Rule 43 Presence of Defendant

Rule Text

Amendment history: Amended August 21, 2018, effective January 1, 2019. Compare. — Rule 43, Fed. Rules Cr. Proc. Besides arraignment, defendant’s presence not required at pretrial proceedings. — This rule does not include a requirement of the defendant’s presence at proceedings prior to trial, other than the arraignment. Weddle v. State, 621 P.2d 231, 1980 Wyo. LEXIS 327 (Wyo. 1980). Defendant’s presence is not required at bench conferences on legal questions. — Sandy v. State, 870 P.2d 352, 1994 Wyo. LEXIS 29 (Wyo. 1994). There is no right to be present at the jury instruction conference or the jury question conference; the defendant’s presence is not required at conferences that encompass purely legal issues. Lobatos v. State, 875 P.2d 716, 1994 Wyo. LEXIS 68 (Wyo. 1994). And defendant may relinquish his right to be present at pretrial motions where he is represented by counsel and where the issue is only one of law. Weddle v. State, 621 P.2d 231, 1980 Wyo. LEXIS 327 (Wyo. 1980). Continuance hearing. — The constitutional guarantee that an accused has the right to be present during every stage of the criminal proceeding that is critical to the outcome if his presence would contribute to the fairness of the proceeding has been embodied into Wyo. Stat. Ann. § 7-11-202 and subsection (a) of this rule but in neither of those laws is it mandated that a defendant be present at a continuance hearing. Hauck v. State, 2001 WY 119, 36 P.3d 597, 2001 Wyo. LEXIS 145 (Wyo. 2001). This rule and Rule 11 must be read together, adapting the Rule 11 procedure to the circumstance of a written consent. State v. Rosachi, 549 P.2d 318, 1976 Wyo. LEXIS 188 (Wyo. 1976). When accepting a guilty plea in defendant’s absence, a court must read Rule 11(b), W.R- .Cr.P., in conjunction with subdivision (c)(2) of this rule and adapt the procedure of the former rule so that defendants are afforded the fundamental protections outlined therein. State v. McDermott, 962 P.2d 136, 1998 Wyo. LEXIS 82 (Wyo. 1998). Due process not denied in trial proceeding in defendant’s voluntary absence. — Where the defendant’s absence from trial during the presentation of the state’s case was a knowing and voluntary decision on his part, there was no denial of due process nor was there error in proceeding with the trial in the defendant’s voluntary absence. Capwell v. State, 686 P.2d 1148, 1984 Wyo. LEXIS 322 (Wyo. 1984). Under following facts, reason and justification for the defendant’s absence was sufficiently established and could not be held voluntary, such that continuing the trial in his absence resulted in prejudice: (1) the defendant suffered a heart attack during trial and, because of persistent chest pain, there was a risk of a major heart attack or cardiac complications occurring in the future; (2) the defendant was not present to assist and consult with his attorney when instructions on the law were submitted and during closing arguments; and (3) the defendant was not able to consult with or advise his attorney concerning the appropriate means for responding to the jury’s inquiry, during deliberations, concerning the applicability of self-defense. Maupin v. State, 694 P.2d 720, 1985 Wyo. LEXIS 437 (Wyo. 1985). Waiver of right. — Defendant waived her right to be present at bench conferences involving prospective jurors, where both she and her counsel acquiesced in her absence while defense counsel represented her interests for that part of trial. Campbell v. State, 999 P.2d 649, 2000 Wyo. LEXIS 55 (Wyo. 2000). In-court identification, rendered impossible by defendant’s own refusal to appear, was not necessary where state otherwise met its burden of identification. Capwell v. State, 686 P.2d 1148, 1984 Wyo. LEXIS 322 (Wyo. 1984). Instructions to jury. — Trial court’s error in instructing jury to proceed with deliberations outside of presence of defendant and counsel, after jury had reported it was deadlocked, was not harmful error. Smith v. State, 959 P.2d 1193, 1998 Wyo. LEXIS 80 (Wyo. 1998), reh’g denied, 1998 Wyo. LEXIS 92 (Wyo. June 24, 1998). Even though the trial court erred in submitting an “Allen-type” instruction to the jury outside the presence of defendant and his counsel, the error was harmless because the instruction did not contain prohibited new information, was not coercive, and specifically called the jury’s attention to previous instructions on the presumption of innocence and the state’s burden of proof. Seeley v. State, 959 P.2d 170, 1998 Wyo. LEXIS 78 (Wyo. 1998). Trial judge erred in instructing the jurors in writing without bringing them into open court and defendant was not present; however, the record did not disclose that defendant’s presence when the jury was given the supplemental instructions was critical where defendant could exert his psychological influence during all other phases of the trial and the bulk of the evidence was presented by the victim’s testimony. Daves v. State, 2011 WY 47, 249 P.3d 250, 2011 Wyo. LEXIS 50 (Wyo. 2011). Affirmance of conviction. — Where arraignment, trial and sentencing had already occurred, the defendant was not entitled to be present when the trial court entered the written order acknowledging the supreme court’s decision affirming the underlying conviction. Smith v. Wyoming, 985 P.2d 961, 1999 Wyo. LEXIS 118 (Wyo. 1999). Absence from conference. — In a defendant’s murder case, the defendant’s right to be present was not violated, where (1) there was no indication that the defendant’s absence from a conference on an objection was anything but voluntary, (2) the absence was for a brief period of time, (3) there was no indication that the defendant possessed any special information on the question that his counsel did not, and (4) there was no indication that the defendant’s presence could have altered the judge’s decision on the objection in any way. Belden v. State, 2003 WY 89, 73 P.3d 1041, 2003 Wyo. LEXIS 110 (Wyo. 2003), reh’g denied, 2003 Wyo. LEXIS 126 (Wyo. Aug. 26, 2003), cert. denied, 540 U.S. 1165, 124 S. Ct. 1179, 157 L. Ed. 2d 1212, 2004 U.S. LEXIS 898 (U.S. 2004). Remanded for resentencing. — Because the inmate was not present at sentencing as required by Wyo. Stat. Ann. § 7-11-202 and W.R.C.P. 43, the court remanded the case for re-sentencing even though the conviction was affirmed. Abeyta v. State, 2003 WY 136, 78 P.3d 664, 2003 Wyo. LEXIS 166 (Wyo. 2003), overruled, Patterson v. State, 2025 WY 30, 565 P.3d 692, 2025 Wyo. LEXIS 31 (Wyo. 2025). Amended Sentence. — Defendant’s presence was not required when the amended sentence was imposed because the district court’s action was essentially ministerial and could not be considered critical to the outcome of the case. Hawes v. State, 2016 WY 30, 368 P.3d 879, 2016 Wyo. LEXIS 32 (Wyo.), reh’g denied, 2016 WY 30, 2016 Wyo. LEXIS 44 (Wyo. 2016). Child witness competency hearing. — Where defendant was charged with the sexual abuse of two young boys, when defendant filed a motion for a competency/pretrial taint hearing, the district court violated his substantive constitutional rights to due process by denying rights under Wyo. R. Crim. P. 43 to be present at a hearing held to determine the competency of the minor victim who was to be a witness against defendant. Woyak v. State, 2010 WY 27, 226 P.3d 841, 2010 Wyo. LEXIS 29 (Wyo. 2010).