Opinion
No. 53082-8-I
Filed: May 9, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-01151-3. Judgment or order under review. Date filed: 09/08/2003. Judge signing: Hon. Harry J McCarthy.
Counsel for Appellant(s), John Black Jr., Doc #807278 (Appearing Pro Se). Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric Broman, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Dennis John McCurdy, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
John T. Black rejected the assistance of counsel and represented himself at trial. A jury convicted him of several counts of felony violation of a no-contact order, unlawful possession of a firearm, and felony harassment. We accept the State's concession that Black's felony harassment charge must be reversed because Black did not actually threaten his victim. Finding no merit to Black's other arguments, we affirm in all other respects.
The facts according to the testimony at trial are as follows. The defendant John Black and Henrietta had an intimate relationship for several years. The superior court, after incidents of domestic violence, entered no-contact orders in 2001 and 2002 prohibiting the two from contacting each other. But Henrietta continued to allow Black to live with her in her Federal Way apartment.
One Saturday night in early May 2003, Black became angry with Henrietta and left her apartment. He packed a black duffel bag with some personal items and a semi-automatic handgun. Black left and went to the house of his relative, Miranda. Black called Henrietta repeatedly from Miranda's house. After answering Black's first few calls, Henrietta turned the telephone ringer off.
Early Sunday morning, Henrietta saw from her caller I.D. that Black called from Miranda's 17 times during the night. Black left six angry messages peppered with vulgarities. Henrietta immediately called a locksmith to come and change the locks.
Before the locksmith arrived, Black showed up at Henrietta's apartment. He carried the black duffel bag containing the gun and let himself in with his key. Henrietta testified that Black `proceeded to just start cursing and telling me he had something for me, you know, and when he told me that I just assumed, because I knew he had the gun, so that is when I dialed 9-1-1.'
Verbatim Report of Proceedings, 7/30/03 at 97.
Henrietta called 9-1-1 from her bedroom while Black was in her kitchen fixing himself breakfast. Police responded immediately. The police entered Henrietta's apartment, found Black sitting on the bed, and arrested him. The duffel bag contained Black's personal items, the semi-automatic handgun and ammunition. According to the officer who took Henrietta's statement, she was visibly shaking. This officer also made a recording of Black's messages.
The State charged Black with one count felony violation of the no-contact order and one count of unlawful possession of a firearm. Before trial, the State offered to agree not to add additional charges to the information if Black would plead guilty as charged. Black refused the deal. Before trial, the State amended the information, adding six counts of felony violation of the no-contact order for the telephone messages, and one count of felony harassment.
Black waived his right to appointed counsel. The case proceeded to trial. Black represented himself, but the court appointed standby counsel to be available to answer his questions and to be prepared to try the case if needed. A jury found Black guilty of all charges. Black appeals. Black first seeks reversal of his conviction for felony harassment. He argues the State failed to prove his statement to Henrietta — I have something for you — constituted a true threat.
Under the First Amendment, only a `true threat' suffices for a conviction under the felony harassment statute, RCW 9A.46.020. State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004). A `true threat' is a statement made in a context or under such circumstances where a reasonable person would foresee the listener would interpret the statement as a serious expression of intention to inflict bodily harm upon or take the life of another person. State v. Williams, 144 Wn.2d 197, 208-09, 26 P.3d 890 (2001). The State concedes that under the facts, Black's statement cannot be reasonably construed as a true threat. We accept the concession, and reverse Black's conviction for felony harassment.
Black also claims prosecutorial misconduct tainted the entire verdict and deprived him of a fair trial. During closing, the prosecutor asked the jurors to decide whether Henrietta's fear was reasonable by thinking about how they would feel if in her position:
That Henrietta . . . was in reasonable fear. Well, what evidence do you have of that? The police show up. She is upset, she is shaking, she is so afraid that she calls 9-1-1. She had been so afraid that morning that she called a locksmith at 7:00 in the morning to get her locks changed. Think about it yourself if you were in that position. You have been accused of cheating. You got into an argument the night before. Your stuff got thrown all over the bedroom. You had received 17 separate calls that night. You had received six voice-mail messages with vulgarities with threatening messages. And you knew that he showed up with a handbag and you knew what he meant. You knew he had a handgun. Would you be afraid? Of course, her fear was reasonable.
Verbatim Report of Proceedings (July 31, 2003) at 67-68.
Black claims that the prosecutor's argument is an improper `golden rule' argument. Our Court has held it is improper to ask jurors to place themselves in the position of a litigant and then decide the case based on what they would then want under the circumstances. Adkins v. Aluminum Co. of America, 110 Wn.2d 128, 140, 750 P.2d 1257 (1988). Such arguments are improper because they encourage the jury to depart from their neutrality and decide the case on the basis of personal interest and bias rather than the evidence. Adkins, 110 Wn.2d at 139.
Here, the defendant did not object at trial to the argument he now alleges was misconduct. In the absence of a timely objection, the defendant must demonstrate that any improper remark was so flagrant and ill intentioned that it was inherently prejudicial, and further that the prejudice caused by the remark could not have been neutralized by a curative instruction. State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105, cert. denied, 516 U.S. 843, 116 S. Ct. 131, 133 L. Ed. 2d 79 (1995). Black has not met this test. Accordingly, we decline to review the claimed error.
Next, Black contends the trial court committed reversible error by denying his first motion to dismiss standby counsel.
Brad Meryhew was Black's assigned trial counsel at the beginning of the case. Before his case came to trial, Black developed the opinion that Meryhew was colluding with the prosecutor. Black moved to discharge Meryhew, stating that he would `rather proceed with this pro se' than have new appointed counsel. The court found Black's waiver of his right to appointed counsel to be knowing and voluntary. The trial court then, sua sponte, appointed Meryhew to serve as Black's standby counsel.
Verbatim Report of Proceedings (June 25, 2003) at 2.
On July 2, Black moved to discharge standby counsel on the basis that Meryhew `wasn't doing anything to prepare for my trial.' Black requested new standby counsel to help him prepare for trial. After hearing from all parties, the court denied Black's request for new standby counsel. Several weeks later, Black presented the court with evidence he had filed suit against Meryhew's firm. The court at this point agreed to discharge Meryhew as standby counsel. The court informed Black: `although you're not entitled to it as a matter of right, I'd like to know whether you're interested in having standby counsel or not.' Black responded that he was prepared to go to trial, and that he would like standby counsel. The court appointed new standby counsel and the case proceeded to trial.
Verbatim Report of Proceedings (July 2, 2003) at 19.
Verbatim Report of Proceedings (July 21, 2003) at 7-8.
Black first moved to dismiss Meryhew as his standby counsel on July 2. He now argues that reversal is required because the trial court erred in denying that motion.
Brief of Appellant at 28.
A criminal defendant has a constitutional right to waive the assistance of counsel and to represent himself at trial. State v. DeWeese, 117 Wn.2d 369, 375, 816 P.2d 1 (1991). A defendant does not have a constitutional right to have appointed standby counsel. State v. Silva, 107 Wn. App. 605, 625, 27 P.3d 663 (2001). When a court appoints standby counsel, a criminal defendant does have a right to conflict-free standby counsel. State v. McDonald, 143 Wn.2d 506, 512-13, 22 P.3d 791 (2001). To establish the trial court erred based on an allegation of counsel's conflicting interests, a defendant must demonstrate that counsel actively represented conflicting interests and that the actual conflict of interest adversely affected his lawyer's performance. State v. Martinez, 53 Wn. App. 709, 715-16, 770 P.2d 646 (1989). A general loss of confidence or trust alone is not sufficient to require substitution of new counsel. DeWeese, 117 Wn.2d at 376.
Black's argument appears to be based on his misapprehension of the facts — specifically, he represents that he `provided the court with a copy of the impending lawsuit against Meryhew' at the July 2 hearing. However, a review of the verbatim report of proceedings shows that the court was not presented with documentation of the alleged lawsuit until several weeks later.
Brief of Appellant at 30.
Once provided with documentation of a genuine conflict of interest, the trial court promptly ordered new standby counsel. Black has failed to show there was a conflict of interest on July 2 or that he was thereby prevented from preparing a meaningful defense. There was no error.
Black submitted to this court a statement for additional grounds for review under RAP 10.10. He claims the trial court violated his right to a speedy trial. Black's original trial date was set for July 15 and his speedy trial expiration date was July 18, 2003. The trial court entered a series of one and two day extensions due to the prosecutor being in trial, and because it took time to find new and unconflicted standby counsel for Black. Black's trial actually commenced on July 29. The trial court found the extensions were justified and had not resulted in prejudice to Black. We see no basis for reversal in these rulings. A prosecutor's unavailability constitutes an unavoidable circumstance under the applicable court rule. State v. Carson, 128 Wn.2d 805, 912 P.2d 1016 (1996). And there was nothing unreasonable in taking time to find new standby counsel as requested by Black.
Verbatim Report of Proceedings, 7/25/03 at 32.
Black also claims the trial court abused its discretion by denying him subpoenas to call the prosecutors and Meryhew. The trial court declined to issue subpoenas for these witnesses on the basis that there was no showing their testimony would be relevant to the charges. This ruling, supported by the record, does not provide a basis for reversal.
Verbatim Report of Proceedings, 7/28/03 at 22.
The conviction for felony harassment is reversed. The trial court is affirmed in all other respects.
BECKER, ELLINGTON, BAKER, JJ.