Background
Shelly Faulling was tried while absent from the courtroom even though he was being held in the county jail. His lawyer moved for a continuance because of that absence. The State itself told the trial court that it needed to make findings on the record that Faulling had received notice of his right to attend and had been warned that the trial could proceed if he failed to appear. The trial court denied the continuance without making those findings, and the case proceeded to a conviction involving methamphetamine.
Faulling later pursued post-conviction relief. The PCR court found that he had not knowingly and intelligently waived his direct appeal and granted a belated review under White v. State, while denying his other PCR claims. The Court of Appeals granted certiorari on that belated-appeal question, denied review of the remaining PCR questions, and addressed the direct appeal under Davis v. State.
The direct appeal asserted three errors: trying Faulling in his absence while he was in custody, refusing a continuance prompted by his absence, and instructing the jury that possession of more than one gram of methamphetamine raises an inference of intent to distribute. The panel resolved the appeal on the first ground and did not reach the other two.
The Court’s Holding
The Court of Appeals reversed and remanded for a new trial. The Sixth Amendment protects a criminal defendant’s right to be present at every stage of trial. That right can be waived, but before trying a defendant in absentia a South Carolina trial court must determine that the waiver was voluntary. The court must make factual findings on the record that the defendant received notice of the right to attend and was warned that trial would proceed in the defendant’s absence if the defendant failed to appear.
Those findings were missing here. Trial counsel’s motion for a continuance put Faulling’s absence squarely before the court, and the State expressly identified the findings that were required. The trial court nevertheless only denied the motion. Without findings establishing notice and warning, the record could not support a determination that Faulling voluntarily surrendered his constitutional right to be present.
The panel also treated the issue as preserved even though defense counsel did not separately phrase the objection as a failure to make formal findings. Relying on State v. Wrapp, the court explained that a continuance motion and an objection to proceeding because of inadequate notice can preserve the in-absentia issue. South Carolina appellate courts review criminal cases for errors of law and generally defer to supported trial-level factual findings, but there were no pertinent findings to review in this case.
The error required a new trial. Because that disposition gave Faulling complete relief on the direct appeal, the court did not decide whether denial of the continuance was independently erroneous or whether the methamphetamine instruction amounted to an unconstitutional comment on the facts. The reversal therefore rests narrowly on the trial court’s failure to establish a valid waiver before proceeding without the accused.
Key Takeaways
- A South Carolina criminal defendant may waive the right to attend trial, but the trial court must determine that the waiver was voluntary before proceeding in absentia.
- The record must contain findings that the defendant knew of the right to be present and was warned that trial could proceed after a failure to appear.
- A continuance motion based on the defendant’s absence can preserve the issue even without a separate objection using the phrase “required findings.”
- If the record lacks the findings needed to establish waiver, the resulting conviction may be reversed and the case remanded for a new trial.
Why It Matters
Faulling gives South Carolina trial lawyers a concrete checklist whenever a defendant is missing. The court should determine where the defendant is, confirm the notice actually provided, establish any warning about trial in absentia, and state its waiver findings on the record. That inquiry is especially important when the defendant is already in government custody, because absence from the courtroom may have little to do with a voluntary decision not to attend.
Defense counsel should object to proceeding, request a continuance, and identify any gap in proof of notice or warning. Prosecutors likewise have an interest in ensuring the findings are made before jeopardizing a conviction through an avoidable record defect. The opinion is unpublished and has no precedential value except as permitted by Rule 268(d)(2), SCACR, but it applies established South Carolina authority and demonstrates that a silent record on voluntary waiver can require an entirely new trial.