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State v. Brown, 42752-4II - Trial in Absentia

In State v. Brown, the Court of Appeals was asked to decide whether it was appropriate to proceed forward on a trial in absentia (the defendant had left the jurisdiction), and whether a presentencing report was required when sentencing a defendant for a sex crime.

Mr. Brown was charged with two counts of second-degree child rape, or alternatively two counts of first degree child molestation, and one count of first-degree incest. Mr. Brown appeared for court on April 17, 2002, when the case was called for trial and the initial oath was administered to a 50-person venire. The jury venire is the group from which jurors may be selected. The next day the State moved to strike the jury venire, with the defense joining in this motion. The court excused the jury venire and set over the case until May 6, 2002. Mr. Brown again appeared on April 22, 2002 for motions hearings. On May 6, 2002, Mr. Brown did not appear for court. On May 15, 2002, the Court reconvened the trial and held that the trial had commenced and that Mr. Brown's absence was voluntary and proceeded to trial in absentia. Mr. Brown was convicted of two counts of child rape and a count of incest.

After his extradition (nine ears later), Mr. Brown was returned to the court for sentencing. The defense requested a continuance so that a presentencing report could be generated. The state asserted (and the court agreed), that the presentencing report was not required. The Court imposed the high end of 280 months.

Trial in Absentia

The issue was whether the defendant could be tried in absentia, when he had witnessed the swearing of a venire, but that venire was excused and a jury selected from a second venire.

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

  1. 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.
  2. Effect of Voluntary Absence.
The defendant's voluntary absence after the trial has commenced in his or her presence shall not prevent continuing the trial to and including the return of the verdict.

The court acknowledged that trial in absentia is disfavored but allowed when the trial has commenced and the defendant's absence is voluntary. State v. Jackson, 124 Wn. 2d 359, 361, 878 P.2d 453 (1994). State case law indicates that trial commences no sooner and no later than when the jury panel is sworn for Voir dire (Voir dire is used to determine if any juror is biased and/or cannot deal with the issues fairly, or if there is cause not to allow a juror to serve). State v. Crafton, 72 Wn. App. 98, 103, 863 P.2d 620 (1993).

Mr. Brown asserted that "the jury panel" refers to the actual jury that hears the case. The court rejected this argument and held that since Mr. Brown had seen a jury venire sworn in, and was given a specific time to return, trial had begun and CrR 3.4 allowed the court to continue the trial in his absence.

Presentencing Report

The Court sentenced Mr. Brown without having a presentencing report performed. Former RCW 9.94A.110 required a presentence report before sentencing on a sex crime. At the time of his conviction, RCW 9.94A.110 stated:

The court shall at the time of plea or conviction order the [Department of Corrections] to complete a presentence report before imposing a sentence upon a defendant who has been convicted of a felony sexual offense... the court shall consider the risk assement and presentence reports.

Due to the use of the word shall, the court held that the review of the presentencing report was mandatory review. An interesting disagreement presented between the majority opinion and the dissent. The dissent argued that it was clear that the sentencing judge would not be swayed by the presentence report and that to require it was a waste of judicial resources.

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