's decision to proceed in absentia, stating,
when the court does not know the reasons for
the defendant's absence and has no basis to
believe that the trial can be rescheduled
within a reasonable time, consideration of
the government's difficulty in reassembling
its proof may dictate an immediate trial.
This determination should be undertaken in
accord with Peterson.

Muzevsky, 760 F.2d at 85 (emphasis added).

The principle underlying the application of the balancing

test this Court has adopted is the preservation of the accused's right

to be present at trial except when the accused's absence prejudices

the government's ability to obtain a conviction. Indeed, the Virginia

cases and those on which they rely support the proposition that the

accused cannot use the right to be present at trial as a sword, in an

attempt to avoid conviction. These cases simply require the

government to prove that obtaining a conviction will be more difficult

in the future.

While the absence of assurances as to the missing

defendant's location or likelihood of reappearance may aid the

government in meeting its burden, the absence of such assurances alone

is insufficient. As Muzevsky clearly demonstrates, the whereabouts of

a defendant and the likelihood of his reappearing in a reasonable time

are factors which may contribute to the broader determination that the

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government's case will be prejudiced but which alone are not

determinative. Here, the Commonwealth neither proffered nor argued

any reason why a continuance would prejudice its ability to convict

Cruz at a later date, and the court made no such finding.

The majority suggests that Cruz's confrontation rights were

adequately protected because "[s]entencing would have been stayed

. . . until he appeared and was accorded the opportunity to justify

his absence." This argument misses the point and provides false

assurance that Cruz's confrontation rights were protected. According

a defendant the opportunity to justify his absence before sentencing

addresses only the issue of voluntary waiver of the right to be

present as required by the first prong of the test. See Head, 3 Va.

App. at 170, 348 S.E.2d at 428; Hunter, 13 Va. App. at 191, 409 S.E.2d

at 485; Barfield, 20 Va. App. at 453, 457 S.E.2d at 789. However, in

addressing the second prong of the test, as we do here, the question

to be addressed is whether Cruz's unjustified absence caused

sufficient prejudice to the Commonwealth's case to warrant sacrificing

his right to confrontation. See id. An after-the-fact affirmation

that Cruz's absence was unjustified does not establish that the need

to conduct a trial in absentia outweighed his confrontation rights.

The majority concludes that the Commonwealth should not be

required to prove prejudice to its ability to obtain a conviction

before the court may proceed in the absence of a defendant who fails

to appear at the start of trial. This conclusion eviscerates the

prejudice prong of the test this Court adopted in Head and reaffirmed

in Hunter and destroys the distinction established by this Court in

- 23 -
Barfield between the principles applicable to defendants who abscond

mid-trial and those who fail to appear before trial commences.

In support of its position, the majority relies on Clark v.

Scott, 70 F.3d 386 (5th Cir. 1995), which held that the United States

Constitution does not require a trial court to conduct a balancing

test similar to the test established by Tortora and Peterson and

adopted by this Court in Head, before proceeding with trial in

absentia. Again, the issue is not whether the United States

Constitution requires a Tortora/Peterson balancing test. This Court

has adopted and affirmed precisely such an approach, see Head, 3 Va.

App. at 169-70, 348 S.E.2d at 427; Hunter, 13 Va. App. at 190-91, 404

S.E.2d at 485; Barfield, 20 Va. App. at 453, 457 S.E.2d at 789, and

under familiar principles of stare decisis, we are bound by that

precedent. See Commonwealth v. Burns, 240 Va. 171, 173-74, 395 S.E.2d

456, 457 (1990). 23 Moreover, the Fifth Circuit's opinion in Clark is

inapposite to Cruz's case because Clark involved a defendant who

absented himself after the jury had been sworn.

The majority is concerned that "prejudice to the

Commonwealth's case" is too difficult to prove and that imposing such

a standard would allow a defendant to "circumvent the trial court's

authority to control the scheduling of trials and the granting of

continuances." However, the standard envisioned by this Court in
23
Contrary to the suggestion of the majority, I would not
define "prejudice to the Commonwealth's case" so narrowly "as
requiring that the Commonwealth must show that witnesses may be
lost or not available for a second trial." Rather, I seek merely
to reaffirm the principles developed in Virginia law, which I
believe control this issue.

- 24 -
Head, Hunter, Barfield, and which I would reaffirm here, does not

transfer to the defendant authority to control the court's docket.

Defendants who fail to appear for trial do so at their peril. Not

only is any bond forfeited, a defendant's willful failure to appear as

required by the court is indictable as a separate offense. Code

§ 19.2-128. 24

Furthermore, the costs incurred by our system of justice

must be balanced against the constitutional framework of its

operation. Preserving an accused's constitutional rights may in fact

inhibit the most efficient and convenient means of prosecuting a case

through the system. However, our system of justice requires the

government to bear the cost of inefficiency and inconvenience mandated

by the preservation of an accused's rights.

24
Code § 19.2-128 provides,

A. Whoever, having been released pursuant to
this chapter or on a summons pursuant to
§ 19.2-73 or § 19.2-74, willfully fails to
appear before any court or judicial officer
as required, shall, after notice to all
interested parties, incur a forfeiture of any
security which may have been given or pledged
for his release, unless one of the parties
can show good cause for excusing the absence,
or unless the court, in its sound discretion,
shall determine that neither the interests of
justice nor the power of the court to conduct
orderly proceedings will be served by such
forfeiture.
B. Any person charged with a felony offense
who willfully fails to appear before any
court as required shall be guilty of a Class
6 felony. Any person charged with a
misdemeanor offense who willfully fails to
appear before any court as required shall be
guilty of a Class 1 misdemeanor.

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 For the foregoing reasons, I would reverse appellant's

conviction and remand the case for further proceedings as the

Commonwealth may find appropriate.

____________________

This order shall be published and certified to the trial

court.

A Copy,

Teste:
Cynthia L. McCoy, Clerk

By:

Deputy Clerk

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