State v. Garza

• Decision Date: 09 October 2003
• Docket Number: No. 72959-0.,72959-0.
• Citation: 150 Wn.2d 360,150 Wash.2d 360,77 P.3d 347
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Benjamin GARZA, Petitioner.

77 P.3d 347

150 Wn.2d 360

150 Wash.2d 360

STATE of Washington, Respondent, v. Benjamin GARZA, Petitioner.

No. 72959-0.

Supreme Court of Washington, En Banc.

October 9, 2003.

Washington Appellate Project, Stephen Kim, Elaine Winters, Seattle, for Petitioner.

Norm Maleng, King County Prosecutor, Daniel Clark, Deputy County Prosecutor, for Respondent.

IRELAND, J.

Defendant Benjamin Garza claims that his constitutional right to be present at trial was violated when his jury trial for attempting to elude a pursuing police vehicle proceeded in his absence. When Garza did not appear in court on time after his trial was underway, the judge made a preliminary finding of voluntary absence and proceeded with the jury trial without him. Because the trial judge abused his discretion when he initially found Garza's absence voluntary, we reverse and remand for a new trial.

FACTS AND PROCEDURE

Garza was alleged to have engaged in a lengthy high-speed chase on the night of September 18, 1999. After state patrol and Bellevue police chased Garza for more than 30 minutes, Garza abandoned the vehicle in Bellevue and ran away. The state patrol investigated the license plates on the car and contacted the owners who said they had loaned the car to William Gonya. The canine unit that responded to the scene tracked the driver from the abandoned car to the street in front of Gonya's house. Garza had a room in Gonya's home, and he was arrested there.

In February 2000, Garza was charged by information with attempting to elude a pursuing police vehicle in violation of RCW 46.61.024. Clerk's Papers (CP) at 1. On June 15, 2000, Garza's trial began in King County Superior Court. During pretrial proceedings, the trial court recessed for three hours because Garza was late. The first morning of the trial, Garza was 45 minutes late. The trial judge, the Honorable Richard Ishikawa, challenged Garza on his tardiness and warned him that he "had better not be late again for any of the court sessions." Tr. of Proceedings (TP) (June 13, 2000) at 7.

On the morning of June 19, Garza's counsel informed the court that Garza had called and said that he was running slightly behind, but expected to be in court by 9:20 a.m. However, Garza did not appear by that time. At 9:25 a.m., with Garza's whereabouts uncertain, the court ordered the jury trial to proceed without him "under Criminal Rule 3.4(b), voluntary absence of the defendant." TP (June 19, 2000) at 4. The court allowed Garza's counsel to check his office voice mail again at 10:00 a.m. Just after 11:00 a.m., the judge reiterated that he had made a determination that Garza was voluntarily absent and issued a bench warrant.

Testimony was concluded on June 19. Later that evening, Garza's counsel unsuccessfully attempted to locate him at King County Jail. Jury instructions and closing arguments took place the next day. Garza still did not appear. The jury entered a verdict of guilty on June 20.

On June 26, 2000, Garza moved for a new trial, asserting a violation of his constitutional right to be present at trial. At the motion hearing, Garza explained that on the morning of June 19, his friend was giving him a ride to the court. On their way, the driver was pulled over by the Lynnwood police department for a tail light violation. The officer asked Garza for identification, and a computer search revealed an outstanding bench warrant in Bothell. Garza was arrested and taken to the Lynnwood jail. Garza told the judge that he had spoken to the officer, saying, "I told him, I go, well, if I'm going to get picked up please notify King County to let them know that I can't make it in." TP (July 21, 2000) at 13. The exact words of the conversation are not part of the record, and the arresting officer did not testify at the hearing.

Despite Garza's alleged request, no one called the court, the prosecutor's office, or Garza's counsel. Garza offered no evidence of taking other steps to contact the court while he was being held. Garza told the judge that he was released on bail after 7:00 p.m. on June 19. He went to the Bothell court after he was released. He did not contact his attorney immediately upon release. On June 22, Garza's counsel "learned of"¹ Garza's incarceration. CP at 35.

At the close of the hearing, the court denied the motion for a new trial. CP at 45. The court reasoned that:

I have to take [into account] the fact that he was arrested because of an outstanding warrant from another court and that's why he was arrested. I would assume also that he could have made a phone call either to you, your officer, this court, that this was the circumstance. But not knowing at the time that he doesn't show up. I was assured by counsel he was on his way because his ride had to be changed. And hearing nothing further and waiting and nothing happening, this was voluntary on his part because he basically didn't take care of a previous warrant,² which he knew about or should have known about because of the fact of his failing to appear for an arraignment in Bothell.... On that basis, I'm finding that he voluntarily absented himself and the motion for a new trial will be denied.

TP (July 21, 2000) at 15-16; CP at 45 (incorporating oral findings into the written order denying the motion).

Garza appealed, but the Court of Appeals affirmed. State v. Garza, 112 Wash.App. 312, 322, 48 P.3d 385 (2002). We granted Garza's petition for review.

ISSUE

When may the court find that a defendant, arrested and incarcerated on another charge, has voluntarily absented himself?

ANALYSIS

I. Standard of Review

Although the parties dispute the correct standard of review to apply in this case, we hold that the trial court's decision regarding voluntary absence is reviewable for abuse of discretion.³ Citing Territory of Guam v. Palomo, 35 F.3d 368, 374 (9th Cir.1994). Garza contends that Ninth Circuit precedent requires us to use the de novo standard when addressing Sixth Amendment issues. In Palomo, the court stated, "We review de novo Sixth Amendment questions." 35 F.3d at 374 (citing United States v. Iglesias, 881 F.2d 1519, 1523 (9th Cir.1989)). However, the Palomo court did not determine a question of whether a trial court's finding of waiver violated the defendant's Sixth Amendment right to be present at trial. It reviewed a claimed error that the trial court violated the defendant's right to compulsory process under the Sixth Amendment. Therefore, it is not precisely on point, and Garza cites no other authority to support application of the de novo standard.

Furthermore, the de novo standard is better applied when the appellate court is in the same position as the trial court and may make a determination as a matter of law. The abuse of discretion standard is appropriate when a trial court is in the best position to make a factual determination. Here, because the determination of whether a defendant was voluntarily absent from trial is dependent upon an inquiry into the facts and the totality of the circumstances, the trial court is in a better position to pass on the question. Therefore, abuse of discretion is the correct standard of review for a trial court's determination of whether the defendant's absence is voluntary and, thus, a waiver of the right to be present at one's trial.

A trial court has abused its discretion when its "decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons." State v. Woods, 143 Wash.2d 561, 626, 23 P.3d 1046 (2001) (emphasis omitted).

II. Voluntariness of Waiver

A. Voluntary Absence as Waiver

A defendant has a right, under the Washington and United States Constitutions, to be present at trial. State v. Thomson, 123 Wash.2d 877, 880, 872 P.2d 1097 (1994). This right is considered fundamental. See Rushen v. Spain, 464 U.S. 114, 117, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983)

. However, the defendant may waive this right. Thomson, 123 Wash.2d at 880,

872 P.2d 1097. The waiver must be voluntary and knowing. Id. Once trial has begun in the defendant's presence, a subsequent voluntary absence operates as an implied waiver, and the trial may continue without the defendant. Thomson, 123 Wash.2d at 880-81,

872 P.2d 1097; CrR 3.4(b).

The determination of whether the defendant's absence is voluntary depends upon the totality of the circumstances. Thomson, 123 Wash.2d at 881, 872 P.2d 1097. Under the test adopted in Thomson:

The trial court will

"(1) [make] sufficient inquiry into the circumstances of a defendant's disappearance to justify a finding whether the absence was voluntary,

(2) [make] 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 and before sentence is imposed."

Id. (quoting State v. Washington, 34 Wash.App. 410, 414, 661 P.2d 605 (1983)). The Thomson court approved this inquiry as ample protection of the right to be present at trial because "[t]he 3 prong voluntariness inquiry ensures the court will examine the circumstances of the defendant's absence and conclude the defendant chose not to be present at the continuation of the trial." Id. at 883, 872 P.2d 1097. In addition, it "provides an opportunity for the defendant to explain his or her disappearance and rebut the finding of voluntary absence before the proceedings have been completed." Id.

In performing the analysis, the court indulges every reasonable presumption against waiver. See id. at 881, 872 P.2d 1097. See also State v. LaBelle, 18 Wash.App. 380, 389, 568 P.2d 808 (1977)

(citing Hodges v. Easton, 106 U.S. (16 Otto) 408, 412, 1 S.Ct. 307, 27 L.Ed. 169 (1882); State v. Williams, 87 Wash.2d 916, 921, 557 P.2d 1311 (1976); Little v. Rhay, 8 Wash.App. 725, 728, 509 P.2d 92 (1973)), overruled on other grounds by State v. Hammond, 121 Wash.2d 787, 791, 854 P.2d 637 (1993). This presumption is the central focus of our inquiry today. Neither the Court of Appeals...