Alleged Drunk Driver Waives Right to Appear in Court

COURT HOUSE — The alleged drunk driver accused of killing two teen-aged girls as they walked along the shoulder of Bayshore Road the evening of July 31 again waived his right to appear for a first appearance in court.
“Yesterday we filed with the court a waiver of first appearance,” defense attorney Brian Pelloni told Superior Court Judge Raymond Batten during the Thur. Aug 9 hearing.
Sitting several feet away from Pelloni were rows of the family and friends of the two girls wearing tiny purple bows pinned over their hearts in memory of Ashley Dauber, 13, and Nioami Lazicki-Gaston, 15.
The Aug. 9 hearing was scheduled after Malmgren waived his right to appear at a Tue. Aug. 6 hearing where two additional charges of first-degree aggravated manslaughter were added, along with an increase in bail to $350,000 for the new charges.
During that hearing Pelloni told the court, via telephone, he had not had sufficient time to meet with Malmgren.
“You advised the court that you had several scheduling conflicts,” Batten told Pelloni at the Aug. 6 hearing. “I am not comfortable with a notion of the defense counsel waiving the right of a defendant not to be physically present for the purpose of the first hearing.”
To give Pelloni time to familiarize himself with the case, Batten continued the hearing until Aug. 9.
In asking for the Aug. 9 waiver of appearance, Pelloni told the court, “In that waiver, Mr. Malmgren clearly understands and has been advised of his rights in this particular matter, as to to the new charges. I would ask that his appearance be waived for the purposes of today’s hearing.” Pelloni also asked the court to waive Malmgren’s appearance for a bail hearing.
First Assistant Prosecutor Robert Johnson told the court he and Pelloni agreed to let the bail stand on the current amount for all four charges. Bail has been set at $350,000 for two charges of first-degree aggravated manslaughter and $50,000 for the two charges of vehicular homicide.
According to Batten a waiver of first appearance certifies the defendant has received copies of the newer warrants, has read both documents and understands the charges. The waiver also states the defendant has been informed of his right to remain silent, right to a hearing to establish probable cause, right to indict by a grand jury and a right to a trial by jury.
Johnson said waiver did address the state’s concern of an eventual possible appeal based on Malmgren not being given his rights.
“This is the second, first appearance that Mr. Malmgren would have had,” said Pelloni, “when the initial charges were filed he would have had the same advisement of his rights so it’s essentially redundant in this case.”
“Except the charges are different, so it’s not redundant,” replied Batten.
Although he waived his right to appear in the courtroom both times, Malmgren was inside the courthouse.
Pelloni told the court his client had been given a copy of the charges while he was still in the building on Aug. 6.
“Before I met with him yesterday (Aug. 8), he already had a copy,” said Pelloni.
Batten said he found the requirements for the waiver of appearance to have been satisfied.