            FILE                                                                        THIS OPINION WAS FILED
                                                                                       FOR RECORD AT 8 A.M. ON
       IN CLERK’S OFFICE                                                                     APRIL 30, 2020
SUPREME COURT, STATE OF WASHINGTON
         APRIL 30, 2020
                                                                                         SUSAN L. CARLSON
                                                                                       SUPREME COURT CLERK




                  IN THE SUPREME COURT OF THE STATE OF WASHINGTON



        STATE OF WASHINGTON,                    )
                                                )               No. 96663-0
                         Petitioner,            )
                                                )
                   v.                           )
                                                )               En Banc
        KEITH ADAIR DAVIS,                      )
                                                )
                         Respondent.            )               Filed April 30, 2020
        _______________________________________)


               MADSEN, J.—Keith Davis argues that his right to be present at trial was violated

        when the trial court found that he voluntarily absented himself, he was removed from the

        courtroom, and the State proceeded to examine witnesses without Davis in attendance.

        Because the trial judge did not abuse her discretion in finding that Davis’s absence was

        voluntary, we reverse the Court of Appeals and affirm the trial court.

                                            BACKGROUND

               In January 2014, Keith Davis was arrested for possession of a stolen vehicle. In

        February 2014, Davis was arrested again for possession of a different stolen vehicle.

        Police also discovered crack cocaine in Davis’s possession after conducting a search
No. 96663-0


incident to arrest. In March 2014, the State charged Davis with two counts of possessing

a stolen vehicle and one count of possession of a controlled substance. On February 6,

2015, Davis waived his right to counsel. During his colloquy with the trial judge, Davis

asked how he could request standby counsel. The judge informed Davis he could move

for standby counsel but the motions were unlikely to be granted. The court then found

Davis knowingly and voluntarily waived his right to counsel, and he proceeded pro se.

       Davis obtained an investigator, reviewed discovery materials, and located

potential witnesses. The investigator interviewed some of these witnesses and shared his

findings with Davis. During pretrial and case setting hearings, Davis continually asked

for standby counsel and repeated his frustrations about preparing to defend himself while

incarcerated. The court continued to deny standby counsel, noting that such counsel is

not constitutionally required and raises ethical issues.

       On February 27, 2017, the parties appeared for trial. Davis renewed his request

for a continuance. He stated that he was unprepared based on his significant medical

conditions, 1 an incomplete investigation, and the alleged withholding of discovery

materials from the State. Regarding his medical issues, the court allowed Davis to break

every hour during trial to use the restroom and supplied him with sufficient water to meet

his needs. Davis agreed. The judge also spoke with Davis’s investigator and heard from

the prosecution that both the investigation and discovery were complete. The judge then


1
  Davis suffered from multiple sclerosis, a ruptured hernia, and an obstructed bowel, and was
scheduled for several medical procedures. These conditions caused Davis considerable pain and
led to dehydration, requiring him to consume large quantities of water and, consequently, to
frequently break to use the restroom facilities.

                                              2
No. 96663-0


denied Davis’s motion to continue. Davis responded that he was not ready for trial and

renewed his request for standby counsel (what he referred to as “hybrid standby”

counsel). 1 Record of Proceedings (RP) (Feb. 27, 2017) at 184, 193, 195-96. The court

attempted to clarify if Davis meant he was withdrawing as his own counsel and

requesting new counsel. Davis stated that he would not go to trial and that the court

could “go to trial without [him]”; he said he was “not coming to trial” and “you guys can

hold trial without me. Right? You do that? . . . Because I’m not coming.” Id. at 189-92;

see also id. at 193, 195-98. The presiding judge filed her written ruling denying Davis’s

motions to continue and to withdraw from representing himself, and did not grant his

request for standby counsel. The judge then recused herself after discovering she had

previously worked with Davis’s sister. The case was reassigned to Judge Julie Spector.

       At the CrR 3.5 hearing, Davis again sought a continuance and attempted to

withdraw as his own counsel. The judge denied both motions. In response, Davis

became irate. He screamed that he wanted a new judge. The court warned Davis that

outbursts and disruptions would lead to his removal. 2 RP (Mar. 2, 2017) at 380-82. 2

Davis said, “You can remove me now. What have we been doing here? I don’t even



2
 The record indicates that the trial judge warned Davis that should he be removed, he would be
able to observe proceedings from another location. However, because Davis interrupted
proceedings, the court was unable to finish its statement:
        THE COURT: If you are disruptive I will have you removed from the court. You
        can observe the court proceedings—
        MR. DAVIS: You can remove me now.
2 RP (Mar. 2, 2017) at 380. Despite the incomplete statement, Davis appears to accept that the
warning occurred. See Suppl. Br. of Resp’t at 3 (“The trial court warned Davis if he continued to
be disruptive, he would be removed to observe the court proceedings elsewhere.”).

                                               3
No. 96663-0


want to be here. So remove me. I don’t care. I told you that. You can hold your trial

without me.” Id. at 380; see also id. at 382 (the court stated that it would begin with jury

selection, and Davis replied, “With or without me. . . . I’m not going to be here”).

       Davis returned to court and represented himself without significant incident until

the State commenced its case in chief. The State called two officers involved in Davis’s

January 2014 arrest for possession of a stolen vehicle. Davis cross-examined the

witnesses and eventually asked for a break to use the restroom facilities. After a brief

recess, the court reconvened and Davis saw the water on his table had been removed.

The court explained that Davis had increased his water intake such that he was using the

restroom every 25 minutes instead of every hour as he had agreed. With two witnesses

left to examine that day, the court told Davis that he would receive no more water. Davis

then began a “tirade of expletives, pounding on the table with his fists, and yelling at an

extremely loud volume, . . . at one point scream[ing] ‘F**k you, Spector!’ to the Court.”

Clerk’s Papers (CP) at 141; Tr. of Proceedings (Mar. 7, 2017) (TP) at 200. Davis was

warned that “he would be removed from the courtroom” “if he was going to continue to

raise his voice and curse.” CP at 142.

       The State attempted to proceed with questioning witnesses, but Davis refused to

cease his outbursts. The judge temporarily cleared the jury. Davis repeatedly said, “You

can hold your trial without me,” and the court replied, “I’m going to do that.” TP at 205.

Davis went as far as to remark, “Thank you. Thank you. Just go ahead with your

kangaroo court . . . . I’m done with it.” Id. at 205-06. During this exchange, Davis




                                              4
No. 96663-0


shouted at the “top of his lungs, swearing” and apparently moved to exit the courtroom.

Id. at 208; CP at 142. The judge stopped Davis in order to make an oral ruling. She

found that Davis was voluntarily absenting himself from the proceedings under State v.

Garza, 150 Wn.2d 360, 365-66, 77 P.3d 347 (2003), noting that Davis intentionally drank

more water in order to delay trial with bathroom breaks, often during critical portions of

witness testimony. The court’s written ruling found that Davis’s outbursts grew “so loud

that . . . the courtroom across the hall . . . was forced to recess because the parties were

unable to hear their own witness.” CP at 142. “The volume was such that the Court was

unable to speak over [Davis].” Id.

       After Davis left the courtroom, the jury returned and the State resumed its direct

examination. The State questioned officers involved in Davis’s February 2014 arrest,

asking about the cocaine discovered in his possession and his voluntary statements given

after arrest. Davis was not present to cross-examine either witness. He was absent for

approximately 50 minutes of trial.

       The following day, Davis returned. The court warned him that any profanity or

disruptions would result in his removal. Davis agreed, though he continued to interrupt

and ask for standby counsel, which the court denied. Despite Davis’s combative

behavior, the trial proceeded with Davis present. Davis was convicted on all counts.

       On appeal, Davis argued that the trial court violated his right to be present when it

removed him from the courtroom. The Court of Appeals agreed that he was removed but

concluded the trial court was not required to consider less restrictive means before




                                               5
No. 96663-0


removing him. State v. Davis, 6 Wn. App. 2d 43, 54-57, 429 P.3d 534 (2018). Davis

also asserted he was without representation when the State examined witnesses testifying

to his February 2014 arrest and therefore violated his Sixth Amendment right to

representation. Id. at 62. The Court of Appeals agreed and reversed Davis’s convictions

for possession of a stolen vehicle and possession of a controlled substance, and remanded

for a new trial. Id. at 62-63. The State sought review here, asking us to review whether a

defendant may voluntarily absent him- or herself from trial based on disruptive behavior

and to clarify the proper standard of review for this inquiry. We granted the State’s

petition. State v. Davis, 192 Wn.2d 1023 (2019).

                                        ANALYSIS

       The State argues that the trial court did not err in finding that Davis waived his

right to be present at trial by voluntarily absenting himself. We agree.

       The Sixth Amendment and the due process clauses of the Fifth and Fourteenth

Amendments to the United States Constitution, as well as article I, section 22 of our state

constitution, guarantee the right of the criminal defendant to be present at his or her own

trial. State v. Thurlby, 184 Wn.2d 618, 624, 359 P.3d 793 (2015) (citing State v.

Thomson, 123 Wn.2d 877, 880, 872 P.2d 1097 (1994)). This right is not absolute,

however. State v. DeWeese, 117 Wn.2d 369, 381, 816 P.2d 1 (1991).

       A criminal defendant may waive the right to be present so long as the waiver is

knowing and voluntary. Thurlby, 184 Wn.2d at 624 (citing State v. Rice, 110 Wn.2d 577,

619, 757 P.2d 889 (1988)). A waiver of the right to be present may be express or




                                              6
No. 96663-0


implied. Id. (citing Thomson, 123 Wn.2d at 881). 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. If the court finds this waiver, it is free to exercise its

discretion to continue the trial without further consideration. Thomson, 123 Wn.2d at

881.

       The United States Supreme Court and this court have held that a defendant’s

persistent, disruptive conduct can constitute a voluntary waiver of the right to be present.

State v. Chapple, 145 Wn.2d 310, 318, 36 P.3d 1025 (2001) (citing Illinois v. Allen, 397

U.S. 337, 343, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970)). The Supreme Court has held

that

       a defendant can lose his right to be present at trial if, after he has been
       warned by the judge that he will be removed if he continues his disruptive
       behavior, he nevertheless insists on conducting himself in a manner so
       disorderly, disruptive, and disrespectful of the court that his trial cannot be
       carried on with him in the courtroom. Once lost, the right to be present can,
       of course, be reclaimed as soon as the defendant is willing to conduct
       himself consistently with the decorum and respect inherent in the concept
       of courts and judicial proceedings.

Allen, 397 U.S. at 343 (footnote omitted). While courts indulge in reasonable

presumptions against the loss of constitutional rights, trial judges who are confronted

with disruptive, “contumacious, stubbornly defiant defendants must be given sufficient

discretion to meet the circumstances of each case. No one formula for maintaining the

appropriate courtroom atmosphere will be best in all situations.” Id. (emphasis added).

       Previous cases analyzing whether an absence was voluntary, and a defendant thus

waived the right to be present, have most often arisen when a defendant fails to appear


                                                7
No. 96663-0


during trial. E.g., Garza, 150 Wn.2d at 367; see also Thurlby, 184 Wn.2d at 624-27. To

determine whether an absence is a waiver, courts have reviewed a number of factors:

inquiring into the circumstances of the failure to appear, making a preliminary finding of

voluntariness (when justified), and providing the defendant an adequate opportunity to

explain his or her absence when returned to custody and before imposing a sentence.

Garza, 150 Wn.2d at 367 (quoting Thomson, 123 Wn.2d at 881). This provides ample

protection of the right to be present because the inquiry ensures that the court will

examine circumstances of a defendant’s absence and conclude the defendant chose not to

be present, as well as providing an opportunity for the defendant to explain his or her

disappearance and rebut the finding of voluntariness. Id.

       While the factors established in Garza and Thomson are properly applied to

defendants who fail to appear during trial, they are less useful in the present case—that is,

when a defendant appears for trial, disrupts court procedure, and announces his wish to

leave the courtroom. To be sure, both situations require the court to determine whether a

defendant has waived the right to be present; but the circumstances surrounding a

disappearing defendant differ from those of a severely disruptive defendant. Unlike a

defendant who fails to appear, leaving a trial court to speculate as to why, a combative

defendant hardly has need to explain his or her absence upon returning: the court

observed firsthand the disruptive behavior or heard the defendant’s intention to absent

him- or herself. Thus, while the question of whether a defendant’s absence was voluntary

remains part of the waiver analysis for both types of defendants, the considerations




                                              8
No. 96663-0


underlying that determination differ. Accordingly, we agree with the Court of Appeals

below that the Garza and Thomson factors are not always applicable: “These factors are

most applicable to situations where a defendant does not appear for court or does not

return to court after a removal. As such, they are not readily applicable to the facts in this

case.” Davis, 6 Wn. App. 2d at 55 (emphasis omitted).

       Nevertheless, Garza and Thomson provide guidance because they provide the test

necessary to answer the primary question before us: whether Davis waived his right to be

present. 3 See Garza, 150 Wn.2d at 367; Thomson, 123 Wn.2d at 881. 4 This

determination depends on the totality of the circumstances. Garza, 150 Wn.2d at 367

(citing Thomson, 123 Wn.2d at 881). We review decisions involving waiver of the right

to be present for abuse of discretion. Id. at 365-66; see also State v. Dye, 178 Wn.2d 541,

547-48, 309 P.3d 1192 (2013) (trial courts “ha[ve] broad discretion to make a variety of



3
  The dissent criticizes the majority for not devising a new test. Dissent at 12. But a new test is
not needed. The inquiry is whether the defendant has waived his right to be present. Garza, 150
Wn.2d at 367. The test for waiver of presence is whether the defendant knew of his right to be
present and that he voluntarily waived that right. That can be determined only by his conduct
and words. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). In
this case, Davis did not follow through on his threats to leave—until he did. He was aware of his
right to be present; the trial court emphasized the importance of his presence, gave a warning that
his conduct would result in a waiver, and invited the defendant to reassert his right to be present
whenever he wished to do so. “A person in custody, as any person, can voluntarily choose to be
absent.” People v. Gutierrez, 29 Cal 4th 1196, 1208, 63 P.3d 1000, 130 Cal. Rptr. 2d 917
(2003). As Davis did here.
4
  The Court of Appeals’ reliance on the foreign decision, State v. Menefee, 268 Or. App. 154,
160-64, 341 P.3d 229 (2014), was unnecessary as our own case law provides the necessary
guidance. Further, Menefee is distinguishable from the current case. In Menefee, the defendant
asked to leave, then returned to court, and when he argued irrelevant law and was told to stop or
be removed, the defendant asked to stay. See id. at 163. Unlike Menefee, Davis did not ask to
stay—indeed, he asked repeatedly to leave the courtroom. E.g., 1 RP (Feb. 27, 2017) at 191-92,
193, 195-98; 2 RP (Mar. 2, 2017) at 380.

                                                9
No. 96663-0


trial management decisions, ranging from ‘the mode and order of interrogating witnesses

and presenting evidence,’ to the admissibility of evidence, to provisions for the order and

security of the courtroom” (footnotes omitted) (quoting ER 611(a))). The court abuses its

discretion when its decision is manifestly unreasonable or is exercised on untenable

grounds or for untenable reasons. Garza, 150 Wn.2d at 366.

       Davis argues that he did not waive his right to be present, he was involuntarily

removed, and the trial court erred in failing to consider less restrictive alternatives to

removal. Black’s Law Dictionary defines “involuntary” as “[n]ot resulting from a free

and unrestrained choice; not subject to control by the will.” BLACK’S LAW DICTIONARY

991 (11th ed. 2019). Unsurprisingly then, the phrase “involuntary removal” means that a

defendant is removed against his or her will.

       This definition comports with our case law on defendants removed from trial

proceedings based on their disruptive behavior. E.g., Chapple, 145 Wn.2d at 320. In

Chapple, the defendant interrupted the court and became increasingly hostile. Id. at 315.

He was eventually removed. The court worked with the defense attorney to find a way

for Chapple to participate in trial. Id. at 316. After hearing testimony from corrections

officers on Chapple’s “size and extraordinary physical strength,” including that he could

break handcuffs, the court determined he should be excluded from the remainder of trial.

Id. at 316-17. But unlike Davis, Chapple did not state that he wished to leave the

proceedings. Davis, on the other hand, insisted that he was “done” and “not coming to




                                              10
No. 96663-0


trial,” 1 RP (Feb. 27, 2017) at 190-91. He knew that proceedings would continue without

him and did not want to be there.

       Far from expressing this desire only once in an angry tirade, Davis stated

numerous times that he did not plan to be at court and that he wanted to leave. E.g., id. at

191-92; see also id. at 193, 195-98. For example, prior to jury selection, the court and

Davis engaged in the following exchange:

              THE COURT: Mr. Davis, Monday morning, you will have three days—
              MR. DAVIS: What about it?
              THE COURT: We will pick a jury.
              MR. DAVIS: I don’t care what you do. I really don’t. I’m going to
       continue to survive with this disease.
              THE COURT: If you are disruptive I will have you removed from the
       court. You can observe the court proceedings—
              MR. DAVIS: You can remove me now. What have we been doing
       here? I don’t even want to be here. So remove me. I don’t care. I told you
       that. You can hold your trial without me. Who cares.
              THE COURT: Well, if you’re disruptive we may have to—
              MR. DAVIS: Well do that. I don’t care. Ask me do I care. I don’t
       care. You can hold your trial at Woodland Park Zoo. Do that.
              ....
              MS. ANDERSON: 9:00 a.m. on Monday, Your Honor?
              THE COURT: We will begin jury selection.
              MR. DAVIS: With or without me.
              THE COURT: Correct.
              MR. DAVIS: I’m not going to be here.

2 RP (Mar. 2, 2017) at 380-82 (emphasis added). Involuntary removal constitutes

removal against one’s will. But as the record indicates, the defendant here was not

removed involuntarily—his removal was purely voluntary. Davis asked to leave the

court, and the trial judge granted his request. Disorderly behavior and consistent requests

to leave the courtroom demonstrate that Davis waived his right to be present. We note




                                             11
No. 96663-0


that while disruptive behavior alone may justify removal, here, Davis’s insistence

throughout trial that he did not wish to be there, wanted to leave, and indeed at one point

physically moved to leave, as well as his disruptive behavior, demonstrates Davis

voluntarily and knowingly left the courtroom, waiving his right to be present. 5

       Davis relies on Chapple to argue that the court erred by failing to consider less

restrictive alternatives to removal. In Chapple, this court dealt with a disruptive

defendant who was involuntarily removed. For such defendants, we have held that courts

must make accommodations and consider less restrictive alternatives. E.g., Chapple, 145

Wn.2d at 322-24 (trial court determined a defendant’s strength, potential for violence,

and attitude precluded him from utilizing less restrictive alternatives and removed him

from the courtroom); DeWeese, 117 Wn.2d at 373 (disruptive defendant was warned and

removed to another room to watch the trial on television).

       If the trial judge had made the decision to involuntarily remove Davis based on his

disruptive behavior, the right to be present requires the trial court to consider less

restrictive alternatives, such as those outlined in Chapple, 145 Wn.2d at 322-24, and

DeWeese, 117 Wn.2d at 373. But here, Davis expressed his desire to leave the

proceedings himself, and the judge allowed him to do so. Thus, what distinguishes

Davis’s case from other disruptive defendants is, as our standard of review indicates,



5
  The dissent’s approach encourages gamesmanship. This defendant did everything in his power
to disrupt and delay the trial. He was fully aware of his right to be present and that his conduct
would result in his waiver of that right. By reversing his conviction, when he was fully capable
of conforming his conduct when he wanted to, the dissent would give Mr. Davis exactly what he
sought—further delays in his trial.

                                                12
No. 96663-0


voluntariness. See Thomson, 123 Wn.2d at 881 (“Under the voluntary waiver approach,

the court only need answer one question: whether the defendant’s absence is

voluntary.”).

       In this case, the trial court did not abuse its discretion in finding that Davis waived

his right to be present. The record shows that Davis wanted to leave the courtroom and

the trial judge accommodated him. Davis asked and later yelled, repeatedly, that he did

not “even want to be here. So remove me. I don’t care. I told you that. You can hold

your trial without me.” 2 RP (Mar. 2, 2017) at 380; see also TP at 205 (“You can hold

your trial without me.”). When the trial court found that Davis intended to delay

proceedings by increasing his water intake and increasingly using the restroom facilities,

Davis became enraged, and he reaffirmed his desire to leave: “Do that. Thank you.

Thank you. Thank you. Just go ahead with your kangaroo court . . . . I’m done with it.”

TP at 205-06. The court then reminded Davis that he had another of the State’s witnesses

to cross-examine, but Davis stated again that he was done.

       Although the court would have been justified in taking action based on Davis’s

disruptive conduct, the totality of circumstances show that Davis’s repeated statements

that he wished to leave amounted to a waiver. The trial court properly exercised its

discretion when it permitted a contumacious and stubbornly defiant defendant who

insisted on leaving the courtroom to absent himself from the proceedings. See Allen, 397

U.S. at 343. Maintaining order in the courtroom is within the discretion of the trial judge,

and the judge properly exercised it here. See DeWeese, 117 Wn.2d at 380 (citing Burgess




                                             13
No. 96663-0


v. Towne, 13 Wn. App. 954, 960, 538 P.2d 559 (1975)). Accordingly, we hold that Davis

waived his right to be present at trial. 6

                                        CONCLUSION

       Davis repeatedly stated that he did not want to be in court, that he was done, and

that he wished to leave. Coupled with his disruptive outbursts that culminated in an

abusive shouting match with the trial court, Davis obtained what he consistently told the

court he wanted: leaving the proceedings. We hold that Davis waived his right to be

present at trial. Accordingly, we reverse the Court of Appeals and affirm the trial court’s

ruling on voluntary absence.




6
  Davis further contends that involuntary removal violated his constitutional rights to
representation and self-representation by precluding him from cross-examining witnesses. But
as we have previously explained, Davis was not removed; he left the courtroom voluntarily.
Similar to DeWeese, the trial judge here told Davis that he still had witnesses to cross-examine,
yet Davis stated he wanted to leave the courtroom. As we stated in DeWeese, the right to waive
counsel does not include a right to be immune from the consequences of self-representation. 117
Wn.2d at 382. Davis knew court would continue without him and nonetheless insisted on
leaving. Continuing court or providing counsel to Davis would not only reward his disruptive
conduct but also provide him counsel—which he waived. Davis’s waiver was found knowing
and voluntary, and he presents no reason to doubt that finding here. Therefore, court did not err
when it did not continue proceedings or appoint counsel in Davis’s absence.

                                               14
State v. Davis (Keith Adair)
(Stephens, C.J., dissenting)




                                    No. 96663-0



      STEPHENS, C.J. (dissenting)—This case is about how trial courts balance

respect for the constitutional rights of criminal defendants with the need for orderly

proceedings. Keith Davis was defending himself pro se when the King County

Superior Court removed him from trial after an abusive outburst. But the trial court

allowed the State to continue prosecuting its case against Davis—even as the defense

table sat empty—without considering alternatives that would better protect Davis’s

constitutional rights, which our precedent requires.

      Today’s majority affirms the trial court, justifying its decision by recasting

Davis’s involuntary removal as a voluntary absence. But neither the transcript of

the proceedings nor the trial court’s written findings support the majority’s reading

of the record. The majority’s analysis blurs the legal standards for voluntary absence

and involuntary removal, bypassing the constitutional protections built into those
State v. Davis (Keith Adair), 96663-0
(Stephens, C.J., dissenting)



standards and creating no clear rules for lower courts to follow in the future. Because

the trial court removed Davis without considering less restrictive alternatives, it

abused its discretion. I respectfully dissent.

                                        ANALYSIS

      Removing a pro se defendant from the courtroom during trial risks

undermining the “‘very premise of our adversary system of criminal justice’” by

leaving the defense table empty while the State brings its prosecutorial might to bear.

United States v. Cronic, 466 U.S. 648, 655, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)

(quoting Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 45 L. Ed. 2d 593

(1975)). “A criminal defendant has a constitutional right to be present in the

courtroom at all critical stages of the trial arising from the confrontation clause of

the Sixth Amendment to the United States Constitution, . . . [as well as article I,

section 22 of t]he Washington State Constitution.” State v. Chapple, 145 Wn.2d

310, 318, 36 P.3d 1025 (2001). But that right is not absolute. Id. A defendant can

lose the right to be present by “voluntarily absenting himself from proceedings” or

by engaging in “disruptive behavior” severe enough to justify removal. State v.

DeWeese, 117 Wn.2d 369, 381, 816 P.2d 1 (1991).                 Because the factual

circumstances involved in the absence of a defendant versus the removal of a

defendant are different, this court has adopted distinct standards for each.


                                           -2-
State v. Davis (Keith Adair), 96663-0
(Stephens, C.J., dissenting)



      When a defendant is absent for unknown reasons, Washington courts use a

three-step analysis to determine whether their absence constitutes a waiver of their

right to be present. State v. Garza, 150 Wn.2d 360, 367, 77 P.3d 347 (2003). (“‘The

trial court will (1) [make] sufficient inquiry into the circumstances of a defendant’s

disappearance to justify a finding whether the absence was voluntary, (2) [make] a

preliminary finding of voluntariness (when justified), and (3) [afford] the defendant

an adequate opportunity to explain his absence when he is returned to custody and

before sentence is imposed.’” (alterations in original) (internal quotation marks

omitted) (quoting State v. Thomson, 123 Wn.2d 877, 881, 872 P.2d 1097 (1994))).

      When a defendant who is physically present in the courtroom is removed by

the trial court due to disruptive behavior, a different framework applies.          See

DeWeese, 117 Wn.2d at 381 (distinguishing removal and voluntary absence).

Compare Chapple, 145 Wn.2d at 320 (creating involuntary removal standard), with

Thomson, 123 Wn.2d at 881 (creating voluntary absence standard).                Before

removing a criminal defendant and proceeding in his absence, the trial court must

(1) give the defendant an adequate warning that they will be removed if they

continue to disrupt proceedings, Chapple, 145 Wn.2d at 321, (2) consider whether

the severity of the defendant’s disruptive conduct is sufficient to justify removal, Id.

at 322, (3) consider the least severe means of preventing further disruptions in order


                                          -3-
State v. Davis (Keith Adair), 96663-0
(Stephens, C.J., dissenting)



to preserve the defendant’s rights, id. at 323, and (4) give the removed defendant the

opportunity to return “‘as soon as the defendant is willing to conduct [themselves]

consistently with the decorum and respect inherent in the concept of courts and

judicial proceedings.’” Id. at 325 (quoting Illinois v. Allen, 397 U.S. 337, 343, 90

S. Ct. 1057, 25 L. Ed. 2d 353 (1970)).

      Before deciding whether a criminal defendant has waived their right to be

present, the trial court “must indulge every reasonable presumption against the loss

of [the defendant’s] constitutional rights.” Allen, 397 U.S. at 343 (citing Johnson v.

Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)). This is true for

both voluntary absence and involuntary removal. See State v. Thurlby, 184 Wn.2d

618, 626, 359 P.3d 793 (2015) (“In performing [the voluntary absence] analysis, the

trial court must examine the totality of the circumstances and indulge every

reasonable presumption against waiver” of the defendant’s constitutional rights

(citing Garza, 150 Wn.2d at 367)); Chapple, 145 Wn.2d at 324 (While “certain

circumstances may warrant the defendant’s complete removal,” the defendant’s

“constitutional rights to be present at trial” “should be afforded great protections.”).

      The majority decides this case falls in a twilight zone between voluntary

absence and voluntary removal because Davis said, “You can hold your trial without

me” during his outburst, immediately before the trial court removed him. Tr. of


                                          -4-
State v. Davis (Keith Adair), 96663-0
(Stephens, C.J., dissenting)



Proceedings (TP) (Mar. 7, 2017) at 205. But the majority’s narrow focus on that

sentence ignores significant evidence in the record that Davis was not actually

waiving his right to be present and that the trial court’s decision to remove him had

nothing to do with any such waiver. Even if the record supported the majority’s

view, the majority errs by failing to identify, adopt, or apply any standard to give

courts guidance in this twilight zone. I believe the majority’s approach risks

abandoning the constitutional protections built into our voluntary absence and

involuntary removal standards, contradicting the United States Supreme Court’s

command that trial courts “must indulge every reasonable presumption against the

loss of [the defendant’s] constitutional rights.” Allen, 397 U.S. at 343 (citing

Johnson, 304 U.S. at 464). I address each error in turn.

   I. The Majority Ignores Significant Evidence That Neither Davis Nor the Trial
      Court Thought Davis Was Actually Asking To Leave Trial

      The majority’s view of the case boils down to a single line in its opinion:

“Davis asked to leave the court, and the trial judge granted his request.” Majority at

11. But a thorough examination of the record directly undermines that view.

      A. The Full Record Suggests Davis’s Statement Was Not a Sincere Request
         To Leave Trial

      The majority bases its opinion on the idea that Davis’s statement, “You can

hold your trial without me” constituted a waiver of his right to be present, which the


                                         -5-
State v. Davis (Keith Adair), 96663-0
(Stephens, C.J., dissenting)



trial court simply granted. To support its theory that the trial court removed Davis

pursuant to this alleged waiver—and not because of the rest of his disruptive

behavior—the majority points out that Davis “[insisted] throughout trial that he did

not wish to be there, wanted to leave, and indeed at one point physically moved to

leave.”1 Majority at 12. But the majority conveniently glosses over the fact that

Davis never followed through on any of his prior statements indicating that he would

be absent from trial.

       On February 27, Davis told the trial court, “I’m not coming to trial.” 1 Record

of Proceedings (RP) (Feb. 27, 2017) at 191. But on February 28, Davis was in his

place and ready to proceed. Again on March 2, Davis told the trial court, “You can

hold your trial without me.” 2 RP (Mar. 2, 2017) at 380. But the next court day,

Davis was again present and fully participated in voir dire. Finally, on March 7, in

the midst of his abusive outburst toward the trial court, Davis repeated, “You can

hold your trial without me.” TP (Mar. 7, 2017) at 205. This time, the trial court



       1
         The record does not clearly indicate that Davis physically moved to leave. Davis
was in custody and wheelchair bound; he relied on corrections officers to travel to and from
the courtroom every day. The majority may be referencing the trial court’s admonishment
of corrections officers during removal: “I need him present so I can make the record, so
don’t take him out yet.” TP (Mar. 7, 2017) at 206. But that statement does not indicate
whether Davis was trying to leave the courtroom of his own accord or corrections officers
simply started to remove him too early. And nothing in the trial court’s written findings
suggests Davis tried to leave the courtroom prior to his removal.

                                            -6-
State v. Davis (Keith Adair), 96663-0
(Stephens, C.J., dissenting)



replied, “I’m going to do that,” id., and “You’re now removed from the court,” id.

at 208. But yet again, Davis was back at counsel table on March 8, TP (Mar. 8,

2017) at 241, and did not miss another moment of his trial.

      This pattern of behavior strongly suggests Davis did not intend his statements

to effect a voluntary waiver of his right to be present. Had Davis’s requests to

voluntarily absent himself from trial been sincere, he would have followed through

on them the first time. Or the second time. Or the third time. But despite his bluster,

Davis never voluntarily absented himself from trial. His only absence came when

he was removed by the trial court. When given the choice, Davis always remained

present.

      Courts must “indulge every reasonable presumption against the loss of

constitutional rights.” Allen, 397 U.S. at 343 (citing Johnson, 304 U.S. at 464).

When a defendant repeatedly threatens not to attend trial but nevertheless appears

and conducts his own defense every day, it is reasonable to presume that his bombast

is not intended to constitute a waiver of his right to be present.

      Of course, it is difficult for this court to determine exactly what happened at

trial from a cold record. That is why appellate courts give significant deference to

the trial courts’ view of proceedings. See Garza, 150 Wn.2d at 350 (“[B]ecause the

determination of whether a defendant was voluntarily absent from trial is dependent


                                          -7-
State v. Davis (Keith Adair), 96663-0
(Stephens, C.J., dissenting)



upon an inquiry into the facts and the totality of the circumstances, the trial court is

in a better position to pass on the question.”). Here, the trial court’s own words make

clear that it decided to remove Davis because of his disruptive behavior and not

because the court believed Davis was voluntarily absenting himself from trial.

      B. The Trial Court’s Oral and Written Findings Indicate Davis Was Removed
         for Disruptive Behavior, Not Because He Asked To Leave

      If the majority were correct that the trial court was simply granting Davis’s

request to leave the court, one would expect the trial court would have said so in its

oral or written findings. But it did not.

      Instead, the trial court made clear that it was removing Davis due to his

disruptive behavior. See TP (Mar. 7, 2017) at 207 (“This is about you disrupting the

trial, delaying the trial.”), 208 (“You’re now removed from the court.”); TP (Mar. 8,

2017) at 244 (“I’m telling you what my orders are, and if you cannot follow them,

you will be removed from the courtroom, as you were yesterday.”). The trial court

invoked the voluntary absence standard this court articulated in Garza, but only in

passing. And that invocation was undermined by the trial court’s very next words,

which justified its decision by describing Davis’s disruptive behavior. See TP (Mar.

7, 2017) at 208 (“I am finding that he is voluntarily absenting himself from the rest

of these proceedings under State vs. Garza, G-A-R-Z-A, and the record should



                                            -8-
State v. Davis (Keith Adair), 96663-0
(Stephens, C.J., dissenting)



reflect that he continues to speak on top of his lungs, swearing, accusing me of all

kind[s] of things.”).

      The trial court’s written findings further confirm it removed Davis due to his

disruptive behavior, not any request to leave. The trial court even labeled its written

summary of the events leading to Davis’s removal as “FINDINGS OF FACT AND

CONCLUSIONS OF LAW REGARDING DEFENDANT VOLUNTARILY

ABSENTING HIMSELF FROM TRIAL DUE TO HIS DISRUPTIVE

BEHAVIOR.” Clerk’s Papers (CP) at 140 (emphasis added). Those findings

describe how the trial court explained “that if [Davis] was going to continue to raise

his voice and curse at the Court, then he would be removed from the courtroom.”

CP at 142. When Davis continued his “tirade,” the trial court “ordered the jail

officers to remove him from the courtroom[ and t]he officers did so.” Id. The

findings also describe how “the Court warned [Davis] about his behavior” again the

next morning and “informed him that if he continued to behave that way, he would

again be removed from the courtroom.” Id. Though the trial court stated that Davis

“voluntarily absented” himself, id., the rationale for its decision was based on his

disruptive behavior and not on any request to leave the courtroom.

      Nowhere does the trial court say that it removed Davis pursuant to his request

to leave the courtroom—the trial court’s findings do not even mention Davis’s


                                          -9-
State v. Davis (Keith Adair), 96663-0
(Stephens, C.J., dissenting)



statement that “You can hold your trial without me.” TP (Mar. 7, 2017) at 205. The

trial court’s only stated rationale for Davis’s removal is the severity of his disruptive

behavior. The majority’s conclusion to the contrary does not align with the trial

court’s own findings and is not persuasive.

      But even if the majority’s view were supported by the record, I could not join

its opinion because it fails to identify, adopt, or apply any legal standard to its

analysis of Davis’s so-called voluntary absence.

  II. The Majority Fails To Identify, Adopt, or Apply Any Legal Standard To
      Govern When or Whether Defendants May Voluntarily Absent Themselves
      by Their Disruptive Conduct

      The majority’s analysis begins with a discussion of the legal standards

governing whether a criminal defendant’s voluntary absence constitutes a waiver of

their right to be present. But the majority quickly abandons the substance of those

standards because “the factors established in Garza and Thomson are properly

applied to defendants who fail to appear during trial, [so] they are less useful in the

present case—that is, when a defendant appears for trial, disrupts court procedure,

and announces his wish to leave the courtroom.” Majority at 8. Instead, the majority

relies on the voluntary absence standards in Garza and Thomson for “guidance.”

Majority at 9. But the guidance the majority takes from those cases borders on

nonexistent:


                                          -10-
State v. Davis (Keith Adair), 96663-0
(Stephens, C.J., dissenting)



              Nevertheless, Garza and Thomson provide guidance because they
      provide the test necessary to answer the primary question before us: whether
      Davis waived his right to be present. This determination depends upon the
      totality of the circumstances.

Id. (footnotes and citations omitted) (citing Thomson, 123 Wn.2d at 881; Garza, 150

Wn.2d at 367). That is it—the majority gleans no further guidance from our

precedents than to look at the totality of circumstances. So it is no surprise that the

majority concludes “the totality of circumstances show that Davis’s repeated

statements that he wished to leave amounted to a waiver.” Majority at 13.

      To be fair, it is true that the Garza and Thomson standards direct trial courts

to weigh the totality of the circumstances. But this court has identified particular

factors trial courts must weigh for a reason: these factors are how Washington courts

follow the United States Supreme Court’s command to “indulge every reasonable

presumption against the loss of constitutional rights.” Allen, 397 U.S. at 343 (citing

Johnson, 304 U.S. at 464); see Garza, 150 Wn.2d at 367 (“In performing the

analysis, the court indulges every reasonable presumption against waiver.” (citing

Thomson, 123 Wn.2d at 881)).

      “‘[T]he 3-prong voluntariness inquiry ensures the court will examine the

circumstances of the defendant’s absence and conclude the defendant chose not to

be present at the continuation of the trial’” before proceeding without the defendant.

Garza, 150 Wn.2d at 367 (quoting Thomson, 123 Wn.2d at 883). This inquiry also

                                         -11-
State v. Davis (Keith Adair), 96663-0
(Stephens, C.J., dissenting)



“‘provides an opportunity for the defendant to explain [their] disappearance and

rebut the finding of voluntary absence before the proceedings have been

completed.’” Id. (quoting Thomson, 123 Wn.2d at 883). But today’s majority

abandons the specific factors this court designed to “indulge every reasonable

presumption against the loss of constitutional rights,” Allen, 397 U.S. at 343 (citing

Johnson, 304 U.S. at 464), undermining the very purpose of our voluntary absence

standard.

      Worse, the majority fails to articulate any new standard that could better

protect a criminal defendant’s constitutional rights in this twilight zone between

traditional voluntary absence and involuntary removal. This is despite the fact that

the Court of Appeals here relied on foreign decisions because “Washington case law

has not yet addressed whether and how a defendant may voluntary absent himself or

herself by requesting to leave the courtroom.” State v. Davis, 6 Wn. App. 2d 43, 54,

429 P.3d 534 (2018). Given the majority’s view of the record, this case would

appear to be an ideal opportunity to provide guidance to lower courts confronting

similar situations in the future.       But the majority declines to provide needed

guidance, reasoning that “our own case law provides the necessary guidance.”

Majority at 9 n.4. For the reasons explained above, I disagree.




                                           -12-
State v. Davis (Keith Adair), 96663-0
(Stephens, C.J., dissenting)



      Today’s decision departs from our precedents, provides no clear guidance to

lower courts, and will have particularly dire consequences for pro se defendants.

When a pro se defendant is deemed to have waived their right to be present, their

removal necessarily jeopardizes other rights—including the right to confront

witnesses against them. As the United States Supreme Court has observed:

      The right of cross-examination is more than a desirable rule of trial
      procedure. It is implicit in the constitutional right of confrontation, and helps
      assure the “accuracy of the truth-determining process.” It is, indeed, “an
      essential and fundamental requirement for the kind of fair trial which is this
      country’s constitutional goal.” Of course, the right to confront and to cross-
      examine is not absolute and may, in appropriate cases, bow to accommodate
      other legitimate interests in the criminal trial process. But its denial or
      significant diminution calls into question the ultimate “integrity of the fact-
      finding process” and requires that the competing interest be closely
      examined.

Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973)

(emphasis added) (citations and internal quotation marks omitted) (quoting Dutton

v. Evans, 400 U.S. 74, 89, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970); Pointer v. Texas,

380 U.S. 400, 405, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); Berger v. California,

393 U.S. 314, 315, 89 S. Ct. 540, 21 L. Ed. 2d 508 (1969)).

      Here, Davis’s removal significantly undermined his right to confront the

witnesses against him.       The trial court removed Davis without giving any

consideration to alternatives that could preserve that right. Immediately after



                                            -13-
State v. Davis (Keith Adair), 96663-0
(Stephens, C.J., dissenting)



removing Davis, the trial court directed the State to continue presenting its witnesses

in Davis’s absence. These witnesses testified to crucial elements of the State’s case

against Davis arising from his February 2014 arrest, including details of his

behavior, his statements to officers, the nature of the evidence against him, and more.

Davis had no opportunity to cross-examine these witnesses “to test the[ir]

perception, memory, and credibility.” State v. Darden, 145 Wn.2d 612, 620, 41 P.3d

1189 (2002) (citing State v. Parris, 98 Wn.2d 140, 144, 654 P.2d 77 (1982)). The

majority’s analysis does not even acknowledge this significant impact on Davis’s

constitutional rights.

      I would hold that the trial court abused its discretion by removing Davis

without considering any alternatives that could better protect Davis’s constitutional

rights, including his right to confront the witnesses against him. Alternatives may

have existed. The trial court could have, for example, placed Davis “in a room with

a video monitor which allowed him to follow the case so that he would be able to

return to court to conduct cross examination of prosecution witnesses.” DeWeese,

117 Wn.2d at 381. “Since Allen, many courts have managed to maintain contact

between a disruptive defendant and [ongoing proceedings] through various forms of

technology, including interactive video and telephone systems.” Chapple, 145

Wn.2d at 324 (citing State v. Gillam, 629 N.W.2d 440 (Minn. 2001) (giving


                                         -14-
State v. Davis (Keith Adair), 96663-0
(Stephens, C.J., dissenting)



defendant option of using room with interactive video capabilities); United States v.

Ives, 504 F.2d 935, 938 (9th Cir. 1974) (utilizing special phone system connecting

defense counsel with defendant’s cell), vacated on other grounds, 421 U.S. 944, 95

S. Ct. 1671, 44 L. Ed. 2d 97 (1975); United States v. Munn, 507 F.2d 563, 567 (10th

Cir. 1974) (allowing defendant to hear trial through broadcast system)). I would

hold the trial court’s failure to consider such alternatives constitutes an abuse of

discretion.2 Accordingly, I would remand for a new trial on the charges arising from

Davis’s February 2014 arrest.

                                    CONCLUSION

      The trial court did not believe it was granting Davis’s voluntary request to be

absent from trial—it removed him for disruptive behavior. See CP at 140 (“[T]he

defendant was removed from the courtroom due to his behavior.”). The Court of

Appeals recognized as much. See Davis, 6 Wn. App. 2d at 54 (“Davis asserts the

trial court removed him from trial for disruptive behavior. . . . We agree with

Davis.”). Because the trial court clearly explained it removed Davis due to his



      2
         The majority claims that requiring the trial court to consider such alternatives
“would give Mr. Davis exactly what he sought—further delays in his trial.” Majority at 12
n.5. But requiring the trial court to consider alternatives is not about what Mr. Davis
sought—it is about what our constitution and precedents require. See Chapple, 145 Wn.2d
at 323. A short delay while the trial court considers alternatives to complete removal is a
small price to pay to protect the fundamental rights of the criminally accused.

                                           -15-
State v. Davis (Keith Adair), 96663-0
(Stephens, C.J., dissenting)



disruptive behavior, I would hold it to that standard. And because the trial court’s

removal order does not meet the applicable constitutional minimums, I would hold

it abused its discretion. Accordingly, I respectfully dissent.




                                         -16-
