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State v. Madrid1/20/2004
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
After a jury trial conducted in his absence, appellant Oscar Madrid was convicted of aggravated driving under the influence of an intoxicant (DUI) and aggravated driving with an alcohol concentration of.10 or more, both while his license was suspended, revoked, or restricted. Finding he had two prior felony convictions, the trial court sentenced him to concurrent, presumptive prison terms of ten years. On appeal, Madrid argues only that the trial court erred in proceeding with his jury trial when he was too ill to attend it. We affirm.
We review a trial court's ruling that a defendant was voluntarily absent from trial for an abuse of discretion. State v. Muniz-Caudillo, 185 Ariz. 261, 262, 914 P.2d 1353, 1354 (App. 1996). At a case management conference on April 20, 2000, Madrid told the trial court that he had hepatitis C and might need trial continuances because of his condition and the treatments for it. During the two and one-half years from then until trial began on October 17, 2002, the trial court conducted at least seven hearings, at each of which Madrid obtained a continuance of the trial date because of his ill health. Madrid was present at one of the seven proceedings, and he was present but left before another one began because he was ill. Madrid signed at least two written acknowledgments of notices that he must attend his trial and that it could proceed without him.
At a status conference conducted on August 12, 2002, the court again personally informed Madrid of his right to be present at trial. The court told Madrid the trial date and instructed him to remain in contact with his attorney "in case something changes. Otherwise, I will see you back on October 17, at 10:30 and you need to be here. Otherwise, I will issue a warrant, and if you don't appear, the trial will proceed in your absence."
On October 15, the trial court heard Madrid's motion to continue the trial. The motion included a letter from a doctor noting that Madrid had recently been placed on antidepressants that required monitoring of his liver, but it did not state that Madrid could not attend his trial. Counsel argued at the hearing that she was concerned Madrid's blood might not be tested regularly during trial or in prison. The court observed that the motion related to only the trial. Because the court determined that there were no pertinent circumstances requiring a continuance, the court denied the motion.
Madrid was absent on the first day of trial. The court questioned defense counsel about Madrid's absence and detailed the multiple continuances it had granted because of Madrid's health. Madrid's counsel avowed to the court that Madrid's wife would testify that Madrid had had a fever of 102 degrees Fahrenheit the previous night, that his temperature was down that morning, but he had "spent the night vomiting and at this point is simply producing dry heaves. He is extremely weak." Further, counsel avowed that Madrid was taking certain antidepressants that might be causing his illness and that Madrid had sounded ill when counsel had spoken with him that morning by telephone.
The state argued it was ready to proceed and witnesses were ready, noting there already had been numerous continuances. The court found Madrid was voluntarily absent and ordered that trial proceed because there had been " information from licensed medical personnel that Mr. Madrid unable to attend the trial."
Madrid appeared for less than ten minutes of the second day of his trial and then left. Madrid's counsel confirmed that, before Madrid left, she had advis
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