On appeal from Superior Court of New Jersey, Law Division, Hudson County, 33-01-00.
Before Judges Stern, Eichen and Collester.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Pursuant to leave granted, the State appeals from an order granting defendant Tawana Givens a new trial and vacating a judgment of conviction entered against her as a result of a jury verdict. We reverse and remand.
On December 2, 1999, defendant and co-defendant Damian Miller were indicted for the crimes of second degree robbery, contrary to N.J.S.A. 2C:15-1, and terroristic threats, contrary to N.J.S.A. 2C:12-3a. Defendant was released on bail on her own recognizance in the amount of $5,000. Subsequently, a trial date was set for January 8, 2001, and it is agreed that defendant had actual notice of the trial date.
When defendant did not appear on January 8, 2001, the trial judge forfeited the recognizance and issued a bench warrant for her arrest. The matter was carried day-to-day to give defendant's attorney the opportunity to locate her and have her appear before the court. Two days later the court resolved to go forward with the trial as to the co-defendant and against the defendant in absentia. In addition to objection by defense counsel, the assistant prosecutor objected because "with an empty seat for Ms. Givens and Mr. Miller seated over there, Mr. Miller [would] look less guilty and Ms. Givens ... more guilty." The trial judge overruled the objections, and the trial proceeded to jury verdict. On January 12, 2001, defendant was convicted of both counts of the indictment. Her sentence date was held in abeyance pending her apprehension on a fugitive warrant.
Some time later defendant's attorney received information from an attorney with the New York Legal Aid Society that defendant was in custody in a federal detention facility in Brooklyn in lieu of bail set by the United States District Court for the Eastern District of New York. She had been incarcerated since December 13, 2000, when she was arrested by United States Customs officers at John F. Kennedy Airport after arrival from Jamaica, West Indies, on charges of importing 452 grams of cocaine into the United States in violation of 21 U.S.C. §§ 952(a)(1), 960(a)(1) and 960(b)(3). On February 6, 2001, she entered a plea of guilty and, at the time briefs were filed on this appeal, was awaiting sentence with a federal guideline imprisonment range of twenty-four to twenty-six months.
On October 18, 2001, defendant's attorney in this case filed a motion to vacate her conviction and for a new trial on grounds that defendant's absence from her trial was not voluntary under R. 3:16(b). The attorney supplied his certification detailing the defendant's arrest and continued incarceration in New York. No certification was supplied by defendant, and she was not present to give any testimony on the return date of the motion because she was not transported from the New York federal detention facility. *fn1 Following argument the motion judge granted a new trial, giving the following reasons: [t]his is one of the most important and significant rights that a defendant has, that is to participate in a criminal trial, to confront witnesses, to cross-examine witnesses and to present a defense. And I see no reason why the State would be prejudiced in any way in setting - setting aside this verdict based upon my finding that- that she did not in fact voluntarily absent herself from this jurisdiction and that to a certain extent her failure to appear was as a result of her incarceration by other authorities of whom she had no control.
And so for these reasons, I do believe that she is entitled to her trial, her day in court, and I'm going to set aside the verdict and order a new trial for this defendant.
On appeal the State sets forth the following argument:
SINCE DEFENDANT HAS BEEN GIVEN ACTUAL NOTICE OF HER TRIAL DATE, WAS LATER RE-ARRESTED AND IN FEDERAL CUSTODY AT THE TIME OF HER TRIAL AND DID NOT MAKE THE COURT AWARE OF HER WHEREABOUTS, SHE IS DEEMED TO HAVE WAIVED HER PRESENCE AT TRIAL AND WAS PROPERLY TRIED IN ABSENTIA.
A defendant's right to be present at trial is a matter of constitutional dimension under the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution which guarantees the right to confront witnesses. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353, 356 reh'g denied, 398 U.S. 915, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970); State v. Whaley, 168 N.J. 94, 99 (2001); State v. Hudson, 119 N.J. 165, 172-73 (1990). It also impacts on the due process protection of the Fourteenth Amendment to the degree that a fair and just hearing may be thwarted. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987); United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486, 490 (1985).
However, the right is not absolute. See, e.g., Diaz v. United States, 223 U.S. 442, 454, 32 S.Ct. 250, 253 56 L.Ed. 500, 505 (1912); Whaley, supra, 168 N.J. at 100. A defendant may not "take advantage of his own wrong" and turn the proceedings into a "solemn farce" by absenting himself from his own trial and thereby frustrate the ...