Court of Appeals Reverses Molestation Conviction After Trial Held in Defendant’s Absence

In Boston v. State, the Georgia Court of Appeals reversed the defendant’s convictions for child molestation, incest, and aggravated sexual battery, finding that the trial court’s decision to hold the trial in his absence constituted reversible error.

Background

The defendant was accused of molesting his 11-year-old stepdaughter. He was arrested and then released on bond pending trial. On the morning of trial, the trial judge held a discussion with the attorneys and the defendant about the status of any plea negotiations.

The prosecutor outlined the plea offer that had been made and indicated that it was rejected by the defense. The defense attorney stated that actually the defendant had accepted the plea offer as long as he could have two additional days to turn himself into the jail. The trial judge rejected that request and the defendant asked for permission to step outside the courtroom to discuss the plea offer with his family.

At that time, the trial judge stated that they were in recess “pending return of the defendant.”

About a half an hour later, the defense attorney told the judge that she could not find the defendant. The judge told the attorneys that the defendant had been spotted by others leaving the courthouse. After asking the attorneys for suggestions on how to address his absence, the judge suggested that they could just proceed with the trial.

The prosecutor announced that the State was ready for trial, but the defense attorney objected to proceeding without the defendant – stating that she was planning to call him to testify.

Over the defense’s objection, the judge proceeded with the trial. The defendant never returned and the jury convicted him on all counts.

A bench warrant was issued for the defendant and he was later apprehended. He then appealed his conviction.

Court of Appeals’ Ruling

At the outset, the Court of Appeals noted that a criminal defendant has the constitutional right to be present at the trial of the case. Although a defendant may waive his right to be present at trial, waiver can only occur after the trial begins – meaning after jeopardy has attached. In a jury trial, jeopardy attaches when the jury has been “impaneled and sworn.”

In this case, the defendant absconded prior to the jury being sworn. Therefore, jeopardy had not yet attached.

The Court concluded that the trial court should have merely issued a bench warrant and not proceeded with the defendant’s trial. By conducting the trial in his absence, the trial court violated the defendant’s constitutional right to be present.

As a result, the Court of Appeals reversed his convictions and remanded the case for a new trial.