Opinion
23A-CR-2665
08-06-2024
Martez Jolly, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Christopher Taylor-Price Talisha R. Griffin Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Courtney L. Staton Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Cynthia L. Oetjen, Judge The Honorable Anne M. Flannelly, Magistrate Trial Court Cause No. 49D30-2106-F5-20009
ATTORNEYS FOR APPELLANT
Christopher Taylor-Price
Talisha R. Griffin
Marion County Public Defender Agency
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Courtney L. Staton
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Foley, Judge.
[¶1] Martez Jolly ("Jolly") did not personally appear for his jury trial which led to him being tried in absentia over his counsel's objection. A jury found him guilty of Level 5 felony criminal recklessness, Class A misdemeanor carrying a handgun without a license, and Level 6 felony pointing a firearm at another.The trial court entered judgment of conviction for criminal recklessness and carrying a handgun without a license but vacated the pointing a firearm conviction due to double jeopardy concerns. The trial court imposed concurrent sentences for an aggregate sentence of six years executed in the Indiana Department of Correction ("DOC"). Jolly appeals and raises the following restated issue for our review: whether the trial court erred when it found that he voluntarily waived his right to be present at trial. We affirm.
I.C. § 35-47-2-1.
I.C. § 35-47-4-3(b).
Facts and Procedural History
[¶2] On June 24, 2021, Kerianne Jackson ("Jackson") was traveling east on I-70 in the middle lane when she was cut off by another vehicle. To avoid a collision, Jackson swerved into the left lane. However, Jackson did not see that a vehicle-being driven by Jolly-was already in the left lane before she swerved thereby cutting off that vehicle. To avoid colliding with Jackson's vehicle, Jolly swerved into the left shoulder. Jolly then sped up, cut in front of Jackson, and abruptly slammed on his brakes, causing Jackson to also slam on her brakes to avoid a collision with Jolly's vehicle. Jolly then moved into the middle lane, and once his vehicle was next to Jackson's vehicle, he made hand gestures at her and rolled down his window. Jackson began rolling down her window so she could apologize for cutting him off when she suddenly heard "a loud pop." Tr. Vol. 2 p. 194. Jackson then saw that Jolly was pointing a gun at her. Jolly lowered the hand with the gun and sped off.
[¶3] The State charged Jolly with: Count I, criminal recklessness as a Level 5 felony; and Count II, carrying a handgun without a license as a Class A misdemeanor. On June 30, 2021, an initial hearing was held, and Jolly informed the trial court that he lived in Kansas City, Missouri. Subsequently, Jolly posted bond. On October 30, 2022, the State moved to add Count III, pointing a firearm as a Level 6 felony. On May 11, 2023, a final pre-trial conference was held, and Jolly appeared in person. During that hearing, Jolly's jury trial date was set to May 17, 2023, and the trial court requested that "everyone [be in the courtroom] by 8:30 a.m." Id. at 37. The trial court specifically asked Jolly if he understood the trial court's request, and Jolly responded in the affirmative.
[¶4] On May 17, 2023, Jolly failed to appear for his jury trial. When the trial court asked Jolly's attorney regarding Jolly's whereabouts, the attorney responded that he "spoke with . . . Jolly last night [at] about 8:30 p.m." and that Jolly informed him that "he [was] still trying to get the financial resources to be here." Id. at 60. Jolly's attorney further informed the court that both Jolly and his wife "lost their jobs . . . when they attended the final pre[-]trial conference [and that he did not] believe that . . . Jolly waived his right to a jury trial." Id. According to Jolly's attorney, Jolly did not attend the jury trial "because he didn't have the financial means to be here." Id. When the trial court asked Jolly's attorney if he attempted to reach Jolly the morning of the jury trial, Jolly's attorney responded that he "tried to call him at 6:30 [a.m.]" and several other times to no avail. Id. at 61. When asked if Jolly responded to him in any way, Jolly's attorney stated that he had not and revealed that Jolly does not have a working number, but instead "has to be connected to the internet to use his phone[.]" Id.
[¶5] The State asked the trial court to proceed with the jury trial in absentia because Jolly was advised of his jury trial at the pre-trial conference and the State brought an out-of-state witness to testify. Jolly's attorney objected to moving forward in absentia claiming Jolly "just can't afford to be here" and was not willfully absent for his jury trial. Id. Jolly's attorney further stated that "knowledge of the trial is not the only factor that the Court should consider. It's willfulness, [is] he willfully - - not here[,]" and Jolly's attorney claimed that Jolly was not willfully absent for his trial. Id. at 62. The trial court asked Jolly's attorney if he knew-from speaking with Jolly at 8:30 p.m. the night before the trial-whether Jolly was not going to come to the trial to which the attorney responded, "I didn't know if he was going to be here. He told me he was still trying to get the resources to, to get here. He didn't say that he wasn't going to be here." Id. at 64.
[¶6] The trial court proceeded with the jury trial in absentia, reasoning that Jolly was present at the pre-trial conference and aware of both the jury trial date and his obligation to be present. The trial court stated that Jolly "simply . . . failed to appear . . . [and] keep contact" since he did not communicate with his attorney regarding his absence or reason for running late. Id. at 63. The trial court reiterated that it "determined that [Jolly] is voluntarily absent today [and that] [h]e was ordered to appear." Id. at 88. The trial court then issued a no bond warrant for Jolly's arrest for his failure to appear. After presentation of evidence, the jury found Jolly guilty as charged. The trial court entered judgments of conviction for criminal recklessness and carrying a handgun without a license but vacated the pointing a firearm conviction due to double jeopardy concerns. The trial court issued an additional warrant for Jolly's arrest, and Jolly was subsequently arrested on that outstanding warrant. A sentencing hearing was held, at which Jolly appeared but did not explain his absence from his jury trial. The trial court imposed an aggregate sentence of six years executed in the DOC. Jolly now appeals.
Discussion and Decision
[¶7] Jolly claims that the trial court erred by holding a trial in absentia. Jolly specifically asserts that his knowledge of the trial date "does not prove voluntariness of [his] absence." Appellant's Br. p. 11. Jolly further argues that "[b]eing poor and unable to afford gas due to a recent loss of employment and living multiple states away fails to constitute a voluntary waiver of the right to be present at trial." Id. at 18. According to Jolly, his convictions must be reversed because the trial court failed to provide him "with the presumption against waiver of his constitutional right to be present at trial, failed to consider his unrebutted explanation for his absence, and failed to hold the State to its burden to show any waiver was voluntary." Id. at 20.
[¶8] Both the United States Constitution and the Indiana Constitution "afford defendants in a criminal proceeding the right to be present at all stages of their trial." Jackson v. State, 868 N.E.2d 494, 498 (Ind. 2007) (citing U.S. Const. amend. VI and Ind. Const. art. 1, § 13). "However, a defendant may be tried in absentia if the trial court determines that the defendant knowingly and voluntarily waived that right." Id. "The best evidence that a defendant knowingly and voluntarily waived [the] right to be present at trial is the 'defendant's presence in court on the day the matter is set for trial.'" Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind. 1997) (quoting Fennell v. State, 492 N.E.2d 297, 299 (Ind. 1986)), modified on other grounds on reh'g. Thus, if "a defendant fails to appear for trial and fails to notify the trial court or provide it with an explanation," the court "may conclude [that] the defendant's absence is knowing and voluntary and proceed with trial" so long as "there is evidence that the defendant knew of his scheduled trial date." Jackson, 868 N.E.2d at 498 (quoting Freeman v. State, 541 N.E.2d 533, 535 (Ind. 1989)). Put differently, "[t]he continued absence of a defendant who knows of his obligation to be in court, when coupled with a failure to notify the court and provide it with an explanation, constitutes a knowing and voluntary waiver." Martin v. State, 457 N.E.2d 1085, 1086 (Ind. 1984). Still, "a defendant who has been tried in absentia 'must be afforded an opportunity to explain [the] absence and thereby rebut the initial presumption of waiver.'" Brown v. State, 839 N.E.2d 225, 227 (Ind.Ct.App. 2005) (emphasis removed) (quoting Ellis v. State, 525 N.E.2d 610, 612 (Ind.Ct.App. 1987)), trans. denied. "As a reviewing court, we consider the entire record to determine whether the defendant [effectively] waived [the] right to be present at trial." Id. (quoting Soliz v. State, 832 N.E.2d 1022, 1029 (Ind.Ct.App. 2005), trans. denied). What matters for the purpose of determining the voluntariness of a defendant's waiver is whether "problems or emergency situations" arise that, "despite good faith efforts, prevent a defendant's timely arrival." Brown, 839 N.E.2d at 231 (internal quotation marks omitted).
[¶9] Jolly relies on Fennell, 492 N.E.2d 297, and Phillips v. State, 543 N.E.2d 646 (Ind.Ct.App. 1989), to support his contention that his knowledge of the trial date was "insufficient to prove the intentional element of waiver" without any evidence of his intent to avoid trial. Appellant's Br. p. 11. In Fennell, there was no direct evidence demonstrating that the defendant knew the actual date of his trial, however, there were "many pieces of circumstantial evidence suggest[ing] that he did." Fennell, 492 N.E.2d at 299. That is, (1) the State represented that it made extensive efforts to locate the defendant to no avail; (2) a police officer testified that he went to the defendant's apartment on the morning of the trial, but did not find the defendant there; (3) the defendant's landlord testified that the defendant sold his furniture and moved out the week before the trial; and (4) the defendant's coworker testified that the defendant told the coworker that he had to appear in court for his criminal case. Based on this evidence, the trial court determined that the defendant's absence was knowing and voluntary and proceeded to try him in absentia. The Indiana Supreme Court affirmed the trial court's decision to proceed to trial, reasoning that there was substantial evidence of the defendant's purposeful absence even though there was no direct evidence that the defendant knew the actual date of the trial. However, the Court went on to state, that without the evidence of his intent to avoid the proceedings, the representations from the State about trying to locate the defendant and the trial court's "own meager record would have been an inadequate basis upon which to conclude that [the defendant's] absence was knowing and voluntary." Id. at 300. Our Supreme Court specifically proclaimed that "it is not necessary to prove that a defendant knew the exact date of his trial if there is evidence to show that he departed the jurisdiction for the purpose of avoiding it." Id.
[¶10] In Phillips, the record did not reflect what transpired prior to trial with absolute clarity. That is, although a record entry indicated that the trial court reset the pretrial conference and the trial dates, the entry did not show that a copy reflecting the new dates was sent to the defendant. The pre-trial conference was held in the defendant's absence, and court personnel mailed a copy of the pretrial order, with the trial date, to the defendant. On the day of the trial, the trial court noted the defendant's absence and held the trial in absentia. The defendant was found guilty as charged. Subsequently, the defendant filed a motion to set aside judgment with an accompanying affidavit reflecting that the defendant had no notice of when the pre-trial conference and the trial were taking place. On appeal, the defendant maintained that "he had not waived his right to be present at trial where there was a substantial question whether he received notice of the scheduled trial date." Phillips, 543 N.E.2d at 647. We reversed, reasoning that "the State presented no evidence of purposeful absence, and [that] there was no evidence presented from which we can infer that [the defendant] was absent because he was avoiding trial." Id. at 649. We found the evidence in the case "meager on the question of [the defendant's] knowledge of the trial date, and completely lacking on his intent to avoid trial." Id. We reiterated that, in Fennell, our Supreme Court "held that without the evidence on the accused's intent to avoid trial, the circumstantial evidence that the defendant knew of his trial date would have been an inadequate basis upon which to conclude [the defendant's] absence was knowing and voluntary." Id.
[¶11] Here, we conclude that there were adequate grounds to conclude that Jolly's absence was knowing and voluntary. Jolly appeared in person at the final pretrial conference when the trial court set the date for the jury trial. The trial court took it a step further by asking Jolly if he understood that he was to be in the courtroom on that date at 8:30 a.m., to which Jolly responded, "Yes." Tr. Vol. 2 p. 37. Unlike the records in both Fennell and Phillips, which were meager on the question of the defendants' knowledge of the trial dates, there is no question here that Jolly knew the date the trial was taking place and was aware of his obligation to be present for the trial. See Lampkins, 682 N.E.2d at 1273 (noting that the best evidence of a knowing and voluntary waiver is the presence of the defendant in court when the trial court scheduled the date of the hearing or trial).
[¶12] We next consider Jolly's claim that "being poor, living multiple states away, and [being] unable to afford gas" demonstrates that he did not voluntarily waive his right to attend the jury trial. Appellant's Br. p. 15; Appellant's Reply Br. pp. 12-13. Jolly specifically argues that the trial court "failed to consider his unrebutted explanation for his absence." Appellant's Br. p. 20; Appellant's Reply Br. pp. 13-14. However, at the time that Jolly failed to appear for his jury trial, there was no explanation for Jolly's absence. The record reveals that Jolly never informed his attorney that he was not going to attend the trial when they spoke the night before the trial. Instead, Jolly only informed his attorney that he was still trying to get the resources to attend the trial. The morning of the trial, Jolly's attorney was unable to get a hold of Jolly despite calling Jolly several times. Jolly also never made an attempt to contact his attorney nor the trial court to explain his absence. Most notable is that Jolly did not advance an explanation for his absence, despite having the opportunity to do so when he personally attended his sentencing hearing. Applying our case law, we conclude that Jolly's absence from his trial, coupled with his failure to notify the court or ever provide it with an explanation, constitutes a knowing and voluntary waiver of the right to attend his trial. See Carter v. State, 501 N.E.2d 439, 440-41 (Ind. 1986) (concluding that defendant knowingly and voluntarily waived his right to be present at trial based on his failure "to notify the trial court nor provide it with an explanation of his absence"). Therefore, Jolly has failed to rebut the initial presumption of waiver. See Lusinger v. State, 153 N.E.3d 1162, 1167 (Ind.Ct.App. 2020) (affirming a trial court's decision to hold a defendant's trial in absentia when the defendant neither made an attempt to contact the court nor his attorney to explain his absence on the day of his trial, but advanced multiple reasons behind his absence before the start of his sentencing hearing).
[¶13] Based on the foregoing, the record supported the trial court's decision to conduct the jury trial in absentia because Jolly knowingly and voluntarily waived his right to be present at his trial when he failed to appear.
[¶14] Affirmed.
Riley, J., and Brown, J., concur.