On certification to the Superior Court, Appellate Division, whose opinion is reported at 297 N.J. Super. 524 (1997).
Chief Justice Poritz and Justices Handler, Pollock, O'hern, Garibaldi, Stein and Coleman join in this opinion.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
State v. Shawn Bernard Mahone (A-57-97)
(NOTE: The Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge Stern's written opinion below.)
Argued November 18, 1997 -- Decided December 3, 1997
The issue in this case is whether defendant waived his right to be present at trial.
The Appellate Division opinion recites the relevant history. Defendant was in court on March 13, 1995 and notified that his trial would be June 12, 1995. Defense counsel certified that during the week prior to June 5, 1995, the trial Judge rescheduled defendant's trial from June 12 to June 5. Defense counsel, thinking that defendant was still incarcerated at the Union County jail, attempted to visit him on Friday, June 2. He learned that defendant was not there. Counsel informed the trial Judge and asked his secretary to find out if defendant was incarcerated and, if not, to contact him by telephone and inform him of the new date. The secretary certified that she learned defendant was not incarcerated. She was given two phone numbers by the Public Defender's Office to try to reach him. A male answered the phone at one number and identified himself as defendant. The secretary identified herself and advised defendant to appear in court ready for trial on Monday, June 5, and not June 12.
Defendant did not appear on June 5. The trial court gave defendant's counsel an opportunity to locate him. Counsel spoke to defendant's mother, who told him defendant no longer lived there and was someplace in Newark. The trial court, finding that defendant had received actual notice of the accelerated trial date from his attorney's office, ruled that defendant had waived his right to be present and determined to try defendant in absentia. Defendant was convicted of burglary and attempted theft, and sentenced to two consecutive five-year terms.
On appeal, the Appellate Division ruled that the trial court erred in trying defendant in absentia. It cited to R. 3:16(b), which states that a defendant can be found to have waived his right to be present at trial if he fails to appear after receiving "actual notice in court" of the date. The Appellate Division noted that defendant received notice of the accelerated trial date, June 5, from his attorney's secretary, not while in court. The only date for which defendant received notice while in court was the June 12 date. The Appellate Division further pointed out that defendant was not advised by the court of the possibility of the trial date being accelerated. The Appellate Division held that, absent such notice in court, defendant's failure to appear for the accelerated date does not constitute a knowing and voluntary waiver of his right to appear at trial.
The Appellate Division distinguished other cases finding a waiver for non-appearance. It noted that the defendants in those cases had failed to appear on the original trial date or on a subsequent date fixed at that time.
The Appellate Division remanded the matter to the Law Division for a new trial.
The Supreme Court granted the State's petition for certification.
HELD : A defendant cannot be tried in absentia after failing to respond to a call from his attorney to appear for trial on a date earlier than the trial date for which the defendant received notice while in court unless defendant had also been advised by the ...