Crim. P. 43

History

Source: (e) added and adopted December 19, 1996, effective March 1, 1997; (e) amended and adopted and comment added and adopted May 11, 2006, effective July 1, 2006; (e) amended and effective June 17, 2010; (f) added and effective March 19, 2020; (f) amended and effective March 23, 2020; (f) amended and effective March 30, 2020; (f)(2) amended and effective April 7, 2020; (e) amended and (f) repealed, effective July 15, 2021; (e)(3)(II) added and (e)(3)(III) to (IX) renumbered June 28, 2022, effective July 1, 2022 (Rule Change 2022(10)). COMMENT The court recommends that defendants be informed of their rights pursuant to this rule by showing such defendants a pre-recorded video containing the judicial advisement contained in this rule. The video should be shown prior to any jail authorities asking whether a defendant planned to elect to participate by audiovisual device. The court recognized that such audiovi- sual devices will be used to conduct plea dis- cussions. Accordingly, the pre-recorded video should also explain the plea discussion process. ANNOTATION Due process requires a defendant to be present during a restitution hearing. Restitu- tion is a part of the sentencing process, which is a critical stage of a criminal proceeding and requires defendant’s presence. People v. Her- nandez, 2019 COA 111, 487 P.3d 1095. Due process does not require the defen- dant’s presence when his presence would be useless, or the benefit nebulous. People v. Luu, 983 P.2d 15 (Colo. App. 1998). Waiver required for absence from trial. The trial court must establish a voluntary and intelligent waiver by a defendant concerning an absence from trial. People v. Campbell, 785 P.2d 153 (Colo. App. 1989), rev’d on other grounds, 814 P.2d 1 (Colo. 1991). Waiver must be knowing, intelligent, and voluntary. Waiver is knowing and intelligent when a defendant has had notice of the conse- quences of not appearing. People v. Stephenson, 165 P.3d 860 (Colo. App. 2007). Rule provides for waiver only if the defen- dant is initially present. Because defendant was not initially present when the court began voir dire, section (b)(1)’s waiver provision does not apply. People v. Barajas, 2021 COA 98, 497 P.3d 1078. Absence from trial compelled by medical necessity may generally be deemed voluntary, and the determination of whether defendant is ‘‘voluntarily absent’’ requires a fact-specific in- quiry into the type of medical condition, the circumstances surrounding the absence, and de- fendant’s conduct and statements. People v. Ste- phenson, 165 P.3d 860 (Colo. App. 2007). A defendant’s absence may be deemed vol- untary when the record establishes that defen- dant created the medical necessity by attempt- ing suicide in order to effect his or her absence from trial. People v. Price, 240 P.3d 557 (Colo. App. 2010); People v. Daley, 2021 COA 85, 496 P.3d 458. Removal of defendant from court during trial did not abridge defendant’s constitu- tional rights. Where defendant had been warned numerous times about his courtroom behavior including getting up from his seat and moving towards judge on one occasion and physically attacking a witness on the witness stand on another so that court would either have to shackle, bind, and gag defendant in court or remove him to another room where he could watch the trial via closed-circuit television and freely talk to his attorney by telephone, trial court used constitutionally permissible method pursuant to (b)(2) to deal with disruptive defen- dant. People v. Davis, 851 P.2d 239 (Colo. App. 1993). Removing defendant from the courtroom, rather than the child witness, violated defen- dant’s due process right where defendant did not stipulate to the removal. People v. Aldridge, 2018 COA 131, 446 P.3d 897. Although the trial court failed to include the mandatory parole period during the sen- tencing period and mittimus, it is not a violation of the defendant’s right to be present at sentenc- ing to subsequently correct the mittimus to in- clude the mandatory parole period. People v. Nelson, 9 P.3d 1177 (Colo. App. 2000). Trial court’s action in making its resen- tencing decision the subject of a written or- der, rather than reconvening a hearing to announce that decision, was harmless. Defen- dant was present at both his sentencing and resentencing hearings when the information re- lied upon by the court for its sentencing deci- sion was presented, and defendant raised no objection when, at the completion of the resen- tencing hearing, the court reserved its decision on resentencing and stated its intention to an- nounce that decision at a later date. People v. Luu, 983 P.2d 15 (Colo. App. 1998). Violation of a defendant’s right to be pres- ent under this rule is reviewed de novo. There is no reason to apply a different standard of review merely because the right is guaranteed by rule rather than by statute. But reversal for failure to follow a court rule is subject to the harmless error limitation in Crim. P. 52(a), rather than to the constitutional harmless error standard. People v. Hernandez, 2019 COA 111, 487 P.3d 1095. Conducting a hearing under § 18-1-704.5 using videoconferencing technology does not violate the spirit of this rule. This rule does not require an in-person hearing. People v. Her- nandez, 2021 CO 45, 488 P.3d 1055. If the defendant objects to videoconferencing, a court can permit the pros- ecution and witnesses to appear by videoconferencing while the defendant and counsel appear in person during a public health crisis. People v. Hernandez, 2021 CO 45, 488 P.3d 1055. Applied in People v. Trefethen, 751 P.2d 657 (Colo. App. 1987).