Archie Barfield v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judge Fitzpatrick and
Senior Judge Duff
Argued at Alexandria, Virginia
ARCHIE BARFIELD
v. 	Record No. 	2351-93-4 	OPINION BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA 	JUNE 6, 1995
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge
Glenwood P. Roane (Thorsey & Roane, P.C., on
briefs), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Archie Barfield appeals his bench trial convictions of rape
and forcible sodomy. 	He argues that the trial judge erred by
proceeding in his absence when, after the court had recessed at
the end of the first day of trial, he failed to appear for the
second and concluding day of trial. 	Because we find Barfield's
absence from the second day of trial to be a knowing and
voluntary waiver of his right to be present as guaranteed by the
Sixth Amendment and Code § 19.2-259, we hold the trial court did
not err in proceeding in his absence; accordingly, we affirm.
At the conclusion of the first day of trial on June 16,
1993, both the Commonwealth and Barfield had rested and, with the
exception of one evidentiary matter and reconsideration of a
motion made the previous day regarding a prior indictment, the
court was ready to proceed with closing arguments. 	The trial

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judge instructed the Commonwealth and Barfield about the next
day's proceedings and stated that the case would be in recess
until the following morning at 10:00 a.m.
The following day, Barfield did not return to court.
Barfield's counsel stated that he had instructed Barfield, who
was free on bond, to be in court by 9:30 a.m., but that he had no
explanation for Barfield's failure to appear.
The court waited two hours for Barfield to appear. 	During
this time, both the Commonwealth and Barfield's counsel attempted
to locate Barfield. 	The Commonwealth indicated that it had sent
a patrol car to Barfield's house to locate him and that it had
received no reports of traffic accidents to explain his absence.
Barfield's counsel stated that attempts to locate or reach him
by his beeper or at his girlfriend's house had failed.
The court found that Barfield had "voluntarily absented
himself from the trial" and determined to conclude the trial
without him. 	After hearing closing arguments, the court found
Barfield guilty on both charges and issued a capias for his
arrest. 	While Barfield later voluntarily returned to the
jurisdiction, he concedes that he also voluntarily left the
jurisdiction. 	Upon his return, Barfield was sentenced in
accordance with his convictions.
This is a case of first impression in Virginia because it
deals not with a defendant who fails to appear after his
arraignment at his trial's commencement, but with a defendant who
flees after his trial is underway. 	Consistent with the

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principles of Diaz v. United States, 223 U.S. 442 (1912), and its
progeny, we hold that Barfield's midtrial flight constituted a
knowing and voluntary waiver of his right to be present at his
trial.
"A defendant's right to be present at trial arises from two
sources, the sixth amendment and Code § 19.2-259." 	Head v.
Commonwealth, 3 Va. App. 163, 168, 348 S.E.2d 423, 427 (1986).
In Head, we noted that while there is a presumption against
waiver of a defendant's right to be present at trial, "[a]
defendant's voluntary absence from trial may be properly
construed under the sixth amendment as a waiver of his right of
confrontation." 	Id. (citing Taylor v. United States, 414 U.S. 17
(1973)).
In Crosby v. United States, 506 U.S. ___, 113 S. Ct. 748
(1993), the Supreme Court of the United States recognized the
distinction between pretrial and midtrial flight of a criminal
defendant and its impact on the state's interest in proceeding
with the prosecution of a defendant in his absence. 	The Court
noted that Diaz, cited by the Advisory Committee that drafted
Rule 43 of the Federal Rules of Criminal Procedure, "treats
midtrial flight as a knowing and voluntary waiver of the right to
be present."1 Crosby, 506 U.S. at ___, 113 S. Ct. at 752
1
Rule 43 provides in relevant part:
(a) Presence Required. 	The defendant shall be present at
the arraignment, at the time of the plea, at every stage of the
trial including the impaneling of the jury and the return of the
verdict, and at the imposition of sentence, except as otherwise
provided by this rule.
(b) Continued Presence not Required. 	The further

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(emphasis added). 	While expressing no opinion as to whether the
right could be waived in other circumstances, the Court held that
a "defendant's initial presence serves to assure that any waiver
is indeed knowing." 	Id. at ___, 113 S. Ct. at 752.
Moreover, a rule that allows an ongoing trial to
continue when a defendant disappears deprives the
defendant of the option of gambling on an acquittal
knowing that he can terminate the trial if it seems
that the verdict will go against him -- an option that
might otherwise appear preferable to the costly,
perhaps unnecessary, path of becoming a fugitive from
the outset.
Id. at ___, 113 S. Ct. at 753.
In Taylor, a case similar to Barfield's case, the Court held
that a defendant who failed to appear after the first day of his
trial "had no right to interrupt the trial by his voluntary
absence . . . by urging only that he should have been warned that
no such right existed and that the trial would proceed in his
absence." 	414 U.S. at 20. 	Consistent with Diaz, the Court
concluded that the defendant's right to be present was waived by
his voluntary absence:
It is wholly incredible to suggest that
petitioner, who was at liberty on bail, had attended
the opening session of his trial, and had a duty to be
present at the trial, . . . entertained any doubts
about his right to be present at every stage of his
trial. It seems equally incredible to us . . . 	"that a
defendant who flees from a courtroom in the midst of a
trial . . . would not know that as a consequence the
trial could continue in his absence." . . . "[T]here
progress of the trial to and including the return of the verdict
shall not be prevented and the defendant shall be considered to
have waived the right to be present whenever a defendant,
initially present,
(1) is voluntarily absent after the trial has
commenced.

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can be no doubt whatever that the government
prerogative to proceed with a trial may not be defeated
by conduct of the accused that prevents the trial from
going forward." 	Illinois v. Allen, 397 U.S. 337, 349,
90 S.Ct. 1057, 1063, 25 L. Ed.2d 353 (1970).
Id.
This Court has held that a defendant should not be allowed
to profit from wrongful delays, noting that a "fair, efficient
system of justice requires the orderly conduct of cases free from
spectacle and disruption." 	Martin v. Commonwealth, 11 Va. App.
397, 405, 399 S.E.2d 623, 627 (1990); also see Quintana v.
Commonwealth, 224 Va. 127, 295 S.E.2d 643 (1982), cert. denied,
460 U.S. 1029 (1983).
It is essential to the proper administration of
criminal justice that dignity, order, and decorum be
the hallmarks of all court proceedings in our country.
The flagrant disregard in the courtroom of elementary
standards of proper conduct should not and cannot be
tolerated.
Martin, 11 Va. App. at 405, 399 S.E.2d at 627 (citing Illinois v.
Allen, 397 U.S. 337, 343 (1970)). 	Although Martin and Quintana
dealt with a defendant's possible forfeiture of his right to be
present at trial due to his disruptive courtroom behavior, the
impact on the fair and efficient administration of justice is the
same when a defendant absconds after the trial has commenced.
Based on this same rationale, the Supreme Court in Diaz
stated that it would be inconsonant "with the dictates of common
sense that an accused person, being at large upon bail, should be
at liberty, whenever he pleased, to withdraw himself from the
court . . . and break up a trial already commenced." 	223 U.S. at

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457. The question is one of broad public policy,
whether an accused person, placed upon trial for a
crime, and protected by all the safeguards with which
the humanity of our present criminal law sedulously
surrounds him, can with impunity defy the processes of
that law, paralyze the proceedings of courts and
juries, and turn them into a solemn farce, and
ultimately compel society, for its own safety, to
restrict the operation of the principle of personal
liberty. 	Neither in criminal cases nor in civil cases
will the law allow a person to take advantage of his
own wrong. 	And yet this would be precisely what it
would do if it permitted . . . an absconding from the
jurisdiction while at large on bail, during the
pendency of a trial before a jury, to operate as a
shield.
Id. at 448.
In this case, Barfield was present for every stage of the
proceedings until June 17, 1993, the second day of trial. 	All
that remained to be completed on June 17, 1993, was the defense
counsel's stipulation to the accuracy of a transcript of a taped
interview of Barfield and closing arguments. 	Barfield had been
released on bond during the pendency of the trial and had
executed release and recognizance documentation advising him that
he could be tried in his absence if he failed to appear.
Moreover, while Barfield was present on June 16, 1993, the court
made it clear that the trial was in recess only until 10:00 a.m.
on June 17, 1993, and Barfield was instructed by his attorney to
be present for the second day. 	Therefore, we hold that under
these circumstances, Barfield's midtrial flight was a knowing and
voluntary waiver of the right to be present.
However, Barfield contends that in addition to a finding

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that a defendant has voluntarily and knowingly waived his right
to be present, a trial court must also find that a continuance
would prejudice the Commonwealth's case in order to proceed in a
defendant's absence after a trial has begun. 	While in Head, we
held that prejudice to the Commonwealth's case due to a
continuance must be shown in order for the court to proceed in
the defendant's absence, our holding addressed only those cases
where the trial had not yet commenced. 	When the defendant
absconds after the trial has begun, the prejudice to the
Commonwealth is clear and substantial. 	Both jurors and witnesses
will have their lives further disrupted by having to be on call
until the capture or return of the defendant. 	Witnesses's
memories will fade. 	Prosecutors, defense counsel and judges, who
need to work on other cases, will later have to interrupt their
present case load to familiarize themselves with the defendant's
case which was put on hold. 	The general disruption to the proper
administration of the criminal justice system is such that the
Commonwealth should not have to prove any special prejudice when
the defendant absconds after the trial has commenced.
We hold that when the trial court determines that a
defendant has voluntarily and knowingly absconded from the
jurisdiction after his trial has commenced, public policy
dictates that a trial court, exercising its sound discretion, may
proceed with the trial in the defendant's absence. 	Our holding
is consistent with the holding in Diaz, which has been repeatedly
followed by the Supreme Court of the United States in subsequent

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cases, most notably Taylor, which this Court and the Supreme
Court of Virginia have cited with approval. 	See Head, 3 Va. App.
at 168, 348 S.E.2d at 427 (1986); Bilokur v. Commonwealth, 221
Va. 467, 472, 270 S.E.2d 747, 751 (1980).
In this case, Barfield concedes that he voluntarily left the
jurisdiction after the trial began. 	The trial court made
extensive inquiries to determine whether Barfield had voluntarily
absented himself from the trial. 	The trial court noted that it
had other cases on the docket for June 17, 1993, and it waited
nearly two hours for Barfield to appear. 	The court also
recognized that the proceedings had already been continued one
day to allow Barfield's counsel to review Barfield's taped
interview and the transcript thereof to determine the accuracy of
one of the Commonwealth's exhibits. 	Under these circumstances,
the trial judge did not abuse his discretion in proceeding to the
conclusion of the case in Barfield's absence.
Affirmed.