Opinion
No. 52080-6-I.
Filed: April 19, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-07088-1. Judgment or order under review. Date filed: 03/28/2003. Judge signing: Hon. Palmer Robinson.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Thomas Michael Kummerow, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Hoeun Saun Yong (Appearing Pro Se), 4117 — 25th Ave. S.W., #2 Seattle, WA 98106.
Counsel for Respondent(s), Daniel Jason Clark, King County Prosecuting Attorney, W554 King County Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
A trial begun in the defendant's presence may subsequently proceed in his or her absence only if the court inquires into the circumstances and finds the absence is voluntary. Because the court in this case failed to follow this procedure and the State has failed to demonstrate that the error was harmless beyond a reasonable doubt, we reverse.
FACTS
Following a police pursuit on Airport Way in Seattle, the State charged Hoeun Saun Yong with attempting to elude a pursuing police vehicle. On February 25, 2003, Yong appeared in court for a CrR 3.5 hearing and jury selection. After swearing in the jury, the court recessed until 9:00 a.m. the following day.
The next morning, counsel appeared at 9:00 a.m., but Young was absent. After a discussion in chambers, the court and counsel came on the record at 9:30 a.m.:
DEFENSE: Your Honor, I did receive a telephone call from my client here at the courtroom. He indicated to me that he was bringing his witnesses with him and he was unfortunately in charge of gathering them up. So what I'd ask the Court for is the Court's indulgence for a few moments. He indicated he was parking his car in the vicinity.
COURT: Yeah, it's now and I should put on the record the conversation we had in chambers. It's now 9:32. We recessed yesterday until 9:00 and I indicated some time ago I mean this is not anything you had control over in terms of his timing of being late that we were going to start at 9:30, that I wasn't going to wait for him to show up in terms of keeping 13 jurors cooped up and everybody else sitting waiting for him and nothing that has happened has changed my mind other than we are a couple minutes late.
Report of Proceedings (RP) (Feb. 26, 2003) at 31. The parties then gave opening statements and the State called the first of its two witnesses, Officer Thomas Basney. At 10:02 a.m., approximately half way through Basney's direct examination, Yong appeared in court. Neither counsel nor the court commented on his arrival. The jury subsequently convicted Yong as charged.
No mention of Yong's return appears in the verbatim report of proceedings. The only mention of that event is found in the clerk's minutes.
DECISION
For the first time on appeal, Yong contends the trial court abused its discretion when it proceeded with trial in his absence. He also contends his counsel was ineffective for failing to object below. The State responds that the argument cannot be raised for the first time on appeal, and that Yong cannot demonstrate ineffective assistance of counsel. Generally, an appellate court will not review an issue raised for the first time on appeal. An exception exists, however, for manifest errors affecting a constitutional right. The error alleged in this case affected Yong's constitutional right to be present at trial. This is a fundamental right. The alleged violation of that right involves Yong's absence during the presentation of the State's case a critical stage of the trial. Given the fundamental importance of the right to be present and the nature of the violation of that right in this case, we conclude the error is manifest and may be raised for the first time on appeal.
A trial court's decision to proceed with a trial in the defendant's absence is reviewed for abuse of discretion. State v. Thomson, 123 Wn.2d 877, 884, 872 P.2d 1097 (1994).
RAP 2.5(a); see State v. Woo Won Choi, 55 Wn. App. 895, 900-01, 781 P.2d 505 (1989).
State v. Garza, 150 Wn.2d 360, 77 P.3d 347 (2003).
In re Personal Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835, clarified on other issues, 123 Wn.2d 737 (1994) (`The core of the constitutional right to be present is the right to be present when evidence is being presented.')
See State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001) (claim of involuntary guilty plea could be raised for the first time on appeal `given the fundamental constitutional rights' at stake); State v. Lively, 130 Wn.2d 1, 19, 921 P.2d 1035 (1996) (claim of governmental misconduct could be raised for the first time on appeal because it affected fundamental aspects of due process); State v. Israel, 113 Wn. App. 243, 265 n. 2, 54 P.3d 1218 (2002), review denied, 149 Wn.2d 1013 (2003).
Turning to the merits, it is well settled that a trial begun in the defendant's presence may subsequently proceed in his or her absence if the absence is voluntary. Before it proceeds, however, the trial court must (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.
Garza, 150 Wn.2d at 367.
Thomson, 123 Wn.2d at 877 (quoting State v. Washington, 34 Wn. App. 410, 414, 661 P.2d 605 (1983)).
This procedure protects the right to be present by ensuring `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.' In determining voluntariness, the trial court must indulge every reasonable presumption against a voluntary waiver.
Id. at 883.
Garza, 150 Wn.2d at 367.
Here, Yong was present for jury selection but failed to appear in court the next day at the scheduled time. Although the record is not entirely clear, it appears the court inquired into the circumstances in chambers and decided to wait until 9:30 before commencing trial. At 9:30, defense counsel asked the court to wait a little longer because the defendant had called and said he was bringing witnesses with him and was in the vicinity looking for parking. The court, without making a finding of voluntariness, proceeded with the trial. This was error.
Jury selection marks the start of the trial. State v. Thomson, 70 Wn. App. 200, 852 P.2d 1104 (1983).
As noted above, a finding of voluntariness is a prerequisite to proceeding with trial in these circumstances. The trial court made no such finding, at least on the record. And even assuming the court made such a finding in chambers, it abused its discretion when, after receiving information regarding Yong's call, it failed to reconsider its earlier finding, indulge a presumption of involuntariness, and delay the trial for a reasonable period of time. This conclusion is supported by the State Supreme Court's recent decision in State v. Garza.
We note that in deciding whether a defendant's absence was intentional, and therefore voluntary, courts often place great emphasis on whether the defendant attempted to contact the court. State v. Atherton, 106 Wn. App. 783, 790, 24 P.3d 1123 (2001).
In Garza, the defendant was late for a pretrial proceeding and for the first day of trial. The trial court warned him not to be late again. Several days later, counsel told the court that his client had called and said he was running late but would be in court by 9:20. The court waited until 9:25 and then, after declaring Garza's absence voluntary, proceeded with trial. In holding that the trial court abused its discretion, the Supreme Court stated:
Garza never arrived in court because he was arrested and jailed on an outstanding warrant. Garza, 150 Wn.2d at 364.
When Garza did not arrive at the appointed time, the judge could reasonably have presumed that something outside Garza's control was delaying him. Indulging this presumption the judge should have waited a more reasonable time than five minutes for Garza to arrive. Instead, the judge immediately deemed Garza's absence voluntary. This hasty determination of voluntary absence does not satisfy the . . . requirement that the trial court sufficiently inquire into the circumstances of a defendant's absence. The court's decision to proceed after only five minutes was manifestly unreasonable. Therefore, the determination of voluntary absence without reference to the presumption against waiver was an abuse of discretion.
Id. at 369.
This reasoning applies equally here. Under Garza, the trial court's decision to proceed in this case was an abuse of discretion. Last, we address whether the error was harmless. It is the State's burden to demonstrate that a violation of the right to be present at trial was harmless beyond a reasonable doubt. Although the State does not argue harmless error, it contends in its discussion of `manifest error' that no actual prejudice appears in the record. It points out that Yong `only missed thirty minutes of court' and `was present for much of the officer's direct testimony and all of his cross-examination.' This fails to demonstrate harmlessness beyond a reasonable doubt.
An absence from trial is generally subject to harmless error analysis. Hegler v. Borg, 50 F.3d 1472, 1476 (9th Cir. 1995); Rice v. Wood, 77 F.3d 1138 (9th Cir. 1996); Rushen v. Spain, 464 U.S. 114, 118 n. 2, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983).
State v. Rice, 110 Wn.2d 577, 613-14, 757 P.2d 889 (1988).
While we can conceive of cases where the brevity of the defendant's absence would itself demonstrate harmlessness, this is not such a case. The State's case consisted of just two witnesses both police officers. Yong missed a substantial portion of the first officer's direct examination. The State does not argue that the substance of the missed testimony was inconsequential. Nor does the State contest that this was a critical stage of the trial. Significantly, the State does not address the very real possibility that the jury drew negative inferences about Yong from his failure to timely appear for his own trial. We conclude that the State has not carried its burden of showing that the error was harmless beyond a reasonable doubt.
United States v. Novaton, 271 F.3d 968, 999 (11th Cir. 2001) (noting that `the more crucial the stage of trial, the less likely that a defendant's involuntary absence was harmless' and stating that `stages of a trial could hardly be more critical' than the government's case in chief.).
United States v. Allen, 76 F.3d 1348, 1371 (5th Cir. 1996) (noting that jury might draw an adverse inference from a defendant's absence); United States v. Camacho, 955 F.2d 950, 957 (4th Cir. 1992) (`jurors probably wondered where Camacho was during his absence from the courtroom and may have drawn negative inferences about him as a result').
Given our resolution of Yong's first argument, we do not reach his contention that his trial counsel was ineffective for failing to object below.
ELLINGTON and BAKER, JJ., concur.