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State v. Jones6/15/2000
. At the outset of the voir dire, both parties stipulated to the removal of thirty venire persons, some of whom answered the written questionnaire and indicated that their feelings about the case, formulated through the media coverage, could not be changed. Importantly, almost all of the jurors who did have exposure to the publicity stated that their exposure was negligible, and every juror who admitted he could not set aside his feelings concerning the media coverage eventually was excused. Under the totality of the circumstances of the case, the media coverage alone was not so great as to create a presumption of prejudice, and defendant has failed to present evidence of any actual prejudice in this case. For these reasons, Jones's sixth point of error is denied.
G.
Jones next argues that the introduction of the police artist's composite sketch constituted an impermissible introduction of hearsay evidence. Evidentiary rulings are subject to the trial court's determination and will not be disturbed, absent an abuse of discretion. See Wait v. City of Scottsdale, 127 Ariz. 107, 109-10, 618 P.2d 601, 603-04 (1980). During the trial, Mark Naiman testified that during the course of the Moon Smoke Shop robbery he had an opportunity to see one of the gunmen and later gave a police artist a description for a police sketch. The state offered the police sketch into evidence. The defense objected to foundation, arguing that the only person who could provide the proper foundation would be the individual who actually made the sketch. The court, however, admitted the sketch, stating, " t appears that it would be the same as if it were a photograph. It doesn't matter how the depiction was created as long as this witness can state it is an accurate depiction of what he observed and that seems to be his testimony." (R.T. 6/18/98, at 72.)
Arizona Rule of Evidence 901(b)(1) allows a witness to authenticate a document, provided only that the individual have knowledge and "[testify] that a matter is what it is claimed to be." In this case, Naiman possessed such knowledge. He gave the artist the original description and he was in the best position to determine whether the drawing represented that description because he was present at both the robbery and the police interview. The trial court did not abuse its discretion in admitting the sketch under Rule 901.
H.
Jones's eighth point of error concerns his attorney's waiver at a pretrial hearing of Jones's right to be present at all stages of the trial. Jones requested that he be allowed to participate in all bench conferences, and the court agreed, allowing him to listen to bench conferences through headphones. On day four of the trial, the court held a conference before trial began, during which the defense counsel waived Jones's right to attend. In the course of the hearing, the defense released two witnesses from trial.
A defendant's right to be present during trial stems from the Confrontation Clause of the Sixth Amendment. The right to be present at all critical stages of a criminal trial is a fundamental right. See Rushen v. Spain, 464 U.S. 114, 117, 104 S. Ct. 453, 455 (1983). Arizona has recognized, however, that the right may be waived. See State v. Armenta, 112 Ariz. 352, 353-54, 541 P.2d 1154, 1155-56 (1975). Jones argues, citing a number of cases from the federal circuit courts and this Court, that a defendant's right to be present may not be waived by his attorney, absent a showing that the defendant was aware he had the right to attend and was told the proceeding would go forward in his absence. See, e.g., State v. Perez, 115 Ariz. 30, 31, 563 P.2d 285, 286 (1977). Jones argues that because he
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