State v. Bradley

STATE_V_BRADLEY.94-582; 164 Vt 346; 670 A.2d 811

[Filed 03-Nov-1995]


  NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                No. 94-582


State of Vermont                            Supreme Court

                                            On Appeal from
     v.                                     
                                            District Court of Vermont,
                                            Unit No. 3, Lamoille Circuit

Keith Bradley, III                          October Term, 1995


Alan W. Cook, J.

  Jeffrey L. Amestoy, Attorney General, and David Tartter, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

  Robert Appel, Defender General, and Henry Hinton, Appellate Defender,
  Montpelier, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       ALLEN, C.J.   Defendant Keith Bradley appeals his jury conviction for
  kidnapping and aggravated sexual assault on the grounds that the trial
  court did not sufficiently inquire into either his waiver of his right to
  be present at trial or his waiver of his right to represent himself.  We
  affirm.

       On May 19, 1993, defendant was arraigned on kidnapping and sexual
  assault charges.  The court held a competency hearing on June 28, 1993, at
  which the parties stipulated to defendant's competency based on the
  findings of a previously conducted competency examination.  Defendant
  discharged his attorneys at a November 15 status conference and entered
  into a plea agreement with the State's attorney.  After discussing the
  matter with defendant, the court granted his motion to proceed pro se. 
  Before accepting the plea, however, the court ordered a second competency
  examination and gave defendant an opportunity to consult with counsel.  At
  a February 7, 1994 status conference, counsel informed the court that
  defendant's mother had contacted counsel because defendant no longer wished
  to represent 

  

  himself.  During this status conference, defendant was not present
  because he did not want to see the victim; he remained in an anteroom.  On
  March 7, 1994, the court held a second competency hearing, at which it
  found defendant competent to stand trial.  Defendant abandoned the plea
  agreement and proceeded to trial.
  
       During the victim's testimony on the first day of trial, counsel
  approached the bench and requested the court's permission for defendant to
  return to the lawyer's room because defendant was experiencing discomfort
  watching the victim testify.  Counsel indicated to the court that defendant
  voluntarily chose to absent himself and that counsel would do his best to
  cross-examine the victim without the benefit of defendant's input.  The
  court addressed defendant directly, and defendant confirmed that he
  voluntarily waived his right to be present.  

       Defendant was present in the courthouse but not in the courtroom when
  the trial resumed the next morning.  Counsel told the court that defendant
  wished to be absent for the remainder of the victim's testimony.  After the
  victim concluded her testimony, the court inquired of counsel whether
  defendant would like to return.  Counsel told the court that he had invited
  defendant to return to the trial but that defendant had declined.  The
  court requested that counsel renew the invitation after each witness. 
  Defendant again declined the invitation when the next witness took the
  stand.  Defendant indicated a desire to be present for the following
  witness, who was an acquaintance of defendant.  Because that witness had
  already begun testifying, the court asked if the direct examination should
  start again for defendant's benefit.  Counsel told the court that defendant
  had notice that the witness was testifying and waived his right to be
  present.  The examination resumed.  

       After the direct examination was over, defendant again wished to leave
  the courtroom.  The court and counsel again discussed defendant's absences. 
  The court told counsel that despite defendant's sporadic attendance, the
  trial would continue.  Counsel assured the court that defendant did not
  wish that the trial stop.  The court told counsel that defendant's absences
  were harmful to his defense.  Counsel concurred and told the court that he
  had communicated that concern to defendant and that defendant understood. 
  Defendant repeatedly absented himself for 

  

  the remainder of the trial.  

       When defendant remained at the State Hospital (FN1) during jury
  deliberations, the court and counsel again discussed defendant's absence. 
  Counsel assured the court that defendant was still competent and that he
  made the choice to absent himself.  To bolster its conclusion that
  defendant remained competent, the court noted that defendant had been in
  control of his actions throughout the trial and that he had been selective
  about his absences.  Counsel told the court that he did not see any legal
  impediment to defendant's absence during the reading of the verdict.  After
  discussing with counsel the possibility that defendant may change his mind,
  the court said, "If he wants to be here, we'll get him here as soon as we
  possibly can."  

       We first note that, because defendant made no objection to the
  continuation of trial in his absence or to the renewed assistance of
  counsel, we review the trial court's actions for plain error.  State v.
  Veburst, 156 Vt. 133, 138, 589 A.2d 863, 866 (1991). For this Court to find
  plain error, the trial court's error must be so grave and serious as to
  strike to the very heart of defendant's constitutional rights or adversely
  affect the fair administration of justice.  Id.  It is against this high
  standard that we review defendant's arguments.

       Defendant argues on appeal that the trial court erred by failing to
  inquire sufficiently into whether he knowingly and voluntarily waived his
  right to be present at trial.(FN2)  The United States Constitution, the
  Vermont Constitution, and V.R.Cr.P. 43(a) give a criminal defendant the
  right to be present at his trial.  In re Cardinal, ___ Vt. ___, ___, 649 A.2d 227, 229 (1994).  Rule 43(b) allows a trial court to imply waiver when
  a defendant who is initially present at his trial "voluntarily absents
  himself after the trial has commenced, whether or not he has been informed

  

  by the court of his obligation to remain during the trial."  V.R.Cr.P.
  43(b).

       The trial court clearly made an adequate inquiry to assure that
  defendant's waiver was knowing and voluntary.  In Taylor v. United States,
  414 U.S. 17 (1973), the United States Supreme Court concluded that the
  court made an adequate inquiry into the defendant's waiver of his right to
  be present.  Id. at 20.  Before lunch recess, the judge had advised all
  participants, including the defendant, that the trial would resume at 2:00
  p.m.  The defendant failed to return for the afternoon session of trial, so
  the judge recessed the trial until the following morning.  The next morning
  the court heard testimony from the defendant's wife, who had seen him after
  the morning session.  She testified that he did not appear ill and that she
  had not heard from him since the previous day.  The court denied a motion
  for a mistrial, and the trial continued in the defendant's absence.  On
  appeal, the defendant conceded that his absence was voluntary.  He argued
  that his waiver was ineffective without an express warning from the trial
  court that he had a right to be present and that the trial would continue
  in his absence thereby foreclosing his right to testify and confront
  witnesses against him.  The Court rejected this argument and held that the
  trial court need not make such an inquiry.  Id. at 20.  Although not
  required by Taylor, the court here at least warned defense counsel that the
  trial would continue in defendant's absence and that his absence was
  harmful to his defense. 

       Defendant argues that the court's inquiry was cursory and inadequate,
  but the record belies this characterization.  See United States v. Gallo,
  763 F.2d 1504, 1529 (6th Cir. 1985) (waiver clear from record where counsel
  informed court that hospitalized defendant had requested that counsel waive
  his right to be present at trial), cert. denied, 474 U.S. 1068 (1986).  The
  court inquired of defendant personally whether his initial absence was
  voluntary.  It also asked counsel to invite defendant to attend the trial
  at the conclusion of each witness's testimony.  The court told counsel that
  defendant's absences were harmful to his defense, and counsel informed the
  court that the defendant had been apprised of this concern.  The court
  found that defendant was selective in his attendance and therefore
  concluded that he was competently waiving his right to be present.  The
  court discussed possible legal impediments to waiver with 

  

  counsel, and counsel asserted there were none.  When defendant chose
  to remain at the State Hospital for jury deliberations, the court told
  counsel that it would accommodate defendant's desire to be present if he
  changed his mind.  Given the court's extensive efforts to ensure that
  defendant was knowingly and voluntarily absent, the court did not commit
  error, let alone plain error.
  
       Defendant also argues that the court failed to make a proper inquiry
  into his waiver of his right to represent himself.  Defendant has both a
  right to counsel, Gideon v. Wainwright, 372 U.S. 335, 339 (1963), and a
  right to represent himself, Faretta v. California, 422 U.S. 806, 807
  (1975).  He may also waive these rights.  Faretta, 422 U.S.  at 835; Brown
  v. Wainwright, 665 F.2d 609, 610-11 (Former 5th Cir. 1982).  Nevertheless,
  because the tension between these two rights creates an opportunity for a
  defendant to vacillate and thereby inject error into the record, courts
  will find implied waiver of the right to self-representation but not the
  right to counsel.  Tuitt v. Fair, 822 F.2d 166, 174-75 (1st Cir. 1987),
  cert. denied, 484 U.S. 945 (1987).  While a court may not conclude from
  silence or other equivocal conduct that a defendant has waived his right to
  counsel, it may conclude that a defendant has waived his right to
  self-representation if it reasonably appears that he has abandoned his
  initial request to represent himself.  Brown, 665 F.2d  at 611.  Here,
  defendant initially asked to represent himself, and the court granted his
  request.  Then, at defendant's direction, his mother asked counsel to
  resume representation of defendant.  Thereafter, defendant appeared with
  counsel numerous times at trial but never objected to representation by
  counsel.  We conclude that the court's inquiry into defendant's waiver of
  self-representation was adequate because defendant's abandonment of
  self-representation was reasonably apparent under the circumstances.

       Affirmed.

   
                               FOR THE COURT:



    
                               _______________________________________
                               Chief Justice


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                                  Footnotes
    

FN1.  At the request of his attorney, defendant resided at the Vermont
  State Hospital during trial.

FN2.  Defendant does not argue that he was not competent to waive his
  right to be present.  Rather, the issue is whether defendant made a valid
  waiver of his right to be present during his trial.  This inquiry is
  distinct from the competency inquiry and is not resolved by a finding of
  competency.  Godinez v. Moran, 113 S.Ct 2680, 2687 (1993).