Opinion
No. 50834-2-I
Filed: March 29, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 01-1-06166-2. Judgment or order under review. Date filed: 08/05/2002. Judge signing: Hon. Douglas McBroom.
Counsel for Appellant(s), Thomas Michael Kummerow, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Omari Tahir-Garrett (Appearing Pro Se), C/o Usa Paralegal Services, 122 S. Washington Street, 2nd Floor, Seattle, WA 98104.
Counsel for Respondent(s), Daniel Jason Clark, King County Prosecuting Attorney, W554 King County Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Omari Tahir-Garrett appeals his judgment and sentence following conviction of second degree assault with a deadly weapon enhancement. We hold that he voluntarily relinquished his right to proceed pro se and that his claims of prosecutorial misconduct did not deny him a fair trial. We affirm.
On July 7, 2001, a neighborhood community event promoting local businesses occurred in Seattle's Central District at 23rd and Cherry Streets. Then Mayor Paul Schell attended the event and gave a speech. During the speech Garrett used a megaphone to protest the police shooting of a black man that had recently occurred.
When Schell finished his speech, he stepped onto a platform. Garrett approached him with an angry look on his face and still holding the megaphone. Garrett swung and hit Schell in the face with the megaphone. Schell suffered a crushed eye socket with residual visual problems.
The State charged Garrett with second degree assault with a deadly weapon, a megaphone. He went to trial initially having chosen to represent himself, with Eric Weston present as standby counsel for consultation. This trial resulted in a hung jury. The court set a retrial for July 8, 2002.
At an omnibus hearing on June 28, 2002, Garrett objected to the omnibus hearing and trial date because he said he had not received notification of those proceedings. After an extensive colloquy, the trial court proceeded with the omnibus hearing and overruled Garrett's objection to the trial date.
On the scheduled trial date of July 8, Garrett again objected to the trial date because of an alleged lack of notice. He also stated that he was not proficient with the law and thus was unable to deal with a retrial, and requested a continuance. The trial court denied the motion. Garrett then stated that he was not feeling well because of delayed stress triggered by racism. After an extended argument, he stated that he needed to see his therapist. Garrett then refused to participate further in the proceedings.
The trial court ordered a medical and mental examination, and Garrett went to Harborview Hospital. He returned to court the following day and moved for a continuance because of lack of notice and medical problems. The trial court denied the motion. Garrett then moved for appointment of counsel of his choice, not standby counsel. After a lengthy colloquy, the trial court gave Garrett two choices: he could either continue to represent himself and continue with the trial that day, or his standby counsel could be appointed as counsel of record and the trial would recess for one week. Garrett chose to have standby counsel appointed as counsel of record.
When trial resumed, Garrett's counsel stated that Garrett wanted to represent himself again because the jury was all white and he had not had sufficient time for investigation. The trial court denied this motion, and the trial proceeded.
During trial, the prosecutor referred to a well-publicized incident where an individual died after being hit with a skateboard. The prosecutor also referred to an accusation that Garrett had bilked money from a proposed African American Heritage Museum while he worked on the project. Defense counsel immediately objected to both references. The trial court sustained the objections and instructed the jury to disregard the prosecutor's questions. The jury found Garrett guilty as charged. He appeals. Voluntary Relinquishment of Right to Proceed Pro Se Garrett contends that the trial court repeatedly refused to entertain or rule on his objections to the trial date and thereby compelled him to accept appointed counsel. This argument misrepresents the record and is unpersuasive.
The right to proceed to trial pro se is implied under the Sixth Amendment to the United States Constitution and is explicitly stated in the Washington Constitution. `Since the right to proceed pro se exists to promote the defendant's personal autonomy . . . (and often operates to the defendant's detriment), courts generally find that relinquishment of the right to proceed pro se is a far easier matter than waiver of the right to counsel.' There is `a tension between a defendant's autonomous right to choose to proceed without counsel and a defendant's right to adequate representation'; in order `[t]o protect defendants from making capricious waivers of counsel, and to protect trial courts from manipulative vacillations by defendants regarding representation, we require a defendant's request to proceed . . . pro se, to be unequivocal.'
Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Silva, 107 Wn. App. 605, 27 P.3d 663 (2001).
Silva, 107 Wn. App. at 617-18.
State v. Bebb, 108 Wn.2d 515, 525-26, 740 P.2d 829 (1987).
State v. DeWeese, 117 Wn.2d 369, 376, 816 P.2d 1 (1991).
Garrett argues that the trial court refused to rule on or denied his motion to continue for further pre-trial investigation, effectively compelling him to accept appointed counsel. A review of the record shows that Garrett represented himself throughout his first trial. Before the second trial, he made numerous objections based on lack of notice. He stated that he was not ready for the omnibus hearing and needed more money and time to investigate. Upon questioning by the trial court, however, he never articulated what type of investigation he needed to do. When the trial court refused to grant a continuance, Garrett said he was not feeling well, was under great stress, and needed to see a doctor. When Garrett refused to participate further in the proceedings, the trial court recessed so that Garrett could see a doctor.
When the proceedings resumed the next day, Garrett requested appointment of counsel other than his standby counsel. Garrett stated that he was unable to deal with the law at that time. When given the choice to proceed pro se or have his standby counsel appointed, he chose appointed counsel. Then just before trial testimony began, he attempted to represent himself once again. The trial court denied this motion and trial proceeded.
A fair reading of this record shows that the trial court was very responsive to the objections and concerns that Garrett raised. While Garrett claimed a lack of notice of the second trial, the record is clear that he had such notice no later than the omnibus hearing, if not sooner. On the first scheduled day of trial, the trial court responded to Garrett's medical needs. And there is nothing in the record to explain why Garrett needed more investigative time. The fact that he had already been through trial once throws further doubt on this assertion.
There is no doubt that Garrett voluntarily relinquished his right to represent himself. He was the one who said that he wanted counsel of his choice to represent him at the second trial because he felt unable to address the legal aspects of his case. When he elected to accept the second of the court's two alternatives — having standby counsel represent him — he voluntarily relinquished his right to proceed pro se. And once the trial testimony began, Garrett did not object to counsel's representation or ask to represent himself.
In sum, this record establishes that Garrett's decision to accept standby counsel was voluntary, and we so hold.
Prosecutorial Misconduct
Garrett next contends that the prosecutor committed misconduct during cross-examination by referring to a Mardi Gras fracas where an individual was hit with a skateboard and died, and by accusing Garrett of bilking money from the African American Heritage Museum project. We hold that Garrett has failed to establish that there is a substantial likelihood that the actions of the prosecutor affected the outcome of the trial.
In order to establish prosecutorial misconduct, Garrett bears the burden of showing that the prosecutor's conduct was both improper and prejudicial. And even if it was improper, prosecutorial misconduct does not constitute prejudicial error unless there is a substantial likelihood that it affected the outcome of the trial. The defendant's theory of the case is subject to the same examination as the State's evidence. The prosecutor's comments are viewed in the context of the entire argument, the issues in the case, the evidence, and the jury instructions.
State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997).
State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999) (citing Stenson, 132 Wn.2d at 719).
State v. Contreras, 57 Wn. App. 471, 476, 788 P.2d 1114 (1990).
State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
While cross-examining Garrett, the prosecutor asked whether Garrett had heard of someone getting hit in the head and dying as a result. Garrett responded: `I heard of it happening?' and the prosecutor said `Sure. How about down in Mardi Gras, a guy gets hit one time with a skateboard and dies.' Defense counsel immediately objected and moved to strike the question. The trial court sustained the objection and instructed the jury to disregard the question. Garrett argues that this questioning introduced a highly prejudicial incident into the trial and compared him with the perpetrator in the skateboard case.
A review of the record shows that, in view of the context of the entire argument, the prosecutor's question was not prejudicial. The question came after the following cross-examination:
Q. Would you agree with me that, much like a rifle butt, that if somebody struck somebody in the face with this bullhorn, that you could cause substantial bodily harm to them?
A. I think it's absurd.
Q. You don't think you could do that?
A. I think it's absurd that something like that would be considered a deadly weapon.
Q. Do you think you could break a bone in somebody's face if you hit them with this bullhorn? . . .
A. Yes, I think that you could break somebody's, if you hit them with the back part of it.
Q. Do you think that if you hit somebody with this bullhorn, potentially you could kill them? . . .
A. If somebody had that bullhorn and they had the opportunity to beat somebody and beat somebody, I think eventually you could kill somebody with the bullhorn.
Q. How about one lucky crack right in the face, sir, could that kill somebody?
A. No that's stretching my imagination.
At this point, the prosecutor asked whether Garrett had heard of the Mardi Gras incident. The question was inappropriate and the trial court correctly dealt with it immediately. And because it related to the preceding questions, it was not such a surprise to the jury or so inflammatory that there is a substantial likelihood that it affected the jury verdict in spite of the trial court's instruction to disregard it. Garrett also contends that the prosecutor committed misconduct when the following occurred:
[Prosecutor]: . . . as a matter of fact, sir, your involvement with the African American Heritage Museum is nothing more than you, over the last ten years, systematically trying to stop it every time the city was going to fund that project, correct?
[Garrett]: Do you have information to back that up?
[Prosecutor]: As a matter of fact, as Patricia Nesbitt reported to the police, you bilked $22,000 from that fund to pay your family members for jobs they never performed, correct?
Defense counsel objected immediately. The trial court sustained the objection and instructed the jury to disregard the question. Garrett argues that the question tainted the trial by impugning his character, and that the trial court's instruction could not purge the taint.
Again, the record shows that, in the context of the entire argument, this questioning did not affect the verdict. Garrett testified extensively regarding his involvement in the museum project. He also stated more than once that government bureaucrats had taken over the project and stolen money from it.
The prosecutor's questions were not appropriate. But they grew out of the numerous references to and claims about the museum project made during the trial, and were not so surprising or inflammatory as to affect the verdict. And although one defense witness testified that she hit the Mayor with her fist but did not know what anyone else may or may not have done, there was ample evidence supporting the verdict. Eyewitnesses testified that Garrett used the megaphone that day, that they saw him move toward the Mayor, and that they saw Garrett hit the Mayor with the megaphone.
Defense counsel objected to the improper questions immediately, and the trial court sustained the objections. The court also instructed the jury to disregard both questions. The jury is presumed to follow the court's instructions. In addition, the other evidence in the case, including testimony of several eyewitnesses, was overwhelming. These witnesses were in close proximity to Mayor Schell and saw Garrett approach the mayor. They saw that Garrett was holding the megaphone and they saw him hit the mayor in the face. There is no substantial likelihood that the prosecutor's statements about Mardi Gras and the money for the African American History Museum project affected the verdict.
State v. Swan, 114 Wn.2d 613, 661-62, 790 P.2d 610 (1990).
We affirm the judgment and sentence.
COLEMAN, and BECKER, J., concur.