Kimes v. United States , 569 A.2d 104 ( 1989 )

FERREN, Associate Judge:

A jury convicted appellant of grand larceny, D.C.Code § 22-2201 (1981), for theft of a full-length mink coat from the Town and Country Lounge at the Mayflower Hotel. Appellant (through counsel w"ho were not trial counsel) raises five issues on appeal. She questions the admissibility of alleged “other crimes” evidence, a trial court instruction on the propriety of joint pretrial discussions among government witnesses, and the denial of a requested continuance. She also claims errors requiring a remand for resentencing. The most significant claim of error, however, is appellant’s other contention: that the trial court, by proceeding to verdict in appellant’s absence, violated her right under the Constitution and local statutes to be present at every stage of the trial.

Because the trial court failed to make any factual finding as to the voluntariness — or involuntariness — of appellant’s absence, we are unable to decide this claim of error. Accordingly, we remand the record to the trial court for an evidentiary hearing on the circumstances surrounding appellant’s absence during the return of the verdict and a finding as to whether her absence was voluntary or involuntary. In all other respects we affirm the conviction.

I.

A.

Appellant had been present throughout her trial, but on July 18, 1985, although in court when the trial resumed at 10:00 a.m., she failed to appear after a luncheon recess. At 11:20 a.m. the jury had begun deliberations. At 12:17 p.m. the trial judge had excused the jury for lunch until 1:20 p.m. The judge also had excused counsel and appellant, specifically cautioning appellant “to be available in the vicinity of the courtroom from and after 1:30.”

Sometime after the lunchbreak, the court reconvened counsel to inform them about two notes the jury had sent. Appellant was not present. The court noted her absence, and counsel waived her presence for the purpose of accepting the notes. The first note, received at 2:37 p.m., said, “We have reach[ed] a verdict.” The second, sent only four minutes later, said, “Please disregard the last note.” Counsel told the court that he had looked for appellant for three or four minutes but had not seen her since before lunch. Aware that appellant’s counsel was in trial in another courtroom, the judge asked him if anyone else could assist in locating appellant to inform her that she should be available. After appellant’s counsel replied he would call his office to see whether someone could help, counsel were excused.

At about 3:55 p.m., the jury sent its final note announcing it had reached a verdict. The trial judge then recalled the ease to take the verdict.¹ Appellant was still absent. Her counsel reported that when he had left the courtroom previously, he had looked for appellant in the general area for five to ten minutes and that he believed his assistant had probably continued to look for her during the next hour. Counsel asked the court to delay receiving the verdict at least until the following day so that he could try to ascertain appellant’s whereabouts and assure her presence. The trial judge replied that several jurors had already completed their terms of service and proceeded to call in the jury, which delivered the verdict. After dismissing the jurors, the trial court issued a bench warrant for appellant’s arrest.

The record reveals some information about the circumstances surrounding appellant’s absence at the verdict. Medical reports attached to appellant’s application for review and modification of conditions of release pending sentencing, filed in late September 1985, indicate that on July 18, 1985, at the time the verdict was rendered, appellant was hospitalized after being struck by a car in Arlington, Virginia, at approximately 1:45 p.m. According to these reports, appellant remained in the hospital until 8:30 that evening when she left against medical advice. The record also indicates that on July 21, three days after the verdict, appellant sent a telegram from her home in California to her trial counsel, with a copy to the court, describing the accident and her injuries and asking for information on the status of her case. (Aside from this telegram, the record reveals no other attempt by appellant to communicate the reason for her absence to the court or to counsel.) On August 3, 1985, appellant was arrested in La Jolla, California on the bench warrant and on unrelated federal charges.

B.

“The defendant shall be present at ... every stage of the trial including ... the return of the verdict,” unless he or she “[voluntarily absents himself [or herself].” Super.Ct.Crim.R. 43(a), (b)(1); see Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 253, 56 L.Ed. 500 (1912); Black v. United States, 529 A.2d 323, 323 (D.C.1987). This Rule 43 requirement, like the comparable federal rule requirement, is rooted in the confrontation clause of the sixth amendment, United States v. Gordon, 264 U.S.App.D.C. 334, 338, 829 F.2d 119, 123 (1987), but is premised on “the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him [or her].” United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (per curiam). Rule 43 also embraces the “common law right of presence.” United States v. Washington, 227 U.S.App.D.C. 184, 191, 705 F.2d 489, 496 (1983) (citing Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934)).² The “ ‘protective scope’ ” of Rule 43, therefore, “is broader than the constitutional right alone.” Gordon, 264 U.S.App.D.C. at 338, 829 F.2d at 123 (citing Washington, 227 U.S.App.D.C. at 192-93 n. 5, 705 F.2d at 497-98 n. 5).³

According to the Supreme Court, a constitutional right is implicated whenever a criminal defendant’s presence at trial or trial-related proceedings “ ‘has a relation, reasonably substantial, to the fullness of his [or her] opportunity to defend against the charge.’ ” Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987) (quoting Snyder, 291 U.S. at 105-06, 54 S.Ct. at 332). Although this right of presence is not constitutionally guaranteed “ ‘when presence would be useless or, the benefit but a shadow,’ ... due process clearly guarantees that the defendant be allowed to be present ‘to the extent that a fair and just hearing would be thwarted by his [or her] absence.’ ” Id. (quoting Snyder, 291 U.S. at 106-07, 108, 54 S.Ct. at 332-33). In sum, a defendant is constitutionally “guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his [or her] presence would contribute to the fairness of the procedure.” Id.

The requirement of a defendant’s presence at trial, whether derived from the Constitution or otherwise, can be deemed waived in the defendant’s absence if the trial court determines that the defendant voluntarily failed to appear at trial. See Super.Ct.Crim.R. 43(b)(1) (waiver of right to be present whenever defendant, initially present, “voluntarily absents himself [or herself] after the trial has commenced ...”). Rule 43(b)(1) reflects the teaching of Taylor v. United States, 414 U.S. 17, 18-20, 94 S.Ct. 194, 195-96, 38 L.Ed.2d 174 (1973), in which' the Supreme Court, upholding a “longstanding rule” set forth in Diaz, stated that a defendant out on bail in a non-capital case who voluntarily fails to appear at a trial at which the defendant was initially present has waived his or her right to be present. In Taylor, the Court quoted the test for voluntariness articulated in Cureton v. United States, 130 U.S.App.D.C. 22, 27, 396 F.2d 671, 676 (1968), as “the controlling rule”:

[I]f a defendant at liberty remains away during his [or her] trial the court may proceed provided it is clearly established that his [or her] absence is voluntary. He [or she] must be aware of the processes taking place, of his [or her] right and of his [or her] obligation to be present, and he [or she] must have no sound reason for remaining away.

Taylor, 414 U.S. at 19 n. 3, 94 S.Ct. at 196 n. 3. According to the Court, it is “wholly incredible” to suggest that a defendant at liberty on bail who attended an opening opinion of trial, and who had a duty to be present at trial, see Stack v. Boyle, 342 U.S. 1, 4-5, 72 S.Ct. 1, 3, 96 L.Ed. 3 (1951), would not know of his or her right to be present at every stage of trial or that trial would continue in the defendant’s absence. Taylor, 414 U.S. at 20, 94 S.Ct. at 196.⁴

It follows that before proceeding with trial in the absence of a defendant, trial courts, in accordance with local or federal rules similar to Super.Ct.Crim.R. 43(b)(1), are required to make findings concerning voluntariness of the defendant’s absence. See United States v. Hernandez, 842 F.2d 82, 85 (5th Cir.1988); Cureton, 130 U.S.App.D.C. at 24, 396 F.2d at 673; Charliaga v. State, 758 P.2d 135, 136 (Alaska Ct.App.1988); People v. Connolly, 36 Cal.App.3d 379, 382, 111 Cal.Rptr. 409, 411 (1973).⁵ However, the crucial question —“Why is the defendant absent?” — “rarely can be answered at the time the court must determine whether the trial should proceed.” People v. Connolly, 36 Cal.App.3d at 385, 111 Cal.Rptr. at 412. Accordingly, trial courts customarily delay the proceedings to enable counsel and the court’s marshals to attempt to locate a missing defendant, see, e.g., Cureton, 130 U.S.App.D.C. at 24, 396 F.2d at 673; State v. Staples, 354 A.2d 771, 774 (Me.1976), and appellate courts encourage such delay, see, e.g., Connolly, 36 Cal.App.3d at 385, 111 Cal.Rptr. at 413; Gilbert v. State, 182 Ind.App. 286, 395 N.E.2d 429, 432 (1979); Commonwealth v. Kane, 19 Mass.App.Ct. 129, 134, 472 N.E.2d 1343, 1347 (1984). Reviewing courts also urge trial courts, when the defendant ultimately appears, to inquire and make findings and conclusions concerning the circumstances of the absence from trial. See United States v. Hernandez, 873 F.2d 516, 519 (2d Cir.1989) (when appellant’s counsel registered objection to proceeding in appellant’s absence and appellant later appeared, “it was incumbent upon the trial court to conduct the requisite inquiry into the circumstances of his absence”); United States v. Muzevsky, 760 F.2d 83 (4th Cir.1985) (if court after preliminary inquiry chooses to proceed with trial, it should withhold decision on motion for new trial and sentencing until it can learn whether defendant voluntarily waived right of presence); Staples, 354 A.2d at 776 (due process requires trial court to “affordf ] the defendant an adequate opportunity to explain [the] absence when he [or she] is returned to custody and before sentence is imposed”).

The United States Court of Appeals for the District of Columbia Circuit has stressed, moreover, that the trial court’s duty of inquiry extends throughout the period up to sentencing. It suggested in Cureton that the trial court at sentencing should “explore the reason the defendant was absent” so as to develop á record basis for determining whether the trial was properly continued in the defendant’s absence, 130 U.S.App.D.C. at 27, 396 F.2d at 676. Later, in Gaither v. United States, 134 U.S.App.D.C. 154, 174, 413 F.2d 1061, 1081 (1969), the same court stated that “where some question of involuntary absence arises at sentencing, a record and a determination can and should be made at that point.”

In short, even though a trial court may not be able to learn until after trial why a defendant failed to appear, the court will be deemed to have erred in permitting the trial to continue — call it a retroactive, imputed error — if under the circumstances the defendant cannot be said to have voluntarily waived the right to be present.

Furthermore, even though a defendant has voluntarily waived the right to be present at trial⁶ — whether a constitutional right to be present is at issue or not — there is still the question whether the trial court has abused its discretion in ordering a trial in absentia. See United States v. Sanchez, 790 F.2d 245, 250-51 (2d Cir.), cert. denied, 479 U.S. 989, 107 S.Ct. 584, 93 L.Ed.2d 587 (1986). That question is resolved by considering such factors as the reasonableness of the trial court’s efforts to ascertain the defendant’s whereabouts, the likelihood that the trial could occur with the defendant present, the burden on the government, witnesses, and jurors if the trial were delayed, and the appellant’s interest in being present at the trial proceedings that remained. See Hernandez, 842 F.2d at 85; Sanchez, 790 F.2d at 250-51.

When, however, a defendant’s absence is involuntary, but the trial court proceeds through trial and sentencing on the basis of an incorrect finding of voluntariness, and no constitutional right — only a statutory or rule violation — is at issue, then we will reverse if there is a reasonable possibility of prejudice from defendant’s absence. See United States v. Brown, 571 F.2d 980, 986-87 (6th Cir.1978); see also United States v. Alessandrello, 637 F.2d 131, 139 (3d Cir.1980), cert. denied, 451 U.S. 949, 101 S.Ct. 2031, 68 L.Ed.2d 334 (1981) (considering only Rule 43, not constitutional, violation); Wade v. United States, 142 U.S.App.D.C. 356, 360-61, 441 F.2d 1046, 1050-51 (1971) (same). But, when a defendant’s absence was involuntary and the constitutional right to be present is at issue, this court will reverse unless the government proves the defendant’s absence was harmless beyond a reasonable doubt. See Kleinbart v. United States, 553 A.2d 1236, 1240 (D.C.1989); see also Bustamante v. Cardwell, 497 F.2d 556, 558 (9th Cir.1974); State v. Okumura, 58 Haw. 425, 430, 570 P.2d 848, 853 (1977); State v. Rice, 110 Wash.2d 577, 617, 757 P.2d 889, 911 (Wash.1988) (en banc), cert. denied, — U.S. -, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989). But see Lee v. State, 244 Ala. 401, 403, 13 So.2d 590, 593 (1943) (defendant’s absence at verdict automatically reversible error); Shaw v. State, 282 A.2d 608, 610 (Del.Super.Ct.1971) (same).

C.

Our analysis on review' accordingly must depend, first, on whether appellant’s absence at the time of the verdict was voluntary or involuntary and, second, on whether that absence implicated a constitutional right. The trial court has not made either determination. Although the trial court, in proceeding to verdict, presumably inferred that appellant was absent voluntarily, the trial court erred in failing to conduct an on-the-record inquiry into the circumstances surrounding appellant’s absence and to make findings and conclusions concerning whether the absence was voluntary. The trial court also erred in not pursuing this issue further at sentencing. Counsel for appellant had objected at trial to proceeding to verdict when appellant was not present, and thus the trial court was clearly on notice of an expressed concern. Moreover, there was ample evidence in the record before sentencing — notably appellant’s application for review and modification of conditions of release pending sentencing — which set forth factual allegations concerning the auto accident that indicated appellant’s absence may have been involuntary.⁷ Accordingly, because the trial court failed to conduct, either at trial or at sentencing, any inquiry into the circumstances surrounding appellant’s absence from trial, we must remand the record for the necessary finding as to voluntariness. See Black v. United States, 506 A.2d 1130, 1132 (D.C.1986).

We turn to the next issue: whether appellant’s absence at the verdict implicated a constitutional right. This is purely a question of law which this court can properly decide in the first instance. We conclude that the right to “be present ... at the return of the verdict,” Super.Ct. Crim.R. 43(a), is a right of due process under the fifth amendment. See People v. Nelson, 18 Ill.2d 313, 319, 164 N.E.2d 16, 20 (1960); Rice, 110 Wash.2d at 617, 757 P.2d at 911; see also Okumura, 58 Haw. at 425, 430, 570 P.2d at 850, 853 (referring to “constitutional right to be present”). This right to be present at the verdict “has a relation, reasonably substantial, to the fulness of [appellant’s] opportunity to defend against the charge,” and thus “a fair and just hearing would be thwarted by [her] absence.” Snyder, 291 U.S. at 105-06, 106-07, 54 S.Ct. at 332-33. As the Supreme Court of Pennsylvania stated in Commonwealth v. Ashe, 363 Pa. 596, 601, 603, 70 A.2d 625, 628, 629 (1950) (quoting Temple v. Commonwealth, 77 Ky. (14 Bush) 769, 771 (1879)), noting the concurrence of all 36 States that had ruled on the issue:

“The presence of the accused [at the verdict] is not a mere form. It is of the very essence of a criminal trial not only that the accused shall be brought face to face with the witnesses against him [or her], but also with his [or her] triers. * * * And at no time in the whole course of the trial is this right more valuable than at the final step when the jury are to pronounce that decision which is to restore him [or her] to the liberty of a citizen, or to consign him [or her] to the scaffold or to a felon’s cell in the state prison.”

When a jury returns to the courtroom, faces the accused, and, typically, is subject to a poll of the verdict, the psychological influence of the eye-to-eye contact between juror and defendant may be significant enough to cause a juror to change his or her mind when outside the pressure of the jury room. See Wade, 142 U.S.App.D.C. at 360, 441 F.2d at 1050; Lee v. State, 509 P.2d 1088, 1094 (“The psychological distinction between a general poll in [defendant’s] absence, and an individual poll requiring each juror to assume the burden of his [or her] decision and affirm it in the defendant’s presence is not a minor one.”); Golden, Presence of the Defendant at Rendition of the Verdict in Felony Cases, 16 COLUM.L.REV. 18, 22-23 (1916). See also United States v. Fontanez, 878 F.2d 33, 38 (2d Cir.1989) (trial court committed reversible error, depriving defendant of “psychological function” of his presence on jury, when it instructed deadlocked jury in his absence). A defendant’s absence could cause adverse speculation, see Wade, 142 U.S.App.D.C. at 360, 441 F.2d at 1050, thereby neutralizing a tentative juror’s reluctance to acknowledge a guilty verdict in open court. Moreover, the appearance of justice is affected by the announcement of a guilty verdict when the defendant is not present to hear it. See Heiligh v. United States, 379 A.2d 689, 693 n. 7 (D.C.1977) (identifying one reason underlying sixth amendment right to be present as preventing “the loss of confidence in courts as instruments of justice which secret trials would engender” (quoting United States v. Gregorio, 497 F.2d 1253, 1258 (4th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974))).

The remand suggests several possible results. If, on remand, the trial court determines that appellant’s absence from trial at the time of return of the verdict was voluntary, and if this court, after reviewing that determination, agrees with the trial court, we will then review the court’s decision to proceed with trial only for an abuse of discretion. If, however, the trial court determines, on remand, that appellant’s absence was involuntary — or the trial court determines the absence was voluntary but this court, after review, concludes as a matter of law that the absence was involuntary, see supra note 6 — we presumably will reverse and remand for a new trial unless we can say the court’s imputed error in receiving the verdict in appellant’s absence was harmless beyond a reasonable doubt.⁸

II.

Appellant raises four other issues on appeal, none of which has merit. First, appellant argues that her conviction must be reversed because the trial court erred in admitting into evidence two coats which the police seized from her hotel room shortly after the theft of the fur. The government’s evidence indicates that appellant stole a dark fur coat from the Mayflower Hotel’s Town and Country Lounge on the night of February 4, 1980. Appellant, who was staying at the Mayflower, put on the fur, which had been thrown over some chairs in the lounge, and then slipped her own full-length white fur coat over it before departing. Two witnesses directly observed the theft and later reported the incident to police detectives with the assistance of others in the bar who had-seen appellant. After conferring with hotel personnel, the detectives suspected that appellant was the thief and proceeded to her seventh floor room. After noting that appellant matched the descriptions they had received from the witnesses, and after receiving permission from appellant to conduct a search of appellant’s room, the police located not the stolen fur but two other coats that were missing their labels.⁹ Two days later, the police returned to the room with a warrant and seized a third coat which also had no label. Before trial, appellant filed a motion in limine seeking to exclude the admission of two of the coats without labels. The trial court denied the motion.

Appellant argues on appeal that the “other coats” evidence was improperly admitted Drew evidence, see United States v. Drew, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964), which “substantially swayed” the judgment of the jury, see Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248 90 L.Ed. 1557 (1945). She contends that, although the trial court admitted “other coats” evidence for its probative value in establishing the identity of the thief, the jury could not help inferring from the missing labels that appellant stole the other coats and, therefore, must also have stolen the fur at issue in this case. According to appellant, given the likelihood that the jury would conclude from the “other coats” evidence that appellant possessed a propensity to steal coats, the trial court should have determined whether the “other coats” evidence met the strict test for admitting “other crimes” evidence for identification purposes under Drew. See, e.g., Bridges v. United States, 381 A.2d 1073 (D.C.1977), cert. denied, 439 U.S. 842, 99 S.Ct. 135, 58 L.Ed.2d 141 (1978). Although we agree that the admission of the “other coats” evidence raised the possibility of the unfavorable inference that appellant suggests, we conclude that, under the circumstances, admission of this evidence does not warrant reversal of appellant’s conviction.

The record indicates that, before trial, defense counsel waived any claim of prejudice from admission of the “other coats” evidence, provided the government adhered to stipulated ground rules. In support of appellant’s motion in limine to exclude the “other coats” evidence, counsel had argued that the coats were not probative evidence and expressed concern that their admission might prejudice appellant because the jury might infer from the missing labels that the coats were stolen. Government counsel responded that the “other coats” evidence was relevant to the issue of the identity of the coat thief because it is unusual for a person to possess labelless items and the stolen coat, like the other coats, was found without its label. Appellant’s counsel then stated that he would not object to the admission of the “other coats” evidence if the government would stipulate there was no evidence that the coats were stolen and the court would so instruct the jury. The government agreed to such a stipulation, and the court denied appellant’s motion in limine, offering to provide any instruction necessary to avoid jury confusion during trial. Later, in response to an objection and then sua sponte, the trial judge twice instructed the jury during the government’s case that there was no evidence the other coats were stolen. The court also instructed the jury before its deliberations that the “other coats” evidence was admitted solely to prove the identity of the perpetrator.

Counsel on appeal argues that the government violated its agreement not to examine witnesses in a manner that suggested the other coats were stolen; that trial counsel, although objecting on occasion to the government’s conduct, was “napping” on other occasions when objection should have been made; that the prosecutor improperly used closing and rebuttal arguments to suggest the other coats were stolen; that the trial court’s jury instructions on the issue were inadequate; and that the trial court recognized that, despite the pretrial stipulation in response to appellant’s motion in limine, appellant had preserved her objection to admission of the other coats into evidence.

We believe the record clearly shows that defense counsel agreed to admission of the “other coats” evidence on terms which the trial court administered with several cautionary instructions, both upon objection and sua sponte. Appellant, therefore, can complain only about those isolated instances, including the government’s closing arguments, where the trial court allegedly failed to enforce the parties’ stipulation sua sponte. Accordingly, we review for plain error.

In doing so, we need not address the merits of appellant’s contention that the other coats were, in fact, inadmissible Drew evidence. We conclude that even if the evidence was erroneously admitted or interpreted to the jury, any such error — in light of the strong evidence of guilt — was not “so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.” Watts v. United States, 362 A.2d 706, 709 (D.C.1976) (en banc). The evidence implicating appellant in the crime included testimony by two eyewitnesses who saw appellant take the fur, as well as the following circumstantial evidence: indication of a forced-open window in appellant’s hotel room, discovery of the stolen fur’s lining directly beneath the window, and discovery of the fur itself behind an ice machine on appellant’s floor. Supra note 9. Under these circumstances, the trial court’s alleged failure to enforce the parties’ agreed use of the “other coats” evidence was not plain error.

III.

Appellant also maintains that the trial court committed prejudicial error when it twice instructed the jury that it was “entirely proper” for the government to hold pretrial witness conferences at which the witnesses jointly discussed their testimony. She claims that, because there were differing accounts by government and defense witnesses concerning the events at the Town and Country Lounge, impeaching the credibility of the government’s witnesses was crucial to her case. According to appellant, however, the trial judge severely undermined her ability to attack the testimony of government witnesses when the court interrupted her cross-examination of a crucial government witness and issued a final instruction on its own initiative informing the jury not to draw any inference of impropriety from the fact that the government witnesses had collectively discussed the facts before trial.

We perceive no error in the trial court’s instructions. Although appellant claims that she sought only to impugn the credibility of the government witnesses, during cross-examination her counsel specifically asked a witness if she knew that it would “not be proper” for “witnesses to get together and discuss their testimony.” The trial court’s instruction at this point was important to correct counsel’s inaccurate suggestion that such conferences were improper. During closing argument, defense counsel argued, without objection or interference, that the government’s witness conferences cast doubt on the credibility of its witnesses. While the trial court’s final instruction to the jury perhaps was unnecessary to correct appellant’s counsel’s earlier mischaracterization, it was not erroneous, particularly in light of the standard credibility instruction issued shortly before it.

IV.

Appellant contends the trial court abused its discretion in refusing to grant her pretrial motion for a continuance (and a subsequent motion for a mistrial) in order to secure the presence of defense witness Lloyd Zachery at trial.¹⁰ Zachery had been served with a subpoena ordering his appearance at trial on July 11. On July 10, appellant’s counsel received a Federal Express package from Zachery which included the subpoena, an airline ticket, a voided check for witness fees, and travel information that counsel had mailed him. In an accompanying note, Zachery stated that “sudden urgent business commitments will prevent me from appearing at the court hearing.” The trial judge issued a warrant for Zachery’s arrest and set bond in the amount of $5,000. The following day, appellant’s counsel moved to continue the swearing of the jury and the commencement of trial until Monday, July 15. The trial court denied the motion without prejudice to a motion for a mistrial if efforts to obtain Zachery’s presence failed. On July 17, six days after the court denied the continuance motion, appellant moved for a mistrial because both appellant and the United States marshals had been unable to locate Zachery. The trial court denied the motion on the ground that Zachery was unavailable for trial. The court also found that Zachery’s testimony was available through his grand jury presentation and that, although it was “in major part” cumulative of the testimony of other defense witnesses, a transcript of his presentation could be admitted at the trial.

“The matter of granting a continuance is entirely within the discretion of the trial judge, but a rigid insistence by the court upon expedition of trial in the face of a justifiable request for delay can render the right to defend an empty formality.” O'Connor v. United States, 399 A.2d 21, 28 (D.C.1979). Accordingly, a party seeking a continuance must make a showing that the continuance is “ ‘reasonably necessary for a just determination of the cause.’ ” Id. (quoting Brown v. United States, 244 A.2d 487, 490 (D.C.1968)). We have held that, at a minimum, a party seeking a continuance to obtain witnesses must show “(1) who they are, (2) what their testimony would be, (3) the relevance and competence of such testimony, (4) that the witnesses can probably be obtained if the continuance is granted, and (5) that due diligence has been used to obtain their attendance at trial.” Id. (citations omitted).

Appellant argues that she met all the O’Connor criteria and should therefore have been granted the continuance. Although we agree that the minimal criteria were met in this case, satisfaction of the O’Connor criteria does not necessarily mandate a continuance. The trial court confronted a five-year-old case which, in appellant counsel’s own words, was both “horrendously, offensively old” and involved the “juggling [of] a lot of out-of-state witnesses.” Under these circumstances, the trial court’s decision to deny the continuance without prejudice to a motion for mistrial, enabling the trial to go forward while redoubled efforts were directed toward obtaining Zachery’s appearance, was not an improper exercise of its discretion. When, almost a week later, efforts to locate the witness had still proved unsuccessful, the trial court did not err in deeming Zachery unavailable, allowing admission of Zachery’s largely cumulative grand jury testimony as a substitute, and denying the mistrial motion.

V.

Finally, appellant argues that this case should be remanded for resentencing because the trial judgé may have relied upon inappropriate considerations in the original sentencing. She argues, more specifically, that her sentence was unduly harsh because the judge improperly relied upon a 1966 grand theft conviction, may have retaliated against her for a recusal motion she had filed, and may have concluded that the “other coats” were stolen and wrongly relied upon that conclusion. This claim is frivolous. Appellant specifically admitted the 1966 conviction, and, while the record suggests that the judge was not planning to rely on the conviction in sentencing, she was legally entitled to do so. See Grant v. United States, 509 A.2d 1147, 1155 (D.C.1986). As to the latter two charges, appellant offers nothing but speculation to support them.

VI.

Accordingly, we remand the record to the trial court for findings as to whether appellant’s absence from court at the time the verdict was received was voluntary or involuntary. In all other respects we affirm the conviction.

Affirmed in part and remanded.

1 . In the interim, the jury had sent out a note asking for a coffee break, and at 3:38 the court authorized a recess. Defense counsel was not present at this time, nor was appellant.

2 . See also Boone v. United States, 483 A.2d 1135, 1139 (D.C.1984) (en banc) (Rule 43(a) “'incorporates the protections afforded by the Sixth Amendment Confrontation Clause, the Fifth Amendment Due Process Clause, and the common law right of presence’ ”) (quoting Welch v. United States, 466 A.2d 829, 838 (D.C.1983)).

3 . See also Black, 529 A.2d at 324 (in assessing violations of right of presence, court distinguishes between cases where constitutional rights are, and are not, involved).

4 .When the trial court has made a preliminary finding that the defendant was absent from trial, the defendant must come forward with evidence to rebut that finding. See Brown, 399 A.2d at 1225. The government, however, has the burden of establishing ultimately that the defendant has waived the right to be present at trial. Id.

5 . Some courts have found in the due process clause the requirement for on-the-record factual findings before proceeding with trial in the absence of a defendant. See State v. Staples, 354 A.2d 771, 776 (Me.1976); State v. Brown, 121 R.I. 422, 399 A.2d 1222, 1225 (1979).

6 . The trial court's determination of voluntariness is itself a mixed question of fact and law. See Finney v. Rothgerber, 751 F.2d 858, 862 (6th Cir.1985). We defer to the trial court's determination of the underlying facts unless clearly erroneous, see Auxier v. Kraisel, 466 A.2d 416, 418 (D.C.1983) (interpreting D.C.Code § 17-305(a) (1981)), and review the ultimate determination as to voluntariness de novo as a matter of law, see United States v. Felder, 548 A.2d 57, 61-62 (D.C.1988).

7 . Because our dissenting colleague points to the fact that appellant departed from the hospital against medical advice and proceeded directly to California as evidence of the voluntariness of her absence from the verdict, we believe it appropriate to note that Judge Bacon herself found in her order of October 4, 1984, denying appellant’s application for review and reconsideration of conditions of release pending sentencing that defendant's departure in this manner was "evidence which suggests that defendant may have a mental instability which impairs compliance with court orders.”

8 . We say we "presumably" will apply a harmless error analysis because that is the reviewing court’s traditional approach and we have done so on occasion in comparable circumstances. See Kleinbart, 553 A.2d at 1240 (trial court error in refusing to permit defendant to be present at bench conference was not harmless beyond reasonable doubt). On the other hand, in at least one instance we appear to have concluded there was reversible error per se when the trial court found, after a remand, that the defendant’s absence from trial during the testimony of witnesses had been involuntary. See Black, 529 A.2d at 324-25. Interestingly, if we were to remand the case, not the record, and the trial court were to find appellant's absence had been involuntary, then presumably the trial court would order a new trial — as it would have done if the trial court had made a post-trial finding to that effect without this court’s involvement. That possible result, therefore, suggests an interesting question: if the trial court were to find appellant’s absence had been involuntary, would there be any sound basis for concluding that a harmless error analysis should be applied (instead of automatic reversal) simply because we have retained the case by remanding the record? Assume next, for the sake of argument, that the answer is "no" — that a trial court finding of involuntary absence would automatically warrant a new trial whether we had remanded the case or the record. Assume, further, that the trial court made a finding that appellant’s absence had been voluntary but that this court rejected that finding as a matter of law. Would there be a justification for harmless error analysis instead of automatic reversal? See generally Davis v. United States, 564 A.2d 31 (D.C.1989) (en banc). Because we do not know how the trial court will rule on the voluntariness issue, we need not consider these questions.

9 . One of the detectives also noticed that the bedroom window of the hotel room had been forced open. He observed, several stories below, something that looked like a coat; it was later identified by the owner of the stolen fur as the lining of her missing coat. The stolen fur coat itself was located about two weeks later, without its lining, balled up behind an ice machine near an elevator on the seventh floor where appellant had been staying.

10 . Appellant also argues the trial court abused its discretion in admitting into evidence Zachery’s sworn grand jury testimony because he was not "unavailable” for purposes of the prior recorded testimony exception to the hearsay rule. See Warren v. United States, 436 A.2d 821, 825 (D.C.1981). Because appellant herself requested the admission of this evidence, she may not now seek reversal on this ground. In any event, there was no abuse of discretion where the trial court’s finding that Zachery was unavailable was not “plainly wrong or without evidence to support it.” D.C.Code § 17-305 (1981); Ready v. United States, 445 A.2d 982, 990 (D.C.1982), cert. denied, 460 U.S. 1025, 103 S.Ct. 1279, 75 L.Ed.2d 498 (1983).