Appeal from Cowlitz Superior Court. Docket No: 12-1-00966-7. Judgment or order under review. Date filed: 03/21/2013. Judge signing: Honorable Michael H Evans.
Catherine E. Glinski (of Glinski Law Firm PLLC ), for appellant.
Susan I. Baur, Prosecuting Attorney, and David Phelan, Deputy, for respondent.
Concurring: Lisa Worswick, Linda Cj Lee.
[184 Wn.App. 919]
[¶1] Tammera Michelle Thurlby appeals her three convictions for unlawful delivery of a controlled substance. She argues that the trial court (1) violated her constitutional right to be present when it resumed the second day of trial in her absence and (2) failed to adequately consider on the record the presumption against waiver of her right to be present at trial. We hold that the [184 Wn.App. 920] trial court did not abuse its discretion in continuing the trial in Thurlby's absence and that the trial court adequately considered on the record the presumption against waiver. Therefore, we affirm.
[¶2] On August 31, 2012 the State charged Tammera Michelle Thurlby with three counts of unlawful delivery of a controlled substance (methamphetamines) within 1,000 feet of a school bus route stop. Thurlby was present in the courtroom when her trial began on December 11, 2012. On that day, the trial court empaneled a jury and the State presented six of nine witnesses. Before the court recessed for the day, Thurlby's counsel instructed her to arrive at court before 9:00 am the next day; Thurlby replied, " Okay." 1 Verbatim Report of Proceedings (VRP) at 103.
[¶3] When the trial court reconvened shortly after 9:00 am the next morning, Thurlby was not present in the courtroom. Thurlby's counsel stated that he did not have a telephone number to contact her. The trial court agreed to wait a few minutes before issuing a bench warrant, but almost 15 minutes later Thurlby still had not appeared. The trial court then issued a bench warrant; officers searched for Thurlby that morning but could not find her. During the recess, the trial court also inquired with the St. John's Medical Center's patient intake department and the emergency room department, the court administration office, the clerk's office, and the jail but was unable to locate Thurlby and confirmed that none of these facilities had received a phone call from Thurlby. The trial court then took another recess until 1:30 pm to allow more time for officers to find Thurlby.
[184 Wn.App. 921] [¶4] Following that recess, defense counsel made a motion for a mistrial or continuance, which the trial court denied. The trial court (1) made a preliminary finding that Thurlby was voluntarily absent because the trial court had not heard any good cause for her absence, (2) noted that rescheduling the trial would be difficult given the number of people involved in presenting the State's case, and (3) ruled that the trial would proceed without Thurlby in attendance. The trial resumed, and the jury returned guilty verdicts and special verdicts on each of the three charges against Thurlby.
[¶5] On March 21, 2013, the trial court reconvened for sentencing after Thurlby was taken into custody on February 13, 2013. Before sentencing, the trial court provided Thurlby an opportunity to explain her absence on the second day of trial; under oath Thurlby explained that her mother had serious health issues ...