Tuesday 25th 

 March, 1997. 

Jose Luis Cruz, Appellant, 

 against Record No. 0749-95-4 

 Circuit Court No. CR94-1408 

Commonwealth of Virginia, Appellee. 

Upon Rehearing En Banc 

 Before Chief Judge Moon, Judges Baker, Benton, Coleman, 

Willis, Bray, Fitzpatrick, Annunziata and Overton 

 Sean D. O'Malie (Pelton, Balland, Young, 

Demsky, Baskin & O'Malie, on brief), for 

appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

By opinion dated September 3, 1996, a majority of a panel of 

this Court affirmed the decision of the trial court. Cruz v. 

Commonwealth, 23 Va. App. 113, 474 S.E.2d 835 (1996). Upon motion of 

Jose Luis Cruz, we granted a hearing en banc. Upon such rehearing, 

the judgment of the trial court is affirmed. We adopt as the opinion 

of this Court en banc the following from the panel opinion: 

Following a jury trial conducted in his absence, appellant, 

Jose Luis Cruz ("Cruz"), was convicted of malicious wounding, 

sentenced to seven years imprisonment, and fined $20,000. On appeal, 

Cruz argues that the court erred by proceeding in his absence. We 

disagree and affirm. 
- 2 - 

 

 I 

Following his arrest, Cruz was released on bond after he 

signed a recognizance form on which he acknowledged that, if he failed 

to appear at trial, the court could try and convict him in his 

absence. Subsequently, Cruz was indicted and arraigned. Cruz was 

again released after he signed another form entitled, "Appearance at 

Trial," in which he acknowledged that if he failed to appear at his 

trial, scheduled for October 31, 1994, the court could try him in his 

absence.10

Cruz failed to appear at trial on October 31, and the court 

stated that it was prepared to proceed without him. Defense counsel 

objected and requested a continuance. However, counsel was unable to 

proffer an explanation for Cruz's absence and stated that Cruz "lives 

with the knowledge and that he realizes his failing to appear is a 

waiver." 

 10The form reads as follows: 

APPEARANCE AT TRIAL 

 I understand that I must appear in Circuit Court at 

9:30 a.m. on the date set for my trial/disposition which is 

_____________________________. 

 I understand that if I fail to appear on the date set 

for trial, I may be tried in my absence and may be indicted for 

the felony offense of Failure to Appear which carries a sentence 

of up to five years in the penitentiary. 

 ________________________________ 

 Defendant 

 ________________________________ 

 Date 
- 3 - 

 

Faced with both the "Appearance at Trial" form signed by 

Cruz and Cruz's unexplained absence, the court found that Cruz had 

voluntarily waived his right to attend trial. The court stated that 

the reason for the "Appearance at Trial" form was 

 so we don't have witnesses coming in here. 

We don't have everybody ready for trial. We 

don't have a jury sitting around and a 

defendant decides that he prefers to be 

somewhere else. 

The court empathized with the difficulty Cruz's absence presented 

defense counsel but observed that Cruz was responsible for counsel's 

predicament and that Cruz's absence did not mean "the witnesses, the 

Commonwealth, the Jury and the Court should suffer any further 

prejudice." The court further stated that "[w]itnesses, jurors, court 

systems depend upon everybody showing up, including the defendant." 

For these reasons, the court proceeded with trial in Cruz's absence.11

On December 2, 1994, Cruz appeared for sentencing. Defense 

counsel renewed his objection and proffered Cruz's excuse. He stated 

that Cruz was concerned about the trial and that he drank too much the 

night before trial and overslept. The court denied Cruz relief, 

stating that Cruz's explanation demonstrated his awareness of the 

trial date and its importance. 

 11The court informed both the venire and the jury panel that 

Cruz was absent and instructed them not to speculate on the 

reasons. The court further instructed the panel that, in his 

absence, Cruz would be afforded the same constitutional 

protections as if he were present. 
- 4 - 

 II 

An accused's right to be present at trial arises from both 

the Sixth Amendment12 and Code § 19.2-259.13 Hunter v. Commonwealth, 

13 Va. App. 187, 190, 409 S.E.2d 483, 485 (1991); Head v. 

Commonwealth, 3 Va. App. 163, 168, 348 S.E.2d 423, 426 (1986). At 

common law, the right to be present at trial could not be waived. 

Noell v. Commonwealth, 135 Va. 600, 608-09, 115 S.E. 679, 681 (1923), 

overruled by Jones v. Commonwealth, 227 Va. 425, 317 S.E.2d 482 

(1984); Crosby v. United States, 506 U.S. 255, 259 (1993).14 Under 

the modern rule, however, an accused may forfeit both the 

constitutional right and the statutory right to be present at trial. 

Head, 3 Va. App. at 168-69, 348 S.E.2d at 426-27; see also Sisk v. 

Commonwealth, 3 Va. App. 459, 463, 350 S.E.2d 676, 679 (1986). 

An accused, present at the start of trial, can waive the 

right to be present for further proceedings once the trial begins. 

Taylor v. United States, 414 U.S. 17, 20 (1973) (defendant absconded 

 

 12"In all criminal prosecutions, the accused shall enjoy the 

right . . . to be confronted with the witnesses against him." 

U.S. Const. amend. VI. "The Fourteenth Amendment makes the 

guarantees of this clause obligatory upon the States." Illinois 

v. Allen, 397 U.S. 337, 338 (1970). 

 13Code § 19.2-259 provides, in part, "[a] person tried for 

felony shall be personally present during the trial." 

 14This canon was premised on the notion that a fair trial 

could take place only if the jurors met the defendant 

face-to-face and only if those testifying against the defendant 

did so in his presence. It was thought "contrary to the dictates 

of humanity to let a prisoner `waive the advantage which a view 

of his sad plight might give him by inclining the hearts of the 

jurors to listen to his defence with indulgence.'" Crosby, 506 

U.S. at 259 (citations omitted). 
- 5 - 

mid-trial); Barfield v. Commonwealth, 20 Va. App. 447, 449-53, 457 

S.E.2d 786, 787-89 (1995) (same); see also Illinois v. Allen, 397 U.S. 

337, 343 (1970) (defendant removed from trial after refusal to refrain 

from disorderly, disruptive, and disrespectful conduct); Quintana v. 

Commonwealth, 224 Va. 127, 144-45, 295 S.E.2d 643, 651-52 (1982), 

cert. denied, 460 U.S. 1029 (1983) (same). Moreover, under Virginia 

law, an accused can waive the right to be present for the entire 

trial. Head, 3 Va. App. at 170, 348 S.E.2d at 428; Hunter, 13 Va. 

App. at 190, 409 S.E.2d at 485. 

However, as one of the most basic rights guaranteed by the 

Confrontation Clause, Allen, 397 U.S. at 338, an accused's right to be 

present at trial must be carefully safeguarded. United States v. 

Beltran-Nunez, 716 F.2d 287, 290 (5th Cir. 1983). Therefore, before 

proceeding in absentia, the court must first determine that the 

absence of the accused denotes a waiver of the right to be present at 

trial. See, e.g., Barfield, 20 Va. App. at 449-50, 457 S.E.2d at 

787-88; Hunter, 13 Va. App. at 191, 409 S.E.2d at 485. Additionally, 

in the case of an accused who fails to appear at the start of trial, 

the court must also determine whether a continuance would be 

"prejudicial to the Commonwealth's case." Hunter, 13 Va. App. at 191, 

409 S.E.2d at 485; Head, 3 Va. App. at 170, 348 S.E.2d at 428; cf.

Barfield, 20 Va. App. at 453, 457 S.E.2d at 789 ("Commonwealth not 

required to prove prejudice when defendant absconds after trial has 

commenced."). 

A presumption exists against the waiver of a constitutional 

right. Hunter, 13 Va. App. at 191, 409 S.E.2d at 485; Sisk, 3 Va. 
- 6 - 

App. at 462, 350 S.E.2d at 678. Such a waiver must be a voluntary, 

knowing, and intelligent act "done with sufficient awareness of the 

relevant circumstances and likely consequences." Hunter, 13 Va. App. 

at 191, 409 S.E.2d at 485 (quoting Brady v. United States, 397 U.S. 

742, 748 (1970)). 

In determining whether there has been a "voluntary waiver" 

of the defendant's right to be present at trial, the implications 

which can be derived from a defendant's voluntary absence are fact 

specific. "[V]oluntary absence, standing alone, does not 

[necessarily] constitute a knowing and intelligent waiver." Hunter, 

13 Va. App. at 193, 409 S.E.2d at 486. 

Three panels of this Court have considered the circumstances 

under which a defendant who is voluntarily absent from the entire 

trial may be found to have waived his right to be present at trial. 

In Head, 3 Va. App. at 170, 348 S.E.2d at 428, the defendant was 

present at arraignment where his trial date was read in open court. 

After he signed a recognizance form on which he acknowledged that his 

failure to appear could result in his being tried in his absence, the 

defendant was released on bond. Id. When the defendant failed to 

appear at trial, the trial court conducted a hearing to determine if 

he had notice of his trial date, if he was absent by choice, and if 

his absence was justified. Id. Defense counsel had no explanation 

for the defendant's absence and stated that notification had been sent 

to his address. Id. For these reasons, we upheld the trial court's 

determination that the defendant had voluntarily and knowingly waived 

his right to be present. 
- 7 - 

 In Sisk, 3 Va. App. at 460, 350 S.E.2d at 677, the defendant 

was present at arraignment and signed a bond form indicating that if 

he failed to appear he could be tried in his absence. Although the 

defendant appeared for trial on the date it was originally scheduled, 

he failed to appear on the ultimate trial date, after the trial court 

had granted a number of continuances. Id. at 461, 350 S.E.2d at 678. 

 The defendant was convicted in his absence. Id. We found no 

evidence that the defendant had notice of the ultimate trial date or 

that he was warned that his failure to appear at any further stage 

would be deemed a waiver of his right to be present. Id. at 461, 463-

64, 350 S.E.2d at 678, 679-80.15 For these reasons, we reversed the 

trial court's determination that the defendant had knowingly and 

voluntarily waived his right to be present. 

 In Hunter, 13 Va. App. at 193, 409 S.E.2d at 486, while the 

defendant clearly had knowledge of his trial date and was absent 

voluntarily, we held that the defendant had not knowingly and 

voluntarily waived his right to be present. Distinctly absent was any 

evidence that the defendant had been warned he could be tried in his 

absence if he failed to appear. Id. We stated that "[a] voluntary 

and intelligent waiver of the right to be present at trial could be 

shown by establishing that an officer of the court has explained to 

the defendant that failure to appear at trial could result in his 

 

 15Refusing to apply Head, since it was decided subsequent to 

the defendant's trial, the Sisk Court found that the bond form 

did not provide sufficient warning. Sisk, 3 Va. App. at 465, 350 

S.E.2d at 680. 
- 8 - 

being tried in his absence." Id.16

These three cases establish the rule that a knowing and 

voluntary waiver of the right to be present by a defendant who is 

voluntarily absent from the entire trial cannot be shown unless the 

defendant (1) has been given notice of his trial date; and (2) has 

been warned that his failure to appear could result in a trial in his 

absence. 

Cruz's explanation that he missed trial because he drank too 

much and overslept clearly supports the trial court's finding that his 

absence was, indeed, voluntary. The "Appearance at Trial" form 

provided Cruz both notice of his trial date and a warning that his 

failure to appear could result in a trial in his absence. That 

warning 

 provide[s] the basis for [our] subsequent 

finding that [Cruz] knew and understood that 

he ha[d] a right to be present at trial and 

that he might waive or forfeit that right by 

his absence. [Thus], the record [provides] 

prima facie evidence of [Cruz's] knowing 

forfeiture or waiver of his right to be 

present. 

Hunter, 13 Va. App. at 192, 409 S.E.2d at 486 (quoting Sisk, 3 Va. 

App. at 466, 350 S.E.2d at 680).17 Thus, we conclude the trial court 

 

 16The Hunter decision did not "limit the manner in which the 

trial court may determine that the appellant has made a knowing 

and intelligent waiver of the right to be present at trial," 13 

Va. App. at 193, 409 S.E.2d at 486, and it specifically did not 

determine the circumstances under which the execution of a bond 

form would be sufficient to show a voluntary and intelligent 

waiver. Id. at 193 n.4, 409 S.E.2d at 486 n.4. 

 17Because we find the "Appearance at Trial" form to have 

provided sufficient notice and warning, we, like the panel in 

Hunter, do not address what provisions in a bond recognizance 

form or under what circumstances the execution of such a form 
- 9 - 

properly found that Cruz was voluntarily absent from trial and that he 

had notice both of the trial date and the possibility he would be 

tried in his absence if he failed to appear. 

We now turn to the more difficult issue of the nature of the 

prejudice which a continuance causes the Commonwealth. We do not 

believe the Commonwealth can establish prejudice only by showing that 

witnesses may be lost or not available for a second trial.18

All of the cases dealing with this subject recognize that 

each case turns upon "a complex of issues, including the likelihood 

that the trial could soon take place with the defendant present." 

United States v. Peterson, 524 F.2d 167, 185 (4th Cir. 1975), cert. 

denied, 423 U.S. 1088 (1976). In Head, 3 Va. App. at 169-70, 348 

S.E.2d at 427, we cited the holding by the United States Court of 

Appeals for the Fourth Circuit in Peterson which recognized that, in 

the exercise of sound discretion, the trial judge should consider 

various factors in determining whether to proceed. Other circuits 

agree and have created a similar, nonexclusive list of factors that 

indicate prejudice. 

 Where the court finds that the defendant has 

voluntarily absented himself from the 

proceedings, it may decide to proceed in his 

absence only after balancing a "complex of 

issues" including the additional burdens, 

waste and expense inflicted upon the court, 

government, witnesses, and co-defendants, 

and the public's interest in seeing the 

 

would be sufficient to show a voluntary and intelligent waiver. 

 18To the extent that our holding here conflicts with our 

holding in Head, 3 Va. App. at 169-70, 348 S.E.2d at 428, 

regarding prejudice caused by a defendant's failure to appear for 

trial, we overrule Head. 
- 10 - 

accused brought to trial as well as the 

court's responsibility to do so speedily. 

United States v. Pastor, 557 F.2d 930, 934 (2d Cir. 1977). 

 In Clark v. Scott, 70 F.3d 386 (5th Cir 1995), cert. denied, 

116 S. Ct. 1444 (1996), the United States Court of Appeals for the 

Fifth Circuit recently reversed the grant of habeas relief by a 

district court and held that state courts are not constitutionally 

required to perform the balancing test announced in United States v. 

Benavides, 596 F.2d 137 (5th Cir. 1979), and the later case of 

Bertran-Nunez. The Court explained: 

 The Supreme Court's decision in Taylor [v. 

United States, 414 U.S. 17 (1973),] leads us 

inexorably to the conclusion that the 

imposition of a balancing test in Benavides

and Bertran-Nunez is not constitutionally 

required. Consequently, our cases must be 

understood as an exercise of our supervisory 

powers over federal courts under Rule 43. 

As such, we are powerless to impose this 

balancing test on state courts in federal 

habeas actions. 

 We therefore hold that the Benavides

balancing test is not constitutional in 

scope. Because the state trial court's 

continuation of the trial against Clark in 

absentia after a finding of voluntary 

absence comports with constitutional 

requirements as set forth by the Supreme 

Court in Taylor, we conclude that the 

district court erred by granting Clark 

habeas relief. 

Clark, 70 F.3d at 389-90. 

In some cases, the Commonwealth's claim of prejudice may be 

stark and dramatically evident as when a crucial witness would be 

unavailable, for whatever reason, in the future. In such an instance, 

the ability of the Commonwealth to prove its case would be clearly 
- 11 - 

prejudiced. However, in most cases such prejudice cannot be shown nor 

should it be required. 

 Both Peterson and Head recognize that a crucial factor to be 

considered is the likelihood that the accused would appear and the 

trial could take place at a later date. This same reasoning was 

applied by the Fifth Circuit in Beltran-Nunez: 

 [H]ad an inquiry before the trial proceeded 

established for the record that the 

defendant had deliberately absented himself 

and that there was no reasonable probability 

he could be located shortly, we would be 

loath to say that the district [trial] court 

abused its discretion by failing to delay or 

reschedule the trial. 

716 F.2d at 291. 

 In United States v. Muzevsky, 760 F.2d 83 (4th Cir. 1985), 

the trial court faced a situation similar to the one before the trial 

judge here. The trial court did not know the reason for the 

defendant's absence, and it had no basis to believe that the trial 

could be rescheduled within a reasonable time. Id. at 84. For those 

reasons, the Fourth Circuit affirmed the trial court's decision to 

proceed in the defendant's absence. Id. at 85. 

The record in this case is totally devoid of any assurance, 

or even hint, that the defendant would be available in the future. As 

far as the trial court was aware, the defendant could have fled the 

jurisdiction or the country for parts unknown, never to be heard from 

again. Under such circumstances, we find no abuse of discretion in 

proceeding with the trial in the defendant's absence. 

No prejudice would result to a defendant who was absent as 
- 12 - 

the result of a medical or other unanticipated emergency, because his 

trial would not have been completed. Sentencing would have been 

stayed, as we directed in Head, until he appeared and was accorded the 

opportunity to justify his absence from the guilt stage of his trial. 

 Upon hearing, if the Court was satisfied that the defendant's absence 

did not constitute a waiver, a new trial could be ordered. 

We further do not agree with the argument that the economic 

cost to the court or the disruption of its docket is never sufficient 

to justify proceeding in absentia. It seems unwise and indeed 

unnecessary to establish such a rule that would apply to all cases, in 

the future, regardless of the cost involved. Most crimes involve the 

direct testimony of the victim, usually a local resident, who normally 

would be available in the event of a continuance. In all such cases, 

if the economic prejudice considered along with other factors, such as 

the absence of any evidence showing a reasonable likelihood that the 

trial could soon take place with the defendant's presence, is not 

sufficient to try a voluntarily absent appellant, then a defendant 

could avoid trial at least once because the Commonwealth would not be 

able to establish that a delay would prejudice its ability to prove 

its case. Moreover, a defendant would be allowed to circumvent the 

trial court's authority to control the scheduling of trials and the 

granting of continuances. We do not read our decisional law as 

subscribing to such a result. 

We caution that the decision to proceed to trial in the 

absence of the defendant calls for the exercise of sound discretion by 

the trial judge. Undoubtedly there will be many instances where such 
- 13 - 

discretion will require a continuance. If however, after carefully 

considering all factors, the exercise of sound discretion leads to a 

trial in the defendant's absence, it would facilitate appellate review 

if the court insures that the factors which were considered appear in 

the record. 

For these reasons, the conviction appealed from is affirmed. 

Accordingly, the stay of this Court's September 3, 1996 mandate is 

lifted. 

It is ordered that the trial court allow counsel for the 

appellant an additional fee of $200 for services rendered the 

appellant on the rehearing portion of this appeal, in addition to 

counsel's costs and necessary direct out-of-pocket expenses. This 

amount shall be added to the costs due the Commonwealth in the 

September 3, 1996 mandate. 

____________________ 

Annunziata, J., with whom Benton, J., joins, concurring in part, and 

 dissenting in part. 

While I concur with the majority opinion that Cruz, by his 

action, waived his right to be present at his trial, I cannot join in 

the holding that trial properly proceeded in his absence. 

An accused's right to be present at trial is one of the most 

important and basic rights guaranteed by the Confrontation Clause, 

Illinois v. Allen, 397 U.S. 337, 338 (1970), and must be carefully 

safeguarded. United States v. Beltran-Nunez, 716 F.2d 287, 290 (5th 

Cir. 1983). As the majority recognizes, the accused was not permitted 

at common law to waive the right to be present at trial. Noell v. 
- 14 - 

Commonwealth, 135 Va. 600, 608-09, 115 S.E. 679, 681 (1923), overruled 

by Jones v. Commonwealth, 227 Va. 425, 317 S.E.2d 482 (1984); Crosby 

v. United States, 506 U.S. 255, 259 (1993). 

 This canon was premised on the notion that a 

fair trial could take place only if the 

jurors met the defendant face-to-face and 

only if those testifying against the 

defendant did so in his presence. It was 

thought "contrary to the dictates of 

humanity to let a prisoner `waive the 

advantage which a view of his sad plight 

might give him by inclining the hearts of 

the jurors to listen to his defence with 

indulgence.'" 

Crosby, 506 U.S. at 259 (citations omitted). Under modern principles, 

however, an accused may forfeit both the constitutional right and the 

statutory right to be present at trial. Head v. Commonwealth, 3 Va. 

App. 163, 168, 348 S.E.2d 423, 426 (1986); see also Sisk v. 

Commonwealth, 3 Va. App. 459, 463, 350 S.E.2d 676, 679 (1986). 

In light of the historic requirement to protect an accused's 

right to be present at trial, a dichotomy emerged between the 

principles applicable to a defendant who has waived the right to be 

present after trial begins and the principles applicable to a 

defendant who fails to appear at the commencement of trial. See

Crosby, 506 U.S. at 261-62; Barfield v. Commonwealth, 20 Va. App. 447, 

453, 457 S.E.2d 786, 789 (1995). This distinction, which the majority 

appears to ignore, is well-founded: 

 As a general matter, the costs of suspending 

a proceeding already under way will be 

greater that the cost of postponing a trial 

not yet begun. . . . [Additionally,] the 

defendant's initial presence serves to 

assure that any waiver is indeed knowing. 

"Since the notion that trial may be 

commenced in absentia still seems to shock 
- 15 - 

most lawyers, it would hardly seem 

appropriate to impute knowledge that this 

will occur to their clients." It is 

unlikely, on the other hand, "`that a 

defendant who flees from a courtroom in the 

midst of a trial--where judge, jury, 

witnesses and lawyers are present and ready 

to continue--would not know that as a 

consequence the trial could continue in his 

absence.'" Moreover, a rule that allows an 

ongoing trial to continue when a defendant 

disappears deprives the defendant of the 

option of gambling on an acquittal knowing 

that he can terminate the trial if it seems 

that the verdict will go against him--an 

option that might otherwise appear 

preferable to the costly, perhaps 

unnecessary, path of becoming a fugitive 

from the outset. 

Crosby, 506 U.S. at 261-62 (citations omitted). 

As noted by the majority, an accused, present at the start 

of trial, clearly can waive the right to be present for further 

proceedings once trial has begun. Taylor v. United States, 414 U.S. 

17, 20 (1973) (defendant absconded mid-trial); Barfield v. 

Commonwealth, 20 Va. App. 447, 449-53, 457 S.E.2d 786, 787-89 (1995) 

(same); see also Illinois v. Allen, 397 U.S. 337, 343 (1970) 

(defendant removed from trial after refusal to refrain from 

disorderly, disruptive, and disrespectful conduct); Quintana v. 

Commonwealth, 224 Va. 127, 144-45, 295 S.E.2d 643, 651-52 (1982), 

cert. denied, 460 U.S. 1029 (1983) (same). Where an accused is found 

to have voluntarily waived the right to be present after trial is 

underway, the court may proceed in absentia without having to justify 

specifically its denial of a continuance. E.g., Barfield, 20 Va. App. 

at 453, 457 S.E.2d at 789. In such cases, 

 when the defendant absconds after the trial 

has begun, the prejudice to the Commonwealth 
- 16 - 

is clear and substantial. Both jurors and 

witnesses will have their lives further 

disrupted by having to be on call until the 

capture or return of the defendant. 

Witnesses's memories will fade. 

Prosecutors, defense counsel and judges, who 

need to work on other cases, will later have 

to interrupt their present case load to 

familiarize themselves with the defendant's 

case which was put on hold. The general 

disruption to the proper administration of 

the criminal justice system is such that the 

Commonwealth should not have to prove any 

special prejudice when the defendant 

absconds after the trial has commenced. 

Id. (emphasis added). 

The federal courts have extended the rule allowing trial to 

proceed in the absence of a defendant found to have absconded 

mid-trial to trials in absentia of defendants who failed to appear at 

the commencement of trial. E.g., United States v. Tortora, 464 F.2d 

1202 (2d Cir.), cert. denied sub. nom. Santoro v. United States, 409 

U.S. 1063 (1972).19 However, the Tortora Court held that an accused's 

voluntary absence at the start of trial is not alone sufficient to 

warrant proceeding with trial. Id. at 1210. Rather, under the 

Tortora approach, the decision to proceed in the absence of the 

defendant who fails to appear at the start of trial is a matter for 

the discretion of the trial court, and should be exercised only in 

"extraordinary" circumstances where the "public interest clearly 

outweighs that of the voluntarily absent defendant." Id. This 

balancing turns on a "complex of issues" including 

 

 19Tortora has been cited as the leading federal case upholding 

a trial in absentia of a defendant who took flight before the 

trial commenced. 3 LaFave & Israel, Criminal Procedure § 23.2(b) 

(1984). 
- 17 - 

 the likelihood that the trial could soon 

take place with the defendant present; the 

difficulty of rescheduling, particularly in 

multiple-defendant trials; the burden on the 

Government in having to undertake two 

trials, again particularly in multipledefendant trials where the evidence against 

the defendants is often overlapping and more 

than one trial might keep the Government's 

witnesses in substantial jeopardy. 

Id. The Tortora Court further noted, "[i]t is difficult for us to 

conceive of any case where the exercise of this discretion would be 

appropriate other than a multiple-defendant case." Id. at n.7. 

Indeed, "[i]n virtually all of the cases in which a conviction of a 

defendant obtained in absentia has been affirmed, other co-defendants 

were present for the trial." United States v. Latham, 874 F.2d 852, 

859 (1st Cir. 1989). 

The federal circuits never agreed that such a balancing test 

was appropriate and, in fact, contested whether the trial court should 

have narrow, broad, or complete discretion to proceed in absentia once 

voluntary waiver was found. See United States v. Houtchens, 926 F.2d 

824, 827 (9th Cir. 1991) (discussing disagreement among circuits and 

adopting rule requiring no further determination of prejudice once 

voluntary waiver found). 

The Fourth Circuit, however, adopted Tortora's balancing 

test in a multiple defendant case involving a "set of extraordinary 

factors." United States v. Peterson, 524 F.2d 167, 185-86 (4th Cir. 

1975), cert. denied, 423 U.S. 1088 (1976). Later, in United States v. 

Muzevsky, 760 F.2d 83 (4th Cir. 1985), the Fourth Circuit extended the 

rule of Peterson and Tortora to a single-defendant trial. In so 
- 18 - 

doing, the Muzevsky Court reaffirmed the Peterson/Tortora balancing 

approach, stating, 

 when the court does not know the reasons for 

the defendant's absence and has no basis to 

believe that the trial can be rescheduled 

within a reasonable time, consideration of 

the government's difficulty in reassembling 

its proof may dictate an immediate trial. 

This determination should be undertaken in 

accord with Peterson. 

Muzevsky, 760 F.2d at 85.20

Subsequently, this Court adopted the Fourth Circuit's 

approach to conducting trials in absentia of defendants absent at the 

commencement of trial. See Head, 3 Va. App. at 170, 348 S.E.2d at 

428; Hunter v. Commonwealth, 13 Va. App. 187, 190, 409 S.E.2d 483, 485 

(1991). Thus, an accused can waive the right to be present for the 

entire trial under Virginia law. Id. However, in line with the 

Fourth Circuit, this Court adopted the Peterson/Tortora balancing 

approach and directed trial courts, before proceeding in absentia, to 

consider 

 inter alia, the likelihood that the trial 

could soon take place with the defendant 

present, the difficulty of rescheduling, the 

 

 20The United States Supreme Court's decision in Crosby

effectively overruled Tortora, Peterson, and Muzevsky on the 

proposition that, under the federal rules, trial could proceed in 

the absence of a defendant who failed to appear at the 

commencement of trial. Following Crosby, trial may not proceed 

in the absence of a defendant who fails to appear at its 

commencement under any circumstance. Decided solely on the basis 

of the federal rule without reaching the constitutional question, 

Crosby does not preclude state courts from proceeding in the 

absence of a defendant who fails to appear at the start of trial. 

 Also, because it precludes trial in absentia of a defendant 

absent when the trial commences under any circumstance, the 

Crosby Court did not address the necessity of a balancing test to 

protect the rights of such a defendant. 
- 19 - 

burden on the Commonwealth in securing the 

attendance of witnesses on another date, and 

any other factors given to explain the 

defendant's absence. 

Id. at 169-70, 348 S.E.2d at 427-28. 

The majority seeks to avoid the result of this Court's 

adoption of the balancing test by relying on federal cases which held 

that such a test is not mandated by the federal constitution. It is 

not the mandate of the federal constitution which compels the result 

here but, rather, the dictates of Virginia law. The rule resulting 

from the decisions of this Court is that trial may proceed in the 

absence of a defendant who fails to appear for the entire trial only 

if the court finds (1) that the defendant voluntarily waived the right 

to be present; and (2) "that the burden of a continuance would be 

prejudicial to the Commonwealth's case." Head, 3 Va. App. at 170, 348 

S.E.2d at 428 (emphasis added); see also Hunter, 13 Va. App. at 191, 

409 S.E.2d at 485; Barfield, 20 Va. App. at 453, 457 S.E.2d at 789. 

Recently, in Barfield, this Court affirmed the distinction between the 

principles applicable to cases involving a defendant who absconds midtrial and the principles involved in a case where the defendant fails 

to appear for the entire proceeding. Thus, while 

 [t]he general disruption to the proper 

administration of the criminal justice 

system is such that the Commonwealth should 

not have to prove any special prejudice when 

the defendant absconds after the trial has 

commenced, . . . prejudice to the 

Commonwealth's case due to a continuance 

must be shown in order for the court to 

proceed in the defendant's absence [in] 

those cases where the trial ha[s] not yet 

commenced. 
- 20 - 

Barfield, 20 Va. App. at 453, 457 S.E.2d at 789 (emphasis added). 

I concur with the majority opinion that appellant, by his 

action, knowingly and voluntarily waived his right to be present at 

his trial. However, in light of principles developed by this Court, a 

finding that an accused who fails to appear for the entire trial has 

voluntarily waived his right to be present at trial is, alone, 

insufficient to justify proceeding in his absence. I cannot join in 

holding that the trial court properly proceeded in appellant's absence 

without the Commonwealth having proffered sufficient reasons why its 

case would have been prejudiced by a continuance. 

Indeed, the Commonwealth failed to proffer any reason why 

its case would be prejudiced by a continuance. Instead, the trial 

court considered as its basis for proceeding the general disruption to 

the proper administration of the criminal justice system of Cruz's 

failure to appear.21 While such disruption is clearly sufficient to 

justify proceeding in the absence of a defendant who absconds 

mid-trial, it is not sufficient to establish "prejudice to the 

 

 21The court indicated that the reason for the Appearance at 

Trial form was 

 so we don't have witnesses coming in here. We 

don't have everybody ready for trial. We 

don't have a jury sitting around and a 

defendant decides that he prefers to be 

somewhere else. 

Later, the court indicated that although Cruz's failure to appear 

impinged his attorney's ability to defend him, that did not mean 

the "the witnesses, the Commonwealth, the Jury and the Court 

should suffer any further prejudice" and that "[w]itnesses, 

jurors, court systems depend upon everybody showing up, including 

the defendant." 
- 21 - 

Commonwealth's case" to justify proceeding in the absence of a 

defendant who fails to appear at the commencement of trial. Barfield, 

20 Va. App. at 453, 457 S.E.2d at 789. 

As the majority points out, the likelihood that the trial 

could soon take place with the defendant present is one of the factors 

the trial court must consider. However, although the majority asserts 

that this case must turn on a "complex of issues," its holding 

actually turns on its application of a single factor--that "[t]he 

record in this case is totally devoid of any assurance, or even hint, 

that the defendant would be available in the future." While I agree 

that there was no assurance Cruz would be available in the near 

future, this factor alone is not determinative.22

The majority's reference to United States v. Muzevsky to 

support its holding is misplaced. To say, as the majority does, that 

"the Fourth Circuit [in Muzevsky] affirmed the trial court's decision 

to proceed in the defendant's absence" because "[t]he trial court did 

not know the reason for the defendant's absence, and it had no basis 

to believe that the trial could be rescheduled within a reasonable 

time" relates only a fraction of the record. In Muzevsky, the trial 

court 

 explained that it had proceeded with the 

trial because it was concerned that delay 

would lead accomplices testifying against 

Muzevsky to change their testimony and that 

the other witnesses, mostly transient hotel 

employees, would not be available for a 

second court appearance. Moreover, the 

 

 22I also note the record reflects that the trial court did not 

issue a bench warrant for Cruz or attempt in any way to secure 

his presence for trial in the immediate future. 
- 22 - 

court noted that at the time of the trial no 

information was available that would have 

allowed the court to predict if Muzevsky 

would appear in a reasonable time--if at 

all. 

Muzevsky, 760 F.2d at 84 (emphasis added). The Fourth Circuit 

affirmed the trial court's decision to proceed in absentia, stating, 

 when the court does not know the reasons for 

the defendant's absence and has no basis to 

believe that the trial can be rescheduled 

within a reasonable time, consideration of 

the government's difficulty in reassembling 

its proof may dictate an immediate trial. This determination should be undertaken in 

accord with Peterson. 

Muzevsky, 760 F.2d at 85 (emphasis added). 

The principle underlying the application of the balancing 

test this Court has adopted is the preservation of the accused's right 

to be present at trial except when the accused's absence prejudices 

the government's ability to obtain a conviction. Indeed, the Virginia 

cases and those on which they rely support the proposition that the 

accused cannot use the right to be present at trial as a sword, in an 

attempt to avoid conviction. These cases simply require the 

government to prove that obtaining a conviction will be more difficult 

in the future. 

While the absence of assurances as to the missing 

defendant's location or likelihood of reappearance may aid the 

government in meeting its burden, the absence of such assurances alone 

is insufficient. As Muzevsky clearly demonstrates, the whereabouts of 

a defendant and the likelihood of his reappearing in a reasonable time 

are factors which may contribute to the broader determination that the 
- 23 - 

government's case will be prejudiced but which alone are not 

determinative. Here, the Commonwealth neither proffered nor argued 

any reason why a continuance would prejudice its ability to convict 

Cruz at a later date, and the court made no such finding. 

The majority suggests that Cruz's confrontation rights were 

adequately protected because "[s]entencing would have been stayed 

. . . until he appeared and was accorded the opportunity to justify 

his absence." This argument misses the point and provides false 

assurance that Cruz's confrontation rights were protected. According 

a defendant the opportunity to justify his absence before sentencing 

addresses only the issue of voluntary waiver of the right to be 

present as required by the first prong of the test. See Head, 3 Va. 

App. at 170, 348 S.E.2d at 428; Hunter, 13 Va. App. at 191, 409 S.E.2d 

at 485; Barfield, 20 Va. App. at 453, 457 S.E.2d at 789. However, in 

addressing the second prong of the test, as we do here, the question 

to be addressed is whether Cruz's unjustified absence caused 

sufficient prejudice to the Commonwealth's case to warrant sacrificing 

his right to confrontation. See id. An after-the-fact affirmation 

that Cruz's absence was unjustified does not establish that the need 

to conduct a trial in absentia outweighed his confrontation rights. 

The majority concludes that the Commonwealth should not be 

required to prove prejudice to its ability to obtain a conviction 

before the court may proceed in the absence of a defendant who fails 

to appear at the start of trial. This conclusion eviscerates the 

prejudice prong of the test this Court adopted in Head and reaffirmed 

in Hunter and destroys the distinction established by this Court in 
- 24 - 

Barfield between the principles applicable to defendants who abscond 

mid-trial and those who fail to appear before trial commences. 

In support of its position, the majority relies on Clark v. 

Scott, 70 F.3d 386 (5th Cir. 1995), which held that the United States 

Constitution does not require a trial court to conduct a balancing 

test similar to the test established by Tortora and Peterson and 

adopted by this Court in Head, before proceeding with trial in 

absentia. Again, the issue is not whether the United States 

Constitution requires a Tortora/Peterson balancing test. This Court 

has adopted and affirmed precisely such an approach, see Head, 3 Va. 

App. at 169-70, 348 S.E.2d at 427; Hunter, 13 Va. App. at 190-91, 404 

S.E.2d at 485; Barfield, 20 Va. App. at 453, 457 S.E.2d at 789, and 

under familiar principles of stare decisis, we are bound by that 

precedent. See Commonwealth v. Burns, 240 Va. 171, 173-74, 395 S.E.2d 

456, 457 (1990).23 Moreover, the Fifth Circuit's opinion in Clark is 

inapposite to Cruz's case because Clark involved a defendant who 

absented himself after the jury had been sworn. 

The majority is concerned that "prejudice to the 

Commonwealth's case" is too difficult to prove and that imposing such 

a standard would allow a defendant to "circumvent the trial court's 

authority to control the scheduling of trials and the granting of 

continuances." However, the standard envisioned by this Court in 

 

 23Contrary to the suggestion of the majority, I would not 

define "prejudice to the Commonwealth's case" so narrowly "as 

requiring that the Commonwealth must show that witnesses may be 

lost or not available for a second trial." Rather, I seek merely 

to reaffirm the principles developed in Virginia law, which I 

believe control this issue. 
- 25 - 

Head, Hunter, Barfield, and which I would reaffirm here, does not 

transfer to the defendant authority to control the court's docket. 

Defendants who fail to appear for trial do so at their peril. Not 

only is any bond forfeited, a defendant's willful failure to appear as 

required by the court is indictable as a separate offense. Code 

§ 19.2-128.24

Furthermore, the costs incurred by our system of justice 

must be balanced against the constitutional framework of its 

operation. Preserving an accused's constitutional rights may in fact 

inhibit the most efficient and convenient means of prosecuting a case 

through the system. However, our system of justice requires the 

government to bear the cost of inefficiency and inconvenience mandated 

by the preservation of an accused's rights. 

 

 24Code § 19.2-128 provides, 

 A. Whoever, having been released pursuant to 

this chapter or on a summons pursuant to 

§ 19.2-73 or § 19.2-74, willfully fails to 

appear before any court or judicial officer 

as required, shall, after notice to all 

interested parties, incur a forfeiture of any 

security which may have been given or pledged 

for his release, unless one of the parties 

can show good cause for excusing the absence, 

or unless the court, in its sound discretion, 

shall determine that neither the interests of 

justice nor the power of the court to conduct 

orderly proceedings will be served by such 

forfeiture. 

 B. Any person charged with a felony offense 

who willfully fails to appear before any 

court as required shall be guilty of a Class 

6 felony. Any person charged with a 

misdemeanor offense who willfully fails to 

appear before any court as required shall be 

guilty of a Class 1 misdemeanor. 
- 26 - 

For the foregoing reasons, I would reverse appellant's 

conviction and remand the case for further proceedings as the 

Commonwealth may find appropriate. 

____________________ 

This order shall be published and certified to the trial 

court. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk