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State v. Brown

Court of Appeals of Washington, Division 2

November 19, 2013

The State of Washington, Respondent,
Johnnie G. Brown, Appellant

Appeal from Pierce County Superior Court. Docket No: 01-1-03585-3. Date filed: 10/07/2011. Judge signing: Honorable James R Orlando.

Stephanie C. Cunningham, for appellant.

Mark E. Lindquist, Prosecuting Attorney, and Kimberley A. DeMarco, Deputy, for respondent.

AUTHOR: Thomas R .Bjorgen, J. Joel Penoyar, J. concurs. J. Robin Hunt, P.J. concurs.


Page 1018

Bjorgen, J.

[178 Wn.App. 73] ¶ 1 After a trial conducted partially in absentia, a jury found Johnnie Gerard Brown guilty of child rape and incest. Nine years later, authorities apprehended Brown, who had absconded to another state, and returned him to Washington for sentencing. The sentencing court declined to order a presentence report before imposing the maximum standard-range term of incarceration. Brown appeals, arguing (1) that the trial court improperly tried him in absentia in violation of his right under CrR 3.4 to be present at all stages of trial and (2) that the sentencing court committed reversible error when it sentenced him for a felony sex offense without first ordering a presentence report. Because his trial had commenced before Brown absconded, we affirm the convictions. Because the trial court did not order or consider the presentence report mandated by former RCW 9.94A.110 (2000), recodified as RCW 9.94A.500, before sentencing Brown for a felony sex offense, we vacate the sentence and remand for resentencing.

Page 1019


¶ 2 The State charged Brown with two counts of second degree child rape or, in the alternative, two counts of first degree child molestation; and one count of first degree incest. Having posted a $100,000 bail bond, Brown appeared out of custody on April 17, 2002, and was present when the trial court called the case for trial and administered the initial oath to the 50-person venire. After introducing the attorneys to the venire and giving preliminary instructions, the trial court excused the potential jurors with instructions to fill out a questionnaire and return the following day.

¶ 3 Brown appeared the next day and was present when the State moved to strike the jury venire because " the case ha[d] gotten more complicated." Verbatim Report of Proceedings (VRP) (Apr. 17, 2002) at 19. The defense joined the [178 Wn.App. 74] motion. Both sides expressed concern that as many as half of the potential jurors had personal reservations related to the nature of the case or wanted to be questioned privately, and both sides wanted additional time to interview newly discovered potential witnesses and make related motions. Brown's counsel stated that " [f]rom the defense perspective, I couldn't imagine that we could get a worse draw of jurors" with a different venire. VRP (Apr. 17, 2002) at 21. With Brown still present, the trial court excused the venire and " recess[ed] the case until May 6th." VRP (Apr. 17, 2002) at 32-33. As soon as the jurors left, the court began hearing testimony on the admissibility under CrR 3.5 of statements Brown made to police.

¶ 4 Brown appeared again on April 22, 2002, and the court heard testimony and argument on the competency of two child witnesses and the admissibility under ER 404(b) of other child sex abuse accusations against Brown. The court scheduled the final ER 404(b) testimony for May 6 and the swearing in of a new jury venire for May 7.

¶ 5 Brown did not appear on May 6, 2002.[1] His counsel affirmed that Brown had been informed the proceedings would continue on that date and that counsel had made every effort to contact him. On May 15, the court reconvened, made preliminary determinations that trial had commenced and Brown's continuing absence was voluntary, and decided to proceed in absentia if Brown's whereabouts remained unknown the following day.

¶ 6 Brown did not appear, and the trial court administered the oath to a new venire on May 20, 2002. A jury was selected and began hearing testimony in Brown's absence the next day. The jury returned a verdict of guilty on the incest count and on both child rape counts.

¶ 7 After his extradition nine years later, Brown appeared in custody for sentencing on October 7, 2011. At the [178 Wn.App. 75] hearing, Brown's defense counsel requested a continuance, informing the court that " [t]here's been no presentence investigation conducted in this case, and that's mandatory in a sex case." VRP (Oct. 7, 2011) at 8. The prosecutor expressed the belief that the statute in effect at the time of Brown's conviction did not require such a report. The trial court agreed that no report was required and imposed the maximum standard-range sentence for each count, to run concurrently, for a total of 280 months.

¶ 8 Brown timely appeals.


I. Trial in Absentia

¶ 9 Brown argues that the trial court improperly tried him in absentia in violation of his right to be present. Specifically, Brown asserts that the trial did not " commence" in his presence for purposes of CrR 3.4, even though a venire took the oath in his presence, because the jury that determined his guilt was selected from a different panel, one not sworn in Brown's presence.

¶ 10 Whether a defendant who witnessed the swearing of a venire may properly be tried in absentia before a jury selected from a different venire appears to be an issue of first impression. Because the requirement

Page 1020

that trial commence in the defendant's presence is intended to ensure that waiver of the right to be present at trial is knowing, and because shortly before his disappearance Brown witnessed the swearing of a jury panel to try him for the same charges on which he was convicted, we hold that trial had commenced and the court below properly tried Brown in absentia.

¶ 11 We review construction of court rules de novo. State v. Bertrand, 165 Wn.App. 393, 414, 267 P.3d 511 (2011) (citing State v. Robinson, 153 Wn.2d 689, 693, 107 P.3d 90 (2005)), review denied, 175 Wn.2d 1014, 287 P.3d 10 [178 Wn.App. 76] (2010). We interpret a court rule as though it were enacted by the legislature, giving effect to its plain meaning as an expression of legislative intent. State v. Chhom, 162 Wn.2d 451, 458, 173 P.3d 234 (2007). Plain meaning, in turn, is discerned by " reading the rule as a whole, harmonizing its provisions, and using related rules" to help identify the intent behind it. Chhom, 162 Wn.2d at 458.

¶ 12 CrR 3.4, " Presence of the Defendant," provides in relevant part:

(a) When Necessary. The defendant shall be present at the arraignment, at every stage of the trial including the empaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules, or as excused or excluded by the court for good cause shown.
(b) Effect of Voluntary Absence. ... [ T ] he defendant's voluntary absence after the trial has commenced in his or her presence shall not prevent continuing the trial ...

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