COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Fitzpatrick and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

ARCHIE BARFIELD 

v. Record No. 2351-93-4 OPINION BY 

 CHIEF JUDGE NORMAN K. MOON 

COMMONWEALTH OF VIRGINIA JUNE 6, 1995 

 FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Herman A. Whisenant, Jr., Judge 

 Glenwood P. Roane (Thorsey & Roane, P.C., on 

briefs), for appellant. 

 Robert H. Anderson, III, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Archie Barfield appeals his bench trial convictions of rape 

and forcible sodomy. He argues that the trial judge erred by 

proceeding in his absence when, after the court had recessed at 

the end of the first day of trial, he failed to appear for the 

second and concluding day of trial. Because we find Barfield's 

absence from the second day of trial to be a knowing and 

voluntary waiver of his right to be present as guaranteed by the 

Sixth Amendment and Code § 19.2-259, we hold the trial court did 

not err in proceeding in his absence; accordingly, we affirm. 

 At the conclusion of the first day of trial on June 16, 

1993, both the Commonwealth and Barfield had rested and, with the 

exception of one evidentiary matter and reconsideration of a 

motion made the previous day regarding a prior indictment, the 

court was ready to proceed with closing arguments. The trial 
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judge instructed the Commonwealth and Barfield about the next 

day's proceedings and stated that the case would be in recess 

until the following morning at 10:00 a.m. 

 The following day, Barfield did not return to court. 

Barfield's counsel stated that he had instructed Barfield, who 

was free on bond, to be in court by 9:30 a.m., but that he had no 

explanation for Barfield's failure to appear. 

 The court waited two hours for Barfield to appear. During 

this time, both the Commonwealth and Barfield's counsel attempted 

to locate Barfield. The Commonwealth indicated that it had sent 

a patrol car to Barfield's house to locate him and that it had 

received no reports of traffic accidents to explain his absence. 

 Barfield's counsel stated that attempts to locate or reach him 

by his beeper or at his girlfriend's house had failed. 

 The court found that Barfield had "voluntarily absented 

himself from the trial" and determined to conclude the trial 

without him. After hearing closing arguments, the court found 

Barfield guilty on both charges and issued a capias for his 

arrest. While Barfield later voluntarily returned to the 

jurisdiction, he concedes that he also voluntarily left the 

jurisdiction. Upon his return, Barfield was sentenced in 

accordance with his convictions. 

 This is a case of first impression in Virginia because it 

deals not with a defendant who fails to appear after his 

arraignment at his trial's commencement, but with a defendant who 

flees after his trial is underway. Consistent with the 
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principles of Diaz v. United States, 223 U.S. 442 (1912), and its 

progeny, we hold that Barfield's midtrial flight constituted a 

knowing and voluntary waiver of his right to be present at his 

trial. 

 "A defendant's right to be present at trial arises from two 

sources, the sixth amendment and Code § 19.2-259." Head v. 

Commonwealth, 3 Va. App. 163, 168, 348 S.E.2d 423, 427 (1986). 

In Head, we noted that while there is a presumption against 

waiver of a defendant's right to be present at trial, "[a] 

defendant's voluntary absence from trial may be properly 

construed under the sixth amendment as a waiver of his right of 

confrontation." Id. (citing Taylor v. United States, 414 U.S. 17 

(1973)). 

 In Crosby v. United States, 506 U.S. ___, 113 S. Ct. 748 

(1993), the Supreme Court of the United States recognized the 

distinction between pretrial and midtrial flight of a criminal 

defendant and its impact on the state's interest in proceeding 

with the prosecution of a defendant in his absence. The Court 

noted that Diaz, cited by the Advisory Committee that drafted 

Rule 43 of the Federal Rules of Criminal Procedure, "treats 

midtrial flight as a knowing and voluntary waiver of the right to 

be present."1 Crosby, 506 U.S. at ___, 113 S. Ct. at 752 

 

 1 Rule 43 provides in relevant part: 

 (a) Presence Required. The defendant shall be present at 

the arraignment, at the time of the plea, at every stage of the 

trial including the impaneling of the jury and the return of the 

verdict, and at the imposition of sentence, except as otherwise 

provided by this rule. 

 (b) Continued Presence not Required. The further 
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(emphasis added). While expressing no opinion as to whether the 

right could be waived in other circumstances, the Court held that 

a "defendant's initial presence serves to assure that any waiver 

is indeed knowing." Id. at ___, 113 S. Ct. at 752. 

 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. 

Id. at ___, 113 S. Ct. at 753. 

 In Taylor, a case similar to Barfield's case, the Court held 

that a defendant who failed to appear after the first day of his 

trial "had no right to interrupt the trial by his voluntary 

absence . . . by urging only that he should have been warned that 

no such right existed and that the trial would proceed in his 

absence." 414 U.S. at 20. Consistent with Diaz, the Court 

concluded that the defendant's right to be present was waived by 

his voluntary absence: 

 It is wholly incredible to suggest that 

petitioner, who was at liberty on bail, had attended 

the opening session of his trial, and had a duty to be 

present at the trial, . . . entertained any doubts 

about his right to be present at every stage of his 

trial. It seems equally incredible to us . . . "that a 

defendant who flees from a courtroom in the midst of a 

trial . . . would not know that as a consequence the 

trial could continue in his absence." . . . "[T]here 

 

progress of the trial to and including the return of the verdict 

shall not be prevented and the defendant shall be considered to 

have waived the right to be present whenever a defendant, 

initially present, 

 (1) is voluntarily absent after the trial has 

commenced. 
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can be no doubt whatever that the government 

prerogative to proceed with a trial may not be defeated 

by conduct of the accused that prevents the trial from 

going forward." Illinois v. Allen, 397 U.S. 337, 349, 

90 S.Ct. 1057, 1063, 25 L. Ed.2d 353 (1970). 

Id.

 This Court has held that a defendant should not be allowed 

to profit from wrongful delays, noting that a "fair, efficient 

system of justice requires the orderly conduct of cases free from 

spectacle and disruption." Martin v. Commonwealth, 11 Va. App. 

397, 405, 399 S.E.2d 623, 627 (1990); also see Quintana v. 

Commonwealth, 224 Va. 127, 295 S.E.2d 643 (1982), cert. denied, 

460 U.S. 1029 (1983). 

 It is essential to the proper administration of 

criminal justice that dignity, order, and decorum be 

the hallmarks of all court proceedings in our country. 

The flagrant disregard in the courtroom of elementary 

standards of proper conduct should not and cannot be 

tolerated. 

 

Martin, 11 Va. App. at 405, 399 S.E.2d at 627 (citing Illinois v. 

Allen, 397 U.S. 337, 343 (1970)). Although Martin and Quintana

dealt with a defendant's possible forfeiture of his right to be 

present at trial due to his disruptive courtroom behavior, the 

impact on the fair and efficient administration of justice is the 

same when a defendant absconds after the trial has commenced. 

 Based on this same rationale, the Supreme Court in Diaz

stated that it would be inconsonant "with the dictates of common 

sense that an accused person, being at large upon bail, should be 

at liberty, whenever he pleased, to withdraw himself from the 

court . . . and break up a trial already commenced." 223 U.S. at 
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457. 

 The question is one of broad public policy, 

whether an accused person, placed upon trial for a 

crime, and protected by all the safeguards with which 

the humanity of our present criminal law sedulously 

surrounds him, can with impunity defy the processes of 

that law, paralyze the proceedings of courts and 

juries, and turn them into a solemn farce, and 

ultimately compel society, for its own safety, to 

restrict the operation of the principle of personal 

liberty. Neither in criminal cases nor in civil cases 

will the law allow a person to take advantage of his 

own wrong. And yet this would be precisely what it 

would do if it permitted . . . an absconding from the 

jurisdiction while at large on bail, during the 

pendency of a trial before a jury, to operate as a 

shield. 

Id. at 448. 

 In this case, Barfield was present for every stage of the 

proceedings until June 17, 1993, the second day of trial. All 

that remained to be completed on June 17, 1993, was the defense 

counsel's stipulation to the accuracy of a transcript of a taped 

interview of Barfield and closing arguments. Barfield had been 

released on bond during the pendency of the trial and had 

executed release and recognizance documentation advising him that 

he could be tried in his absence if he failed to appear. 

Moreover, while Barfield was present on June 16, 1993, the court 

made it clear that the trial was in recess only until 10:00 a.m. 

on June 17, 1993, and Barfield was instructed by his attorney to 

be present for the second day. Therefore, we hold that under 

these circumstances, Barfield's midtrial flight was a knowing and 

voluntary waiver of the right to be present. 

 However, Barfield contends that in addition to a finding 
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that a defendant has voluntarily and knowingly waived his right 

to be present, a trial court must also find that a continuance 

would prejudice the Commonwealth's case in order to proceed in a 

defendant's absence after a trial has begun. While in Head, we 

held that 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, our holding addressed only those cases 

where the trial had not yet commenced. When the defendant 

absconds after the trial has begun, the prejudice to the 

Commonwealth 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. 

 We hold that when the trial court determines that a 

defendant has voluntarily and knowingly absconded from the 

jurisdiction after his trial has commenced, public policy 

dictates that a trial court, exercising its sound discretion, may 

proceed with the trial in the defendant's absence. Our holding 

is consistent with the holding in Diaz, which has been repeatedly 

followed by the Supreme Court of the United States in subsequent 
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cases, most notably Taylor, which this Court and the Supreme 

Court of Virginia have cited with approval. See Head, 3 Va. App. 

at 168, 348 S.E.2d at 427 (1986); Bilokur v. Commonwealth, 221 

Va. 467, 472, 270 S.E.2d 747, 751 (1980). 

 In this case, Barfield concedes that he voluntarily left the 

jurisdiction after the trial began. The trial court made 

extensive inquiries to determine whether Barfield had voluntarily 

absented himself from the trial. The trial court noted that it 

had other cases on the docket for June 17, 1993, and it waited 

nearly two hours for Barfield to appear. The court also 

recognized that the proceedings had already been continued one 

day to allow Barfield's counsel to review Barfield's taped 

interview and the transcript thereof to determine the accuracy of 

one of the Commonwealth's exhibits. Under these circumstances, 

the trial judge did not abuse his discretion in proceeding to the 

conclusion of the case in Barfield's absence. 

 Affirmed.