Ark. Code Ann. § 16-89-103 (2020)

Case Notes

Constitutionality.

Subsection (a) is constitutional. The guaranty of the Constitution does not include the right to abscond and then complain of one's own absence. Gore v. State, 52 Ark. 285, 12 S.W. 564 (1889).

Applicability.

The rule in subdivision (a)(2) of this section, that where a defendant is on bail and absents himself, the trial may proceed, applies once trial has commenced and does not apply to flight before trial. Reece v. State, 325 Ark. 465, 928 S.W.2d 334 (1996).

Felony.

It is not necessary for the defendant to show that he was prejudiced by any action in his absence; his mere absence during a substantive part of the proceedings, where he may have lost an advantage or been prejudiced, is sufficient to set aside the conviction. Bearden v. State, 44 Ark. 331 (1884).

When it is plain that the accused has lost no advantage because of his absence, there is no error. Mabry v. State, 50 Ark. 492, 8 S.W. 823 (1888).

Defendant or his counsel may waive defendant's right to be present. Davidson v. State, 108 Ark. 191, 158 S.W. 1103 (1913); Scruggs v. State, 131 Ark. 320, 198 S.W. 694 (1917); Boling v. State, 189 Ark. 705, 74 S.W.2d 968 (1934); Nelson v. State, 190 Ark. 1027, 82 S.W.2d 519, 1935 Ark. LEXIS 176 (1935).

The right to be present ends with the trial and the trial ends with the verdict of the jury. Baldwin v. State, 119 Ark. 518, 178 S.W. 409 (1915).

—Counsel.

Right of defendant to have counsel present when verdict is returned is not ground for reversal if the defendant could not have been prejudiced by his absence. Baker v. State, 58 Ark. 513, 25 S.W. 603 (1894).

—Presence Not Required.

For the clerk to place the names of the panel in a box preparatory to drawing the jury for the trial is not a substantive step within the rule requiring the presence of defendant. Bearden v. State, 44 Ark. 331 (1884).

An order for venire for a jury was a substantive step, but the present method of selecting jurors to compose the panel is not and defendant's presence is not required. Mabry v. State, 50 Ark. 492, 8 S.W. 823 (1888).

Recognizance of witnesses is not a substantive step requiring the presence of defendant. Bolling v. State, 54 Ark. 588, 16 S.W. 658 (1891).

Granting defendant a change of venue in his absence is not error. Polk v. State, 45 Ark. 165 (1885); Bond v. State, 63 Ark. 504, 39 S.W. 554 (1897).

Verdict is amendable in defendant's absence. State v. McNamara, 60 Ark. 400, 30 S.W. 762 (1895).

—Presence Required.

The accused must have the privilege of being present in person and by counsel whenever any substantive step is taken in his case. Brown v. State, 24 Ark. 620, 1867 Ark. LEXIS 24 (1867); Whittaker v. State, 173 Ark. 1172, 294 S.W. 397 (1927).

To swear the witnesses and put them under the rule is a substantive step requiring defendant's presence. Bearden v. State, 44 Ark. 331 (1884).

Taking testimony while defendant is necessarily absent a few minutes by permission of court is prejudicial error. Bennett v. State, 62 Ark. 516, 36 S.W. 947 (1896).

It is error to reread instructions in felony case in defendant's absence. Kinnemer v. State, 66 Ark. 206, 49 S.W. 815 (1899).

It is error for the judge, accompanied by the counsel on both sides, to enter the jury room after the cause has been submitted and deliver to the jury additional instructions without affording the defendant, who was present in the court room, an opportunity to be present. Stroope v. State, 72 Ark. 379, 80 S.W. 749 (1904).

Alleged error in the admission of evidence was moot because the remedy of a reversal and remand was not available; defendant had died and his presence was required at trial. Dowdy v. State, 2015 Ark. 35 (2015).

—Record.

The record, on appeal, must affirmatively show presence of defendant when any substantive step taken. Brown v. State, 24 Ark. 620, 1867 Ark. LEXIS 24 (1867).

The failure of the record on appeal to show affirmatively that the defendant in a bailable felony was present when the verdict was rendered is not a ground for reversal, as it will be presumed either that the defendant was voluntarily absent on bail or that he was present when the verdict was rendered. Bond v. State, 63 Ark. 504, 39 S.W. 554 (1897).

—Voluntary Absence.

If the defendant is on bail and absents himself, the trial may proceed. Lee v. State, 56 Ark. 4, 19 S.W. 16 (1892); Darden v. State, 73 Ark. 315, 84 S.W. 507 (1904); Cox v. City of Jonesboro, 112 Ark. 96, 164 S.W. 767 (1914).

When defendant disappeared during trial proceedings, court did not err in continuing trial in his absence since case had been specifically set for trial and defendant had indicated his readiness to proceed prior to voluntarily absenting himself. Johnson v. State, 270 Ark. 247, 604 S.W.2d 927, 1980 Ark. LEXIS 1588 (1980), cert. denied, Johnson v. Arkansas, 450 U.S. 981, 101 S. Ct. 1517, 1981 U.S. LEXIS 1222 (1981).

Where defendant voluntarily absented himself from the courtroom by oversleeping, and a jury had been selected and sworn, and both sides had announced that they were ready for trial, the defendant's trial had commenced and was properly allowed to proceed without defendant present. Reece v. State, 325 Ark. 465, 928 S.W.2d 334 (1996).

Misdemeanor.

Court has discretion to refuse a trial for misdemeanor in the defendant's absence. Bridges v. State, 38 Ark. 510 (1882).

The state cannot demand a trial for misdemeanor in the absence of the defendant. Owen v. State, 38 Ark. 512 (1882); Cox v. City of Jonesboro, 112 Ark. 96, 164 S.W. 767 (1914). But see, Henderson v. Murfreesboro, 119 Ark. 603, 178 S.W. 912 (1915).

Attorney's consent to try his client for a misdemeanor in his absence will be presumed to be by authority of the client in absence of proof to the contrary. Martin v. State, 40 Ark. 364 (1883).

Court should not permit a defendant to be tried in his absence, even with his consent, where the punishment may be imprisonment; but if it does so, and there is a verdict for imprisonment as part of his punishment, he cannot, after consenting, complain of it. Martin v. State, 40 Ark. 364 (1883).

If the offense is punishable by fine only, and defendant voluntarily absents himself, the state may demand a trial. Henderson v. Murfreesboro, 119 Ark. 603, 178 S.W. 912 (1915).

Where defendant appeals from a judgment of a justice of the peace and fails to appear, the circuit court has authority to affirm the penalty imposed, and the refusal to vacate the order by the circuit court will not be disturbed unless there is shown an abuse of discretion by the circuit court. Jaynes v. State, 212 Ark. 410, 206 S.W.2d 7 (1947).

If a trial on misdemeanor charge may be had in the absence of an accused, a plea may likewise be accepted in his absence. Prine v. State, 267 Ark. 304, 590 S.W.2d 25 (1979).

Arkansas Rule of Criminal Procedure 31.3's language that allows the defendant's attorney to waive a jury trial is consistent with this section, which states that a defendant's presence is not required in misdemeanor cases. Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993).

Trial Not Required.

Subsection (b) of this section makes it permissible for a court to hold a trial for an accused misdemeanant in absentia; however, having a trial is not mandatory. Taylor v. State, 44 Ark. App. 106, 866 S.W.2d 849 (1993).

Although defendant's attorney appeared and requested that the trial be held, and defendant was absent, the circuit court did not abuse its discretion under subsection (b) of this section in declining to hold a trial, dismissing the appeal, and leaving the municipal court's judgment intact. Taylor v. State, 44 Ark. App. 106, 866 S.W.2d 849 (1993).

Circuit judge properly refused to hold the trial in defendant's absence, dismissed the appeal, and ordered that the municipal court sentence be put into execution because defendant failed to appear for trial. Court did not abuse its discretion in not holding the trial despite his absence. Whitmire v. State, 50 Ark. App. 34, 901 S.W.2d 20 (1995).

Cited: Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988); Cagle v. State, 47 Ark. App. 1, 882 S.W.2d 674 (1994); Clayton v. State, 321 Ark. 602, 906 S.W.2d 290 (1995).