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State v. Madrid1/20/2004
ed him that he did not have to stay if he did not want to. The trial court noted that Madrid, during the time he attended the trial, did not appear to the court to be ill except in the presence of the jury. Madrid was present for the taking of the jury's verdicts later that day. Pursuant to Rule 7.2(b)(1), Ariz. R. Crim. P., 16A A.R.S., he was taken into custody after he was found guilty.
A defendant has the right to be present at every critical stage of a criminal proceeding. State v. Hall, 136 Ariz. 219, 222, 665 P.2d 101, 104 (App. 1983). Rule 9.1, Ariz. R. Crim. P., 16A A.R.S., provides that "a defendant may waive the right to be present at any proceeding by voluntarily absenting himself or herself from it." See State v. Tudgay, 128 Ariz. 1, 2, 623 P.2d 360, 361 (1981). In addition,
he court may infer that an absence is voluntary if the defendant had personal notice of the time of the proceeding, the right to be present at it, and a warning that the proceeding would go forward in his or her absence should he or she fail to appear. Ariz. R. Crim. P. 9.1.
Madrid insists that the trial court could not find he had been absent voluntarily because on May 22, 2002, the court did not explain to him that the trial would go forward in his absence but, instead, told him that he was required to attend his trial "unless [he was] sick or something." Madrid overlooks the other occasions, including August 12, 2002, on which he was advised more fully of his rights and responsibilities with respect to trial attendance. The court is not required to provide notice of a defendant's rights after every continuance. State v. Pena, 25 Ariz. App. 80, 82, 541 P.2d 406, 408 (1975).
The trial court accommodated Madrid's illness extensively over a long period of time. The court personally warned Madrid that trial would proceed in his absence two months beforehand. When Madrid did not produce further relevant medical evidence, the trial court proceeded with trial. On this record, we conclude that the trial court did not abuse its discretion in finding that Madrid was voluntarily absent from portions of his jury trial.
For the foregoing reasons, the judgments of conviction and sentences imposed are affirmed.
PETER J. ECKERSTROM, Judge
CONCURRING:
PHILIP G. ESPINOSA, Chief Judge
JOHN PELANDER, Presiding Judge
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