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BURRELL v. AARON

No. 77-1012.

560 F.2d 988 (1977)

John Franklin BURRELL, Petitioner-Appellant, v. Ralph Lee AARON, Warden, New Mexico State Penitentiary, Respondent-Appellee.

United States Court of Appeals, Tenth Circuit.

Decided August 10, 1977.

Attorney(s) appearing for the Case

William W. Deaton, Federal Public Defender, Albuquerque, N.M., submitted memorandum opposing summary action on behalf of petitioner-appellant.

Toney Anaya, Atty. Gen., Andrea Buzzard, Asst. Atty. Gen., Santa Fe, N.M., submitted memorandum in support of summary action on behalf of respondent-appellee.

Before SETH, Circuit Judge, PICKETT, Senior Circuit Judge, and BARRETT, Circuit Judge.

PER CURIAM.

Petitioner was charged with and tried for trafficking in a narcotic drug. Petitioner testified on his own behalf, and then rested. The state called a rebuttal witness and rested. Petitioner was then present, and a recess for lunch was had. Petitioner was free on bond during the course of the trial. When court reconvened the petitioner was not present. The state trial judge said: "The defendant is not here. There is no reason that the trial cannot proceed...

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