FILED
FEB 20,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DMSION THREE
STATE OF WASHINGTON, )
) No. 30665-8-III
Respondent, )
)
v. )
)
MARIO ALAN COBARRUVIAS G, ) PUBLISHED OPINION
)
Appellant. )
KORSMO, C.J. - Appellant Mario Cobarruvias failed to appear for the final day of
his trial after accompanying his son to the hospital. We conclude that the trial court erred
in denying the defendant's motion for a new trial. We reverse and remand for a new trial.
FACTS
Mr. Cobarruvias eventually was charged with two counts of delivery of
methamphetamine to a police informant. Both charges were alleged to have occurred in
February 2009. A trial later that year ended in a mistrial after the jury deadlocked. Mr.
Cobarruvias testified on his own behalf at that trial.
After a series of continuances, the matter proceeded to trial for the second time in
January 2012. Mr. Cobarruvias was permitted to remain out of custody pending trial.
No.30665-8-III
State v. Cobarruvias
The trial did not run smoothly due to factors beyond the control of the court. The jury
was selected on Monday, January 9, and the case was recessed until January 12. That
morning, however, the prosecutor needed to seek medical attention for an emerging
health issue; the case was recessed to the afternoon. The prosecutor was unable to
continue due to the health matter. The case was recessed again over a holiday weekend
until Tuesday, January 17.
The prosecutor's co-counsel conducted the trial. Mr. Cobarruvias did not appear
on time and the court indicated it would allow him 15 additional minutes before
authorizing a bench warrant after defense counsel argued that his client had traditionally
been arriving five minutes late. He appeared within the 15 minute window. The
following day, January 18, Mr. Cobarruvias was again late. His counsel admitted to
stalling the court in the hope that his client would make it before testimony resumed. Mr.
Cobarruvias soon did arrive and attributed his tardiness to the weather conditions and a
long line at the security station.
The judge and counsel conferred briefly that afternoon to discuss the schedule for
the remaining witnesses. Defense counsel at that point indicated that he was uncertain
whether or not his client would testify.
The beginning oftrial on the 19th was delayed until 9:30 a.m. for defense
counsel's emergency dental work. Trial could not resume on Friday the 20th due to bad
weather, so the final day of trial was extended to Monday January 23.
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State v. Cobarruvias
Mr. Cobarruvias did not appear at 9:00 a.m. that morning along with the rest of the
participants. At 9:28 a.m., the court noted that road conditions were fine and that Mr.
Cobarruvias had a history of being late. The court concluded that the defendant was
voluntarily absent. Testimony continued; Mr. Cobarruvias still did not appear.
The State rested its case after prosecuting two final witnesses. The defendant still
had not appeared and defense counsel asked for permission to submit his testimony from
the previous trial. The court denied the motion due to the voluntary absence. A man in
the audience, whom counsel later identified as the defendant's brother, stated that he had
been able to locate Mr. Cobarruvias. After conferring with the man, defense counsel
advised the court that it was believed Mr. Cobarruvias had taken his young son to the
hospital. The information was contained in a note found by the brother at the defendant's
house.
Defense counsel then asked to continue the case to the afternoon so that he could
attempt to ascertain his client's whereabouts and bring him in to testify. The court denied
the motion and the defense rested without presenting any witnesses. It was
approximately 11 :30 a.m. The parties then presented argument over the noon hour before
turning the case over to the jury.
The jury returned its verdicts at approximately 1:30 p.m., finding the defendant
guilty of one count of delivery of methamphetamine and acquitting him on the second
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State v. Cobarruvias
count. The jury also found that the delivery occurred within 1,000 feet of a school zone.
The defendant was arrested at the hospital between 2:00 and 2:30 p.m. that day.
The defense moved for a new trial and documented the defendant's activities
addressing his son's medical condition on January 23. After hearing argument, the court
denied the motion, noting that the defendant made no effort to contact his counsel or the
court, and the nature of the son's illness did not prevent him from doing so. The court
concluded that the absence was voluntary.
The court imposed a standard range sentence. Mr. Cobarruvias then timely
appealed to this court.
ANALYSIS
Mr. Cobarruvias challenges the court's initial determination that he was
voluntarily absent and the denial of his motion for a new trial. We agree with that second
contention and reverse and remand for a new triaL I
Issues arising from a criminal defendant's absence after trial has started have been
addressed in several published cases in this state. A criminal defendant has the right to
be present at trial-this right derives from basic due process of law and the defendant's
right to confront witnesses against him under both the state and federal constitutions. See
I We therefore do not address his arguments concerning the judgment and
sentence. We do, however, grant the December 10 motion to supplement the clerk's
papers in this case.
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No. 30665-8-111
State v. Cobarruvias
generally State v. Thomson, 123 Wn.2d 877, 880, 872 P.2d 1097 (1994). This right can
be waived by a voluntary absence after trial has commenced. Id.
To determine whether a voluntary waiver has occurred, the trial court must follow
a three-part process to evaluate the totality of the circumstances, including:
"(1) ... sufficient inquiry into the circumstances of a defendant's
disappearance to justify a finding whether the absence was voluntary,
(2) ... a preliminary finding ofvoluntariness (when justified), and (3)
[afford] the defendant an adequate opportunity to explain his absence when
he is returned to custody before sentence is imposed."
Id. at 881 (quoting State v. Washington, 34 Wn. App. 410,414,661 P.2d 605 (1984)).
When there is a voluntary waiver, the trial judge has discretion to continue with the trial
"without further consideration." Id. Thomson also noted that there is a presumption
against waiver. Id. The presumption against waiver applies to all three prongs of the
Thomson test. State v. Garza, 150 Wn.2d 360, 367-68, 77 P.3d 347 (2003). It "must be
the overarching principle throughout the inquiry." Id. at 368.
Garza also determined that the trial court's waiver determination is a factual issue
to which the abuse of discretion standard applies on review. Id. at 366. Discretion is
abused when it is exercised on untenable grounds or for untenable reasons. Id. Use of an
incorrect legal standard in making a discretionary decision also constitutes an abuse of
discretion. State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995). The decision
to grant or deny a motion for a new trial also is reviewed for abuse of discretion. State v.
Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 (1997).
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Thomson and Garza demonstrate how these standards have been applied in
practice. In Thomson, the named defendant was tried with a codefendant. 123 Wn.2d at
878. On the second day of pretrial hearings, Mr. Thomson called the court to say he
would be late due to car problems. The hearings proceeded without him and he
eventually arrived at an unspecified time that morning. Id. at 879. Jury selection began
that afternoon and the case was recessed for four days. Mr. Thomson did not appear on
the morning the trial resumed; his counsel told the court that Thomson had called and left
word with the attorney's secretary that he had a medical emergency that would prevent
him from being in court that day. No further information was provided and there was no
way to contact Mr. Thomson. Id.
The trial court allowed defense counsel a brief recess to attempt to locate his
client. When that effort failed, the court issued a bench warrant and recessed the case
until 1:30 p.m. Id. Mr. Thomson was still absent at that time and the court concluded
that he was voluntarily absent. Jury selection resumed and trial continued over defense
objection. Id.
The following day, Mr. Thomson still was not present and had not contacted his
counsel, the court, or his mother (with whom he lived). Defense counsel sought a
continuance. The motion was denied and trial continued. The jury returned a gUilty
verdict against both defendants. Later that day, Mr. Thomson contacted his attorney and
learned ofthe verdict. Id. He surrendered on the warrant. Id.
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No.30665-8-II1
State v. Cobarruvias
Thomson apologized at sentencing but apparently did not further explain his
absence. [d. at 880. He appealed and this court affirmed the conviction. [d. The
Washington Supreme Court then granted review and announced the standards applicable
to the situation of a defendant who absented himself after trial had begun. [d. at 881. In
its application ofthe three-part analysis, the court concluded that the trial judge had not
abused his discretion in finding that Thomson's absence was voluntary. [d. at 884.
Thomson did not address the final prong of the analysis, probably because the
defendant did not attempt to justity his absence once he returned to court. That portion of
the analysis was discussed, however, in Garza. There, the defendant had regular
attendance problems. He was three hours late for a pretrial hearing. He then was 45
minutes late for the first day of trial and received a warning from the judge about further
tardiness. Garza, 150 Wn.2d at 363. Mr. Garza did not appear for the last day of trial.
His counsel advised the court that his client had told him he was running late and would
be there by 9:20 a.m. [d. at 364. When the defendant still had not appeared by 9:25 a.m.,
the trial judge found him to be voluntarily absent and directed that the trial continue
without him. Defense counsel checked with his office at 10:00 a.m.; no new information
had been received. At 11 :00 a.m., the judge issued a bench warrant. [d.
Trial concluded that day with a jury determination that the defendant was gUilty.
On June 26, the defense filed a motion for a new trial and explained that the defendant
had been arrested on an outstanding Bothell municipal warrant while en route to his trial.
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No. 30665-8-111
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Id. Mr. Garza allegedly told the jail to alert King County that he could not "make it in."
Id. No call was ever made, nor did Mr. Garza make further efforts to contact the court or
counsel. He was released from jail that evening. Id. The trial judge denied the motion,
deciding that the arrest on an outstanding warrant still constituted a voluntary absence.
Id. at 365.
The Washington Supreme Court reversed and ordered a new trial. It found that
waiting five minutes 2 on the final day before finding the absence to be voluntary
constituted an abuse of discretion in light of the presumption against waiver. Id. at 369.
The trial court could not make a determination ofvoluntariness "without reference to the
presumption against waiver." Id.
The Supreme Court also addressed the effect of incarceration on the voluntariness
inquiry. It commented upon, although it did not decide the adequacy of, Mr. Garza's
attempt to contact the court about his incarceration. Id. at 370-71. The court did indicate
that an incarcerated defendant "must show that he or she genuinely tried but failed to
contact the court." Id. at 370. The reasonableness of that effort determines whether or
not the original voluntariness determination stands. Id.
We have discussed these two cases in some detail as both have an impact on this
case. As in Garza, both Mr. Cobarruvias and Mr. Garza had regular difficulties
2The court apparently was counting the time between the finding of voluntary
absence and the expected arrival time rather than the opening of that day's court session.
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No.30665-8-III
State v. Cobarruvias
appearing for trial in a timely fashion, although Mr. Garza alerted his counsel about his
final delayed appearance while Mr. Cobarruvias did not. The Garza court treated the
telephone call as a significant indicator that Mr. Garza's absence might not be voluntary.
Id. at 369. At a minimum, it suggested that more time was needed to investigate the
situation before declaring the absence voluntary. Id.
In contrast, Mr. Cobarruvias never attempted to alert counselor the court when he
expected to be tardy. On these facts, we think the trial court could consider his "body of
work" on the tardiness issue. This was not a mere 30 minute unexplained absence (at the
time of the voluntariness finding), but rather the latest episode in a spotty attendance
record. We do not read Garza as ruling that some minimum period of time must pass
before an absence can be addressed or that a history of tardiness is less egregious than a
single episode. The trial court had a sufficient basis for initially finding that the
unexplained absence on the final day of trial was voluntary.
Nothing that developed during the day changed the situation. The defendant made
no efforts to contact his counselor the court. Defense counsel eventually relayed a
hearsay report that the defendant had left a note in his own home concerning the hospital
visit. While the court could have granted a delay to allow further investigation, it was not
required to do so. In the absence of any attempt by the defendant to convey information
to the court, Thomson and Garza indicate that the trial judge acted within his discretion in
permitting the case to continue to its conclusion in the defendant's absence.
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No.30665-8-II1
State v. Cobarruvias
However, it was a different story once the defendant had been apprehended and
put forth his explanation. As in Thomson, the basis for the defendant's absence was
medically related. Unlike that case, Mr. Cobarruvias documented his situation. The
defendant having come up with a reasonable explanation for his absence, Garza required
the trial court to then consider that explanation in light of the presumption against waiver.
150 Wn.2d at 368. Unfortunately, that was not done here.
The trial court carefully considered the motion and explained its reasoning at some
length. The court determined that Mr. Cobarruvias had not shown that he was unable to
make contact with the court or counsel, nor had he shown that his obligations as a father
left him too pressed for time to attempt telephone contact. Under the circumstances, the
court concluded that the defendant's absence was voluntary. He had chosen to take his
son for medical attention and chosen to stay with him while he was being treated. We
agree with the trial court that given the defendant's limited evidentiary showing, it was
reasonable to conclude that the absence was voluntary given the lack of effort to contact
the court and the lack of evidence that his presence at the hospital was medically
necessary.
Nonetheless, despite the careful consideration given the motion, 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. In Thomson, the
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No. 30665-8-111
State v. Cobarruvias
issue did not arise due to lack of a defense argument for a new trial, while in Garza the
court overturned the judgment based on the initial voluntariness ruling (prong one of the
Thomson test). Although the Garza court went on to comment on both the effect of
incarceration on the voluntariness ruling and the defendant's obligation to attempt contact
with the court, 3 it never applied the presumption to the reasonableness of defendant's
efforts because it did not need to do so. Thus, we cannot read its discussion of an
incarcerated defendant's obligation to contact the court as an absolute bar to the trial
court's consideration of defendant's explanation for his absence.
Here, the court needed, but failed, to consider the presumption in its assessment.
The presumption requires more than that the court simply listen to the defendant's
explanation. It then must consider the absence question anew starting with the
presumption against voluntary waiver. As applied here, that would mean the court must
determine what actually happened and assess the reasonableness of the defendant's
actions 4 on the final day while also considering other facts such as Mr. Cobarruvias's
absences throughout the trial and the initial failure to explain his absence, and ultimately
3 Both of these aspects of the opinion can technically be considered dicta in light
ofthe court's disposition of the case. That characterization, however, plays no role in our
resolution of this case.
4 It is at this point that a parent's role as a medical decision maker for a minor
child would factor into the necessity for Mr. Cobarruvias's actions. Likewise, the court
could consider his ability and failure to attempt contact with the court in assessing the
reasonableness of his behavior that day.
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No. 30665-8-111
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decide whether it believed the defendant's absence on the final day was a voluntary
decision.
Although the trial court here did consider the totality of the circumstances, we
cannot determine where it started its analysis. Did it begin anew with consideration of
the presumption against voluntary waiver, or did it begin with its (well supported)
original determination ofvoluntariness and weigh that against the reasonableness of the
defendant's actions? As it is unclear whether the court applied the appropriate test, we
conclude that it abused its discretion in denying the motion for a new trial. Rundquist.
The judgment is reversed and the case remanded for trial.
Korsmo, C.J.
WE CONCUR:
Brown, J.
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