Trial in Absentia: The Tim Kirk and Mary Evans Tragicomedy

Tennessee Rule of Criminal Procedure 43(b)(1) provides that the defendant waives his right to be present at trial if he "voluntarily is absent after the trial has commenced." But State v. Kirk, 699 S.W.2d 814 (Tenn. Crim. App. 1985), upheld a verdict and sentence where the accused left the jurisdiction shortly before his scheduled trial date.

Where was Tim Kirk in April of 1983 while being tried in Morgan County for killing inmates and kidnapping guards at Brushy Mountain? He was in Florida with one of his defense lawyers, Mary Evans!

Apparently the pair had taken a liking to one another during Mary's many visits to Tim at the prison. On the afternoon of Thursday, March 31, 1983, Tim was psychologically tested by Dr. Gary Salk in Oak Ridge. Lawyer Mary was there with a pistol. The shrink and three guards were bound and gagged. Then the lovers took off.

The FBI arrested them in Daytona on Aug. 17, 1983. Brought back to Anderson County, each negotiated plea agreements. Tim Kirk took 40 years consecutive to sentences for other convictions. Mary Evans surrendered her law license and was sentenced to three years for aiding and abetting escape. She was paroled after serving 10 months.

The Tennessee Court of Appeals overruled Kirk in State v. Far, 51 S.W.3d 222 (2001). The intermediate tribunal noted that similar language in Federal Rule 43 was construed in Crosby v. United States, 506 U.S. 255 (1993), to require that a defendant be present at commencement of trial. But there was no application for permission to appeal in Far. Moreover, two Tennessee Court opinions have cited Kirk in dicta with approval. See State v. Muse, 967 S.W.2d 764, 767 (1998), and State v. Carruthers, 35 S.W.3d 516, 568 (2000).

Should Criminal Rule 43 be amended to cover voluntary absence before trial? Probably so. Because Tim Kirk knew of his trial date and voluntarily became a "no show," he should not have complained when the show went on without him. 


Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, Bickers, and Tillman LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law. He is reporter to the Supreme Court Advisory Commission on Rules of Practice and Procedure.