On certification to the Superior Court, Appellate Division.
(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).
The issue in this appeal is whether a defendant's constitutional right to be present at trial was violated. Defendant was tried in absentia while the court and counsel knew he was in jail in another state.
In March 2001, Daniel Luna and five others were indicted on charges related to an armed robbery of a residential home in Ridgefield, New Jersey. At a status conference on April 29, 2002, the court informed Luna that trial was scheduled to begin on July 16, 2002. The court also warned Luna that if he did not appear, trial would proceed without him. In addition, the court explained that the trial date might be rescheduled, and that Luna was to remain in contact with his attorney to stay aware of any new date.
Luna failed to appear in court on July 16, 2002. The trial did not start that day because a State witness was unavailable, and the court rescheduled the trial for August 12, 2002.
Luna did not appear on August 12, 2002 either. Jury selection proceeded without him and was completed on Tuesday, August 13, 2002. Later that day, after the jury had been sworn but before the start of testimony, the assistant prosecutor learned that Luna had been arrested in New York the previous Friday and was incarcerated on a prison barge near Riker's Island. The prosecutor reported that news in open court the next morning. Defense counsel then asked for an adjournment to arrange for Luna to be brought to court from New York. Counsel requested that the trial court conduct an inquiry and question Luna before continuing the trial.
The trial court denied the motion for an adjournment, noting Luna's failure to appear on the original trial date and his failure to contact the court or counsel about his whereabouts at any time since then. The court concluded that Luna chose not to appear and conducted the trial in absentia. After a three-day trial, the jury convicted Luna on all six counts. Luna appealed.
On appeal, Luna argued that he was denied his constitutional right to be present at trial, that certain trial testimony should have been excluded as hearsay, and that his sentence was manifestly excessive. The Appellate Division affirmed the convictions on June 9, 2006, but remanded on a sentencing issue not relevant here. The panel found it was a reasonable exercise of discretion for the trial court to rule that Luna's failure to appear constituted a voluntary waiver of his right to be present at trial. It reasoned that Luna had been notified of his obligation to appear on the original trial date and to communicate with counsel about changes to the trial schedule. The panel concluded that Luna's failure to honor both of these obligations was unrelated to his incarceration. The Supreme Court granted Luna's petition for certification.
HELD: It is not possible to infer that defendant knowingly waived his right to be present at trial because the trial court did not conduct an inquiry to determine whether defendant willingly absented himself. For that reason, defendant's convictions must be reversed.
1. The United States and New Jersey Constitutions guarantee a criminal defendant the right to be confronted with the witnesses against them. Essential to that guarantee is the right of the accused to be present in the courtroom at every stage of the trial. The right to be present at trial is not absolute. Rule 3:16(b) provides that when a defendant explicitly or implicitly waives the right to be present, a trial may be held in absentia. Under that provision, if there is no express waiver, the touchstone is whether a defendant's conduct reveals a knowing, voluntary, and unjustified absence. The Rule does not require that a defendant receive actual notice of a rescheduled trial date. Once a defendant has received actual notice of a scheduled trial date, nonappearance on the scheduled or adjourned trial date is deemed a waiver absent a showing of justification by the defendant. (pp. 6-9)
2. It is not clear from the record whether Luna had actual notice of the rescheduled trial date. Because he had actual notice of the original trial date, however, it was not improper for the trial court to start trial and begin jury selection in Luna's absence. The matter grew more complicated when the prosecutor reported that Luna was incarcerated in New York on unrelated charges. At that point, it was possible that Luna wanted to attend the trial but was unable to contact the court and counsel from jail in the few days since his arrest. Under such circumstances, the trial court lacked the factual basis to make the critical finding Rule 3:16(b) requires - that Luna's conduct evinced a knowing and voluntary absence. (pp. 9-10)
3. This Court has not addressed whether a trial in absentia may start or continue if the court and both parties know the defendant is incarcerated. Some courts impose a duty on defendants to notify the court or counsel about their incarceration; absent such notice, a voluntary waiver can be found. Other courts have adopted a per se rule that a defendant is incapable of a voluntary waiver while incarcerated and that a retrial must therefore be granted in every instance. This Court does not equate a defendant's incarceration with involuntariness. Incarceration should not foreclose the hearing judge from further inquiry on the subject. (pp. 10-13)
4. The time when the court learns of a defendant's incarceration also matters. When a trial court has actual knowledge before or during trial that a defendant is incarcerated and thus unable to appear, the court must conduct an inquiry before proceeding with trial to determine if defendant's absence is knowing and voluntary. If the fact of incarceration first comes to light after trial, a defendant must bring a post-trial motion under Rule 3:20-2 for a new trial. At such a hearing, defendants bear the burden of showing their failure to attend was due to their incarceration and that they did not have the ability or means to notify their attorney or the court. Here, in the absence of a hearing, the trial court lacked a basis to make the finding required by Rule 3:16(b). The subsequent proceedings were rendered defective, and a new trial is warranted. (pp. 13-14)
5. Because a new trial is required, the Court addresses defendant's challenge to the admissibility of certain trial testimony. First, a police officer testified that a housekeeper positively identified the defendant as one of the robbers. The State properly conceded on appeal that, unless the housekeeper appears as a witness, reference to her out-of-court identification is inadmissible hearsay. In addition, a police officer testified that he heard a radio transmission that described "a home invasion with a handgun by five Hispanic males." A witness cannot repeat specific details about a crime relayed to him by a radio transmission without running afoul of the hearsay rule. (pp. 15-17)
The judgment of the Appellate division is REVERSED, defendant's convictions are VACATED, and the matter is REMANDED for a new trial.
JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in CHIEF JUSTICE RABNER's opinion.
The opinion of the court was delivered by: Chief Justice Rabner
Argued September 10, 2007
This case involves a defendant who was tried and convicted in absentia while the court and counsel knew he was in jail in another state. Because the court did not conduct an inquiry to determine whether defendant willingly absented himself from trial, it is not possible to infer that defendant knowingly waived his right to be present. For that reason, we reverse defendant's convictions and remand for a new trial.
On March 26, 2001, a grand jury indicted defendant Daniel Luna and five others on charges related to an armed robbery of a home in Ridgefield, New Jersey. Specifically, the indictment charged first-degree armed robbery (N.J.S.A. 2C:15-1), second-degree kidnapping (N.J.S.A. 2C:13-1(b)), second-degree armed burglary (N.J.S.A. 2C:18-2), second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4(a)), third-degree possession of a handgun without a permit (N.J.S.A. 2C:39-5(b)), fourth-degree possession of hollow nose bullets (N.J.S.A. 2C:39-3(f)), and fourth-degree possession of a radio to intercept emergency communications while in the course of committing a crime (N.J.S.A. 2C:33-22).
At a status conference on April 29, 2002, the court engaged in a colloquy with Luna and specifically informed him that trial was scheduled to begin on July 16, 2002. The court warned Luna that if he did not appear, trial would proceed without him. In addition, the court explained that the trial date might be rescheduled, and ...