729590MAJ

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Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 72959-0
Title of Case: State of Washington V Benjamin Lee Garza
File Date: 10/09/2003
Oral Argument Date: 05/15/2003


SOURCE OF APPEAL
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Appeal from Superior Court,
County


JUSTICES
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Authored by Faith Ireland
Concurring: Barbara A. Madsen
Bobbe J Bridge
Charles W. Johnson
Gerry L Alexander
Richard B. Sanders
Susan Owens
Tom Chambers
Mary Fairhurst


COUNSEL OF RECORD
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Counsel for Petitioner(s)
Stephen W Kim
Attorney at Law
1305 4th Ave Ste 802
Seattle, WA 98101-2402

Elaine L Winters
WA Appellate Project
Cobb Bldg
1305 4th Ave Ste 802
Seattle, WA 98101-2402

Counsel for Respondent(s)
Daniel Jason Clark
King Co Pros Ofc /Appellate Unit
1850 Key Tower
700 5th Ave
Seattle, WA 98104

Prosecuting Atty King County
King County Prosecutor/appellate Unit
1850 Key Tower
700 Fifth Avenue
Seattle, WA 98104

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

)
)
STATE OF WASHINGTON, )
)
Respondent ) No. 72959-0
)
v. ) En Banc
)
BENJAMIN GARZA, )
) Filed October 9, 2003
Petitioner. )
)
)
)
)

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 Wn.
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), overruled on other grounds by
Thompson v. Keohane, 516 U.S. 99, 112-13, 116 S. Ct. 457, 133 L. Ed. 2d 383
(1995), 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 Wn.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 Wn.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 Wn.2d
at 880. 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 Wn.2d at 880-81; CrR 3.4(b).
The determination of whether the defendant's absence is voluntary depends
upon the totality of the circumstances. Thomson, 123 Wn.2d at 881. 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 Wn. 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. 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. See also State v. LaBelle, 18 Wn.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 Wn.2d
916, 921, 557 P.2d 1311 (1976); Little v. Rhay, 8 Wn.App. 725, 728, 509
P.2d 92 (1973)), overruled on other grounds by State v. Hammond, 121 Wn.2d
787, 791, 854 P.2d 637 (1993). This presumption is the central focus of
our inquiry today. Neither the Court of Appeals nor the parties appear to
have made a proper application. For instance, Garza argues that because
the court is required to indulge in reasonable presumptions against waiver,
the State has the burden of proving that the waiver was voluntary,
something it failed to do.
On the other hand, the Court of Appeals reasoned that the presumption
against waiver does not require the State to rebut it. Garza, 112 Wn. App.
at 321-22. Instead, the presumption tempers the trial court's application
of the third prong of the Thomson inquiry. Id. at 322. According to the
Court of Appeals' interpretation, once the court has made an appropriate
preliminary finding of voluntary absence (i.e., applied the first two
prongs of the Thomson inquiry), the "burden shifts to the defendant to
demonstrate that his or her absence was not voluntary . . . . {including a
showing} that he or she made reasonable attempts to contact the court and
counsel." Id. at 321. At this point, the presumption against waiver
"simply ensures that the court will review the circumstances of the
defendant's absence and attempts to contact the court in a generous light."
Id. at 322.
We agree that the burden does not shift to the State to prove that a
defendant's absence was voluntary. However, the Court of Appeals'
application of the presumption only to the final prong of the Thomson
inquiry is needlessly limiting. The presumption against waiver must be the
overarching principle throughout the inquiry. Otherwise, the right to be
present is not safeguarded as the Thomson court intended.
This case illustrates the point. Garza called ahead to say he was on his
way and warn his attorney he was going to be late, something he had not
previously done. 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 Thomson court's
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.
B. Effect of Incarceration on Waiver
We have not addressed the question of how absence from trial when the
defendant was incarcerated on unrelated charges affects the voluntary
waiver inquiry. However, the Court of Appeals analyzed this issue in State
v. Atherton, 106 Wn. App. 783, 24 P.3d 1123 (2001). In that case, the
defendant was present for the first three days of trial. The next day, he
did not appear. The trial court deemed Atherton's absence to be voluntary
and permitted trial to continue without him, refusing to grant a mistrial.
During closing arguments, the court learned that Atherton had been
incarcerated on an outstanding warrant, but again denied defense counsel's
motion for mistrial. Atherton was present the next day and renewed the
motion. Atherton explained that he had (1) asked an employee to contact
the court, (2) tried to call the judge, and (3) tried to call his attorney.
His motion was denied.
The Court of Appeals reversed. In doing so, it declined to adopt a per se
rule, advocated by Atherton and adopted in some jurisdictions, that
incarcerated defendants cannot voluntarily waive their right to be present
at trial. Id. at 788-89. Instead, it approved a rule necessitating a
factual inquiry into the circumstances surrounding the incarceration. Id.
Such a rule, the court reasoned, allows a finding of voluntary waiver when
appropriate and protects against an opportunistic defendant who waits to
discover the outcome of the trial and move for retrial if the verdict was
guilty. Id. at 789, 790.
The Court of Appeals imposed a duty on the incarcerated defendant "to make
reasonable efforts to inform the court of his situation." Id. at 790.
When the defendant appears before the trial court following the
incarceration:
{T}he court must conduct an inquiry into the circumstances surrounding the
defendant's absence before affirming its preliminary finding of voluntary
waiver. If there is unrefuted evidence that the defendant was unable to
call in a timely manner, or tried but failed to make contact, then the
court must retract its preliminary finding of voluntary waiver . . . .
{and} grant a mistrial.

Id. Atherton offered uncontroverted evidence that he had tried to inform
the court of his incarceration. The Court of Appeals held that the trial
court erred when it failed to inquire more closely into those efforts and
merely assumed that the absence was voluntary. Id. at 791. Because the
record did not support a renewed finding of voluntary absence, the court
granted Atherton's motion for a mistrial.
Atherton does not bind this court, but we approve its approach to voluntary
waiver when the absent defendant has been incarcerated. As part of the
third prong of Thomson, when the trial court affords the defendant the
chance to explain the absence from trial, the defendant must show that he
or she genuinely tried but failed to contact the court. If the defendant's
efforts were reasonable, the court must retract its preliminary finding of
voluntary waiver and grant a mistrial. If the defendant's efforts were not
reasonable, the court makes a renewed finding of voluntary absence.
The State urges us to find that Garza's efforts to contact the court were
not reasonable. Indeed, the Court of Appeals reasoned that Garza's
statement to the police, "'{N}otify King County to let them know that I
can't make it in'" was too "vague and cryptic" to meet the Atherton
requirement. Garza, 112 Wn. App. at 320. We do not actually decide the
question of whether Garza's actions would justify a renewed finding of
voluntary absence. Instead, we hold that even if Garza failed to make
reasonable efforts to contact the court, it would not cure the judge's
abuse of discretion in the preliminary determination of voluntary absence.
CONCLUSION
When a defendant is absent after trial has begun, where the defendant was
originally present at the start of trial, the trial court must inquire into
the circumstances surrounding the absence. If the circumstances so
justify, the trial court may make a preliminary finding of voluntary
absence and proceed with the trial The trial court must give a defendant
the opportunity to explain the absence. If the absence was due to
incarceration, there must be a showing that the defendant could not, or
tried but failed to, contact the court. Unless the trial court determines
that the circumstances justify a renewed finding of voluntary absence, the
court must declare a mistrial. These determinations are reviewed on appeal
for abuse of discretion. The Court of Appeals' decision is reversed,
Garza's conviction is vacated, and the cause is remanded for a new trial.

1 The record does not disclose how counsel learned of the incarceration.
2 The Court of Appeals has stated that this is not a sufficient reason to
uphold a finding of voluntary absence. State v. Atherton, 106 Wn. App.
783, 791, 24 P.3d 1123 (2001).
3 Garza had argued to the Court of Appeals that the abuse of discretion
standard applied. Now, however, Garza claims the Court of Appeals erred in
applying the abuse of discretion standard, rather than the de novo
standard, to his Sixth Amendment claim that the trial court's finding of
voluntary absence violated Garza's right to be present.
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