Opinion
No. 56032-8-I.
June 19, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-8-03774-5, Philip G. Hubbard, Jr., J., entered March 17, 2005.
Counsel for Appellant(s), Elaine L. Winters, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), James J. Holland, King County Prosecutor's Office, W554 King County Courthouse, Seattle, WA 98104.
Affirmed by unpublished per curiam opinion.
V.A. appeals his juvenile adjudication for animal cruelty in the first degree. He contends that the juvenile court's denial of his request for a short continuance to secure the presence of a defense witness was erroneous. We hold that the court did not abuse its discretion or violate V.A.'s constitutional rights to due process and compulsory process by denying V.A.'s request for the continuance. Accordingly, we affirm.
FACTS
Late one evening, Vanessa Simmons confronted a juvenile outside her residence who she believed had just attacked her younger brother with a knife. During the confrontation, Simmons' tiny Chihuahua approached the youth and barked three times. The youth then pulled a knife out of his jacket and swung the handle down on the dog's head, fracturing her skull. The dog eventually had to be euthanized.
V.A. was charged in juvenile court with one count of animal cruelty in the first degree. On the day of the scheduled adjudicatory hearing, defense witness R.E. did not appear in court. Defense counsel advised the court that R.E had been personally served with a subpoena to appear in the case and that his testimony was `critical' because he would testify that V.A.'s brother was the one who actually clubbed the dog. Defense counsel asked that the court issue a material witness warrant. The court granted that request, but denied a further continuance. The court explained:
I'll issue the warrant, but we're not going to continue the trial pending its execution. If the case has gotten to the point where you need to call the witness and he isn't here, you're going to have to rest. But I'll issue the warrant. Have you got one for me to sign?
Report of Proceedings (RP) (Apr. 22, 2005) at 9.
Simmons positively identified V.A. as the person who struck her dog on the head with the handle of the knife. Two other eyewitnesses testified to similar facts. After the State had called all of its witnesses, the trial court asked the defense if it was ready to proceed. Defense counsel replied that the defense was `only ready to proceed once we have [R.E.] who is the witness under material witness warrant.' RP (Apr. 22, 2005) at 77. The following colloquy then took place:
THE COURT: I'm not going to do that. I'm not going to recess this trial with the respondent in custody on the possibility that a warrant might be executed. That person may be who knows where. And the respondent shouldn't remain in custody for this indefinite period of time. Furthermore, I have another trial that's going tomorrow afternoon, and this one isn't.
MS. McKEE: Okay. And if I could just run outside and make sure he's not here. THE COURT: Absolutely, I will give you that opportunity. Did anyone call him during the trial to tell him that, you know, this document had been signed? Maybe they did. Maybe there's a message waiting for you. But, yes, I'll give you that chance.
THE COURT: Court's in recess.
RP (Apr. 22, 2005) at 83. When proceedings resumed, defense counsel again requested a recess `until tomorrow until [R.E.] can come.' RP (Apr. 22, 2005) at 83. The court denied the request, stating
The court adheres to its previous ruling that I would issue the warrant but that I would not recess the trial for what we would have to recognize as an uncertain and indefinite period of time with the respondent in custody for this witness.
RP (Apr. 22, 2005) at 84. In light of the court's ruling, the defense rested. The juvenile court found V.A. guilty as charged. This appeal followed.
DECISION
V.A. contends that the juvenile court erroneously refused to grant his request to continue the adjudication to secure V.A.'s testimony and that the refusal constituted a denial of his constitutional rights to due process and compulsory process. We disagree.
Under both the state and federal constitutions, a criminal defendant has a right to compel the attendance of witnesses. State v. Downing, 151 Wn.2d 265, 274-75, 87 P.3d 1169 (2004). `The right to compulsory process includes the right to present a defense.' State v. Roberts, 80 Wn. App. 342, 350, 908 P.2d 892 (1996). But that right is not without limitations. State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996). When a continuance is requested to locate a missing witness, the accused must show that the witness can probably be found if the continuance is granted. State v. Lane, 56 Wn. App. 286, 296, 786 P.2d 277 (1989). Where error has been assigned to the denial of a continuance, the reviewing court must examine the totality of the circumstances. State v. Jennings, 35 Wn. App. 216, 220, 666 P.2d 381 (1983). `Whether the denial of a continuance rises to the level of a constitutional violation requires a case-by-case inquiry.' Downing, 151 Wn.2d at 275. Relevant factors to be considered include `surprise, diligence, redundancy, due process, materiality, and maintenance of orderly procedure." Downing, 151 Wn.2d at 273.
In this setting, a trial court's decision to deny a continuance is reviewed for a manifest abuse of discretion. State v. Adamski, 111 Wn.2d 574, 577, 761 P.2d 621 (1988). In order to demonstrate that the trial court abused its discretion, the appellant must make a "clear showing" that the decision by the trial court is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex. rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Here, the record demonstrates that the trial court did not abuse its discretion when it denied V.A.'s motion to continue the adjudication until the following day. The juvenile court advised the defense when it issued the material witness warrant that no continuance would be granted. Despite being under subpoena and being instructed by both a defense investigator and defense counsel that his appearance was necessary, R.E. failed to appear. There is simply no basis upon which one may reasonably conclude that R.E. would be unavailable one day and available the next. While it is true that V.A. took some steps to ensure the attendance of R.E., the record is silent on what, if any, measures were taken to make sure R.E. was still available and willing to testify after he failed to appear. Nothing suggests that V.A. even attempted to contact R.E. about his failure to attend the hearing. Nor are we willing to speculate on why V.A. didn't do more. Moreover, if the juvenile court had granted the continuance, it would have had to juggle its upcoming schedule. The court's denial of V.A.'s request for a continuance did not violate V.A.'s constitutional rights to due process and compulsory process. While reasonable minds may differ, we cannot say that the juvenile court abused its discretion to deny the continuance.
V.A. asserts that he `barely had time to give the warrant to police before the hearing began' and `may have needed his investigator to remain in the courthouse in case she was needed to impeach the State's witnesses.' Reply Brief of Appellant at 4. But V.A. did not raise any similar objections in the adjudicatory hearing.
Affirmed.
COLEMAN, DWYER and ELLINGTON, JJ.