State v. Garza

(concurring) — Although I agree with the majority’s disposition, I do not agree with its analysis.

The majority acknowledges a defendant’s Sixth Amendment right to be present at trial is a fundamental right that can be waived only if the waiver is voluntary and knowing, yet it adopts the deferential abuse of discretion standard to review Benjamin Garza’s claim. Majority at 366, 369. The majority’s decision is inconsistent with Arizona v. Fulminante, 499 U.S. 279, 286, 111 S. Ct. 1246, 1252, 113 L. Ed. 2d 302 (1991) (holding the ultimate issue of vol-untariness is a legal question) and Rice v.…