This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Ramsey County District Court
File No. K7991543
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.
Appellant challenges his conviction of assault in the third degree. Appellant argues that the trial court erred in (1) ordering the trial to proceed in his absence without warning him of the consequences or weighing the relevant factors when deciding to proceed in absentia, (2) using appellant’s statements taken in violation of his right to counsel as a basis to find him voluntarily absent from trial, (3) denying him effective assistance of counsel, and (4) refusing to grant defense counsel’s request to instruct the jury on appellant’s right to not testify. We find that because appellant voluntarily absented himself from trial, the trial court could proceed in absentia and did not otherwise err. Therefore, we affirm.
Appellant Thomas Yang and his girlfriend Maisee Lor returned to their apartment after midnight on April 10, 1999. When Lor confronted appellant about a comment that he supposedly made that night “about girls,” the two argued. Lor pushed appellant and appellant slapped Lor on her face. Lor continued to push and also slap appellant until he left the room. Appellant returned to the bedroom and punched Lor in the face, with sufficient force that she fell onto the bed. Although he apologized, appellant took the car keys and would not let Lor call anyone. Lor spent the night in a separate bedroom.
The next day, Lor went to the emergency room at Regions Hospital. Kevin P. Kilgore, M.D., examined her and determined that she had a maxillary fracture and multiple facial and neck abrasions. Dr. Kilgore testified that Lor’s injuries were consistent with a blow to the eye.
While at the hospital, Lor spoke with St. Paul Police Officer David Longbehn, who photographed Lor’s injuries and took her statement. Lor told Longbehn that appellant had hit her and choked her and that at some point, she blacked out. Lor admitted that both she and appellant had been drinking but claimed that neither was drunk at the time of the fight.
On May 18, 1999, Sergeant Kevin Casper of the St. Paul Police Department’s Field Referral Unit interviewed Lor about the events of April 10. Lor had previously indicated that she did not want to cooperate with the investigation, but she arranged to meet Casper after he contacted appellant. Lor told Casper that appellant had struck her in the face and that she sought treatment as a result of her injuries. That same day, Casper interviewed appellant and tape-recorded his statement. Appellant admitted that he hit Lor, but claimed it was unintentional. He was charged with third-degree assault.
Jury selection began on November 1, 1999. Appellant was present for the first day of jury selection, but was inexplicably absent on the morning of the second day. The court issued a bench warrant for appellant’s arrest and jury selection continued that afternoon. On November 3, 1999, the court granted appellant’s counsel’s request for a 24-hour continuance. On November 4, 1999, Sergeant Casper contacted appellant, using a telephone number that he received from appellant’s counsel. During the first call, the line went dead. After calling back, Casper had a conversation with appellant. Casper subsequently told the court that he recognized appellant’s voice, and in response to being asked about why he was not in court, appellant explained that he did not “want to be pursued by the [Immigration and Naturalization Service] and placed in a refugee camp.” Based on Minn. R. Crim. P. 26.03, caselaw, and the information from Casper, the trial court found that appellant’s absence was voluntary and ordered the trial to continue without him.
During the two-day trial, the jury heard testimony from Lor, Dr. Kilgore, and Officers Longbehn and Casper. Appellant’s tape-recorded statement was also admitted into evidence.
At the conclusion of the evidence, appellant’s trial counsel requested that the jury be instructed about a defendant’s right not to testify. See 10 Minnesota Practice, CRIMJIG 3.17 (1999). The trial court refused, holding that, based on State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988), the defendant himself must request the instruction.
The jury found appellant guilty of one count of assault in the third degree. See Minn. Stat. § 609.223, subd. 1 (1998). This appeal follows.
D E C I S I O N
Appellant argues that the trial court erred by proceeding with the trial in absentia without first warning him that the trial would continue in his absence and that he would forfeit certain rights by not being present. A defendant has a constitutionally protected right to be present at every critical stage in the criminal proceedings after his indictment. State v. Bouwman, 354 N.W.2d 1, 8 (Minn. 1984). Minn. R. Crim. P. 26.03, subd. 1(1), states that the “defendant shall be present * * * at every stage of the trial * * * except as otherwise provided by these rules.” One of the exceptions found in subdivision 1(2) of the same rule, states:
The further progress of a trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to waive the right to be present whenever:
1. a defendant voluntarily and without justification absents himself or herself after trial has commenced * * * .
Minn. R. Crim. P. 26.03, subd. 1(2).
A voluntary absence after “clear and unequivocal notice of the commencement of trial” is a “knowing waiver of constitutional rights.” State v. Johnson, 483 N.W.2d 109, 110 (Minn. App. 1992), review denied (Minn. June 10, 1992); see also State v. Stout, 273 N.W.2d 621, 623 (Minn. 1978) (defendant’s voluntary absence after start of trial construed as effective waiver of right to be present). The defendant bears the heavy burden of showing that his absence from trial was involuntary. State v. Cassidy, 567 N.W.2d 707, 709-10 (Minn. 1997).
A court is not required to record a defendant’s statement that he knows the trial will continue in his absence. Stout, 273 N.W.2d at 623; State v. DelCastillo, 411 N.W.2d 602, 604 (Minn. App. 1987). Furthermore, the court need not warn the defendant of the rights he or she is abandoning by voluntarily leaving his trial. See Taylor v. United States, 414 U.S. 17, 20, 94 S. Ct. 194, 196 (1973) (“It is wholly incredible to suggest that petitioner, who * * * had attended the opening session of his trial * * * entertained any doubts about his right to be present at every stage of his trial. It seems equally incredible * * * that a defendant who flees from a courtroom in the midst of a trial—where judge, jury, witnesses and lawyers are present and ready to continue—would not know that as a consequence the trial could continue in his absence.” (citation and quotation omitted)).
Nothing in the record suggests anything other than a voluntary absence and appellant offers nothing to demonstrate that his absence was involuntary. Appellant knew the time and location of the proceeding. Appellant was present the first day of jury selection and knew the proceedings were to continue the next day, yet he fled from the trial. Appellant’s only rationale is that he feared conviction and detention by the Immigration and Naturalization Service. But fear of conviction is an insufficient justification under Minn. R. Crim. P. 26.03. See Johnson, 483 N.W.2d at 111.
We review the decision to hold a trial in absentia under an abuse of discretion standard. State v. Worthy, 583 N.W.2d 270, 277 (Minn. 1998). Under these circumstances, we find that the trial court did not abuse its discretion in continuing the trial without appellant’s presence.
Appellant also asserts that the trial court erred in proceeding in his absence because it failed to weigh his interests in being present at trial against the interests of the public in the trial proceeding. But Minnesota does not require this practice. Moreover, even in jurisdictions requiring a balancing test, failing to do so under these circumstances is harmless error. See, e.g., United States v. Wallingford, 82 F.3d 278, 280 (8th Cir. 1996) (finding harmless error when the defendant concedes he was a fugitive and thus cannot prove he was involuntarily absent when court convened); see also United States v. Krout, 56 F.3d 643, 646 (5thCir. 1995) (holding that even if record did “not show unequivocally that [defendant] voluntarily absented himself from the proceedings,” no abuse of discretion in proceeding with trial in absentia, “in the light of the fact that [defendant] was apprehended over one year later”).
Appellant argues that his Sixth Amendment right to counsel was violated when Casper questioned him on the telephone outside the presence of his lawyer. A defendant’s Sixth Amendment right to counsel attaches upon initiation of adversary judicial criminal proceedings. Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S. Ct. 1877, 1882 (1972); see also Giddings v. State, 290 N.W.2d 595, 597 (Minn. 1980). Once the right attaches, any incriminating statements made by the defendant that are deliberately elicited by the police in the absence of counsel may not be used against the defendant at trial. Massiah v. United States, 377 U.S. 201, 206-07, 84 S. Ct. 1199, 1203 (1964). This Sixth Amendment right is “offense-specific.” McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 2207 (1991). As the United States Supreme Court has recently held, the appropriate test is whether the offense for which the defendant has been charged and the offense on which he is questioned are part of the “same act or transaction” and also meet the Blockburger test for double jeopardy protection. Texas v. Cobb, 2001 WL 309572, at *7 (Apr. 2, 2001) (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932)). Sergeant Casper questioned appellant about his absence from the trial, which was not part of the “same act or transaction” as the charged assault. Therefore, appellant’s Sixth Amendment right to counsel was not violated.
Appellant argues that he was denied effective assistance of counsel because his trial counsel revealed confidential information—the telephone number of the location to which he had fled—and did not object to the use of the information.
In determining whether a petitioner had effective assistance of counsel, Minnesota courts have adopted the standard set in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). King v. State, 562 N.W.2d 791, 795 (Minn. 1997). Under the two-part Strickland test, appellant has the burden of proving (1) that his representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been different. Id. (relying on Strickland, 466 U.S. at 694, 104 S. Ct. at 2064-65, 2068). Appellant has the burden of proving his claim. Id.
To determine whether the representation fell below the standard, the court must first decide whether the representation was “reasonable in light of all the circumstances.” Id. (citation omitted). This court strongly presumes that a counsel’s performance falls within the range of reasonableness. Id.
If appellant can demonstrate errors in his attorney’s professional performance, then appellant must show that he was prejudiced as a result. State v. Lahue, 585 N.W.2d 785, 790 (Minn. 1998). This court determines prejudice by examining whether “under the totality of the circumstances, the result would have been different if counsel had not erred.” Id. (citation omitted).
Under the Minnesota Rules of Professional Conduct, a lawyer shall not knowingly reveal a “confidence,” or any information “which would be likely to be detrimental to the client.” Minn. R. Prof. Conduct 1.6(a) & (d). Confidences may be revealed only if the client consents, as required by law, or if the information is necessary to prevent a crime. Minn. R. Prof. Conduct 1.6(b)(1)-(3). Here, counsel provided a telephone number for appellant that was used to determine whether appellant’s absence from trial was voluntary. The trial then proceeded without appellant’s presence. The information was, therefore, detrimental to appellant.
But even if appellant’s attorney violated an ethical rule, we believe that under the totality-of-circumstances test, the ultimate result was not affected. Even without the confidential information, under these circumstances, the trial court could have proceeded in appellant’s absence. By failing to appear, appellant knowingly waived his constitutional rights. Johnson, 483 N.W.2d at 110.
Moreover, even if appellant could prove counsel was ineffective in divulging his telephone number, any error committed was not prejudicial because the inference was overwhelming that appellant’s absence was voluntary. See Cassidy, 567 N.W.2d at 709-10 (holding defendant has heavy burden to meet to show absence from trial is involuntary); cf. Johnson, 483 N.W.2d at 110 (holding impaneling of jury in defendant’s presence provides “clear and unequivocal notice” of commencement of trial). There is no reasonable probability that, absent the telephone call, and with no explanation from appellant, appellant’s absence would have been ruled involuntary.
Finally, appellant argues that the trial court erred when it refused to give the jury the instruction regarding a defendant’s right not to testify. See 10 Minnesota Practice, CRIMJIG 3.17 (1999). The court denied defense counsel’s request to give the instruction because appellant was not present to approve the request.
Appellant’s argument that CRIMJIG 3.17 should have been given does not really fit the circumstances present in this trial. Ordinarily, one would anticipate a request for that instruction when a defendant is present throughout trial, but chooses not to testify. In this instance, the appellant was voluntarily absent after being present in the courtroom for the beginning of jury selection. The jury may well have wondered why the appellant never returned to trial. Some statement to the jury, other than CRIMJIG 3.17, to instruct the jury not to be concerned by the appellant’s absence would have been appropriate. The trial court recognized this possibility. Outside the presence of the jury, the trial court noted that the jury should be told that it should not consider the reasons for appellant’s absence when considering its verdict. But, ultimately, the jury was told nothing regarding appellant’s absence. The omission was likely inadvertent and neither counsel brought it to the court’s attention.
But, even under an analysis of appellant’s argument, he is not entitled to a new trial. We agree that a trial court generally should not give the no-inference jury instruction unless the defendant requests it himself. State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988); see also CRIMJIG 3.17 cmt. (“This instruction should not be given without the clear consent of the defendant. If such an instruction is requested by counsel for the defendant, the court should require the defendant to state on the record the desire to have such an instruction given.”). But even though requiring the defendant to personally request the instruction is the “better practice,” Thompson does not require it. 430 N.W.2d at 153 (holding that “a trial judge ordinarily should obtain a criminal defendant’s permission before giving CRIMJIG 3.17”) (emphasis added).
A trial court is typically given broad discretion in determining jury instructions. State Farm Fire and Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990). We will not reverse a conviction for an improper instruction regarding the right not to testify unless there is prejudice. State v. Sandve, 279 Minn. 229, 234, 156 N.W.2d 230, 233-34 (1968) (applying harmless-error analysis to adverse-inference instruction); see also State v. Shoop, 441 N.W.2d 475, 480 (Minn. 1989) (applying harmless-error analysis to trial court’s erroneous refusal to instruct on accomplice testimony). A new trial is not required if the error was harmless. Shoop, 441 N.W.2d at 480-81. In performing harmless-error analysis, this court must examine the record to determine whether the evidence against the defendant was overwhelming, the strength of the defense’s evidence, what the defendant would have contributed to his defense if he had been present, and whether an appropriate cautionary instruction was given. State v. Bolte, 530 N.W.2d 191, 198-99 (Minn. 1995). An error will be considered prejudicial only if there is “a reasonable possibility” that it might have contributed to the conviction. State v. Larson, 389 N.W.2d 872, 875 (Minn. 1986) (citation omitted).
We find, however, that by voluntarily absenting himself from trial, appellant waived his right to request the no-inference jury instruction. Johnson, 483 N.W.2d at 110. In addition, even if the failure to give the instruction was error, it was harmless because the evidence against appellant was overwhelming. The testimony of Lor, Dr. Kilgore, and the police officers was more than sufficient to allow the jury to find appellant guilty of the offense charged.
 CRIMJIG 3.17 provides:
The state must convince you by evidence beyond a reasonable doubt that defendant is guilty of the crime charged. The Defendant has no obligation to prove innocence. The Defendant has the privilege not to testify. This right is guaranteed by the federal and state constitutions. You should not draw any inference from the fact that defendant has not testified in this case.