State of Washington v. William George Nicol ( 2020 )

FILED
MARCH 26, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 36059-8-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
WILLIAM GEORGE NICOL, )
)
Appellant. )
PENNELL, C.J. — William Nicol appeals his convictions for two counts of first
degree rape of a child and one count of first degree child molestation. We affirm.
BACKGROUND
The facts relevant to Mr. Nicol’s appeal pertain to events that happened during
and after his jury trial. We therefore limit our discussion to those circumstances.
No. 36059-8-III
State v. Nicol
Mr. Nicol was released from custody pretrial. Once trial began on October 17,
2016, Mr. Nicol timely appeared for each day of trial. Deliberations began on October 21,
2016, at approximately 11:49 a.m. At 4:13 p.m., the jury issued a question, asking “[d]oes
each count of rape need to be in a different location or just that the victim was raped
multiple times?” Clerk’s Papers at 77. Mr. Nicol was present as the court read the
question and the parties agreed on a response. But when court reconvened in response to
the bailiff’s report that the jury had reached a verdict, Mr. Nicol did not appear.
The trial court asked Mr. Nicol’s attorney about Mr. Nicol’s whereabouts. The
attorney stated he did not know Mr. Nicol’s location. The attorney explained that he
spoke with Mr. Nicol after the jury’s question and informed Mr. Nicol he “thought that
[Mr. Nicol] was going to be found guilty.” Report of Proceedings (RP) (Oct. 21, 2016) at
845. Mr. Nicol responded to this information by telling his attorney that he was heading
to the bathroom. When the attorney learned the jury reached a verdict, he called Mr. Nicol
by phone, but Mr. Nicol did not respond. To determine how to proceed, the court
considered CrR 3.4 and State v. Thomson, 123 Wash. 2d 877, 880-81, 872 P.2d 1097 (1994)
(considering waiver of right to be present at trial under state and federal constitutions and
rules of criminal procedure).
A security officer provided testimony relevant to Mr. Nicol’s absence. The officer
explained he screened individuals entering the courthouse the week of trial. At about
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4:45 p.m. on October 21, 2016, the security officer noticed a man in his late sixties
leaving the courthouse and jogging away. The officer recognized the man as someone he
had seen coming and going from the courthouse earlier in the week. The trial court later
made a factual finding that the man observed by the security officer was “probably” Mr.
Nicol. RP (Oct. 21, 2016) at 857.
After hearing the security officer’s testimony, the court asked Mr. Nicol’s attorney
to again explain for the record, “as an officer of the court,” his efforts to contact Mr.
Nicol Id. at 854-55. The court first emphasized it was not asking the attorney to “disclose
any conversations” with his client. Id. at 854. The attorney then reiterated he talked with
Mr. Nicol, Mr. Nicol left for the bathroom, and the attorney called Mr. Nicol twice
without answer. The attorney did not repeat the substance of his conversation with Mr.
Nicol, although the prosecutor emphasized the attorney had already stated on the record
that he “told his client he thought he was going to be found guilty.” Id. at 856. Mr.
Nicol’s attorney further indicated he could not waive his client’s right to be present at the
verdict.
Based on the foregoing circumstances, the trial court found Mr. Nicol voluntarily
absented himself from trial. The court decided to hear the verdict without Mr. Nicol
present. Mr. Nicol was convicted as charged.
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After discharging the jury, the court ordered a nationwide bench warrant for
Mr. Nicol’s arrest. Mr. Nicol did not reappear for over a year. Once back in court and
represented by new counsel, Mr. Nicol filed a motion to set aside the court’s finding of
voluntary absence. The motion was denied. A judgment and sentence was issued on
April 19, 2018.
Mr. Nicol appeals.
ANALYSIS
The only argument on appeal pertains to the trial court’s determination that Mr.
Nicol voluntarily absented himself at trial. We review this issue for abuse of discretion.
State v. Thurlby, 184 Wash. 2d 618, 624, 359 P.3d 793 (2015).
“The Sixth Amendment and the due process clauses of the Fifth and Fourteenth
Amendments to the United States Constitution, and article I, section 22 of our state
constitution all guarantee the right of the criminal defendant to be present at his or her
own trial.” Thurlby, 184 Wash. 2d at 624 (citing Thomson, 123 Wash. 2d at 880). A defendant
can knowingly and voluntarily waive this right. Thurlby, 184 Wash. 2d at 624. Waiver “may
be express or implied.” Id. “If a trial has begun in the defendant’s presence, a subsequent
voluntary absence of the defendant operates as an implied waiver of the right to be
present.” Id. “Our rules of criminal procedure similarly permit the court to continue with
trial despite a defendant’s voluntary absence, provided that the defendant was present
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when the trial commenced.” Id. at 624-25 (citing CrR 3.4(b)); see also Thomson, 123
Wash. 2d at 880-81 (Noting CrR 3.4’s consistency “with its federal counterpart,” Federal
Rule of Criminal Procedure 43.)
A three-part test governs a trial court’s determination of whether a defendant
waived the right to be present. The court must (1) “make a sufficient inquiry into the
circumstances of the defendant’s absence[,]” (2) “make a preliminary finding of
voluntariness[,]” and (3) “provide the defendant with an opportunity to explain the
absence when he or she is returned to custody and before any sentence is imposed.”
Thurlby, 184 Wash. 2d at 625-26 (citing Thomson, 123 Wash. 2d at 881). “In performing this
analysis, the trial court must . . . indulge every reasonable presumption against waiver.”
Thurlby, 184 Wash. 2d at 626.
Here, the trial court expressly considered appropriate precedent, Thomson, before
examining the totality of the circumstances to find Mr. Nicol waived his right to be
present at his verdict. Mr. Nicol chose to be present in a timely manner for every day of
trial, and was present immediately before the court was ready to hear the verdict. He did
not respond to his attorney’s attempts to contact him over the phone. The court also
found, based on the security officer’s testimony, Mr. Nicol quickly left the courthouse
before the verdict. This inquiry into Mr. Nicol’s absence was limited, but Mr. Nicol does
not argue it was insufficient. Mr. Nicol instead cites precedent regarding a defendant who
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attended only various pretrial proceedings before trial went forward in his absence. State
v. Jackson, 124 Wash. 2d 359, 878 P.2d 453 (1994). This precedent does not apply to a
defendant who attended all five days of his trial only to disappear immediately before his
verdict.
Mr. Nicol also emphasizes his trial attorney’s public admission of the conversation
they shared just before Mr. Nicol’s disappearance. The propriety of the attorney’s
explanation is not relevant to this appeal. After the attorney recounted his explanation of
the predicted jury verdict to Mr. Nicol, the trial court expressly directed that the attorney
need not reveal the substance of his communications with his client. The court instead
focused on the attorney’s efforts to contact Mr. Nicol. The court made no findings
regarding the attorney-client communication, and did not mention the communication
when concluding Mr. Nicol was voluntarily absent. The trial court’s inquiry was
sufficient. Given that inquiry, the court also had ample basis to preliminarily find Mr.
Nicol voluntarily absent.
The record does not indicate whether the trial court ever completed the third prong
of the aforementioned test. However, Mr. Nicol’s appellate brief does not raise this issue.
After Mr. Nicol’s reappearance, he had ample opportunity to explain his absence prior to
sentencing. Given the lack of explanation, there is no indication the court abused its
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discretion by finding Mr. Nicol was voluntarily absent from trial, and then hearing the
verdict without him present.
CONCLUSION
The judgment of conviction is affirmed.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Pennell, C.J.
WE CONCUR:
Siddoway, J.
Fearing, J.
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