State v. LaBelle

• Decision Date: 22 August 1977
• Docket Number: No. 4652-I,4652-I
• Citation: 18 Wn.App. 380,568 P.2d 808
• Parties: STATE of Washington, Respondent, v. Darcy Dee LaBELLE, Appellant.
• Court: Washington Court of Appeals

Page 380

18 Wn.App. 380

568 P.2d 808

STATE of Washington, Respondent, v. Darcy Dee LaBELLE, Appellant.

No. 4652-I.

Court of Appeals of Washington, Division 1.

Aug. 22, 1977.

Rehearing Denied Oct. 10, 1977.

Daniel M. Warner, Peter L. Whitton (Appointed), Bellingham, for appellant.

David S. McEachran, Whatcom County Pros. Atty., William A. Gardiner, Deputy Pros. Atty., Bellingham, for respondent.

CALLOW, Judge.

Defendant LaBelle appeals a jury finding of guilty, asserting that it was error to proceed with the trial of his case when he was not present.

Darcy Dee LaBelle and Kenneth Fox were charged by information dated January 18, 1972, with burglary in the second degree. On January 19, 1972, both defendants appeared without counsel and advised the court that they were making arrangements to engage an attorney and did not wish to proceed with arraignment at that time. On January 28, 1972, they appeared again without counsel and the court appointed an attorney to represent both of them.

On February 11, 1972, both defendants appeared in court with their appointed counsel. A continuance for arraignment was granted to an indefinite time, and on February 18, 1972, LaBelle posted bail and was released from custody.

On March 10, 1972, Fox appeared without counsel. LaBelle appeared with the court-appointed attorney, acknowledged that he had received a copy of the information, and requested additional time in which to enter a plea. On March 24, 1972, LaBelle appeared with counsel and was arraigned. He pleaded not guilty and the court continued the matter to the next jury trial setting.

On April 12, 1972, an order was entered setting the trial for May 10, 1972. LaBelle, though his attorney, moved for separate trials. The motion was denied. Another attorney, who had been appointed for Fox, told the court that if separate trials were granted he was prepared to go to trial with his client on May 10, 1972.

On May 10, 1972 trial commenced with Fox appearing personally and with his attorney. LaBelle was absent, but his attorney was present. Counsel for LaBelle moved that his client be permitted to waive his right to trial by jury and be tried by the court. Defense counsel stated, "I have an affidavit prepared by the defendant which he was to sign this morning which would indicate his desire to be tried without a jury." Defense counsel also said that he had advised LaBelle to be tried by jury, but that LaBelle "was reluctant" and had telephoned him the day before and indicated he would like to be tried by the court rather than by a jury. The motion to grant LaBelle a nonjury trial was denied as not timely. On the morning of May 10, the following colloquy took place between court and counsel:

THE COURT: . . .

Now, for the record, . . ., your client has not appeared as yet?

(DEFENSE COUNSEL): Right. Like I say, I talked with him last night and I had no indication. He indicated quite positively that he would be here at 9:00 o'clock. I had a shirt and tie that he was going to wear, and so possibly some delay. The witness that I have out here feels that he can perhaps locate the defendant.

THE COURT: I think at this time, though, with the defendant having known that the trial date was, and the time was at 9:30 this morning, we will proceed with the selection of the jury.

A bench warrant was issued for LaBelle's arrest and a jury was selected that morning.

On May 11, 1972, in the absence of the jury, counsel moved for a further continuance of the trial due to the absence of LaBelle. The following colloquy took place:

THE COURT: Are there any matters in the absence of the jury?

(DEFENSE COUNSEL): Yes, Your Honor. I may inform the Court that I have not been able to locate the defendant Labelle. I did have a phone call from his friend who put up the bond and he was also looking for him, but it was his indication to me that he didn't have much hope that he would find him, and it appears that Mr. Labelle has disappeared, and so in light of that, my not expecting him to appear, not really knowing the reason, specific reason why he's not here, I would move . . . for a continuance of the trial as far as it concerns the defendant Labelle.

My reasons for continuance first of all, does the prosecutor, would you go along with a continuance?

(PROSECUTOR): No.

(DEFENSE COUNSEL): You would oppose the continuance?

(PROSECUTOR): Yes, I would oppose it.

(DEFENSE COUNSEL): I feel that the constitution of the State of Washington and the constitution of the United States clearly provide in Article I, Section 22 that a defendant has a right to appear, and I'll just read, "In criminal prosecutions, the accused shall have the right to appear and defend in person, and by counsel, to demand the nature and cause of the accusation against him."

It goes on further that he has the right to testify in his own behalf, to meet witnesses against him face to face, etcetera.

I can think of possible problems that the prosecution could have in the absence of the defendant, namely, identity, and I think that's part of the corpus delicti of the charge in this matter, . . .

(DEFENSE COUNSEL): I might just add one thing. I was going to call the defendant. This was a foreseeable possibility, and I think I would call him if he was here.

THE COURT: Well, I grant you that the constitution does provide that the defendant has a right to be present and to be confronted by the witnesses against him. Is there anything the Court has done that has denied him this right?

(DEFENSE COUNSEL): Not that I can see, no.

THE COURT: It's my understanding from your statement yesterday that the defendant was aware of the trial date and he was in your office the evening before.

(DEFENSE COUNSEL): Well, I had contacted him the evening before, yes.

THE COURT: Yes. And he was aware of the trial date and it had been fixed for a considerable period of time, and I frankly don't know of anything that the Court has done or that the prosecution has done to deny him the right to be present. If he is ill or if he's been injured, physically unable to be here or communicate with the Court, I'm sure that that would be sufficient grounds to grant a continuance, but there's no indication whatsoever that either of these events have occurred.

So the Court will direct that the trial proceed in his absence. If something should show up later justifying his absence from the jurisdiction or from the court today, we can take that up on subsequent motion if he can prove that he was ill or in some condition where he could not communicate. We could certainly grant him a new trial at that time. So the motion for a continuance on the part of Darcy Dee Labelle will be denied at this time.

The jury trial proceeded to a conclusion with verdicts of guilty being returned against both defendants.

On June 2, 1972, trial counsel moved for judgment notwithstanding the verdict or, in the alternative, for a new trial, on the ground that LaBelle had not been present at his trial to confront his accusers, to conduct cross-examination, to give testimony if necessary, and to assist in his own defense. Defense counsel stated at that time in argument:

(DEFENSE COUNSEL): I believe my motion has a little different thrust. I've moved on behalf of the defendant, Darcy Dee Labelle, for a new trial, and the crux of my motion is the fact that the defendant was not present at any time during the trial. The Court was advised, as the record will show, that he did not appear for trial on the morning of the trial, nor did he appear at any time during the trial. At the commencement of the trial I did move for a continuance until the defendant could be found or until he returned or until some determination was made as to where the defendant, or the cause of his delay, and I feel that the Court in denying my motion assumed the presumption that his non appearance was not justified, and I feel that this . . . is not consistent with the basic right which a defendant has . . .

I think under these circumstances where we don't have any conclusive evidence or proof as to why he didn't show up, I think it is in violation of his basic constitutional right to be present.

Another point which was not argued before along this line that I think bears out and supports the defendant's motion here is the fact that the night of the trial when . . . I was reviewing the case with him, at that time it was . . . our understanding that he was to be tried on the second degree burglary charge and the auto theft. There had been indications, granted, from the prosecutor that the auto theft charge may be dropped, but at that time we had pled not guilty to both auto theft, I believe it's auto theft or involving a stolen automobile in any event and the second degree burglary. The morning of the trial the prosecutor did amend their pleadings to dismiss that charge, and I feel that that is a significant factor that . . . would have been . . . weighed by the defendant in deciding what sort of plea he would enter, and I'm not saying that had he known that the auto theft charge would have been waived that he would have pled guilty, but I'm saying that he's entitled to the opportunity to be confronted with this alternative in making his decision on giving a plea to it, entering a plea to the charge of second degree burglary.

The motion was denied, the court stating inter alia:

THE COURT: . . .

I think admittedly we have a novel situation here, and the Court had made the determination that the defendant LaBelle had been fully aware, made fully aware by his counsel the night before the trial started of the fact that the trial was scheduled at 9:30 the following morning, and the defendant failed to appear. There's nothing to indicate that it was nothing but absolutely voluntary on his part, and the Court finds at this time that it was voluntary and he waived his right to be present at his trial.

The Court will not sentence at this time. The Court will reserve that until...