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The Vermont Supreme Court Considers a Criminal Defendant’s Absence at a Pre-Trial Hearing When He Did Not Waive His Right to Attend and His Presence May Have Affected the Outcome at Trial

In State v. Michael Grace, 2016 VT 113 (Nov. 18, 2016), the Vermont Supreme Court considered an appeal from judgment of conviction of driving under the influence on the basis of reversible error on behalf of the trial court, as alleged by Appellant, for proceeding with a motion-to-suppress hearing in the defendant’s absence.

Issue: Following a motor vehicle stop, which resulted in an arrest for driving under the influence, the defendant failed to appear for a pre-trial suppression hearing in which the defendant’s attorney cited his/her own error for the defendant’s absence. The court sought to proceed with the hearing, and neither the prosecutor nor defense attorney objected to this course of action. The defense attorney, in fact, stated that his/her client was “under waiver of appearance.” The only witness present at the hearing was the arresting officer, and the defense attorney “briefly” cross-examined him to confirm that his assessment of the defendant’s speed was visual, not based on a radar gun, and argued that this was inadequate to justify the stop under the circumstances. The court denied the motion, finding that the officer’s experience was sufficient to allow him to accurately assess a vehicle’s speed and that his other visual assessments of defendant’s conduct also affirmed the appropriateness of a highway stop. At trial, it was revealed that the defendant’s story of events differed from the officers’ accounts, including his conduct leading up to the stop, and during the stop. A jury at trial ultimately found him guilty. He appealed, and the Court examined the claim for plain error.

Holding: The Court reviewed this appeal in light of Supreme Court Confrontation Clause precedent, citing, in particular, that factual disputes require the defendant’s presence if they are critical to the outcome of the case, or if the defendant’s absence would undermine the fairness or accuracy of a proceeding. If the defendant may have “peculiar knowledge” that could advance his case or counter the state’s case, his absence in any hearing may be viewed as particularly prejudicial. Specifically, the Court cites precedent establishing that pretrial suppression hearings are considered a “critical stage of the trial,” which the defendant has a constitutional right to attend, and that voluntary waiver is required. Here, the Court held that waiver was not knowing and voluntary, and that counsel did not seek nor receive any verbal or written waiver from the defendant. In light of this, the Court went on to reason that because defendant’s own testimony differed substantively from the testimony offered by the officer at the hearing that defendant’s absence could have had substantial prejudicial effect on the outcome of the proceeding. For these reasons, the Court reversed the order denying defendant’s motion to suppress, and remanded the case for a new suppression hearing. The conviction remained in effect unless and until the court grants the motion to suppress, in which case a new trial should be granted.

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