in holding for dear in defendant's absence after he refused to enter the courtroom and had previously exercised a valid waiver of his right to counsel now at the outset the parties agree that the plain error standard applies and they also agree that defendant can only succeed if he shows that his substantial rights were affected by the alleged error but defendant's real problem is that he hasn't met the threshold requirement of showing that he played in error occurred even without the substantial rights problem now if there were ever a case where the alleged error wasn't playing this would be it a plain error has to be clear or obvious this is implied in the play a plan or a standard there has to be so obvious that it doesn't require a contemporaneous objection from one of the parties in order to bring it to the trial court's attention it should be so obvious that the trial court can notice it on its own and correct it before it reaches the appellate level but here there was no clear obvious error because the on point precedent supported the trial court's actions here being the court case of people versus risinger which holds that the trial in absentia statute does not apply to defendants who are in custody but simply refused to come into the courtroom and participate in the trial now here the trial court's actions were in accordance with rising or so the trial court can't have committed a clear or obvious error by simply acting in accordance with the relevant process now because of this deficiency in the defendant's case this court could dispose of the entire matter simply by holding that the alleged error here wasn't clear obvious without even getting into the statutory interpretation or addressing the second prong of plain error as to whether the defendant substantial rights were affected i'd like to move on to the substantial right or wrong the defendant's problem here is that the only substantial right that could possibly be implicated by his absence during board year is the possibility that the jury was not impartial and here he's made no allegations that any of the jurors was biased whatsoever we know from people vs being and from this court's later precedent in people vs and lauren that the broad right to be present during trial is not in itself a substantial right in order to meet that plain or standard have show more than that and want to present to show that a substantial right was implicated and here the only possibility is that the jury was biased but here there's no allegation and there's nothing in the record to indicate that the jury was biased in any way they can briefly address the issue of the statutory language here the plain language of the statute indicates that it applies to defendants who have either forfeited their bail bonds or escaped from custody and there's simply no indication that the legislature intended for the statute to apply to defendants who are in custody but just decide at the last minute that they don't want to participate at trial if the court has no questions at this time perhaps of which action you begin by i don't mean to interrupt but i would say that even if this court would were to decide now that riser was somehow incorrect i still don't think that that would meet the clear obvious standard because under play now we're still looking at this from the trial court's perspective and  it at the time that it's making this decision is rising or so even if we now decide that rising or was incorrect that still doesn't mean that the trial court committed a clear obvious error by not anticipating that this court might later hold that rising or was incorrect correct statement the law or not well i think initially i would say that i do think that riser was correctly decided and it is factually on point here and that both mr risinger and defendant made valid waivers of the right to counsel and there's no in there's no argument here that mr up injuries waiver of the right to counsel is incorrect nor is there any argument that he didn't make a valid waiver of his right to present his statement to the court that he did not intend to dissipate in trial was very clear also slightly profane so i'm not going to quote it but he made a valid waiver and under those circumstances and under the circumstances of rising or it was a correct interpretation of the statute that because he was in custody trial could proceed without him and there was no need to appoint counsel because he had previously made a valid waiver so i don't think that riser was incorrectly decided if this court were to decide now that rising or was incorrect that would still not indicate that the trial court here well i didn't argue this in terms of invited error that's correct i think that his behavior definitely supports the argument that he made a valid waivers of both of his constitutional rights here both his right to counsel and his right to be present so i think his behavior is definitely supportive of our position that a defendant who chooses to waive his right to counsel fire to public defenders say that he's ready for trial and then wait until the last minute and say no now i'm not going to come out of a courtroom that behavior is not something that the legislature could have intended to support bypassing the trial an essential statue the sooner you know you you rely on people versus zones  and what impact does that have that we have word a different situation here where i believe the facts were that this was it happened very quickly it was based solely on the biggest report that defendant was unwilling to where it was in fact a couple of different statements i believe what happened we're talking about the the court proceeding of january eleventh two thousand and ten which starts i believe two hundred  hundred of the record defended have been informed at least two weeks in advance that they were going to start for deer that morning he had answered ready for trial as soon as six days before that date they had had a creator of the last pretrial hearing he had not indicated that he was not ready that morning he says i want counsel the trial court held i'm fine with that this is a delay tactic you've been saying for weeks that you're ready for trial you fired all your counsel we're going forward with this he  defendant said that he was you know not going to come out and that he was not going to participate and the court held the star of war dear for several hours until the afternoon session allowed the defendant an opportunity to talk to his mother while he was in the hol cell defendant refuse they reconvene later that afternoon and defendant still refused to come out of a cell so in this case the record supports the trial court's conclusion that defendant had been told in advance that this was going to happen plenty of time to prepare he was simply trying to delay the proceedings the trial court then gave him more time to rethink his position after being warned the trial was going to go forward without him and he still refused to come out of his cell and at that point the trial court said all right we are in fact going to would if the entire trial had taken place without him then we'd be having a different argument under the substantial rights prong now we would still be arguing that the statute did not apply to him because he was still in custody and that the error wasn't clear obvious if it works you have some for the entire trial and then he might have a different argument under the substantial rights prong because then perhaps he could argue that one of his other substantial rights had been implicated in addition to the  absence from your dear however since that's not the factual situation presented here the court need not address whether that possibility could affect of another defendant substantial  rights with all this transferred when the border took place you've made references to what transpired you know reports from bail of the mother's conversations so forth how much of all that is the record well that that is the day of war deers january eleventh during the morning session one defendant came out he said he was not going to participate that is on the he did come out yes he did come out initially and then that's when he made these statements that include expletives and so forth i recorded what the defendant said so that is in fact in the record but the defendant's initial statements to the trial court that he wanted counsel and the trial court's finding that this was a delay tactic and that is in the record starting at page two hundred or here is what i'm just i want to make sure i'm clear on the follow up even in justice freeman's question about invited here that's been characterized this defendant who had selected to represent himself voluntarily absent and himself from the proceed just want to know how clear it is on the record that he voluntarily made that decision i think it's very clear and certainly defendants made no argument in this score i believe in the appellate court that his  desire not to participate in border was somehow involuntary or that the bailiffs were holding him hostage or anything related to that it's it's very clear both from this instance and from defendants behavior both in pretrial and impose trial this is not a man who has a problem asserting his rights when he wants to he seems like a fairly opinionated individual and when he wants to tell the trial court something he make sure that he puts it on the record himself  attempted at the last minute to retract his previous valid waiver of his right to counsel but you know it's a day that that's true it is it is ok does occasionally happen that a defendant who has previously executed a valid waiver changes his mind at the last minute however it's also clear from both this court's precedent and united states supreme court precedent that the trial court does not have to allow a defendant to retract a waiver particularly in a situation like this case for it and it waits until the last minute and then tries to hold the court hostage by refusing to come out into the courtroom what happened afterwards eventually he came out and eventually he participate in the trial yes is there any  specific day the next they held more dear that afternoon then they recess the next morning defendant came out he stated that you know he would still prefer to go for with counsel the trial court tonight and defendant said all right then i'm ready to proceed there's no indication that he was that the his waiver of the right to counsel was somehow invalid or that the trial court's colloquy was somehow inadequate if the court has no further questions at th that question i think this is very straightforward case section one fifteen four point one a of the code of criminal procedure authorizes a judge to conduct trial in absentia when a defendant willfully absent some self from trial however this action also demands that the trial court appoint counsel to represent the defendant even if he's has previously waive that right so and and the judge in this case properly proceeded to the verses california the case in which the united states supreme court first recognized a federal right to to self representation the court actually addressed that very question because the state in that case to california had argued to the court that you couldn't you couldn't practically have a right to self representation because a pro se defendant might do something that would require him being left removed from the court room and then you'd be left with nobody from the defense and what the court said in response to that argument was that wasn't really a problem because what the judge could always do was appoint standby counsel over the defendant's objection even and against his will and could remove that if the situation came up with a friend had to be removed from the courtroom he could be removed and stand by counsel to take over the case so it's actually this this is actually the what section one fifteen four point one eight requires is actually these nice the supreme court's preferred method of those that are wrong forfeiture skeet right well this i believe the states argument is contrary to the plain language of the section the scope of the section is defined in its first sentence and the first sentence provides that the the section what the what the state latches onto is language from what's actually the ninth sentence in in the in the provision which talks about the trial rights that a defendant is is afforded during a ninth sentence is not defined the scope of the section the section the scope of section was defined by the first sentence which does not include that limitation and the existence of that language in the one sentence really only shows that if the legislator wanted to place and the statute itself explained specifically with the court has to tell the defendant before th  probably happened is is the legislator in fact probably dig consider escaping from custody or forfeiting your bond to be synonymous with with failing to appear because those are ninety nine point nine nine nine percent of the cases that's how you do it that doesn't why should we interpret this is what the legislature meant in one fifteen dash or point one a as well if we're looking for legislative intent how when did when the legislature passed the statute what what was their meaning here and we have to look at the other statute with ace tell us three specific within that i don't think that you can look at the our section say that's what they mean that for the scope of this text the section i think that you have to look at the fact that you used different every time a defendant willfully have to himself in trial even if it wasn't in a manner in which the legislator anticipated and to go further on that if you look at the purpose of of section four point one  language you have rules you know the sentence providing for a jury trial you have the sentence providing for the friend to receive all of his trial rights and then you have also have the sentence you know it is you in this case requiring you to the right to counsel so that purpose is not furthered by carving out some exception to the section you know the scope of the section for defendants who are in custody because as a practical matter there's no difference the defendant who refuses to come out of his holding cell fails to appear trial because he's not in the courtroom he's not there is he he doesn't appear defend him just like a defendant who fails to show up because he was on bond and stayed home and just like a defendant who escaped from custody and  will look at this in the same brings up the possibility of abuse by defendants or absurd results but surgeries all here would be is that the defendant in this case if you recall the facts of the find in this case was there you know it was present during the morning session went back to his holding cell after that and then refuse to come out for the afternoon session under the state's interpretation of the statute if he instead of going back to the holding cell with the bailiff instead he had run out the front door dealing with a defendant who you know by definition if you're here if you're talking about trial in absentia in the first what you're dealing with a defender who has waived his right to be present every every one of them has every everyone and every defendant in a trial in and of such a situation could be in that courtroom if he wanted to be and so this the fund is no different from any other define in that regard and so there's no logical reason for the legislature to to limit the application of the section to some  this is structural error anything could possibly be structural air this is ed this goes directly to the root of the adversary process it actually goes deeper than a defendant's trial rights are his constitutional rights this is a this is before you even get to the constitution our system is an adversary system and it depends on there being an advocate for one side an advocate for the other side and a neutral trier of fact in the middle and when you take when you have a situation like this where the border is conducted with nobody from the defense that that takes away one of them necessary components of the adversary system you simply cannot have a fair proceeding with one of the one trial the the record positively showed the nothing occurred in the jury during the judge's absence where his presence would have made a difference the record clearly show that the judge you know that the had the judge been present during that time the upcoming trial of an exactly the same but nevertheless this court found that that was playing air under the second prong play now rule because it was structural because you simply cannot have an adversary system any time it was a big part of that is because you didn't have any input from the defense during the voyage here but even if it doesn't show that the jury was was biased it's still the procedure itself doesn't work when you don't have a the first request that this defendant made for counsel he had actually requested standby counsel a month before i believe it was december i believe you wrote a letter to the judge in december fifteenth of the previous year and there was defendant he was it into somebody asked for standby counsel he told the judge he still wanted to conduct his own defense but he was worried after having watched several pretrial motions that he he was worried that he was going to come across situations where he could he didn't know history and of hearings on this that were that if it was initially a point to one counsel he he didn't go on with that counsel he asked for a new one to be appointed the judge actually granted that request point of the new counsel then the defendant one side to go pro say there was of waiver on the record of the right to go right to counsel he proceeded to litigate pretrial motions and then at the end of the pretrial motions they said december fifteenth i believe it was after he lost his retile motions counsel so it was a different request from the one that he made in december he went from in december saying i i i want to conduct my defense but i don't think i can handle it all the time to just general saying i know i can't e so and finally in the state the state actually led with this was argument that this that the air in this case even if it even if it violates a section even if it's structural error it still can't be plainer because of the existence ruled that the way to handle it that you know disruptive pro se defendant is to appoint standby counsel and have standby counsel take over his case when you remove him from the courtroom that though that was plainly obvious to the where where one of you know clear violation of the plain language of the statute that number two instructional air that that that can be not plain error because because i'm a thirty year old poker case exists invited this air remember that the defendant in this case he never actually expressed a desire to have our dear occur without any representative from the defense he he wanted counsel there and he wanted to be there with counsel that's all he ever asked for so i don't think that he invited you know obviously he's you know his conduct is what ended up causing this problem but that's always going to be the case in a trial in this innocent  absentia situation because it's always going to be a case where a defendant could be there chose not to be on and has done something wrong so so i i don't think recall everybody in that courtroom virus was who was perfectly fine with what happened i don't know that that necessarily they invited it but they certainly nobody nobody had a problem with what the judge did there in the courtroom  and this court still found structural error and reversed because it was so important to have the judge there and in that same situation here is just too important to have represented from the fence so that even if somebody somebody invited it it's still you still have to have that representative mr hamil since your time's up i just want you to see if you can answer this question that it invited you to argue a point did you say earlier in your reference to the judge denied whole and statutes that are in different sections of the code should be construed that so that they are not in conflict with each other so when the nine sentences section one point one fifteen four point one a says that these constitutional rights apply to defendants who have either forfeited their bail bonds or straight from custody and when section one thirteen dash or he talks about the essential warning for defendants who have escaped from custody or have been released on bond both of those things apply the statutes have to be construed in harmony with each other the can apply with a difference with it with defendants in general i suppose the legislature could have thought that there might be some difference in knowledge as to what the defendant knows is the consequence already waived his right to counsel which is our case for he runs out the door right he gets counsel this defend they get doesn't get counsel when he stays in a cell so there can already be a relinquishment of the right to counsel which there was here for which was discretionary with the trial judge whether it's you know so so what happens in the situation the guy running out the door he gets counsel but it and the other guy doesn't and i think in our situation there's there's like there's over thirteen idea that here's a guy who wants an attorney at the last minute he's not given an attorney you know he goes to his cell and says i'm not coming out so he gets an attorney under the defendant's interpretation but under both the escapee end our situation they get attorneys but they're not president in the court room and there's a minute what this is really about that mr hamel would say you're not president you get an attorney because of the adversarial process that i believe that is defendant's argument but i don't think that's what the language of the statute indicates and the plain language of the statute is the best indicator of legislative intent the legislature chose to draw a line here they chose to use the specific language escape from custody forfeit bail bonds what would happen if he refused to  while just a point stand by counsel that doesn't solve the problem all that means is that now you have to go find an attorney who's willing to serve a standby counsel which is not an easy role to fill the supreme court talks about this in mccaskill as though appointing standby counsel is something simple but we know from this court's precedent that the appointment of standby counsel is with his within the trial court's broad discretion in part because it's a very difficult world bill you have to find an attorney who's willing to do this you have to determine what that attorney's role is going to be is that person just want to sit there and make sure that the defendant phrases his questions in a proper way so as to avoid objection is he going to handle cross examination what if the defendant decides halfway through that he wants the attorney to handle it and again it would require a great deal of time for the attorney to prepare for this case and had already fired two public defenders there's no one standing in the background who's been following this through the months of pretrial who can just jump in at the last minute if the defendant had successfully managed to convince the trial court that it needed to appoint counsel right then he's effectively held the trial hostage while they go out and find an attorney and have that attorney prepare for this very difficult role so you resist arrest you're going to this do you think i think using not a standby co and counsel correctly conceded that the trial court had discretion not to appoint standby counsel again because that is a very difficult role so not having if there had been stand by counsel bend that person might have been better prepared to jump in at the last minute court was not required to appoint that person as to the final request a defendant didn't ask for standby counsel he wanted someone to represent him in total and that that's a different question of whether the trial court   cases but i think it's implicit in that standard that if you can waive these if there's a right that can be waived the error could be invited so it could be looked at in that sense we didn't argue this i was invited to error i mean in terms of justice freeman's previous question i suppose it could be looked at in that way we're arguing this under the plain error standard so it's not so much that we're saying the defendant invited there we're saying that the facts support the idea that both to hold that plane error occurred in this case would essentially be telling tribal courts that if they think an appellate court case was wrongly decided they should just ignore it so a spontaneous in the hope that this horrible eventually agree with them and that seems quite contrary to the plain error standard