Unpublished Disposition, 845 F.2d 1029 (9th Cir. 1988)

MEMORANDUM^** 

Danbury appeals denial by the District Court for the District of Arizona of his petition for habeas corpus.

After arrest for selling cocaine, Danbury was released and ordered to return for trial before the Arizona state court. He failed to appear for trial, was tried in absentia and convicted, and a warrant issued for his arrest. He was apprehended and sentenced. Appeals to state appellate courts were fruitless and a petition for federal habeas corpus was filed. It was denied by the district court and this appeal was taken.

We find no merit in his contentions:

1. That he was denied effective assistance of counsel because his attorney was unfamiliar with the case and unprepared for trial. Appellant has failed to carry his burden of showing prejudice in that, but for the unprofessional errors in question, the result would have been different.

2. That the government was guilty of outrageous conduct. This contention fails to shock "the universal sense of justice." The record shows that although the drug sale in question was by Danbury's wife, the government had cause to believe that he had played a role in it.

3. With respect to the prosecutor's comment on Danbury's failure to testify, we do not feel that the comment manifested an intent on the part of the prosecutor to call attention to Danbury's absence.

Danbury also contends that he was denied his Sixth Amendment right to be present at trial. Defendant's absence from trial constitutes a waiver of his Sixth Amendment right if it was knowing, intelligent and voluntary. Arizona law sets forth a procedure for trying a defendant in absentia. This rule provides:

... [t]he court may infer that an absence is voluntary if the defendant had personal notice of the time of the proceeding, his right to be present at it, and a warning that the proceeding would go forward in his absence should he fail to appear.

17 Ariz.Rev.Stat.Ann.Rule 9.1 (1987). This court has approved of this rule "provided that the defendant is afforded a hearing to determine whether his absence was, in fact, voluntary." Brewer v. Raines, 670 F.2d 117, 120 (9th Cir. 1982).

The Arizona Court of Appeals found that Danbury received notice of his right to appear at trial and the consequences of his failure to appear.

There is no evidence in the record, however, that Danbury received a hearing on the voluntariness of his absence subsequent to his recapture. Neither of the two hearings which Danbury attended after missing the trial--the initial appearance on a bench warrant and the sentencing hearing--included an inquiry into the voluntariness of his absence.

Brewer is unequivocal in its requirement of a hearing to determine the voluntariness of the accused's absence. Brewer, 670 F.2d at 120.

Here, the trial court made a finding that Danbury was voluntarily absent. Yet the court made this finding out of Danbury's presence, and it does not appear it was made after a hearing in which Danbury was present.

Reversed and remanded for hearing on the voluntariness of Danbury's absence.