Appeals court considers whether trial court erred in proceeding in absentia for Marshall

The Utah Court of Appeals heard argument in State v. Marshall over two principal issues: whether the trial court erred in granting the State's motion to proceed in absentia and whether trial counsel provided ineffective assistance by failing to object to law-enforcement testimony about intent to distribute.

Hannah Levitt Howell, counsel for Mr. Marshall, told the panel that the prosecutor and trial court did not show that Marshall voluntarily absented himself and that the record suggests he may have been involuntarily absent because of car trouble. "The state did nothing," Howell said, arguing the State had the burden at trial to present evidence of voluntariness and that it failed to do so during the recorded on-the-record proceedings. Howell also stressed that the appellate record lacks detail about what inquiries, if any, occurred during the approximately 30-minute period when the court waited and put word out in the courthouse.

Natalie Edmondson, arguing for the State, countered that the appellate record was inadequate to review the claim and that Marshall had, in subsequent proceedings, not preserved a claim that would require reversal. Edmondson said the trial court's remarks and later sentencing comments plausibly reflected the court's factual view and that the defendant's history of tardiness and his later on-the-record explanation supported a finding of voluntary absence. The prosecutor also argued that even if a voluntariness inquiry had been inadequate, the State could show the error was harmless because the evidence of intent to distribute was strong given the traffic-stop facts and packaging, and because the defendant was present for the key witness testimony.

The panel questioned both advocates about what constitutes an adequate inquiry under Utah precedent, including how earlier Court of Appeals decisions (discussed in argument as Winosa/Winosik, Gunter and Chadwick) have described the inquiry and whether trial courts should, as a practical matter, check hospitals, jail rosters or have counsel call the defendant. One judge observed the line between procedural error in the inquiry and the constitutional question of voluntariness is murky in case law, and asked whether prejudice analysis should focus only on the adequacy of the inquiry or also on whether the defendant's presence would have changed the verdict or sentence.

Howell argued the court should presume prejudice when the State failed to make the required showing of voluntariness and that the sentencing record showed the tardiness affected the court's sentencing views. Edmondson replied that the record does show efforts (the court "put out word" in the courthouse) and that the defendant had declined to assert, when he later appeared mid-trial, that he had attempted to call counsel or the court. Edmondson also highlighted factual contest about whether Marshall had immediate access to a phone and said the trial court reasonably could treat the absence as voluntary.

The court took the matter under advisement and said it would issue a written opinion.