CERTIORARI TO THE SUPREME COURT OF ARIZONA.
Petitioner, while a soldier in the United States Army stationed at Fort Huachuca, Arizona, was arrested and charged by state authorities with the sale of marihuana in violation of applicable state law. Prior to his trial on this charge, the petitioner was discharged from the Army and voluntarily left Arizona for New York. When the trial date was set, the petitioner's court-appointed attorney so advised the petitioner and requested him to return to Arizona. Assertedly because he lacked travel funds, the petitioner did not appear in Arizona on the date set for trial. Under these circumstances, the trial proceeded without the petitioner's presence, as authorized by state procedure. The jury returned a guilty verdict. After the verdict was rendered, the petitioner obtained the necessary travel funds and returned to Arizona in time for his sentencing. He was sentenced to not less than five
nor more than five and one-half years in prison. The Arizona Supreme Court affirmed his conviction. 107 Ariz. 353, 488 P. 2d 973 (1971).
The petition for certiorari in this case presented questions as to constitutional limits on the States' authority to try in absentia a person who has voluntarily left the State and is unable, for financial reasons, to return to that State. Upon reviewing the record, however, it appears that these broad questions were not raised by the petitioner below nor passed upon by the Arizona Supreme Court. We cannot decide issues raised for the first time here. Cardinale v. Louisiana, 394 U.S. 437 (1969). The only related issue actually raised below was whether petitioner's conduct amounted to a knowing and intelligent waiver of his right to be present at trial. Since this is primarily a factual issue which does not, by itself, justify the exercise of our certiorari jurisdiction, the writ of certiorari is dismissed as improvidently granted.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL concur, dissenting.
Petitioner, while in the Armed Services, was stationed in Arizona and while there was arrested and charged with the unlawful sale of marihuana. That was on February 24, 1969. His counsel asked for a continuance of the trial until April 22, 1969, which was granted. But no trial date was set at that time, one being subsequently set for March 31, 1970. In the meantime, petitioner had been discharged from the Army and left Arizona for New York and gave his attorney his New York address. The attorney sent word by letter on March 3, 1970, that the trial would start March 31 and asked that he return a week early for preparation. Petitioner received that letter March 6 or 7, but had no funds to return. He apparently in good faith tried to raise the money but was
not successful. He eventually did succeed and arrived in Arizona April 2. But the trial was over. Petitioner was convicted in absentia and sentenced to not less than five years nor more than five and one-half years. On appeal, the Arizona Supreme Court affirmed. 107 Ariz. 353, 488 P. 2d 973.
Under Rule 231 of Arizona's Rules of Criminal Procedure, a trial may be conducted in the defendant's absence "if his absence is voluntary." Id., at 355, 488 P. 2d, at 975. The Arizona Supreme Court held that there had been "a knowing and intelligent waiver of his right to be present at the trial." Id., at 357, 488 P. 2d, at 977. The federal rule of a knowing and intelligent waiver of his right to confrontation ...