                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-3632
                                    ___________

United States of America,                *
                                         *
                     Appellee,           * Appeal from the United States
                                         * District Court for the Eastern
      v.                                 * District of Missouri.
                                         *
Donnell H. Crites,                       *
                                         *
                     Appellant.          *
                                    ___________

                            Submitted: April 20, 1999
                                Filed: May 20, 1999
                                   ___________

Before BOWMAN,* Chief Judge, FAGG, Circuit Judge, and BOGUE,** District Judge.
                              ___________

FAGG, Circuit Judge.

      The Government charged Donnell H. Crites with certain drug-related offenses,
and the case went to trial. After the Government rested but before Crites presented his
defense, Crites tried to commit suicide by ingesting a mix of alcohol,


      *
       The Honorable Pasco M. Bowman stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the end of the day on April 23, 1999.
He has been succeeded by the Honorable Roger L. Wollman.
      **
        The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
methamphetamine, and prescription medications. Crites’s counsel moved for a mistrial
or a continuance when Crites, whose attempted suicide left him unconscious and
hospitalized, did not appear at trial. The district court delayed the trial for half a day,
gathered the facts surrounding Crites’s suicide attempt, and questioned Crites’s counsel
about Crites’s mental state during the trial and counsel’s ability to present a defense in
Crites’s absence. Crites’s counsel affirmed that Crites had ably assisted him
throughout the Government’s case and that counsel could present the defense he had
planned despite Crites’s absence. The district court then denied the motion for mistrial
or continuance, finding that Crites was voluntarily absent and “that the public interest
to proceed outweighs the voluntary absence of [Crites] in attending [his] trial.” Crites’s
counsel presented his case, the jury convicted Crites on all counts, and Crites now
appeals the district court’s finding that he was voluntarily absent.

        As a general rule,“[t]he further progress of the trial . . . will not be prevented and
the defendant will be considered to have waived the right to be present whenever a
defendant, initially present at trial, . . . is voluntarily absent after the trial has
commenced.” Fed. R. Crim. P. 43(b)(1) (1999). In deciding whether to proceed with
trial in the defendant’s absence, the district court must make appropriate findings
whether the defendant’s absence is knowing and voluntary and, if so, whether the
public interest in the need to proceed clearly outweighs that of the voluntarily absent
defendant in attending the trial. See United States v. Wallingford, 82 F.3d 278, 280
(8th Cir. 1996). The district court “should, ‘at the time make a record inquiry to
attempt to ascertain the explanation for the absence of the accused.’” Id. (quoted case
omitted). We review the district court’s finding on voluntary absence for clear error.
See id.

       On appeal, Crites contends only that “an attempted suicide does not constitute
a voluntary absence from trial for the purposes of Rule 43.” Contrary to Crites’s view,
the record supports the district court’s finding that Crites chose not to attend the last
day of his trial, but instead voluntarily took steps to end his life and to absent himself

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permanently from the trial proceedings. Crites clearly expressed his desire to be absent
by intentionally ingesting a potentially lethal mix of intoxicants and by leaving a suicide
note in which he stated, “This is the only way I can feel like I have won a little bit. I
am paying the price, but not the way they wanted me to.” Before he lost
consciousness, Crites also refused medical treatment and attempted to strike an officer
who tried to convince him to go to the hospital. We thus conclude the district court did
not commit clear error in finding that Crites was absent “because of his own voluntary
conduct over an extended period of time last evening, . . . rendering him now unable
to be here, even though he knew he had . . . the right to be here.” See United States v.
Davis, 61 F.3d 291, 300-03 (5th Cir. 1995) (defendant who was hospitalized after
attempting suicide during trial was voluntarily absent and waived right to be present at
trial); cf. United States v. Latham, 874 F.2d 852, 858-859 (1st Cir. 1989) (although
defendant voluntarily ingested overdose of cocaine and was hospitalized during trial,
defendant was not voluntarily absent because record showed defendant wanted to
attend the trial, ingested drugs only to calm his nerves, and did not intend to commit
suicide).

      We affirm Crites’s conviction.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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