Michigan Court of AppealsOct 18, 1988
172 Mich. App. 476 (Mich. Ct. App. 1988)
172 Mich. App. 476432 N.W.2d 736

Docket No. 100722.

Decided October 18, 1988.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, First Assistant Prosecuting Attorney, for the people.

Marilyn Kelly Associates (by Mary J. Ironside), for defendant on appeal.

Before: DANHOF, C.J., and CYNAR and G.R. DENEWETH, JJ.

Circuit judge, sitting on the Court of Appeals by assignment.


A Washtenaw Circuit Court jury convicted defendant of being an habitual offender, second offense, MCL 769.10; MSA 28.1082. Defendant appeals as of right claiming that his constitutional and statutory rights to be present at his trial were violated. We affirm.

Defendant was not present at his habitual offender trial. A prosecution witness testified, outside of the jury's presence, that she contacted the control center at the Huron Valley Men's Facility about five minutes earlier and was told that defendant could not be brought to court because he had barricaded himself in his cell and jammed the lock. She further testified that defendant was informed of the date and time for his habitual offender trial and would not come out of his cell willingly. Defense counsel declined to cross-examine, offered no evidence regarding defendant's absence, and did not move for an adjournment. The court noted that defendant was twenty-five minutes late for his trial and that the testimony indicated that it was impossible for him to appear. The court proceeded with defendant's trial after finding that his absence was voluntary. The court instructed the jury not to consider defendant's absence for any reason.

The day before defendant's habitual offender trial, the same jury convicted him of assault of a prison employee, MCL 750.197c; MSA 28.394(3). The court took judicial notice of testimony from defendant's assault-of-a-prison-employee trial. At that trial, defendant testified that he was imprisoned at the Huron Valley Men's Facility because of his 1979 conviction for assault with intent to commit criminal sexual conduct. Documents from defendant's prison record, regarding his commitment to prison and identification, were admitted into evidence without objection. The supervisor of the records office at the Huron Valley Men's Facility testified about the documents. Defense counsel cross-examined her only about the prisons in which defendant had resided.

Defense counsel presented no evidence in defendant's habitual offender trial. He admitted defendant's two convictions.

A criminal defendant has a statutory right to be present at his trial. MCL 768.3; MSA 28.1026. An accused's right to be present at trial is also impliedly guaranteed by the federal and state constitutions and grounded in common law. People v Mallory, 421 Mich. 229, 246, n 10; 365 N.W.2d 673 (1984).

A defendant may waive his right to be present by failing to appear for trial. People v Swan, 394 Mich. 451, 452; 231 N.W.2d 651 (1975), cert den 423 U.S. 990; 96 S Ct 402; 46 L Ed 2d 308 (1975); People v Gross, 118 Mich. App. 161, 164; 324 N.W.2d 557 (1982). A valid waiver of a defendant's presence at trial consists of a specific knowledge of the constitutional right and an intentional decision to abandon the protection of the constitutional right. People v Travis, 85 Mich. App. 297, 301; 271 N.W.2d 208 (1978), lv den 405 Mich. 831 (1979). There can be no waiver if either of these elements is missing. People v Springer (On Remand), 123 Mich. App. 203, 206; 333 N.W.2d 224 (1983).

The record in this case demonstrates that defendant's absence at his habitual offender trial was voluntary. However, the record fails to disclose whether defendant knew that he had a constitutional right to be present at the trial. We cannot presume waiver from a silent record. Springer, supra, p 206; People v Ewing, 48 Mich. App. 657, 660; 211 N.W.2d 56 (1973). We conclude that defendant did not waive his right to be present at his trial.

Defendant relies on People v Medcoff, 344 Mich. 108, 117-118; 73 N.W.2d 537 (1955), for the proposition that injury should be conclusively presumed from his absence at trial. Our Supreme Court overruled Medcoff's automatic reversal rule in People v Morgan, 400 Mich. 527, 535-536; 255 N.W.2d 603 (1977), cert den sub nom Cargile v Michigan, 434 U.S. 967; 98 S Ct 511; 54 L Ed 2d 454 (1977), reh den 434 U.S. 1041; 98 S Ct 783; 54 L Ed 2d 791 (1978). The proper test for determining whether a defendant's absence from a part of a trial requires reversal of his or her conviction is whether there is any reasonable possibility of prejudice. Morgan, supra, p 536; People v Kvam, 160 Mich. App. 189, 197; 408 N.W.2d 71 (1987).

The record shows that defendant was properly convicted of being an habitual offender, second offense, because he committed two felonies. MCL 769.10; MSA 28.1082. The trial court instructed the jury not to consider defendant's absence for any reason. Defendant has failed to demonstrate any reasonable possibility of prejudice on appeal. Defendant's absence made no difference in the result reached. Therefore, we will not reverse his conviction. Morgan, supra, p 537.