State Of Washington v. Tammera M. Thurlby

• Court: Court of Appeals of Washington
• Decided: December 9, 2014
• Docket: 44774-6
• Status: Published

Opinion

F PEAL

Atl IN THE COURT OF APPEALS OF THE STATE OF WASHING QT. DIVISION ' II

STATE OF WASHINGTON, No. 44774 -6 -II

Respondent,

v.

TAMMERA MICHELLE THURLBY, PUBLISHED OPINION

Appellant.

SUTTON, J. — Tammera Michelle Thurlby appeals her three convictions for unlawful

delivery of a controlled substance. She argues that the trial court ( 1) violated her constitutional

right to be present when it resumed the second day of trial in her absence, and ( 2) failed to

adequately consider on the record the presumption against waiver of her right to be present at trial.

We hold that the trial court did not abuse its discretion in continuing the trial in Thurlby' s absence

and that the trial court adequately considered on the record the presumption against waiver.

Therefore, we affirm.

FACTS

On August 31, 20121, the State charged Tammera Michelle Thurlby with three counts of

unlawful delivery of a controlled substance ( methamphetamines) within 1000 feet of a school bus 2 route stop. Thurlby was present in the courtroom when her trial began on December 11, 2012.

On that day, the trial court erpaneled a jury and the State presented six of nine witnesses. Before

1 The State later amended the information on December 11, 2012 and again on March 21, 2013.

2 Uniform Controlled Substances Act (VUCSA), ch. 69. 50 RCW. No. 44774 -6 -II

the court recessed for the day, Thurlby' s counsel instructed her to arrive at court before 9 :00 AM

the next day; Thurlby replied, " Okay." 1 Verbatim Report of Proceedings ( VRP) at 103.

When the trial court reconvened shortly after 9: 00 AM the next morning, Thurlby was not

present in the courtroom. Thurlby' s counsel stated that he did not have a telephone number to

contact her. The trial court agreed to wait a few minutes before issuing a bench warrant, but almost

15 minutes later Thurlby still had not appeared. The trial court then issued a bench warrant;

officers searched for Thurlby that morning, but could not find her. During the recess, the trial

court also inquired with the St. John' s Medical Center' s patient intake department and the

emergency room department, the court administration office, the clerk' s office, and the jail but

was unable to locate Thurlby and confirmed that none of these facilities had received a phone call

from Thurlby. The trial court then took another recess until 1: 30 PM to allow more time for officers

to find Thurlby.

Following that recess, defense counsel made a motion for a mistrial or continuance, which

the trial court denied. The trial court made a preliminary finding that ( 1) Thurlby was voluntarily

absent because the trial court had not heard any good cause for her absence, ( 2) noted that

rescheduling the trial would be difficult given the number of people involved in presenting the

State' s case, and ( 3) ruled that the trial would proceed without Thurlby in attendance. The trial

resumed, and the jury returned guilty verdicts and special verdicts on each of the three charges

against Thurlby.

On March 21, 2013, the trial court reconvened for sentencing after Thurlby was taken into

custody on February 13, 2013. Before sentencing, the trial court provided Thurlby an opportunity

to explain her absence on the second day of trial; under oath Thurlby explained that her mother

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had serious health issues and had to have emergency surgery on December 12, 2012. Thurlby said

that she had tried to call " the Clerk" to reschedule, but was told that because the charges were for

a felony matter she could not reschedule. 2 VRP at 228. Thurlby apologized and explained that

she did not attend trial because her mother was " everything" to her. 2 VRP at 229. The trial court

also allowed Thurlby' s mother to speak; she informed the trial court of her health problems leading

up to the surgery and explained that Thurlby, her only child, had been present at the hospital that

day to help her.

The trial court acknowledged Thurlby' s decision to be with her mother instead of attending

her trial, but noted that she had been " ordered" to be in court while her absence was a " choice." 2

VRP at 242. The trial court found that Thurlby' s absence was a " willing voluntary waiver of her

right to be present during the trial" and proceeded with the sentencing hearing. 2 VRP at 243.

Thurlby timely appealed.

ANALYSIS

I. RIGHT To BE PRESENT: ABSENCE AFTER TRIAL HAS BEGUN

The Sixth Amendment of the United States Constitution guarantees the right to be present

at one' s trial. State v. Irby, 170 Wn.2d 874, 880 -81, 246 P. 3d 796 ( 2011). The Washington State

Constitution also grants every accused person the " right to appear" at trial. CoNST. art. I, § 22

amend. 10). A defendant may waive the right to be present, however, through voluntary absence

if the waiver is voluntary, knowing, and intelligent. State v. Frawley, Wn.2d , 334 P. 3d

1022, 1027 ( 2014). A defendant' s absence is voluntary if the trial court can infer that the

defendant' s absence was intentional, rather than beyond his or her control. State v. Atherton, 106

Wn. App. 783, 789 -90, 24 P. 3d 1123 ( 2001). When a defendant' s voluntary absence occurs after

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trial has begun, the trial court may, in its discretion, continue the trial to its conclusion, including

entering a verdict. CrR 3. 4( a), ( b). We review the trial court' s decision to proceed with trial

despite the defendant' s absence for abuse of discretion. State v. Garza, 150 Wn.2d 360, 365 -66,

77 P. 3d 347 ( 2003). The trial court has abused its discretion if the decision was " manifestly

unreasonable, or [ was] exercised on untenable grounds, or for untenable reasons." State v. Woods,

143 Wn.2d 561, 626, 23 P. 3d 1046 ( 2001) ( emphasis omitted).

To determine whether the defendant is voluntarily absent from trial, the trial court, under

a totality of the circumstances standard, follows a three step process: It must ( 1) inquire

sufficiently into the circumstances of the defendant' s disappearance to justify a finding of

voluntary absence, ( 2) make a preliminary finding of voluntariness if the circumstances in step one

so allow, and ( 3) provide the defendant an opportunity to explain his or her absence before the trial

court imposes a sentence. State v. Thomson, 123 Wn.2d 877, 881, 872 P. 2d 1097 ( 1994). The

trial court is required to indulge " every reasonable presumption against waiver" when performing

each step. Garza, 150 Wn.2d at 367.

Thurlby acknowledges that even if the trial court was correct in making a preliminary

finding of voluntary absence after its attempts to locate her for several hours before proceeding

without her, once the trial court heard her explanation for her absence, its ruling was no longer

reasonable. Additionally, Thurlby relies on Garza' s holding that an incarcerated defendant who

makes reasonable efforts to inform the court that he or she cannot attend trial due to incarceration

requires retraction of a preliminary finding of voluntariness. Garza, 150 Wn.2d at 370. She argues

that Garza requires the same result here because she called the " Clerk' s office" on December 12.

Br. of Appellant at 9. We disagree.

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In Garza, our Supreme Court held that the trial court abused its discretion when, after the

defendant informed his counsel he would be late, the trial court waited only five minutes before

proceeding with trial. Garza, 150 Wn.2d at 363 -64. Rather than presume that " something outside

of Garza' s control" delayed him, the trial court did not indulge the presumption against waiver

when it waited an unreasonably short amount of time and immediately concluding that the

defendant' s absence was voluntary. Garza, 150 Wn.2d at 369 ( emphasis added). The Supreme

Court held that the decision to proceed was manifestly unreasonable and that the trial court' s

preliminary determination of voluntary absence without employing the presumption against

waiver was an abuse of discretion. Garza, 150 Wn.2d at 369. Garza' s efforts to alert the trial

court to his incarceration were irrelevant to the Garza holding. See Garza, 150 Wn.2d at 371.

This case is analogous to Thomson, which held that the trial court did not abuse its

discretion in making a preliminary finding of voluntary absence where ( 1) Thomson informed his

attorney that a medical emergency prevented him from being in court, but he did not provide a

way to reach him again, and ( 2) the trial court issued a bench warrant in the morning after

defendant' s absence but did not reconvene the trial until 1: 30 PM without any further contact from

Thomson. Thomson, 123 Wn.2d at 879, 884. Similar to Thomson, the trial court here did not

abuse its discretion when it made a preliminary finding of Thurlby' s voluntary absence on

December 12. Before it made its preliminary finding, the trial court sought information from

multiple sources about any contact with Thurlby. The trial court waited over three hours for

Thurlby to return to trial before making its ruling. Based on the information available that day,

the trial court had no evidence that Thurlby' s absence was due to an event outside of her control.

5 No. 44774 -6 -II

The trial court' s decision to proceed with Thurlby' s trial was not manifestly unreasonable nor

based on untenable grounds.

The trial court also did not abuse its discretion when it found that Thurlby was voluntarily

absent after hearing her explanation before sentencing. Thurlby and her mother addressed the trial

court at length, but the trial court recognized that Thurlby' s attention to her mother' s needs was a

voluntary choice while her attendance at court was mandatory. No circumstance " outside [ of

Thurlby' s] control" prevented her from attending trial. Garza, 150 Wn.2d at 369.

We hold that the trial court did not abuse its discretion when it made a preliminary finding

that Thurlby was voluntarily absent or when it found that her mother' s emergency surgery did not

prevent her from attending her trial.

II. ADEQUATE CONSIDERATION OF PRESUMPTION AGAINST WAIVER

Thurlby argues that the trial court abused its discretion when it failed to expressly consider

the presumption against waiver during its voluntary absence ruling at sentencing because the trial

court never said the words " presumption against waiver." Suppl. Br. of Appellant at 5. She relies

on State v. Cobarruvias3 to support this argument. Because we decline to adopt the reasoning of

Cobarruvias, we disagree.

Division Three of our court recently held that the trial court in Cobarruvias was required

to expressly consider on the record the defendant' s explanation for his trial absence in light of the

presumption against waiver. Cobarruvias, 179 Wn. App. at 532. Under Cobarruvias, the trial

court must do more than " simply listen" when the defendant offers an explanation for his or her

3 State v. Cobarruvias, 179 Wn. App. 523, 532, 318 P. 3d 784 ( 2014).

6 No. 44774 -6 -II

absence. Cobarruvias, 179 Wn. App. at 533. Cobarruvias requires the trial court, on the record,

to ( 1) determine " what actually happened" that prevented the defendant from coming to trial, ( 2)

assess the reasonableness" of the defendant' s absence in light of what happened, and ( 3) decide

whether that absence was voluntary. Cobarruvias, 179 Wn. App. at 533. Division Three stated

that it could not determine whether the trial court in that case, when it ruled that the defendant had

been voluntarily absent after the defendant' s explanation, began its analysis " anew" or if it began

with its ( well supported) original determination of voluntariness and weigh[ ed] that against the

reasonableness of the defendant' s actions." Cobarruvias, 179 Wn. App. at 533. Because it could

not make this determination, Division Three held that the trial court abused its discretion, reversed

the trial court and remanded for a new trial. Cobarruvias, 179 Wn. App. at 533.

Cobarruvias is an unwarranted extension of Garza and Thomson: Neither Thomson nor

Garza, two earlier Washington Supreme Court cases, require an explicit mention of the

presumption against waiver during a subsequent determination of voluntary absence or require the

trial court to begin " anew" as the Cobarruvias decision instructs. Cobarruvias, 179 Wn. App. at

533. The Cobarruvias court recognized its extension into new legal territory, saying that even

though the trial court' s determination of voluntary absence after the defendant' s explanation was

reasonable, " we believe the trial court erred in not expressly considering the defendant' s showing

in light of the ` overarching' presumption against waiver. Neither Thomson nor Garza dealt with

the application of the presumption to the third prong of the Thomson test." Cobarruvias, 179 Wn.

App. 532 ( emphasis added).

We respectfully disagree with Cobarruvias' legal extension. Neither existing case law nor

the Washington or federal constitutions require the trial court to use precise language or begin

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anew when considering the defendant' s explanation for his or her absence from trial. Here, the

colloquy between Thurlby and the trial court demonstrates that the trial court considered the

presumption against waiver even though it did not use that specific phrase. The trial court carefully

questioned Thurlby and her mother to determine what had happened; the court acknowledged

Thurlby' s decision to be with her mother but noted that Thurlby chose to be with her mother while

she was ordered to attend trial, and found that Thurlby voluntarily waived her right to be present

at trial. Therefore, we hold that the trial court did not abuse its discretion when it found that

Thurlby was voluntarily absent.

We affirm.

9414, 47M Sutton, J. We concur: