Oral Argument December 4, 2013.
Appeal from Benton Superior Court. Docket No: 09-1-00221-9. Date filed: 02/24/2012. Judge signing: Honorable Cameron Mitchell.
Eric J. Nielsen and Jared B. Steed (of Nielsen Broman & Koch PLLC ), for appellant.
Andrew K. Miller, Prosecuting Attorney, for respondent.
AUTHOR: Kevin M. Korsmo, C.J. WE CONCUR: Stephen M. Brown, J., Laurel H. Siddoway, J.
[179 Wn.App. 525] ¶ 1 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.
¶ 2 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.
¶ 3 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. 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.
¶ 4 The prosecutor's cocounsel 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 5 minutes late. He appeared within the 15 minute window. The following day, January 18, Mr. Cobarruvias was again late. His counsel [179 Wn.App. 526] 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.
¶ 5 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.
¶ 6 The beginning of trial 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.
¶ 7 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 ...