State v. G

• Decision Date: 20 February 2014
• Docket Number: No. 30665–8–III.,30665–8–III.
• Citation: 179 Wash.App. 523,318 P.3d 784
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Mario Alan COBARRUVIAS G, Appellant.

179 Wash.App. 523

318 P.3d 784

STATE of Washington, Respondent,

v.Mario Alan COBARRUVIAS G, Appellant.

No. 30665–8–III.

Court of Appeals of Washington, Division 3.

Feb. 20, 2014.

Eric J. Nielsen, Jared Berkeley Steed, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Andrew Kelvin Miller, Benton County Prosecutors Office, Kennewick, WA, for Respondent.

KORSMO, C.J.

¶ 1 Appellant Mario Cobarruvias failed to appear for the final day of his trial after accompanying his son to the hospital. We conclude that the trial court erred in denying the defendant's motion for a new trial. We reverse and remand for a new trial.

FACTS

¶ 2 Mr. Cobarruvias eventually was charged with two counts of delivery of methamphetamine to a police informant. Both charges were alleged to have occurred in February 2009. A trial later that year ended in a mistrial after the jury deadlocked. Mr. Cobarruvias testified on his own behalf at that trial.

¶ 3 After a series of continuances, the matter proceeded to trial for the second time in January 2012. Mr. Cobarruvias was permitted to remain out of custody pending trial. The trial did not run smoothly due to factors beyond the control of the court. The jury was selected on Monday, January 9, and the case was recessed until January 12. That morning, however, the prosecutor needed to seek medical attention for an emerging health issue; the case was recessed to the afternoon. The prosecutor was unable to continue due to the health matter. The case was recessed again over a holiday weekend until Tuesday, January 17.

¶ 4 The prosecutor's co-counsel conducted the trial. Mr. Cobarruvias did not appear on time and the court indicated it would allow him 15 additional minutes before authorizing a bench warrant after defense counsel argued that his client had traditionally been arriving five minutes late. He appeared within the 15 minute window. The following day, January 18, Mr. Cobarruvias was again late. His counsel admitted to stalling the court in the hope that his client would make it before testimony resumed. Mr. Cobarruvias soon did arrive and attributed his tardiness to the weather conditions and a long line at the security station.

¶ 5 The judge and counsel conferred briefly that afternoon to discuss the schedule for the remaining witnesses. Defense counsel at that point indicated that he was uncertain whether or not his client would testify.

¶ 6 The beginning of trial on the 19th was delayed until 9:30 a.m. for defense counsel's emergency dental work. Trial could not resume on Friday the 20th due to bad weather, so the final day of trial was extended to Monday January 23.

¶ 7 Mr. Cobarruvias did not appear at 9:00 a.m. that morning along with the rest of the participants. At 9:28 a.m., the court noted that road conditions were fine and that Mr. Cobarruvias had a history of being late. The court concluded that the defendant was voluntarily absent. Testimony continued; Mr. Cobarruvias still did not appear.

¶ 8 The State rested its case after prosecuting two final witnesses. The defendant still had not appeared and defense counsel asked for permission to submit his testimony from the previous trial. The court denied the motion due to the voluntary absence. A man in the audience, whom counsel later identified as the defendant's brother, stated that he had been able to locate Mr. Cobarruvias. After conferring with the man, defense counsel advised the court that it was believed Mr. Cobarruvias had taken his young son to the hospital. The information was contained in a note found by the brother at the defendant's house.

¶ 9 Defense counsel then asked to continue the case to the afternoon so that he could attempt to ascertain his client's whereabouts and bring him in to testify. The court denied the motion and the defense rested without presenting any witnesses. It was approximately 11:30 a.m. The parties then presented argument over the noon hour before turning the case over to the jury.

¶ 10 The jury returned its verdicts at approximately 1:30 p.m., finding the defendant guilty of one count of delivery of methamphetamine and acquitting him on the second count. The jury also found that the delivery occurred within 1,000 feet of a school zone. The defendant was arrested at the hospital between 2:00 and 2:30 p.m. that day.

¶ 11 The defense moved for a new trial and documented the defendant's activities addressing his son's medical condition on January 23. After hearing argument, the court denied the motion, noting that the defendant made no effort to contact his counsel or the court, and the nature of the son's illness did not prevent him from doing so. The court concluded that the absence was voluntary.

¶ 12 The court imposed a standard range sentence. Mr. Cobarruvias then timely appealed to this court.

ANALYSIS

¶ 13 Mr. Cobarruvias challenges the court's initial determination that he was voluntarily absent and the denial of his motion for a new trial. We agree with that second contention and reverse and remand for a new trial.¹

¶ 14 Issues arising from a criminal defendant's absence after trial has started have been addressed in several published cases in this state. A criminal defendant has the right to be present at trial—this right derives from basic due process of law and the defendant's right to confront witnesses against him under both the state and federal constitutions. See generally State v. Thomson, 123 Wash.2d 877, 880, 872 P.2d 1097 (1994). This right can be waived by a voluntary absence after trial has commenced. Id.

¶ 15 To determine whether a voluntary waiver has occurred, the trial court must follow a three-part process to evaluate the totality of the circumstances, including:

“(1) ... sufficient inquiry into the circumstances of a defendant's disappearance to justify a finding whether the absence was voluntary, (2) ... a preliminary finding of voluntariness (when justified), and (3) [afford] the defendant an adequate opportunity to explain his absence when he is returned to custody before sentence is imposed.”

Id. at 881, 872 P.2d 1097 (quoting State v. Washington, 34 Wash.App. 410, 414, 661 P.2d 605 (1984)). When there is a voluntary waiver, the trial judge has discretion to continue with the trial “without further consideration.” Id.Thomson also noted that there is a presumption against waiver. Id. The presumption against waiver applies to all three prongs of the Thomson test. State v. Garza, 150 Wash.2d 360, 367–68, 77 P.3d 347 (2003). It “must be the overarching principle throughout the inquiry.” Id. at 368, 77 P.3d 347.

¶ 16 Garza also determined that the trial court's waiver determination is a factual issue to which the abuse of discretion standard applies on review. Id. at 366, 77 P.3d 347. Discretion is abused when it is exercised on untenable grounds or for untenable reasons. Id. Use of an incorrect legal standard in making a discretionary decision also constitutes an abuse of discretion. State v. Rundquist, 79 Wash.App. 786, 793, 905 P.2d 922 (1995). The decision to grant or deny a motion for a new trial also is reviewed for abuse of discretion. State v. Bourgeois, 133 Wash.2d 389, 406, 945 P.2d 1120 (1997).

¶ 17 Thomson and Garza demonstrate how these standards have been applied in practice. In Thomson, the named defendant was tried with a codefendant. 123 Wash.2d at 878, 872 P.2d 1097. On the second day of pretrial hearings, Mr. Thomson called the court to say he would be late due to car problems. The hearings proceeded without him and he eventually arrived at an unspecified time that morning. Id. at 879, 872 P.2d 1097. Jury selection began that afternoon and the case was recessed for four days. Mr. Thomson did not appear on the morning the trial resumed; his counsel told the court that Thomson had called and left word with the attorney's secretary that he had a medical emergency that would prevent him from being in court that day. No further information was provided and there was no way to contact Mr. Thomson. Id.

¶ 18 The trial court allowed defense counsel a brief recess to attempt to locate his client. When that effort failed, the court issued a bench warrant and recessed the case until 1:30 p.m. Id. Mr. Thomson was still absent at that time and the court concluded that he was voluntarily absent. Jury selection resumed and trial continued over defense objection. Id.

¶ 19 The following day, Mr. Thomson still was not present and had not contacted his counsel, the court, or his mother (with whom he lived). Defense counsel sought a continuance. The motion was denied and trial continued. The jury returned a guilty verdict against both defendants. Later that day, Mr. Thomson contacted his attorney and learned of the verdict. Id. He surrendered on the warrant. Id.

¶ 20 Thomson apologized at sentencing but apparently did not further explain his absence. Id. at 880, 872 P.2d 1097. He appealed and this court affirmed the conviction. Id. The Washington Supreme Court then granted review and announced the standards applicable to the situation of a defendant who absented himself after trial had begun. Id. at 881, 872 P.2d 1097. In its application of the three-part analysis, the court concluded that the trial judge had not abused his discretion in finding that Thomson's absence was voluntary. Id. at 884, 872 P.2d 1097.

¶ 21 Thomson did not address the final prong of the analysis, probably because the defendant did not attempt to justify his absence once he returned to court. That portion of the analysis was discussed, however, in Garza. There, the defendant had regular attendance problems. He was three hours late for a pretrial hearing. He then was 45 minutes late for the first day of trial and received a warning from the judge about further tardiness. Garza, 150 Wash.2d at 363, 77 P.3d 347. Mr. Garza did not appear for the last day of trial. His counsel advised the court that his client had told him he was running late and would be there by 9:20 a.m. Id. at...