State v. Thurlby

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CHIEF JUSTICE I

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 91220-3
)
Respondent, ) ENBANC
)
v. ) Filed NOV 0 5 2015
)
TAMMERA MICHELLE )
THURLBY, )
)
Petitioner. )
)

FAIRHURST, J.-The State charged Tammera Michelle Thurlby with three

counts of unlawful delivery of a controlled substance. Thurlby was present when her

two day trial commenced, but she failed to appear on the second day. The trial court

found that Thurlby was voluntarily absent and exercised its discretion to proceed

with trial. In Thurlby' s absence, the jury found her guilty on all three counts. Thurlby

challenges the trial court's finding of voluntary absence. She also argues that the

trial court erred because it failed to expressly state it was considering a presumption

against waiver during its analysis of voluntary absence, as required by a recent

opinion from Division Three of the Court of Appeals. See State v. Cobarruvias, 179
State v. Thurlby, No. 91220-3

Wn. App. 523, 532-33, 318 P.3d 784 (2014). Division Two ofthe Court of Appeals

upheld the trial comi's rulings and declined to adopt the holding of Cobarruvias.

State v. Thurlby, 184 Wn. App. 918, 926, 339 P.3d 252 (2014), review granted, 182

Wn.2d 1022, 347 P.3d 459 (2015). We affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Thurlby sold methamphetamine to a police informant on three separate

occasions. The State charged Thurlby with three counts of delivery of a controlled

substance within 1,000 feet of a school bus route, all of which proceeded to jury trial.

Thurlby was present when her trial began in December 2012. At the end of the first

day, defense counsel instructed Thurlby to arrive in court a few minutes before 9:00

a.m. the following day. When court reconvened the following morning, Thurlby was

absent. The trial court considered whether it should issue a bench warrant, but

defense counsel advised that Thurlby did not have reliable transportation and

requested a few additional minutes. The judge agreed to wait, but by 9:36 a.m.

Thurlby was still absent. At that time, the trial court issued a bench warrant.

Later that morning, the trial court reconvened and informed the parties that it

had contacted the local hospital, the court's administration, the clerk's office, and

the Cowlitz County Jail but was still unable to locate Thurlby. The State advised that

both the court rules and case law permitted the trial court to proceed with the trial

without Thurlby present. The State, however, recommended that the court provide

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State v. Thurlby, No. 91220-3

additional time for Thurlby to present herself and requested that the court recess until

1:30 p.m. Defense counsel objected to continuing without Thurlby but also noted

that the court would have to wait until the afternoon at the earliest in order to satisfy

the relevant case law. The trial court agreed to recess until 1:30 p.m. so that it could

properly determine whether Thurlby's absence was voluntary.

Shortly after 1:30 p.m. the court reconvened and again inquired into the

circumstances ofThurlby's disappearance. The State reported that law enforcement

officers had contacted the local bail bond company and searched for Thurlby in

several different locations but were unsuccessful in determining her location.

Defense counsel also indicated that he had not received any communication from

Thurlby. The trial court informed the parties that it had again reached out to the local

hospital but was unable to locate Thurlby. The trial court had also contacted the

court's administration and the clerk's office, but these sources once more reported

that they had not received any communications from Thurlby.

The State then moved to proceed with trial in Thurlby's absence. Defense

counsel opposed the State's motion and moved separately for a mistrial or a

continuance. The trial court, making several findings, granted the State's motion and

denied the defense motion. First, the trial court made a preliminary finding that

Thurlby was voluntarily absent because the trial court had not heard any good cause

for her absence. The trial court additionally reasoned that Thurlby knew she was

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State v. Thurlby, No. 91220-3

required to be in court but did not contact the court or defense counsel and did not

ask to be excused. The court also recounted that it had contacted various sources but

was still unable to locate Thurlby. Second, based on a number of findings, the trial

court found that rescheduling the case would be difficult. The findings included the

fact that several witnesses were not local, a special jailer had to be used to monitor

a confidential informant within the courthouse, numerous witnesses had already

testified, the State already presented most of its evidence, and it was difficult to tell

ifThurlby would ever return. Based on the inquiry into Thurlby's whereabouts and

the progress of the trial, the trial court chose to proceed in Thurlby's absence. The

jury returned guilty verdicts on all counts at the conclusion of the second day of trial.

Police did not apprehend Thurlby until February 2013. Prior to sentencing,

the trial court provided Thurlby with an opportunity to explain her nonattendance.

Thurlby stated that she was absent because her mother underwent an unplanned

surgery midway through trial. Thurlby claimed that she contacted the clerk's office

to reschedule but was informed that felony trials could not be rescheduled. She did

not explain her mother's circumstances to the recipient of the call. Thurlby's mother

also spoke to the trial court about her health problems. After hearing these

statements, the trial court nevertheless made a finding that Thurlby was voluntarily

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State v. Thurlby, No. 91220-3

absent. The trial court then sentenced Thurlby on three counts of unlawful delivery

of a controlled substance and one count of bail jumping. 1

Thurlby timely appealed her convictions, and the Court of Appeals affirmed.

Thurlby, 184 Wn. App. at 926. Thurlby petitioned this court for review, which we

granted. Thurlby, 182 Wn.2d 1022.

II. ISSUES

A. Did the trial court abuse its discretion by finding that Thurlby was
voluntarily absent?

B. Did the trial court commit reversible error by failing to explicitly
consider the presumption against waiver in the third prong of the Thomson 2 analysis
as required by Division Three of the Court of Appeals in Cobarruvias?

III. ANALYSIS

A. The trial court did not abuse its discretion by finding that Thurlby was
voluntarily absent and completing the jury trial in her absence

This court reviews the trial court's decision to proceed with trial in the

defendant's absence for abuse of discretion. State v. Garza, 150 Wn.2d 360, 366, 77

P.3d 347 (2003). A trial court abuses 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).

1
Prior to sentencing, the State amended the charging documents to include one count of
bail jumping based on Thurlby's failure to appear for the second day of trial. Thurlby pleaded
guilty to bail jumping at the sentencing hearing.
2
State v. Thomson, 123 Wn.2d 877, 872 P.2d 1097 (1994).
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State v. Thurlby, No. 91220-3

1. The right to be present at trial

The Sixth Amendment and the due process clauses of the Fifth and Fourteenth

Amendments to the United States Constitution, and article I, section 22 of our state

constitution all guarantee the right of the criminal defendant to be present at his or

her own trial. See Thomson, 123 Wn.2d at 880 (citing United States v. Gagnon, 470

U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985) (per curiam)). However,

this right is not absolute. State v. DeWeese, 117 Wn.2d 369, 381, 816 P.2d 1 (1991).

A criminal defendant may waive the right to be present at trial so long as the waiver

is knowing and voluntary. State v. Rice, 110 Wn.2d 577, 619, 757 P.2d 889 (1988).

A waiver of the right to be present may be express or implied. Thomson, 123 Wn.2d

at 881. If a trial has begun in the defendant's presence, a subsequent voluntary

absence of the defendant operates as an implied waiver of the right to be present. !d.

Our rules of criminal procedure similarly permit the court to continue with trial

despite a defendant's voluntary absence, provided that the defendant was present

when the trial commenced. CrR 3.4(b); see also Thomson, 123 Wn.2d at 880-81

(noting that CrR 3.4 is interpreted consistently with its federal counterpart, FED. R.

CRIM. P. 43, which "treats midtrial flight as a knowing and voluntary waiver of the

right to be present" (citing State v. Hammond, 121 Wn.2d 787, 854 P.2d 637 (1993);

Crosby v. United States, 506 U.S. 255, 113 S. Ct. 748, 122 L. Ed. 2d 25 (1993))).
State v. Thurlby, No. 91220-3

2. Thomson's voluntary absence framework

In Thomson, this court determined whether a criminal defendant had

voluntarily waived his right to be present after the commencement of his jury trial.

123 Wn.2d at 878. There, the defendant was in court for the beginning of jury

selection but failed appear for trial. I d. at 879. On the morning of the first day of his

absence, the defendant called his attorney's office and stated that there was a medical

emergency preventing him from appearing in court. Id. The defendant provided no

additional information. Id. The defendant's mother, whom he lived with, also did

not know his whereabouts. I d. The prosecuting attorney moved for a bench warrant,

but the trial court instead took a brief recess in order to allow defense counsel time

to locate the defendant. I d. After the recess, the trial court issued a bench warrant for

the defendant but adjourned until 1:30 p.m. to provide defense counsel additional

time to ascertain the defendant's location. Id. At 1:30 p.m. the defendant was still

absent. I d. At that time, the trial court made a finding of voluntary absence. I d. The

case proceeded to trial over the defense attorney's objection, and the jury found the

defendant guilty. I d. After the conclusion of his trial, the defendant turned himself

in to authorities. Id. Prior to sentencing, the trial court provided the defendant with

an opportunity to clarify his absence. Id. The defendant apologized to the court but

provided no additional explanation. Id. at 880.

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State v. Thurlby, No. 91220-3

In Thomson, we adopted a three-pronged analysis that the trial court must

follow in order to find that the defendant waived his or her right to be present. I d. at

881. First, the trial court must make a sufficient inquiry into the circumstances of the

defendant's absence. I d. Second, the court must make a preliminary finding of

voluntariness. Id. Finally, the court must provide the defendant with an opportunity

to explain the absence when he or she is returned to custody and before any sentence

is imposed. I d. In performing this analysis, the trial court must examine the totality

of the circumstances and indulge every reasonable presumption against waiver.

Garza, 150 Wn.2d at 367. The Thomson court held that the trial court did not abuse

its discretion because the defendant took flight after trial began, the trial court

sufficiently inquired into the defendant's absence to make its finding, and the trial

court provided the defendant with an adequate opportunity to explain his absence

prior to sentencing. 123 Wn.2d at 884.

In the present case, the Court of Appeals determined that the trial court did

not abuse its discretion, reasoning that the trial court fully complied with Thomson.

A review of the record supports this conclusion. As Thomson instructed, the trial

court began by inquiring into the circumstances of Thurlby's disappearance. It

contacted the local hospital, the local jail, the court's administration, and the clerk's

office to no avail. It inquired of both the State and the defense counsel if they knew

of Thurlby's whereabouts. Similar to the court in Thomson, the trial court then

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State v. Thurlby, No. 91220-3

waited over three hours for law enforcement to locate Thurlby or for Thurlby to

contact the trial court or her attorney. Before making its ruling, the trial court again

contacted the local hospital, the trial court's administration, and the clerk's office. It

also confirmed with the parties that no one had heard from Thurlby. The trial court

then proceeded to the second step of the Thomson analysis and, given the

information available that day, made a preliminary finding that Thurlby was

voluntarily absent. Finally, prior to sentencing,, the trial court provided Thurlby with

an opportunity to explain her absence and evaluated Thurlby' s absence in light of

her justification.

Thurlby nevertheless asserts that she was not voluntarily absent because her

nonattendance was a result of circumstances beyond her control. Specifically,

Thurlby argues that her mother's unplanned surgery caused her to miss the

conclusion of her trial. However, the trial court expressly addressed this claim. The

trial court considered Thurlby's statements and found that her decision to be with

her mother was a product of choice. The trial court reasoned that Thurlby knew her

appearance in court was mandatory but failed to contact her attorney or otherwise

explain her absence at the time. Moreover, while her mother's surgery was out of

Thurlby's control, the surgery itself did not prevent Thurlby from attending trial.

The trial court acknowledged that Thurlby's mother was in competent care and there

was no representation that Thurlby was required to drive her mother to the hospital.

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State v. Thurlby, No. 91220-3

While Thurlby's choice was understandable, the trial court concluded that it was still

a voluntary decision. Thurlby has not presented facts to contravene the trial court's

findings, nor has she demonstrated that the finding was manifestly unreasonable.

The trial court's analysis and findings were not manifestly unreasonable or

based on untenable grounds. Accordingly, we affirm the Court of Appeals'

conclusion that the trial court did not abuse its discretion when it found Thurlby was

voluntarily absent.

B. The trial court need not expressly state that it is considering the presumption
against waiver when conducting the Thomson analysis or restart the analysis
at the third prong

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

expressly state that it was considering a presumption against waiver. She relies

heavily on Cobarruvias, 179 Wn. App. at 532-33. In Cobarruvias, Division Three

of the Court of Appeals held that the trial court must expressly consider the

presumption against waiver when engaging in the Thomson analysis. The

Cobarruvias court also required that the trial court start its analysis anew in the third

prong of the Thomson analysis-that is, providing the defendant an opportunity to

explain his or her absence prior to sentencing-in order to satisfy the presumption

against waiver. Id. at 532-33. In evaluating Thurlby's claims, Division Two rejected

this approach, creating a split among the divisions. Thurlby, 184 Wn. App. at 926.

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State v. Thurlby, No. 91220-3

Because our case law does not support the approach set forth in Cobarruvias,

we affirm Division Two and hold that a trial court need not expressly state the

presumption against waiver, nor must it begin its analysis of voluntariness anew

when evaluating the third prong of the Thomson analysis.

The Cobarruvias decision rests on a misreading of Garza. In Garza, the

defendant called and informed his attorney that he was running late and would be in

court by 9:20a.m. 150 Wn.2d at 364. However, when the defendant did not appear

by 9:25a.m., the trial court determined that the defendant was voluntarily absent. Id.

We reversed, holding that the trial court did not sufficiently inquire into the

circumstances of the defendant's absence as instructed by the first prong of the

Thomson analysis prior to making its finding of voluntary absence. !d. at 369. We

reasoned that because the defendant gave notice that he would be late, the trial court

should have indulged the presumption against waiver and found that something

outside of his control was delaying him. Id. Given the failure to indulge the

presumption against waiver, the trial court's "hasty determination ... after only five

minutes" of waiting "was manifestly unreasonable." Id.

In Cobarruvias, Division Three read Garza to require the trial court to both

expressly state that it is considering the presumption against waiver and begin its

voluntary absence analysis anew in the third prong. This is an incorrect extension of

Garza. As Division Two acknowledged, none of our precedent, including Garza

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State v. Thurlby, No. 91220-3

itself, requires the trial court to expressly state that it is considering the presumption

against waiver. Thurlby, 184 Wn. App. at 925. Thurlby references language in Garza

where she claims this court criticized the trial court for making "the determination

of voluntary absence without reference to the presumption against waiver." 150

Wn.2d at 369. However, as discussed above, at no point in Garza did we fault the

trial court for failing to utter a certain phrase. Instead, we reversed because the trial

court failed to truly indulge the presumption against waiver, as it waited only five

minutes before finding that the defendant's absence was voluntary. Id. As we stated

in that case, it was an abuse of the trial court's discretion to make such a "hasty

determination." Id.

Moreover, contrary to Thurlby's assertions, as well as Division Three's

holding in Cobarruvias, Garza does not require that the trial court start its analysis

anew in the third prong of the Thomson analysis. Importantly, we did not even reach

the third prong in Garza. Both Thurlby and the court in Cobarruvias misinterpret

how the presumption against waiver operates in the Thomson analysis. The

presumption does not necessarily mean that, for the purposes of the third prong, the

trial court begin its analysis with the presumption that the defendant has not waived

his or her right to be present. This reading set forth by the court in Cobarruvias and

advanced by Thurlby would essentially render the third prong a nullity. Thomson

requires, and we now reaffirm, that in evaluating whether the defendant was

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State v. Thurlby, No. 91220-3

voluntarily absent under the third prong, the trial court must consider the totality of

the circumstances surrounding the defendant's failure to appear for trial. In

evaluating the totality of the circumstances, the presumption operates by requiring

the trial court to view the circumstances as explained by the defendant in a generous

light, reading every reasonable inference against waiver. 3 This interpretation is

consistent with our explanation in Thomson where we noted that the third prong of

the analysis "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." 123 Wn.2d at 883 (emphasis added). Thus, we hold that the

trial court is not required to start its analysis anew in the third prong of the Thomson

analysis.

The trial court here correctly applied the Thomson analysis. It sufficiently

inquired into Thurlby's disappearance and made a reasoned finding of voluntary

absence. It then considered Thurlby's explanation regarding her mother's surgery

3
Although we did not address the third part of the Thomson analysis in Garza, the Court of
Appeals in Garza discussed how the presumption operates at each stage of the Thomson analysis.
See State v. Garza, 112 Wn. App. 312, 321-22, 48 P.3d 385 (2002). Notably, the Court of Appeals
in Garza explained that when the trial court reached the third prong of the Thomson analysis, "the
presumption simply ensures that the court will review the circumstances of the defendant's absence
and attempts to contact the court in a generous light." !d. But because we reversed Garza based on
an erroneous application of the presumption against waiver in the first part of the Thomson
analysis, we did not reach the remainder of the Court of Appeals' interpretation of the presumption
against waiver.
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State v. Thurlby, No. 91220-3

and found that, although understandable, Thurlby' s absence was the product of

choice and therefore voluntary.

Thurlby has not identified any reasonable presumption that the trial court

overlooked or refused to indulge. The trial court was not required to expressly state

that it considered the presumption against waiver, nor was it supposed to begin its

analysis anew when it considered Thurlby's explanation. There was no abuse of

discretion.

IV. CONCLUSION
The trial court did not abuse its discretion by finding that Thurlby was

voluntarily absent from the second day of her jury trial and proceeding to a verdict

in her absence. Additionally, there is no requirement that a trial court expressly state

that it is evaluating a presumption against waiver or that it start the analysis anew in

the third prong of the Thomson analysis upon receiving a defendant's explanation.

We affirm the Court of Appeals.

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State v. Thurlby, No. 91220-3

WE CONCUR:

~,(L.Q,

15