Criminal Practice – Defendant’s Presence at Trial – No Right to Absence

State v. Shaw (Lawyers Weekly No. 12-07-0161, 5 pp.) (Linda Stephens, J.) Appealed from Wake County Superior Court. (Paul G. Gessner, J.) N.C. App.

Holding: Even though a defendant may waive his right to be present at trial, he has no right to be absent from his trial.

We find no error in defendant’s convictions of robbery with a dangerous weapon, possession of a firearm by a felon, and attaining violent habitual felon status.

Where defendant did not raise any constitutional issues in support of his waiver argument before the trial court, those issues will not be considered for the first time on appeal.

G.S. § 15A-1011 sets out the procedure for a defendant to waive appearance and plead not guilty. It does not apply to times during the trial other than the entry of pleas.

Finally, in State v. Kelly, 97 N.C. 404, 2 S.E. 185 (1887), our Supreme Court contemplated a trial court’s power to require a defendant’s presence at this trial, despite that defendant’s attempted waiver. Defendant here offers no support, either logical or precedential, for the contention that the limited ability to waive one’s right to be present implicates a concomitant and absolute right of absence.

Defendant has failed to establish that he had any right to be absent from his trial. The trial court did not err in denying defendant’s attempted waiver of presence.