222.1Defendant's Rights in the Courtroom
- Defendant has a right to be present at trial, but this is a personal right which may be expressly waived.
- Waiver may also be implied when the defendant is voluntarily absent after trial has begun, or so disruptive that he or she must be removed from the courtroom.
Defendant’s Right to Be Present at Trial
Subject to waiver or removal (discussed below), the defendant has a broadly recognized right to be present at all stages of his or her trial. This right is generally derived from both the Confrontation Clause of the 6th Amendment to the U.S. Constitution (which applies to all “critical” stages of trial) and the somewhat broader counterpart found in the North Carolina Constitution (Art. 1, § 23) and statutes. See Illinois v. Allen, 397 U.S. 337 (1990); State v. Badgett, 361 N.C. 234 (2007); State v. Buchanan, 330 N.C. 202 (1991). A juvenile’s right to be present at delinquency hearings is comparable to the rights afforded adult defendants. See In re Lineberry, 154 N.C. App. 246 (2002).
Stages of the Trial
In addition to the trial itself (i.e., examination of witnesses and presentation of evidence), the defendant’s right to be present also applies at the following stages:
- Jury selection - see Diaz v. U.S., 223 U.S. 442 (1912).
- Jury view of a scene - see State v. Harris, 333 N.C. 543 (1993).
- Conferences in chambers - see State v. Buchanan, 330 N.C. 202 (1991); but exclusion of the defendant is harmless error if nothing was said or done in the conference which affects the defendant or the charges against him in any material respect, see State v. Brogden, 329 N.C. 534 (1991); State v. Boyd, 343 N.C. 699 (1996).
Note: By contrast, bench conferences about a point of law or a procedural/administrative issue held without the defendant are generally not a violation of the right to be present, as long as the subject of the conference doesn’t involve communication with the jury or testimony from a witness, or otherwise substantially implicate defendant’s confrontation rights or opportunity to assist in his own defense. See State v. Robinson, 330 N.C. 1 (1991); State v. Buchanan, 330 N.C. 202 (1991).
- Voir dire of witnesses - see State v. Braswell, 312 N.C. 553 (1985).
- Charge conference - see State v. Brogden, 329 N.C. 534 (1991).
- Opening statement and closing argument - see Snyder v. Massachusetts, 291 U.S. 97 (1934); see generally State v. Buchanan, 330 N.C. 202 (1991) (“defendant's actual presence is required throughout his trial, not just at particularly important junctures”).
- Jury communications (instructions, admonishments, etc.) - see State v. Payne, 320 N.C. 138 (1987); State v. Buckom, 100 N.C. App. 179 (1990).
Note: Routine communications from the bailiff or clerk, such as releasing jurors for a lunch break or giving logistical information about parking, are not a violation of the defendant’s right to be present. See State v. Golphin, 352 N.C. 364 (2000); State v. Bacon, 337 N.C. 66 (1994); State v. May, 334 N.C. 609 (1993); State v. Coleman, 161 N.C. App. 224 (2003). But more substantive communications, such as admonishing the jurors to “follow the judge’s instructions,” may run the risk of being a violation. See State v. Gay, 334 N.C. 467 (1993).
- Verdict - see State v. Webster, 111 N.C. App. 72 (1993); State v. Harris, 27 N.C. App. 15 (1975).
- Sentencing (when imposed, or whenever evidence for purpose of determining amount of sentence is offered) – see State v. Davis, 186 N.C. App. 242 (2007); State v. Crumbley, 135 N.C. App. 59 (1999).
Finally, courts have held the defendant does not have a constitutional right to be present at post-conviction proceedings such as a motion for a new trial or on appeal. See State v. Dry, 152 N.C. 813 (1910). However, the defendant does have a statutory right to be present at any evidentiary hearing held on a motion for appropriate relief. See G.S. 15A-1420(c).
Under limited circumstances, such as with a child victim, the state may be allowed to present the witness’s testimony remotely through a closed-circuit television or similar means without violating the defendant’s right to be present and confront witnesses. For more information, see Section E., “Remote Testimony,” in the related entry on Examining Witnesses – Competency and Qualifications.
Generally, a defendant’s right to be present at all stages of the trial does not apply to non-evidentiary proceedings conducted before the trial commences (e.g., routine “housekeeping” and scheduling matters, administrative issues, and motions not involving testimony), and therefore it is not error for the court and attorneys to address such matters in the defendant’s absence. See, e.g., State v. Golphin, 352 N.C. 364 (2000) (meeting between prosecutors, defense attorneys and judge to discuss venue change); State v. Buckner, 342 N.C. 198 (1995) (pre-trial conference on housekeeping and procedural matters); State v. Davis, 290 N.C. 511 (1976) (hearing on pretrial discovery motion); State v. Richards, 21 N.C. App 686 (1974) (various motions including consolidation of cases, sequestration of witnesses, and change of venue).
On the other hand, if the pre-trial proceeding includes the presentation of evidence (e.g., a hearing with testimony on a motion to suppress, or voir dire of a witness) or if it is otherwise such that defendant’s presence would have a “reasonably substantial relation to his opportunity to defend,” then the defendant has a right to be present at the hearing. See State v. Buchanan, 330 N.C. 202 (1991) (finding no error in this case, but noting that rule applies when “the conference at issue involves either the receipt of evidence without an opportunity for cross-examination or the usefulness of defendant's presence in assuring fairness in the proceeding”); see also State v. Braswell, 312 N.C. 553 (1985) (error where court conducted voir dire hearing in defendant’s absence, but error was not prejudicial); State v. Seaberry, 97 N.C. App. 203 (1990) (defendant’s right to be present “is not restricted to situations where defendant is actually confronting witnesses or evidence against him, but encompasses all trial-related proceedings at which defendant's presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge”).
Waiver of Right to Be Present
The defendant’s right to be present for trial can be waived, and the defendant may also be removed for causing disruptions to the orderly administration of the court’s business. The right to be present is a personal right which can be waived by the defendant in all cases except capital murder. See State v. Braswell, 312 N.C. 553 (1985). If the defendant waives the right to be present, the trial may be held in absentia, without the defendant being there. As noted, the one exception to this rule is in capital murder cases: if the defendant is absent after a capital murder case has begun, the only options are (i) mistrial; (ii) continuance until the defendant is located; or (iii) the prosecutor may declare the case non-capital and proceed. See State v. Mulwee, 27 N.C. App. 366 (1975). A defendant’s waiver can be either express or implied.
An express waiver pursuant to G.S. 15A-1011(d) is a written acknowledgement from the defendant stating that he or she waives the right to appear; waives the right to testify and face his or her accusers; agrees to be bound the adjudication and entry of judgment; and provides (in writing) the circumstances which justify allowing the request (e.g., hardship due to illness). The judge may allow the waiver on grounds of distance, infirmity or other good cause.
A defendant’s waiver may also be “implied” if the defendant voluntarily absents him- or herself from court after the trial has begun, or otherwise voluntarily renders him- or herself unable to participate in the trial (such as by consuming drugs or alcohol). See State v. Minyard, 231 N.C. App. 605 (2014); State v. Tedder, 169 N.C. App. 446 (2005); State v. Skipper, 146 N.C. App 532 (2001). The absence must be truly voluntary, and not due to some other good cause such as inadequate notice. See State v. Hayes, 291 N.C. 293 (1976). Furthermore, the trial must have “begun,” meaning that the court has at least called prospective jurors up to the jury box, even if the jury has not yet been empaneled and jeopardy has not yet attached. See State v. Richardson, 330 N.C. 174 (1991); State v. Russell, 188 N.C. App. 625 (2008). Once the defendant fails to appear, the burden is on the defense to explain the defendant’s absence and show that it was involuntary in order to keep the trial from going forward in defendant’s absence. See State v. Davis, 186 N.C. App. 242 (2007); State v. Skipper, 146 N.C. App. 532 (2001).
Additionally, a defendant can forfeit or waive the right to be present during the trial by engaging in disruptive behavior in the courtroom. See Illinois v. Allen, 397 U.S. 337 (1970) (“a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom”); State v. Ash, 169 N.C. App. 715 (2005) (“defendant has a right to be present during each stage of his trial, but, in a non-capital case, may waive that right through disruptive behavior”). If necessary, the court may bind and gag the defendant and keep him present, cite him for contempt, or take him out of the courtroom until he promises to conduct himself properly. See Allen at 344.
If the court finds that removal of the defendant is necessary, the judge must follow the procedure set out in G.S. 15A-1032:
- First, give a warning outside the presence of the jury – G.S. 15A-1032(a).
- If defendant remains so disruptive that trial cannot proceed in an orderly manner, defendant may be removed – G.S. 15A-1032(a).
- Judge must then enter on the record the reasons for the removal, and the removal order should be issued outside the presence of the jury – G.S. 15A-1032(a), (b)(1).
- Judge should instruct the jury that the removal is not to be considered when weighing evidence or determining guilt – G.S. 15A-1032(b)(2).
- Defendant must be kept apprised of trial proceedings by allowing him to speak with his counsel at reasonable intervals (or through other means, such as an audio/video feed of the proceedings) – G.S. 15A-1032(b).
- Defendant must be given an opportunity to return “upon assurance of his good behavior” - G.S. 15A-1032(b).
Additional factors need to be considered before ordering the removal of two types of defendants:
- Pro se defendant: When a pro se defendant’s disruptions require removal, the judge should consider ordering standby counsel to take over defense of the case, or appointing such counsel if that has not already been done. The right to proceed pro se is not absolute, and it may be terminated if the defendant engages in serious and obstructionist misconduct. See Farretta v. California, 422 U.S. 806 (1975).
- Capital defendant: As noted above, a capital trial cannot be held in the defendant’s absence. The Supreme Court of North Carolina has not yet ruled on whether “there can be ‘constructive’ presence made necessary by reason of defendant’s disruptive conduct,” such as remote viewing of the courtroom. See State v. Huff, 325 N.C. 1, 28 n.2 (1989), vacated on other grounds sub nom., Huff v. North Carolina, 497 U.S. 1021 (1990). Therefore, if a capital defendant refuses to cease his disruptive behavior, the judge may need to consider imposing extraordinary physical restraints which will allow the defendant to remain in the courtroom to see and hear the trial, yet also prevent the defendant from causing any further disruptions. (The court should make very detailed findings on the record to justify such a high level of restraint.)
Sentencing in Defendant’s Absence
Although a non-capital trial may be concluded in the defendant’s absence, subject to the limitations and requirements described in the preceding sections, the prevailing rule is that the court may not impose a sentence which includes probation or imprisonment if the defendant is not present. See State v. Pope, 257 N.C. 326 (1962) (“The right to be present at the time sentence or judgment is pronounced is a common law right, separate and apart from the constitutional or statutory right to be present at the trial.”); State v. Crumbley, 135 N.C. App. 59 (1999) (“Because there is no indication in this record that Defendant was present at the time the written judgment was entered, the sentence must be vacated and this matter remanded for the entry of a new sentencing judgment”); State v. Stockton, 13 N.C. App. 287 (1971) (finding no error in continuing the trial in defendant’s absence after he failed to return after the first day, but “when a sentence involving corporal punishment is imposed upon a verdict, either on a capital felony charge, a felony charge less than capital, or a misdemeanor, the defendant must be present”); but see State v. Ferebee, 266 N.C. 606 (1966) (upholding sentence imposed in defendant’s absence which only included costs and fine).
A limited number of cases have held that sentencing can occur in the defendant’s absence, but these decisions appear to be against the greater weight of authority cited above. See State v. Miller, 142 N.C. App. 435 (2001) (trial court did not err by holding the sentencing hearing in the defendant’s absence when the defendant had absconded before the jury reached a verdict, based on defense counsel’s failure to request a continuance or offer evidence of good cause to support a postponement of sentencing); State v. Moore, 238 N.C. App. 364 (2014) (unpublished) (holding that “the right to be present when a sentence is imposed may be waived by the defendant,” since “the presence of the defendant is not considered as essential to a valid trial and conviction” and “[w]e believe the same reasoning should apply to a defendant's voluntary absence from a sentencing hearing.”).
Therefore, if the defendant is absent from sentencing, the better practice is for the judge to continue the sentencing hearing until the defendant is present in court. For more information, see the related entry on Sentencing Procedure – Prayer for Judgment Continued.