Syllabus by the Court
1. The defendant in a criminal case has a constitutional right to be present at trial. Any waiver of this right must be done in a knowing, intelligent, and voluntary manner, and a waiver will not be presumed in the absence of an adequate record.
2. Ordinarily, for the defendant to waive the right to be present at trial, the trial judge should explain that right to the defendant, determine whether the defendant understands the right, and then determine whether the defendant is voluntarily waiving the right.
3. In this case, the defendant sent a note to court on the morning of trial stating that he was too weak to come to court. The trial judge had the defense attorney send a letter to the defendant advising him of his right to be present at trial. The trial judge then heard evidence that the defendant appeared to have read the letter and thrown it on the floor. On these facts, the record does not show that the defendant was appropriately advised of his right to be present at trial, that the defendant understood his right, or that the defendant voluntarily waived his right. It was therefore improper for the district court to proceed to hold a jury trial on the charges against the defendant.
Meryl Carver-Allmond, of Kansas Capital Appellate Defender Office, for appellant.
Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.
Matthew Rucker was convicted in a jury trial of theft and eluding a police officer. But even though he was in state custody, he wasn't in attendance at the trial, and he has appealed on the basis that his constitutional and statutory right to be present at his own trial was violated.
Rucker sent a note to the court on the morning of his trial, claiming that he had been on a hunger strike for several days and was too weak to come to court. He also said he had complaints about his defense counsel, and he asked the court to appoint new counsel to represent him.
The district judge expressed skepticism, noting that Rucker had had two other jury trials in his court in the past few weeks and that he had appeared healthy. The judge speculated that Rucker was trying to delay the trial. The court heard testimony from jail personnel that, at breakfast that day, Rucker had taken an orange and some milk before returning the remainder of his food tray uneaten, and that Rucker had appeared to be healthy.
The court then directed that Rucker's defense attorney deliver a note to Rucker, advising him that the judge was requiring Rucker's presence at trial, didn't believe he was too weak to come to court, and considered Rucker's note a ploy to delay the trial— but would not force Rucker to appear. Rucker's counsel prepared such a note, and jail personnel delivered it. Those personnel reported that Rucker took the note, appeared to read it, and then threw it down.
The district court then conducted the jury trial in Rucker's absence. The court told the jury that Rucker had a constitutional right to appear at the trial but that he had voluntarily decided not to appear. The court instructed the jury not to use Rucker's absence ...