State v. Thurlby

• Decision Date: 05 November 2015
• Docket Number: No. 91220–3.,91220–3.
• Citation: 184 Wash.2d 618,359 P.3d 793
• Parties: STATE of Washington, Respondent, v. Tammera Michelle THURLBY, Petitioner.
• Court: Washington Supreme Court

184 Wash.2d 618

359 P.3d 793

STATE of Washington, Respondent

v.Tammera Michelle THURLBY, Petitioner.

No. 91220–3.

Supreme Court of Washington, En Banc.

Argued Sept. 10, 2015.

Decided Nov. 5, 2015.

Catherine E. Glinski, Glinski Law Firm PLLC, Manchester, WA, for Petitioner.

David Phelan, Cowlitz County Prosecuting Atty's Office, Longview, WA, for Respondent.

Opinion

FAIRHURST, J.

¶ 1 The State charged Tammera Michelle Thurlby with three counts of unlawful delivery of a controlled substance. Thurlby was present when her two day trial commenced, but she failed to appear on the second day. The trial court found that Thurlby was voluntarily absent and exercised its discretion to proceed with trial. In Thurlby's absence, the jury found her guilty on all three counts. Thurlby challenges the trial court's finding of voluntary absence. She also argues that the trial court erred because it failed to expressly state it was considering a presumption against waiver during its analysis of voluntary absence, as required by a recent opinion from Division Three of the Court of Appeals. See State v. Cobarruvias, 179 Wash.App. 523, 532–33, 318 P.3d 784 (2014). Division Two of the Court of Appeals upheld the trial court's rulings and declined to adopt the holding of Cobarruvias. State v. Thurlby, 184 Wash.App. 918, 926, 339 P.3d 252 (2014), review granted, 182 Wash.2d 1022, 347 P.3d 459 (2015). We affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 2 Thurlby sold methamphetamine to a police informant on three separate occasions. The State charged Thurlby with three counts of delivery of a controlled substance within 1,000 feet of a school bus route, all of which proceeded to jury trial. Thurlby was present when her trial began in December 2012. At the end of the first day, defense counsel instructed Thurlby to arrive in court a few minutes before 9:00 a.m. the following day. When court reconvened the following morning, Thurlby was absent. The trial court considered whether it should issue a bench warrant, but defense counsel advised that Thurlby did not have reliable transportation and requested a few additional minutes. The judge agreed to wait, but by 9:36 a.m. Thurlby was still absent. At that time, the trial court issued a bench warrant.

¶ 3 Later that morning, the trial court reconvened and informed the parties that it had contacted the local hospital, the court's administration, the cleric's office, and the Cowlitz County Jail but was still unable to locate Thurlby. The State advised that both the court rules and case law permitted the trial court to proceed with the trial without Thurlby present. The State, however, recommended that the court provide additional time for Thurlby to present herself and requested that the court recess until 1:30 p.m. Defense counsel objected to continuing without Thurlby but also noted that the court would have to wait until the afternoon at the earliest in order to satisfy the relevant case law. The trial court agreed to recess until 1:30 p.m. so that it could properly determine whether Thurlby's absence was voluntary.

¶ 4 Shortly after 1:30 p.m. the court reconvened and again inquired into the circumstances of Thurlby's disappearance. The State reported that law enforcement officers had contacted the local bail bond company and searched for Thurlby in several different locations but were unsuccessful in determining her location. Defense counsel also indicated that he had not received any communication from Thurlby. The trial court informed the parties that it had again reached out to the local hospital but was unable to locate Thurlby. The trial court had also contacted the court's administration and the clerk's office, but these sources once more reported that they had not received any communications from Thurlby.

¶ 5 The State then moved to proceed with trial in Thurlby's absence. Defense counsel opposed the State's motion and moved separately for a mistrial or a continuance. The trial court, making several findings, granted the State's motion and denied the defense motion. First, the trial court made a preliminary finding that Thurlby was voluntarily absent because the trial court had not heard any good cause for her absence. The trial court additionally reasoned that Thurlby knew she was required to be in court but did not contact the court or defense counsel and did not ask to be excused. The court also recounted that it had contacted various sources but was still unable to locate Thurlby. Second, based on a number of findings, the trial court found that rescheduling the case would be difficult. The findings included the fact that several witnesses were not local, a special jailer had to be used to monitor a confidential informant within the courthouse, numerous witnesses had already testified, the State already presented most of its evidence, and it was difficult to tell if Thurlby would ever return. Based on the inquiry into Thurlby's whereabouts and the progress of the trial, the trial court chose to proceed in Thurlby's absence. The jury returned guilty verdicts on all counts at the conclusion of the second day of trial.

¶ 6 Police did not apprehend Thurlby until February 2013. Prior to sentencing, the trial court provided Thurlby with an opportunity to explain her nonattendance. Thurlby stated that she was absent because her mother underwent an unplanned surgery midway through trial. Thurlby claimed that she contacted the clerk's office to reschedule but was informed that felony trials could not be rescheduled. She did not explain her mother's circumstances to the recipient of the call. Thurlby's mother also spoke to the trial court about her health problems. After hearing these statements, the trial court nevertheless made a finding that Thurlby was voluntarily absent. The trial court then sentenced Thurlby on three counts of unlawful delivery of a controlled substance and one count of bail jumping.¹

¶ 7 Thurlby timely appealed her convictions, and the Court of Appeals affirmed. Thurlby, 184 Wash.App. at 926, 339 P.3d 252. Thurlby petitioned this court for review, which we granted. Thurlby, 182 Wash.2d 1022, 347 P.3d 459.

II. ISSUES

¶ 8 A. Did the trial court abuse its discretion by finding that Thurlby was voluntarily absent?

¶ 9 B. Did the trial court commit reversible error by failing to explicitly consider the presumption against waiver in the third prong of the Thomson² analysis as required by Division Three of the Court of Appeals in Cobarruvias ?

III. ANALYSIS

A. The trial court did not abuse its discretion by finding that Thurlby was voluntarily absent and completing the jury trial in her absence

¶ 10 This court reviews the trial court's decision to proceed with trial in the defendant's absence for abuse of discretion. State v. Garza, 150 Wash.2d 360, 366, 77 P.3d 347 (2003). A trial court abuses its discretion when its decision is “ ‘manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’ ”

State v. Woods, 143 Wash.2d 561, 626, 23 P.3d 1046 (2001) (quoting In re Det. of Schuoler, 106 Wash.2d 500, 512, 723 P.2d 1103 (1986) ).

1. The right to be present at trial

¶ 11 The Sixth Amendment and the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, and article I, section 22 of our state constitution all guarantee the right of the criminal defendant to be present at his or her own trial. See Thomson, 123 Wash.2d at 880, 872 P.2d 1097 (citing United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam)). However, this right is not absolute. State v. DeWeese, 117 Wash.2d 369, 381, 816 P.2d 1 (1991). A criminal defendant may waive the right to be present at trial so long as the waiver is knowing and voluntary. State v. Rice, 110 Wash.2d 577, 619, 757 P.2d 889 (1988). A waiver of the right to be present may be express or implied. Thomson, 123 Wash.2d at 881, 872 P.2d 1097. If a trial has begun in the defendant's presence, a subsequent voluntary absence of the defendant operates as an implied waiver of the right to be present. Id. Our rules of criminal procedure similarly permit the court to continue with trial despite a defendant's voluntary absence, provided that the defendant was present when the trial commenced. CrR 3.4(b) ; see also Thomson, 123 Wash.2d at 880–81, 872 P.2d 1097 (noting that CrR 3.4 is interpreted consistently with its federal counterpart, Fed.R.Crim.P. 43, which “treats midtrial flight as a knowing and voluntary waiver of the right to be present” (citing State v. Hammond, 121 Wash.2d 787, 854 P.2d 637 (1993) ; Crosby v. United States, 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993) )).

2. Thomson's voluntary absence framework

¶ 12 In Thomson, this court determined whether a criminal defendant had voluntarily waived his right to be present after the commencement of his jury trial. 123 Wash.2d at 878, 872 P.2d 1097. There, the defendant was in court for the beginning of jury selection but failed appear for trial. Id. at 879, 872 P.2d 1097. On the morning of the first day of his absence, the defendant called his attorney's office and stated that there was a medical emergency preventing him from appearing in court. Id. The defendant provided no additional information. Id. The defendant's mother, whom he lived with, also did not know his whereabouts. Id. The prosecuting attorney moved for a bench warrant, but the trial court instead took a brief recess in order to allow defense counsel time to locate the defendant. Id. After the recess, the trial court issued a bench warrant for the defendant but adjourned until 1:30 p.m. to provide defense counsel additional time to ascertain the defendant's location. Id. At 1:30 p.m. the defendant was still absent. Id. At that time, the trial court made a finding of voluntary absence. Id. The case proceeded to trial over the defense attorney's objection, and the jury found the defendant guilty. Id. After the conclusion of his trial, the...