Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                  )         No. 66228-7-I
                       Respondent,
                                                  )         DIVISION ONE
                v.
                                                  )         UNPUBLISHED OPINION
 ROBERT RAY ABBETT,
                                                  )
                       Appellant.                           FILED: March 5, 2012
                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

       Appelwick, J.  --  Due to his fishing job in Alaska, a material witness in the case 

against Abbett was unavailable on the scheduled trial date.  The witness could, 

however, testify in the near future.  The trial court granted a continuance until the date 

the witness was scheduled to return to Washington.  During deliberations, the jury sent 

the trial court an inquiry regarding the meaning of some of the jury instructions.  The 

court and counsel discussed the inquiry and returned an answer in Abbett's absence.  

Abbett argues that the trial court did not have good cause to grant the continuance, and 

that responding to the jury inquiry without him violated his constitutional right to be 

present at all critical stages of trial.  Finding no error, we affirm.

                                            FACTS

       Robert Abbett was charged with residential burglary and taking a motor vehicle  

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without permission.  After he was arraigned on March 9, 2010, trial was set for May 21.  

The defendant was released from custody.  Then, the parties agreed to a series of trial 

continuances.  On May 14, they continued the trial to June 4.  On May 21, they 

continued the trial to June 11.  On June 4, they continued the trial to June 18.  

       On June 17, the State made a motion to continue the trial until August 20:

              MR. HENDRIX:  Your Honor, this case involves property crimes 
       against two victims that are charged . . . . The first victim, the owner of the 
       stolen vehicle . . . is in Alaska; he will not be back until the third week of 
       August.  So we are requesting the continuance to that August 20th date.

              THE COURT:  Is he in Alaska for fun, or because he works there, 
       or what?

              MR. HENDRIX:  He works there.  He is working, fishing in Alaska.

              THE COURT:  All right.

              MR. HENDRIX:  As soon as I was able to get a hold of him -- we 
       had some trouble tracking him down -- I did call [defense counsel] and 
       inform him of that.  We did look into trying to find funds to fly him back, 
       and we couldn't locate the funds to fly him back.  He is unable to afford 
       the air fare, which is about $900.

       After defense counsel objected, the trial court reasoned:

       In terms of your client's right to a speedy trial, I am required to conform to 
       that unless there's a good reason not to.  I am aware that the financial 
       situation for the county, the State, and just about every state in the Union 
       is dire.  I don't believe there is any prejudice to your client to order a 
       continuance regarding the count         regarding the gentleman who is in 
       Alaska and, quite frankly, I see no reason then to not continue the other 
       count or the proposed third count because I see no reason in having two 
       or three trials, from the standpoint of judicial economy.

              So I will find good cause to continue the trial and do so until the 
       third week in August.

       The trial was continued until August 13.  

       On August 6, the parties again agreed to continue the trial until August 27.  

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No. 66228-7-I/3

Finally, on August 30, trial began.  

       During deliberations, the jury inquired:

       What is law's meaning as to "upon" premises?  Instructions (1) says 
       entered or remained . . . . in dwelling (2) that the entering or remaining 
       was with intent to commit a crime.  Seems to be different.

       The trial court notified the State and defense counsel, and held a hearing to 

discuss the inquiry.  At the hearing, the court noted that "the defendant is not present, 

but [defense counsel] is here on his behalf."  The court did not see how the instructions 

were different.  The State recommended directing the jury to the to-convict instruction 

and the specific supplemental instruction that helps explain the elements of the to-

convict instruction.  Defense counsel recommended simply sending a note that they 

have the instructions, and that they should follow them.  With the State's and defense 

counsel's advice, the trial court settled on responding, "You must rely on the court's 

instructions as already provided."  

                                        DISCUSSION

       Abbett argues that the trial court violated his right to a speedy trial when it 

granted the State's motion to continue without good cause.  He also argues it was 

constitutional error for the trial court to discuss a jury inquiry with counsel in his

absence.  

   I.  Continuance

       A defendant not detained in jail is entitled to a trial date within 90 days of 

arraignment.  CrR 3.3(b)(2)(i).  The court may grant a continuance when it is "required 

in the administration of justice and the defendant will not be prejudiced in the 

presentation of his or her defense."  CrR 3.3(f)(2).  We review a decision to grant a 

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No. 66228-7-I/4

continuance for an abuse of discretion.  State v. Yuen, 23 Wn. App. 377, 378-79, 597 

P.2d 401 (1979).  The trial court abuses its discretion when its decision is manifestly 

unreasonable, or exercised on untenable grounds, or for untenable reasons.  State v. 

Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004).

       Abbett argues that granting the continuance in this case violated his speedy trial 

rights.  The State argues that Abbett did not properly preserve the issue for appeal.  

We agree.  The court's obligation to dismiss a prosecution for violation of CrR 3.3 is 

triggered by a motion by the defendant.  State v. Barton, 28 Wn. App. 690, 693, 626 

P.2d 509 (1981).  Although Abbett opposed the continuance, he did not make a motion 

to dismiss.  Accordingly, he did not preserve the issue for appeal.

       Further, we find that the trial court did not abuse its discretion by granting the 

continuance.     The unavailability of a material witness is a legitimate reason for 

continuing a criminal trial when there is a valid reason for the unavailability, the witness 

will become available within a reasonable time, and there is not substantial prejudice to 

the defendant.  State v. Day, 51 Wn. App. 544, 549, 754 P.2d 1021 (1988).  But, the 

State must act with due diligence in seeking to secure the witness's presence at trial.  

State v. Nguyen, 68 Wn. App. 906, 915-16, 847 P.2d 936 (1993).  

       In this case, there was a valid reason for the witness's unavailability.  In State v. 

Grilley, this court reasoned that it was not an abuse of discretion to grant a short 

continuance due to a police officer's previously scheduled vacation.  67 Wn. App. 795, 

799-800, 840 P.2d 903 (1992).        A witness's employment is both more vital and less 

discretionary than a scheduled vacation.  Abbett does not dispute whether the witness 

was actually out-of-state, whether the witness was actually working, or whether the 

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No. 66228-7-I/5

witness could afford to return to Washington for trial.        The witness's employment in 

Alaska was a valid reason for his unavailability.

       Additionally, the witness was willing to testify, and was set to return to 

Washington within a reasonable time.  Prior to the State's motion, Abbett had already 

stipulated to continue the trial nearly a month.  After the court-granted continuance, 

Abbett stipulated to continue the trial another two weeks.  It was not unreasonable to 

continue the trial further to secure a material witness.

       Further, there was no prejudice to Abbett.  As mentioned, he agreed to a series 

of continuances both before and after the challenged continuance.  And, Abbett was 

out of custody.  There is no indication that the continuance inconvenienced, let alone 

prejudiced, Abbett.

       Still, Abbett argues that the State did not exercise due diligence, because it did 

not subpoena the witness.  In State v. Smith, 56 Wn.2d 368, 370, 353 P.2d 155 (1968), 

and State v. Toliver, 6 Wn. App. 531, 532-33, 494 P.2d 514 (1972), the defendants' 

motions to continue to obtain an additional witness were denied.  In each case the 

appellate court determined that the denial was not an abuse of discretion, in part 

because the defendant did not subpoena the witness.  Smith, 56 Wn.2d at 370; Toliver, 

6 Wn. App. at 533.

       In State v. Wake, the State sought a continuance, because an expert witness 

from the state crime lab was unavailable.  56 Wn. App. 472, 473, 783 P.2d 1131 

(1989).  The crime lab was overworked, and there was insufficient staff manage the 

growing number of drug cases.  Id. at 474.  Division III of this court reasoned that if 

congestion could excuse speedy trial rights, then there would be inadequate incentive 

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No. 66228-7-I/6

for the State to remedy the problem.  Id. at 475.  Further, the court noted that the 

prosecutor knew of the conflict before trial was scheduled, but failed to make 

alternative arrangements.  Id. at 475-76.  Ultimately, the court determined that the 

circumstance was not beyond the State's control.  Id. at 476.  Additionally, the court 

noted that the State did not issue a subpoena.  Id. at 473.  It explained that the 

issuance of a subpoena is a critical factor,         because it ensures a record will be 

established to show the reason for the absence and gives the opposing party an 

opportunity to argue the merits of unavailability.  Id. at 476.

       None of those cases require that a subpoena be issued to show due diligence.  

Here, the record indicates that the State contacted the witness, and that the witness 

expressed a willingness to testify.  Abbett does not challenge the merits of the witness's 

unavailability, other than to say the State could have paid to fly him back to 

Washington.  It remains that the reason the witness was unavailable is valid with or 

without a subpoena being served.  The State exercised due diligence to obtain the 

witness's presence at trial.

       Further, Abbett's insistence that the trial court based its decision to continue the 

case on the county's financial constraints is unfounded.  He has not cited to any 

authority that requires the State to import out-of-state witnesses at the State's expense.  

Further, his analogy to Wake is unpersuasive.  In Wake, the continuance was based on 

congestion at the state crime lab.  56 Wn. App. at 474.   The witness was a state 

employee.  Id. at 475.  The problem was created by budget constraints that prevented 

the  State from maintaining an adequate staff.  Id. at 475-76.  In other words, the 

problem itself was State-created.  Here, the witness was not a State employee, and the 

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No. 66228-7-I/7

fact that the witness worked in Alaska was not within the State's control.

       It was not an abuse of discretion to grant a continuance when a material out-of-

state witness was willing, but unable, to testify on the scheduled trial date.

   II. Jury Inquiry

       A criminal defendant has a fundamental right to be present at all critical stages 

of a trial.  State v. Irby, 170 Wn.2d 874, 880, 246 P.3d 796 (2011).  The right exists 

whenever the defendant's presence has a reasonably substantial relation to the 

fullness of his opportunity to defend against the charge.  Id. at 881.  The right only 

exists to the extent that a fair and just hearing would be thwarted by the defendant's 

absence.  Id.   Thus, there is no right to be present when the defendant's "'presence 

would be useless, or the benefit but a shadow.'"  Id. (quoting Snyder v. Massachusetts, 

291 U.S. 97, 106-07, 54 S. Ct. 330, 78 L. Ed. 674 (1934), overruled in part sub nom

Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)).  The defendant 

does not have a right to be present during conferences between the court and counsel 

on legal matters, unless those matters require a resolution of disputed facts.  In re of 

Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835 (1994). So long as defense 

counsel is present, the trial court is permitted to give the jury information on a point of 

law in the absence of the defendant.  State v. Brown, 29 Wn. App. 11, 16, 627 P.2d 132 

(1981).

       Abbett claims that discussing the jury instructions in his absence                   was 

constitutional error.  He argues that the jury's question was not a purely legal matter, 

and went to the heart of the case.  Further, he posits that had he been present, he 

could have provided a more complete response to the inquiry.  

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No. 66228-7-I/8

       Abbett's position is untenable.  The meaning of a jury instruction is a legal 

matter.  Although Abbett proffers that he could have provided a more adequate 

response, he does not hint at what that more appropriate response would have been.  It 

did not violate Abbett's constitutional right to be present when the trial court discussed 

a purely legal question with counsel in Abbett's absence.

       We affirm.

WE CONCUR:

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