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Ali v. State12/7/2004
807 So. 2d at ( -5).
. During the hearing on Jefferson's motion for a new trial, a long-time acquaintance of Jefferson testified that Jefferson had told him that Jefferson was "going to run." The defense neither questioned the acquaintance nor offered any evidence to counter or contradict the testimony of the acquaintance. Id. at ( )
. In affirming the trial judge's decision to try Jefferson in absentia, the Jefferson court stated, "By our ruling today, we do not overrule Sandoval [v. State, 631 So. 2d 159 (Miss. 1994)] and its progeny; rather we carve out an exception based on willful, voluntary and deliberate actions by a defendant in avoiding trial, such as those presented here." Jefferson, 807 So. 2d at 1127 ( ). (emphasis added).
. In Sandoval, Francisco Garza Sandoval was scheduled to go to trial on December 3, 1990. He attended pretrial motions on December 1 and was in his attorney's office on December 2 until 5:15 p.m. His attorney informed him to be back in the attorney's office no later than 8:00 a.m. on December 3, the day of the trial. Sandoval did not appear at his attorney's office as requested. When the court convened, Sandoval's counsel advised the court that, as of that moment, he had not been able to locate Sandoval. Counsel then advised the court that he was not ready for trial and moved for a one-week continuance which was promptly denied.
. In denying the motion for a continuance, the trial court stated that Sandoval voluntarily absented himself from what he knew to be a trial date and therefore, had waived his presence at trial.
. On appeal of the trial court's decision, the Sandoval court acknowledged well established law in Mississippi that an accused felon, present at the commencement of his trial, may thereafter waive his presence by absenting himself from the trial. However, the court held that the trial judge erred in concluding that Sandoval, who did not appear for trial, had waived his right to be present. The Sandoval court clearly stated that section 99-17-9 of the Mississippi Code of 1972, "unchanged since 1857, expresses the legislative intent to limit waiver of trial presence of accused felons to those instances where the accused is in custody and consenting thereto."
. Based on Jefferson, trying Mohamed in absentia was appropriate only if it can be said that he willfully, voluntarily, and deliberately avoided trial by engaging in actions at least as egregious as those in Jefferson. Jefferson, 807 So. 2d at 1227 ( ). I do not think that to be the case.
. In this case, Mohamed's trial was first set for July 8, 2003. He reported for trial on that date, but the State asked for and was granted a continuance because it did not have one of its witnesses present for trial. By agreement, the case was continued for one week until July 15. The court administrator, Jimmy Radford advised Mohamed to come back for trial on July 15 at 8:30 a.m. Mohamed showed up for trial as instructed at 8:30 a.m. on July 15, but the trial did not begin at that time because the State was trying another case. According to Mohamed's trial counsel, Mohamed told counsel that Mohamed would be back at 1:00 p.m. when Mohamed's trial was expected to begin. Mohamed's trial counsel also told the court that he instructed Mohamed to be back at 1:00 p.m. When Mohamed did not show up, Mohamed's trial counsel moved for a continuance which was denied, and the trial commenced.
. Mohamed obtained new counsel and filed a motion for a new trial. During the hearing on the motion for a new trial, Mohamed, a native of Somalia with some language impediment, gave the following uncontradicted testimony:
My law
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