The defendant, Richard Robbins, appeals his conviction for criminal threatening. He argues that the trial court erred by: (1) conducting jury selection in his absence; (2) denying his motions to dismiss based upon the State's failure to present sufficient evidence on the element of "purposely"; and (3) denying his requests for a jury instruction on justification. We remand this case to the trial court for an evidentiary hearing, but otherwise retain jurisdiction.
We briefly summarize the relevant facts. The defendant first appeared for jury selection in his case on August 2, 2011. As the court was impanelling a jury for a case that preceded the defendant's case on the jury draw list, the prosecutor and counsel for the defendant asked to approach the bench. Before the court could hear the reason for their approach, the defendant began to address the court. When the defendant continued to attempt to address the court in front of the jury venire, the trial court ordered that he be removed and announced that his case would not be drawn from the venire panel present at that time.
On August 11, 2011, the court held a status of counsel hearing at the request of counsel. At that time, the court held a lengthy colloquy with the defendant, which included the following:
THE COURT: . . . If you follow the rules, you stay here. You have a constitutional right to participate and a constitutional right to confrontation and other constitutional issues. You do not have the constitutional right to disrupt the process. If you disrupt the process, I'll see that you're removed.
THE DEFENDANT: I'm a little curious. Do I have a constitutional right to a defense?
THE COURT: You have a constitutional right to present all proofs favorable to you. That is your guaranteed constitutional right, whatever those might be. You do not have a right to disrupt the proceedings.
Jury selection for the defendant's case was rescheduled for September 7, 2011. On that date, outside the presence of the prospective jury, the trial court advised counsel that the defendant "is refusing to come up to the courtroom for jury selection." After summarizing his August 11 colloquy with the defendant, the trial court concluded: "So that brings a summary of why we're here this morning. Mr. Robbins is currently downstairs in lockup and has indicated to his counsel and to the bailiffs that he refuses to participate in this process this morning." Defense counsel then responded:
Thank you, Your Honor. Well, just -- I'm not sure -- I want to get the parameters right. I'm not sure he was refusing to -- come up. We just -- we couldn't even like talk to him. He was talking at us. So the communication was difficult. Based on other interactions with him, I feel pretty confident that he would want to be present for jury selection. He -- I did give him one of our jury surety forms, which is basically a summary, a collection of information from the questionnaires that the jurors fill out. When he received that he was going to look at that. So my sense is that he does want to be present. So we would -- the Defense would be objecting to proceeding without him. And, you know, I understand that objection [is] most likely going to be overruled. But if it's going to be overruled, then we would ask to make the accommodations as far as having Mr. Robbins in the courtroom one and listening in so he can hear, you know, what's going on at the bench, you know, as far as there might be -- if I'm moving to strike someone for cause or, you know, helping make just other decisions. I guess I understand that's not working.
Both parties agree that whether the defendant voluntarily waived his right to be present at the proceedings in this case presents a question of fact for the trial court to be established by the State by a preponderance of the evidence. See State v. Lister, 119 N.H. 713, 717 (1979). As set forth above, in this case the trial judge reported to counsel that the defendant had "indicated to his counsel and to the bailiffs" that he was refusing to participate. As the defendant correctly notes in his brief, there is nothing further on the record to identify the source of, or to provide details of, the assertion that the defendant communicated to the bailiffs a refusal to attend jury selection. Defense counsel informed the trial court that he was not sure that the defendant was refusing to attend, and indicated his belief that the defendant did want to be present.
The threshold issue in this case is whether the defendant voluntarily waived his right to be present. Given the circumstances of this case, we remand to the trial court for the purpose of holding an evidentiary hearing and making specific findings of fact and rulings of law regarding whether the defendant voluntarily waived his right to be present at jury selection. Within fifteen days after the issuance of said findings and rulings (or within fifteen days after the trial court rules upon any motion to reconsider such findings and rulings, should a timely motion to reconsider be filed), each party shall inform this court whether a transcript of the evidentiary hearing is necessary and/or whether the party wishes to file a supplemental brief or memorandum of law.
Jurisdiction of this case shall otherwise remain in this court.
Remanded in part; jurisdiction ...