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2008-UP-007 - State v. O’Donald

THIS OPINION HAS NO PRECEDENTIAL VALUE, IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Christopher Lee O’Donald, Appellant.


Appeal from Oconee County
 J. Cordell Maddox, Jr., Circuit Court Judge


Unpublished Opinion No. 2008-UP-007
Submitted December 1, 2007 – Filed January 2, 2008   


AFFIRMED


Appellate Defender Kathrine H. Hudgins, of Columbia, for Appellant.

Attorney General Henry Dargan McMcMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia, and Assistant Solicitor Christina Theos Adams, of Anderson, for Respondent.

PER CURIAM:  Christopher O’Donald appeals from his convictions for burglary first and grand larceny.  O’Donald contends the trial judge erred in (1) trying him in absentia without notice of his right to be present and without warning that he would be tried in his absence should he fail to attend; and (2) finding the assistant solicitor’s comment during closing argument about O’Donald’s absence was proper.  We affirm. [1]

FACTUAL/PROCEDURAL BACKGROUND

An Oconee County grand jury indicted O’Donald for grand larceny in an amount greater than $5,000, distribution of an imitation controlled substance, and first-degree burglary.  When O’Donald posted bond on February 4, 2005, he signed an order specifying the methods and conditions of his release.  The order read as follows:

That the defendant shall appear at . . .  the term of court of general sessions beginning on March 21, 2005 . . . and remain there throughout that term of court.  If no disposition is made during that term, the defendant shall appear and remain throughout each succeeding term of court until final disposition is made of his case, unless otherwise ordered by the court. 

O’Donald’s initial trial occurred in August of 2005.  O’Donald did not attend the trial.  The trial resulted in a hung jury.  O’Donald’s trial was rescheduled for the September 19, 2005 term of court.  Prior to trial, the solicitor’s office delivered a card to O’Donald’s residence and O’Donald’s bonding company.  The card stated O’Donald was required to appear in court on September 19, 2005.  In addition, the card warned O’Donald that failure to appear would result in a bench warrant, and he could be tried in his absence. 

On September 21, 2005, the State moved to try O’Donald in absentia.  In support of its motion, the State introduced copies of the card delivered to O’Donald’s residence and the order relating to O’Donald’s bond.  O’Donald’s counsel objected and moved for a continuance on the grounds that O’Donald did not receive proper notice.  Specifically, O’Donald’s counsel argued:

Your honor, my position is if [the solicitor’s office] know[s] where to go and give him a note, they know where to go arrest him on a bench warrant, which was issued last term. They can take him to the jail and then he’ll be here at the next term of court when we can try the case with him here.

The judge denied the motion for a continuance and proceeded with the trial.

Prior to opening arguments, the trial judge talked to the jury concerning O’Donald’s absence.  The trial judge stated as follows:

I will tell you that the Defendant does not have to be here.  Our system allows for a Defendant to waive his presence during the course of the trial.  The Defendant is still presumed innocent, even though [he is] not here, and that is a very important tenet.  And I know it’s sometimes hard for jurors to get their mind around, but that Defendant, even though [he is] not here, is still presumed innocent, the burden is still on the State to prove [its] case.  So you shouldn’t hold it against the Defendant or the Defense that the Defendant is not present in the courtroom today.

The trial adjourned and recovened the next morning.  After the State and the defense had rested, O’Donald appeared in the courtroom.  The trial judge questioned O’Donald regarding his right to be present during the trial.  O’Donald stated he had talked to his lawyer, he understood he had a right to be present, and he understood he was facing up to life imprisonment.  O’Donald further stated he did not want to be present, and he did not want to talk to his lawyer about any other options.  O’Donald told the trial judge to “have a good one” and left the courtroom.  The trial judge found O’Donald understood his rights and did not want to be present for the trial.

The trial resumed, and the State and the Defense made closing arguments.  During the State’s closing argument, the assistant solicitor stated, “This is [the victim’s] only day in court, it’s Chris O’Donald’s only day in court.  I submit to you, even though he’s not here, for whatever reason, the Judge will tell you you can’t consider that.”  O’Donald’s counsel objected to the solicitor’s comment because it referred to O’Donald’s absence.  The trial judge overruled the objection, stating the comment was proper.

Following closing arguments, the trial judge charged the jury.  He instructed the jury not to consider the fact that the Defendant was not present and did not testify.  The trial judge added the Defendant had a constitutional right to be absent and silent.  The trial judge reiterated “you are to draw no conclusion whatsoever from the fact that the Defendant in this case did not appear or testify[,] . . . [it] should not even be discussed in the jury room. 

The jury returned verdicts of guilty for burglary first and grand larceny in an amount between $1,000 and $5,000.  The jury found O’Donald not guilty of distribution of an imitation controlled substance.  This appeal followed.

LAW/ANALYSIS

I.  Trial in Absentia

O’Donald first asserts the trial judge erred in trying him in absentia without making the proper findings of fact that he received notice of his right to be present and was warned he would be tried in his absence should he fail to attend.  We disagree. 

Although the Sixth Amendment of the Constitution guarantees the right of a criminal defendant to be present at trial, this right may be waived.  Ellis v. State, 267 S.C. 257, 260, 227 S.E.2d 304, 305 (1976); State v. Fairey, 374 S.C. 92, 99, 646 S.E.2d 445, 448 (Ct. App. 2007).  Rule 16, SCRCrimP provides:

Except in cases wherein capital punishment is a permissible sentence, a person indicted for misdemeanors and/or felonies may voluntarily waive his right to be present and may be tried in his absence upon a finding by the court that such person has received notice of his right to be present and that a warning was given that the trial would proceed in his absence upon a failure to attend the court.

“While Rule 16 permits a knowing and intelligent waiver of the right to be present, such a waiver is permitted only in limited circumstances.”  City of Aiken v. Koontz, 368 S.C. 542, 547, 629 S.E.2d 686, 689 (2006).  The trial court must determine the defendant voluntarily waived his right to be present.  Id.  In addition, the trial court must make factual findings that the defendant (1) received notice of his right to be present; and (2) was warned that the trial would proceed in his absence upon his failure to attend.  Id. 

Notice of the term of court in which the defendant will be tried is sufficient to enable the defendant to make an effective waiver of his right to be present.  Ellis, 267 S.C. at 261, 227 S.E.2d at 306.  But if the record does not reveal evidence that the defendant was given notice of his trial, the resulting conviction in absentia cannot stand.  State v. Jackson, 290 S.C. 435, 436, 351 S.E. 2d 167, 167 (1986).

Here, it is manifest O’Donald had notice of the trial because he appeared in the courtroom during his trial and testified he did not wish to be present.  Furthermore, the record is replete with evidence that O’Donald was notified to be in court for his trial.  The bond order that O’Donald signed required O’Donald to be in court during the March 21, 2005 term of court and to “appear and remain throughout each succeeding term of court until final disposition is made of his case.” (emphasis added).  The language requiring O’Donald to “remain throughout each succeeding term of court” is sufficient to put O’Donald on notice of his trial.  See City of Aiken 368 S.C. at 548, 629 S.E.2d at 689 (holding a defendant had notice of his October 20, 2004 trial date where the trial date was set by court order and where defendant signed a bond form requiring the defendant to appear for trial on June 28, 2004 and “such other times and places as ordered by the court”).  In addition, the solicitor’s office delivered a card to O’Donald’s residence and bonding company notifying O’Donald of the trial date. 

Also, the trial court made the requisite factual finding relating to whether O’Donald was warned he would be tried in absentia should he fail to attend his trial.  After questioning O’Donald concerning this right to be present, the trial court found O’Donald was aware of his right to be present and did not wish to attend his trial.  There is evidence to support this finding. The trial transcript shows O’Donald appeared in the courtroom during his trial and informed the trial judge he did not wish to be present.  In addition, the bond order contained an “Acknowledgement by Defendant” paragraph, that read: “I understand and have been informed that I have a right and obligation to be present at trial and should I fail to attend the court, the trial will proceed in my absence.”  See Fairey, 374 S.C. at 101, 646 S.E.2d at 449 (“A bond form that provides notice that a defendant can be tried in absentia may serve as the requisite notice.”).

At any rate, O’Donald’s appearance in the courtroom during the trial and his testimony that he did not wish to attend his trial cured any error the trial court may have committed regarding O’Donald’s right to notice and right to be present at his trial and such conduct constituted a waiver of that right. 

II.  Solicitor’s Comments

O’Donald also asserts the trial court erred in overruling his counsel’s objection when the assistant solicitor made a comment to the jury regarding O’Donald’s absence. 

The State may not comment on a defendant’s exercise of a constitutional right.  Edmond v. State, 341 S.C. 340, 345, 534 S.E.2d 682, 685 (2000).  Specifically, the State may not comment either directly or indirectly, on a defendant’s silence, failure to testify, or failure to present a defense.  McFadden v. State, 342 S.C. 637, 640, 539 S.E.2d 391, 393 (2000).  Improper comments on a defendant’s exercise of a constitutional right, however, do not automatically require reversal if they are not prejudicial to the defendant.  State v. Cooper, 334 S.C. 540, 554, 514 S.E.2d 584, 591 (1999).

Here, during the State’s closing argument, the assistant solicitor made an indirect comment regarding O’Donald’s absence.  The assistant solicitor stated, “it’s Chris O’Donald’s only day in court[,] . . .  even though he’s not here, for whatever reason, the Judge will tell you you can’t consider that.”  The trial judge, however, thoroughly charged the jury concerning O’Donald’s absence.  In his opening charge, the trial judge told the jury a Defendant may waive his presence during trial, and despite the Defendant’s absence, he is still presumed innocent and the burden is still on the State to prove its case.  The judge added that the jury was not to hold O’Donald’s absence against O’Donald or the defense.  As part of his closing charges, the trial judge told the jury the Defendant’s absence, failure to testify, and failure to present a defense were not to be considered.  In addition, the trial judge explained that O’Donald had a constitutional right to be absent and silent.

We hold the trial judge’s instructions to the jury cured any prejudice to O’Donald.  See Cooper, 334 S.C. at 554, 514 S.E.2d at 591  (holding even if the solicitor’s comments referred to Defendant’s failure to testify or present a defense at trial, any prejudice was cured by the trial judge’s instructions); Johnson v. State, 325 S.C. 182, 480 S.E.2d 733 (1997) (holding even if the comment was improper, the trial court’s instruction that the jury could not consider the defendant’s failure to testify in any way and could not hold it against him was sufficient to cure any error).

CONCLUSION

Based on the foregoing, the trial court’s rulings are

AFFIRMED.

HUFF AND PIEPER, JJ. and GOOLSBY, A.J., concur. 


[1]  We decide this case without oral argument pursuant to Rule 215, SCACR.