(a) Presence Required. The defendant shall be present at the preliminary hearing, 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 trial court in its discretion may complete the trial, and the defendant shall be considered to have waived his right to be present, whenever a defendant, initially present:
(1) Voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his obligation to remain during the trial, or
(2) After being warned by the court that disruptive conduct will cause him to be removed from the courtroom, persists in conduct which is such as to justify his being excluded from the courtroom.
(c) Presence Not Required. A defendant need not be present in the following situations:
(1) A corporation may appear by counsel for all purposes.
(2) At a conference or argument upon a question of law.
(3) At a reduction of sentence under Rule 35.
(d) Waiver. The voluntary failure of the defendant to appear at the preliminary hearing may be construed by the court as an implied waiver of his right to a preliminary hearing.
(e) Presence of the Defendant by Interactive Audiovisual Device.
(1) Definitions. As used in this Rule 43:
(I) “Interactive audiovisual device” means a television or computer based audiovisual system capable of two-way transmission and of sufficient audio and visual quality that persons using the system can view and converse with each other with a minimum of disruption.
(2) A defendant may be present within the meaning of this Rule 43 by the use of an interactive audiovisual device, in lieu of the defendant’s physical presence, for the following hearings:
(I) First appearances pursuant to Crim. P. 5, for the purpose of advisement and setting of bail, including first appearances on probation or deferred sentence revocation complaints;
(II) Further appearances for the filing of charges or for setting the preliminary hearing;
(III) Hearings to modify bail;
(IV) Entry of pleas and associated sentencing or probation violation hearings in misdemeanor, petty offense, and traffic cases where the offense charged is not included within those offenses enumerated in C.R.S. s24-4.1-302(I).
(V) Waivers of preliminary hearing;
(VI) Restitution hearings;
(VII) Appeal bond hearings;
(VIII)Crim. P. 35(B) hearings.
(3) Minimum standards. Every use of an interactive audiovisual device must comply with the following minimum standards in addition to those set forth in Crim. P. 43(e)(l):
(I) If defense counsel appears, such appearance shall be at the same physical location as the defendant if so requested by the defendant. If defense counsel does not appear in the same location as the defendant, a separate confidential communication line, such as a phone line, shall be provided to allow for private and confidential communication between the defendant and counsel.
(II) No defendant shall be compelled to appear by interactive video device at a hearing pursuant to subsection (e)(2)(III), (VI) or (VIII) of this rule.
(III) Installation of the interactive audiovisual device in the courtroom shall be done in such a manner that members of the public are reasonably able to observe, and, where appropriate, participate in the hearing.
(IV) Any hearing held pursuant to Crim. P. 43(e)(2)(IV) shall be conducted with the written consent of the defendant. The court shall advise a defendant of the following prior to obtaining a defendant’s written consent and prior to any plea discussions being conducted:
(a) The rights enumerated in Crim. P. 5(2).
(b) The defendant has the right to appear in person and will not be prejudiced if he chooses to do so.
(c) The defendant has the right to have his or her counsel appear with him or her at the same physical location.
(d) The defendant’s decision to appear by use of an interactive audiovisual device must be voluntary on the defendant’s part and must not be the result of undue influence or coercion on the part of anyone.
(e) If the defendant is pro se, the identity and role of all individuals with whom the defendant may have contact through the interactive audiovisual device.
(V) An interactive audiovisual system used for hearings pursuant to Crim. P. 43(e)(2)(IV) shall include the ability to electronically transfer documents between the defendant and the court and such transferred documents shall be considered the same as originals.
(4) Nothing in this rule shall require a court to use an interactive audiovisual device.
(5) In the event of inclement weather or other exceptional circumstances, which would otherwise prevent a hearing from occurring under Crim. P. 5, the court may conduct the hearing by use of an interactive audiovisual procedure which does not comply with the minimum standards set forth in subsection (3).
(f)Public Health Crisis Exception. If the court finds that a public health crisis exists, it may, in its discretion and with the defendant’s oral or written consent, allow the defendant and counsel to appear by an interactive audiovisual device or by audio device for any proceeding that does not involve a jury. The defendant’s oral or written consent is not necessary for arraignments or for proceedings listed in subsections (e)(2)(I), (II), (III), (V), (VI), (VII), and (VIII) of this rule. During any interactive audiovisual or audio proceeding under this subsection (f), the court must allow counsel the opportunity to confer with the defendant confidentially when necessary. An interactive audiovisual or audio proceeding under this subsection (f) shall be conducted in a courtroom open to the public or in a manner that allows members of the public (including victims) to hear or watch and, where appropriate, participate in the proceeding. Use of an interactive audiovisual device under this subsection (f) must comply with subsection (e)(1) of this rule.
Source: e added and adopted December 19, 1996, effective March 1, 1997; e amended and adopted and comment added and adopted May 11, 2006, effective July 1, 2006; e amended and effective June 17, 2010; amended and adopted March 19, 2020, effective March 19, 2020; amended and adopted March 23, 2020, effective March 23, 2020; amended and adopted March 30, 2020, effective March 30, 2020; amended and adopted April 7, 2020, effective April 7, 2020; amended and adopted November 16, 2020, effective November 16, 2020.
Comment
The court recommends that defendants be informed of their rights pursuant to this rule by showing such defendants a pre-recorded video containing the judicial advisement contained in this rule. The video should be shown prior to any jail authorities asking whether a defendant planned to elect to participate by audiovisual device. The court recognized that such audiovisual devices will be used to conduct plea discussions. Accordingly, the pre-recorded video should also explain the plea discussion process.
Annotation Waiver required for absence from trial. The trial court must establish a voluntary and intelligent waiver by a defendant concerning an absence from trial. People v. Campbell, 785 P.2d 153 (Colo. App. 1989), rev’d on other grounds, 814 P.2d 1 (Colo. 1991). Waiver must be knowing, intelligent, and voluntary. Waiver is knowing and intelligent when a defendant has had notice of the consequences of not appearing. People v. Stephenson, 165 P.3d 860 (Colo. App. 2007). Absence from trial compelled by medical necessity may generally be deemed voluntary, and the determination of whether defendant is “voluntarily absent” requires a fact-specific inquiry into the type of medical condition, the circumstances surrounding the absence, and defendant’s conduct and statements. People v. Stephenson, 165 P.3d 860 (Colo. App. 2007). A defendant’s absence may be deemed voluntary when the record establishes that defendant created the medical necessity by attempting suicide in order to effect his or her absence from trial. People v. Price, 240 P.3d 557 (Colo. App. 2010). Removal of defendant from court during trial did not abridge defendant’s constitutional rights. Where defendant had been warned numerous times about his courtroom behavior including getting up from his seat and moving towards judge on one occasion and physically attacking a witness on the witness stand on another so that court would either have to shackle, bind, and gag defendant in court or remove him to another room where he could watch the trial via closed-circuit television and freely talk to his attorney by telephone, trial court used constitutionally permissible method pursuant to (b)(2) to deal with disruptive defendant. People v. Davis, 851 P.2d 239 (Colo. App. 1993). Although the trial court failed to include the mandatory parole period during the sentencing period and mittimus, it is not a violation of the defendant’s right to be present at sentencing to subsequently correct the mittimus to include the mandatory parole period. People v. Nelson, 9 P.3d 1177 (Colo. App. 2000). Trial court’s action in making its resentencing decision the subject of a written order, rather than reconvening a hearing to announce that decision, was harmless. Defendant was present at both his sentencing and resentencing hearings when the information relied upon by the court for its sentencing decision was presented, and defendant raised no objection when, at the completion of the resentencing hearing, the court reserved its decision on resentencing and stated its intention to announce that decision at a later date. People v. Luu, 983 P.2d 15 (Colo. App. 1998). Due process does not require the defendant’s presence when his presence would be useless, or the benefit nebulous. People v. Luu, 983 P.2d 15 (Colo. App. 1998). Applied in People v. Trefethen, 751 P.2d 657 (Colo. App. 1987).
