State v. Brown, 42752–4–II.

• Court: Court of Appeals of Washington
• Citation: 312 P.3d 1017
• Docket Number: No. 42752–4–II.,42752–4–II.
• Parties: STATE of Washington, Respondent, v. Johnnie G. BROWN, Appellant.
• Decision Date: 19 November 2013

312 P.3d 1017

STATE of Washington, Respondent,
v.
Johnnie G. BROWN, Appellant.

No. 42752–4–II.

Court of Appeals of Washington,
Division 2.

Nov. 19, 2013.

[312 P.3d 1018]

Stephanie C. Cunningham, Attorney at Law, Seattle, WA, for Appellant.

Kimberley Ann Demarco, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.

BJORGEN, J.

¶ 1 After a trial conducted partially in absentia, a jury found Johnnie Gerard Brown guilty of child rape and incest. Nine years later, authorities apprehended Brown, who had absconded to another state, and returned him to Washington for sentencing. The sentencing court declined to order a presentence report before imposing the maximum standard-range term of incarceration. Brown appeals, arguing (1) that the trial court improperly tried him in absentia in violation of his right under CrR 3.4 to be present at all stages of trial and (2) that the sentencing court committed reversible error when it sentenced him for a felony sex offense without first ordering a presentence report. Because his trial had commenced before Brown absconded, we affirm the convictions. Because the trial court did not order or consider the presentence report mandated by former RCW 9.94A.110 (2000) before sentencing Brown for a felony sex offense, we vacate the sentence and remand for resentencing.

[312 P.3d 1019]

Facts

¶ 2 The State charged Brown with two counts of second degree child rape or, in the alternative, two counts of first degree child molestation; and one count of first degree incest. Having posted a $100,000 bail bond, Brown appeared out of custody on April 17, 2002, and was present when the trial court called the case for trial and administered the initial oath to the 50–person venire. After introducing the attorneys to the venire and giving preliminary instructions, the trial court excused the potential jurors with instructions to fill out a questionnaire and return the following day.

¶ 3 Brown appeared the next day and was present when the State moved to strike the jury venire because “the case ha[d] gotten more complicated.” Verbatim Report of Proceedings (VRP) (Apr. 17, 2002) at 19. The defense joined the motion. Both sides expressed concern that as many as half of the potential jurors had personal reservations related to the nature of the case or wanted to be questioned privately, and both sides wanted additional time to interview newly-discovered potential witnesses and make related motions. Brown's counsel stated that “[f]rom the defense perspective, I couldn't imagine that we could get a worse draw of jurors” with a different venire. VRP (Apr. 17, 2002) at 21. With Brown still present, the trial court excused the venire and “recess [ed] the case until May 6th.” VRP (Apr. 17, 2002) at 32–33. As soon as the jurors left, the court began hearing testimony on the admissibility under CrR 3.5 of statements Brown made to police.

¶ 4 Brown appeared again on April 22, 2002, and the court heard testimony and argument on the competency of two child witnesses and the admissibility under ER 404(b) of other child sex abuse accusations against Brown. The court scheduled the final ER 404(b) testimony for May 6 and the swearing in of a new jury venire for May 7.

¶ 5 Brown did not appear on May 6, 2002.¹ His counsel affirmed that Brown had been informed the proceedings would continue on that date and that counsel had made every effort to contact him. On May 15, the court reconvened, made preliminary determinations that trial had commenced and Brown's continuing absence was voluntary, and decided to proceed in absentia if Brown's whereabouts remained unknown the following day.

¶ 6 Brown did not appear, and the trial court administered the oath to a new venire on May 20, 2002. A jury was selected and began hearing testimony in Brown's absence the next day. The jury returned a verdict of guilty on the incest count and on both child rape counts.

¶ 7 After his extradition nine years later, Brown appeared in custody for sentencing on October 7, 2011. At the hearing, Brown's defense counsel requested a continuance, informing the court that “[t]here's been no presentence investigation conducted in this case, and that's mandatory in a sex case.” VRP (Oct. 7, 2011) at 8. The prosecutor expressed the belief that the statute in effect at the time of Brown's conviction did not require such a report. The trial court agreed that no report was required and imposed the maximum standard-range sentence for each count, to run concurrently, for a total of 280 months.

¶ 8 Brown timely appeals.

Analysis I. Trial in Absentia

¶ 9 Brown argues that the trial court improperly tried him in absentia in violation of his right to be present. Specifically, Brown asserts that the trial did not “commence” in his presence for purposes of CrR 3.4, even though a venire took the oath in his presence, because the jury that determined his guilt was selected from a different panel, one not sworn in Brown's presence.

¶ 10 Whether a defendant who witnessed the swearing of a venire may properly be tried in absentia before a jury selected from a different venire appears to be an issue of first impression. Because the requirement

[312 P.3d 1020]

that trial commence in the defendant's presence is intended to ensure that waiver of the right to be present at trial is knowing, and because shortly before his disappearance Brown witnessed the swearing of a jury panel to try him for the same charges on which he was convicted, we hold that trial had commenced and the court below properly tried Brown in absentia.

¶ 11 We review construction of court rules de novo. State v. Bertrand, 165 Wash.App. 393, 414, 267 P.3d 511 (2011) (citing State v. Robinson, 153 Wash.2d 689, 693, 107 P.3d 90 (2005)), review denied,175 Wash.2d 1014, 287 P.3d 10 (2010). We interpret a court rule as though it were enacted by the legislature, giving effect to its plain meaning as an expression of legislative intent. State v. Chhom, 162 Wash.2d 451, 458, 173 P.3d 234 (2007). Plain meaning, in turn, is discerned by “reading the rule as a whole, harmonizing its provisions, and using related rules” to help identify the intent behind it. Chhom, 162 Wash.2d at 458, 173 P.3d 234.

¶ 12 CrR 3.4, Presence of the Defendant, provides in relevant part:

(a) When Necessary.

The defendant shall be present at the arraignment, at every stage of the trial including the empaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules, or as excused or excluded by the court for good cause shown.

(b) Effect of Voluntary Absence.

The defendant's voluntary absence after the trial has commenced in his or her presence shall not prevent continuing the trial to and including the return of the verdict.

(Emphasis added.) Trial in absentia, although disfavored, is therefore proper in Washington if “trial commenced” in a criminal defendant's presence and the defendant's absence is voluntary.²State v. Jackson, 124 Wash.2d 359, 361, 878 P.2d 453 (1994) (citing CrR 3.4).

¶ 13 We interpret CrR 3.4 in a manner parallel to the federal courts' interpretation of Federal Rule of Criminal Procedure 43. State v. Hammond, 121.Wn.2d 787, 790–93, 854 P.2d 637 (1993). In State v. Crafton, 72 Wash.App. 98, 103, 863 P.2d 620 (1993), we held that under CrR 3.4, trial commences no sooner and no later than when the jury panel is sworn for voir dire. In reaching this conclusion, we noted that “ ‘when the jury panel is sworn for voir dire, the defendant is given an unambiguous and readily discernible sign that trial is beginning and he or she will have the opportunity to participate in jury selection.’ ” Crafton, 72 Wash.App. at 103, 863 P.2d 620 (quoting State v. Thomson, 70 Wash.App. 200, 211, 852 P.2d 1104 (1993), aff'd,123 Wash.2d 877, 872 P.2d 1097 (1994)) (alteration omitted). This “bright-line” rule, Crafton, 72 Wash.App. at 103, 863 P.2d 620, “ ‘serves to assure that any waiver [of the right to be present at trial] is indeed knowing.’ ” Thomson, 123 Wash.2d at 883, 872 P.2d 1097 (quoting Hammond, 121 Wash.2d at 792, 854 P.2d 637 and Crosby v. United States, 506 U.S. 255, 262, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993)).

¶ 14 The rule also serves, however, to ensure that “ ‘the governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward.’ ” Taylor v. United States, 414 U.S. 17, 20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973) (quoting Illinois v. Allen, 397 U.S. 337, 349, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring)). Thus, we must also consider the governmental interest in conserving judicial resources and accurately determining innocence or guilt.

[312 P.3d 1021]

¶ 15 Brown argues that the use in CrR 3.4 of the definite article suggests that “the empaneling of the jury” refers to the same panel from which those jurors who actually hear the evidence in the case are selected. In light of the principles of construction set out in Chhom and the rule's purposes, however, the argument fails to persuade. Brown witnessed the swearing of a venire, and when the court excused the panel in Brown's presence, it gave a specific date, less than three weeks later, on which a new panel would be called and trial would resume. Brown was present for the swearing of the first venire and received specific, unambiguous notice that a new panel would be called on a date certain. To deem the trial to have commenced at this point under CrR 3.4 ensures that Brown's waiver of his right to be present was made with full knowledge.

¶ 16 Brown argues to the contrary that once the court excused the panel and announced the 18–day delay before a new panel would be called, there was no “ ‘unambiguous and readily discernible sign’ ” that trial had commenced. Br. of Appellant at 11 (quoting State v. Thomson, 70 Wash.App. 200, 211, 852 P.2d 1104 (1993)). Instead, Brown maintains that the “clear message” was that trial...