State v. Davis, 043020 WASC, 96663-0

Docket Nº:96663-0
Opinion Judge:MADSEN, J.
Party Name:STATE OF WASHINGTON, Petitioner, v. KEITH ADAIR DAVIS, Respondent.
Judge Panel:STEPHENS, C.J. (dissenting)
Case Date:April 30, 2020
Court:Supreme Court of Washington
 
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STATE OF WASHINGTON, Petitioner,

v.

KEITH ADAIR DAVIS, Respondent.

No. 96663-0

Supreme Court of Washington, En Banc

April 30, 2020

MADSEN, J.

Keith Davis argues that his right to be present at trial was violated when the trial court found that he voluntarily absented himself, he was removed from the courtroom, and the State proceeded to examine witnesses without Davis in attendance. Because the trial judge did not abuse her discretion in finding that Davis's absence was voluntary, we reverse the Court of Appeals and affirm the trial court.

BACKGROUND

In January 2014, Keith Davis was arrested for possession of a stolen vehicle. In February 2014, Davis was arrested again for possession of a different stolen vehicle. Police also discovered crack cocaine in Davis's possession after conducting a search incident to arrest. In March 2014, the State charged Davis with two counts of possessing a stolen vehicle and one count of possession of a controlled substance. On February 6, 2015, Davis waived his right to counsel. During his colloquy with the trial judge, Davis asked how he could request standby counsel. The judge informed Davis he could move for standby counsel but the motions were unlikely to be granted. The court then found Davis knowingly and voluntarily waived his right to counsel, and he proceeded pro se.

Davis obtained an investigator, reviewed discovery materials, and located potential witnesses. The investigator interviewed some of these witnesses and shared his findings with Davis. During pretrial and case setting hearings, Davis continually asked for standby counsel and repeated his frustrations about preparing to defend himself while incarcerated. The court continued to deny standby counsel, noting that such counsel is not constitutionally required and raises ethical issues.

On February 27, 2017, the parties appeared for trial. Davis renewed his request for a continuance. He stated that he was unprepared based on his significant medical conditions, 1 an incomplete investigation, and the alleged withholding of discovery materials from the State. Regarding his medical issues, the court allowed Davis to break every hour during trial to use the restroom and supplied him with sufficient water to meet his needs. Davis agreed. The judge also spoke with Davis's investigator and heard from the prosecution that both the investigation and discovery were complete. The judge then denied Davis's motion to continue. Davis responded that he was not ready for trial and renewed his request for standby counsel (what he referred to as "hybrid standby" counsel). 1 Record of Proceedings (RP) (Feb. 27, 2017) at 184, 193, 195-96. The court attempted to clarify if Davis meant he was withdrawing as his own counsel and requesting new counsel. Davis stated that he would not go to trial and that the court could "go to trial without [him]"; he said he was "not coming to trial" and "you guys can hold trial without me. Right? You do that? . . . Because I'm not coming." Id. at 189-92; see also id. at 193, 195-98. The presiding judge filed her written ruling denying Davis's motions to continue and to withdraw from representing himself, and did not grant his request for standby counsel. The judge then recused herself after discovering she had previously worked with Davis's sister. The case was reassigned to Judge Julie Spector. At the CrR 3.5 hearing, Davis again sought a continuance and attempted to withdraw as his own counsel. The judge denied both motions. In response, Davis became irate. He screamed that he wanted a new judge. The court warned Davis that outbursts and disruptions would lead to his removal. 2 RP (Mar. 2, 2017) at 380-82.2Davis said, "You can remove me now. What have we been doing here? I don't even want to be here. So remove me. I don't care. I told you that. You can hold your trial without me." Id. at 380; see also id. at 382 (the court stated that it would begin with jury selection, and Davis replied, "With or without me. . . . I'm not going to be here").

Davis returned to court and represented himself without significant incident until the State commenced its case in chief. The State called two officers involved in Davis's January 2014 arrest for possession of a stolen vehicle. Davis cross-examined the witnesses and eventually asked for a break to use the restroom facilities. After a brief recess, the court reconvened and Davis saw the water on his table had been removed. The court explained that Davis had increased his water intake such that he was using the restroom every 25 minutes instead of every hour as he had agreed. With two witnesses left to examine that day, the court told Davis that he would receive no more water. Davis then began a "tirade of expletives, pounding on the table with his fists, and yelling at an extremely loud volume, . . . at one point scream[ing] 'F**k you, Spector!' to the Court." Clerk's Papers (CP) at 141; Tr. of Proceedings (Mar. 7, 2017) (TP) at 200. Davis was warned that "he would be removed from the courtroom" "if he was going to continue to raise his voice and curse." CP at 142.

The State attempted to proceed with questioning witnesses, but Davis refused to cease his outbursts. The judge temporarily cleared the jury. Davis repeatedly said, "You can hold your trial without me," and the court replied, "I'm going to do that." TP at 205. Davis went as far as to remark, "Thank you. Thank you. Just go ahead with your kangaroo court . . . . I'm done with it." Id. at 205-06. During this exchange, Davis shouted at the "top of his lungs, swearing" and apparently moved to exit the courtroom. Id. at 208; CP at 142. The judge stopped Davis in order to make an oral ruling. She found that Davis was voluntarily absenting himself from the proceedings under State v. Garza, 150 Wn.2d 360, 365-66, 77 P.3d 347 (2003), noting that Davis intentionally drank more water in order to delay trial with bathroom breaks, often during critical portions of witness testimony. The court's written ruling found that Davis's outbursts grew "so loud that . . . the courtroom across the hall . . . was forced to recess because the parties were unable to hear their own witness." CP at 142. "The volume was such that the Court was unable to speak over [Davis]." Id.

After Davis left the courtroom, the jury returned and the State resumed its direct examination. The State questioned officers involved in Davis's February 2014 arrest, asking about the cocaine discovered in his possession and his voluntary statements given after arrest. Davis was not present to cross-examine either witness. He was absent for approximately 50 minutes of trial.

The following day, Davis returned. The court warned him that any profanity or disruptions would result in his removal. Davis agreed, though he continued to interrupt and ask for standby counsel, which the court denied. Despite Davis's combative behavior, the trial proceeded with Davis present. Davis was convicted on all counts.

On appeal, Davis argued that the trial court violated his right to be present when it removed him from the courtroom. The Court of Appeals agreed that he was removed but concluded the trial court was not required to consider less restrictive means before removing him. State v. Davis, 6 Wn.App. 2d 43, 54-57, 429 P.3d 534 (2018). Davis also asserted he was without representation when the State examined witnesses testifying to his February 2014 arrest and therefore violated his Sixth Amendment right to representation. Id. at 62. The Court of Appeals agreed and reversed Davis's convictions for possession of a stolen vehicle and possession of a controlled substance, and remanded for a new trial. Id. at 62-63. The State sought review here, asking us to review whether a defendant may voluntarily absent him- or herself from trial based on disruptive behavior and to clarify the proper standard of review for this inquiry. We granted the State's petition. State v. Davis, 192 Wn.2d 1023 (2019).

ANALYSIS

The State argues that the trial court did not err in finding that Davis waived his right to be present at trial by voluntarily absenting himself. We agree.

The Sixth Amendment and the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, as well as article I, section 22 of our state constitution, guarantee the right of the criminal defendant to be present at his or her own trial. State v. Thurlby, 184 Wn.2d 618, 624, 359 P.3d 793 (2015) (citing State v. Thomson, 123 Wn.2d 877, 880, 872 P.2d 1097 (1994)). This right is not absolute, however. State v. DeWeese, 117 Wn.2d 369, 381, 816 P.2d 1 (1991).

A criminal defendant may waive the right to be present so long as the waiver is knowing and voluntary. Thurlby, 184 Wn.2d at 624 (citing State v. Rice, 110 Wn.2d 577, 619, 757 P.2d 889 (1988)). A waiver of the right to be present may be express or implied. Id. (citing Thomson, 123 Wn.2d at 881). 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. If the court finds this waiver, it is free to exercise its discretion to continue the trial without further consideration. Thomson, 123 Wn.2d at 881.

The United States Supreme Court and this court have held that a defendant's persistent, disruptive conduct can constitute a voluntary waiver of the right to be present. State v. Chapple, 145 Wn.2d 310, 318, 36 P.3d 1025 (2001) (citing Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970)). The Supreme Court has held that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless...

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