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State v. Brooks

The Court of Appeals of Washington, Division Two
Oct 16, 2007
141 Wn. App. 1009 (Wash. Ct. App. 2007)

Opinion

No. 35079-3-II.

October 16, 2007.

Appeal from a judgment of the Superior Court for Thurston County, No. 06-1-00673-2, Christine A. Pomeroy and Richard D. Hicks, JJ., and David Draper, J. Pro Tem., entered August 15, 2006.


Affirmed by unpublished opinion per Hunt, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.


Nathan Allen Brooks appeals his conviction for felony violation of a domestic-violence no-contact order. He argues that (1) the trial court erred in failing to advise him of his right to self-representation when he expressed concern about his court-appointed counsel's representation and asked the court to appoint new counsel, and (2) the evidence was insufficient to establish that his contact with the protected party was willful. Holding that the trial court had no duty to inform Brooks of his right to self-representation and that the evidence is sufficient to establish willful contact, we affirm.

FACTS I. Pretrial Proceedings

The State charged Nathan Allen Brooks by amended information with one count of felony violation of a domestic-violence no-contact order. At an April 11, 2006 hearing, the trial court found Brooks indigent and appointed Eric Pilon to represent him. Brooks initially entered a not-guilty plea. On April 26, the trial court informed Brooks that Sally Harrison now represented him. Harrison again entered a not-guilty plea on Brooks' behalf.

The State also charged Brooks with one count of obstructing a law enforcement officer. The trial court later granted Brooks' motion to dismiss this charge for lack of evidence. This charge is not at issue on appeal.

At some point after the April 26 hearing, the trial court substituted Larry Jefferson as Brooks' appointed counsel. At a June 1 hearing, Brooks asked the trial court to appoint new counsel, asserting that he had met with Jefferson only once and that he did not feel Jefferson was representing his interests adequately. The trial court explained to Brooks that he could not choose his attorney unless he was prepared to hire private counsel, which Brooks said he could not afford. At no point during this proceeding did Brooks specifically ask to represent himself, nor did the trial court tell Brooks that he had the right to do so. The trial court heard from defense counsel and the prosecutor about the ongoing efforts to negotiate a plea bargain for Brooks, and Brooks articulated no substantive basis for his claim that defense counsel was performing inadequately. The trial court then denied Brooks' request for new counsel.

The record also suggests that Greg Smith represented Brooks at some point, but the record does not show when Smith was substituted as Brooks' counsel, the circumstances of his appointment and withdrawal, or whether Smith was counsel in the case before us. From the record of the June 1 hearing, however, it appears that Smith asked to be removed because of some conflict or past issues with Brooks. The record does not indicate the reasons for the other substitutions of counsel.

The Hon. Richard D. Hicks presided over this hearing.

At a June 28 hearing, the deputy prosecutor (1) notified the trial court that defense counsel was unable to appear because his child was ill, (2) asked the trial court to continue the trial date to July 3, (3) stated that defense counsel had informed him that Brooks still wanted the trial court to appoint new counsel, and (4) asked the trial court to set a hearing on that matter for June 30. After hearing briefly from Brooks, the trial court set a hearing to address Brooks' concerns about his counsel's representation. At no time during this discussion did Brooks request that he be allowed to represent himself, nor did the trial court tell Brooks that he had a right to self-representation. The parties have not provided us with any additional information about or record of a June 30 hearing, but Jefferson was still acting as Brooks' counsel when the case went to trial on July 17.

ACCORDS SCOMIS indicate that there was some kind of motion hearing held on June 30, 2006, but there is no indication of what issues were addressed at this hearing.

II. Trial A. Additional Request for New Counsel

During the course of the trial, Brooks continued to object to Jefferson's representation, asserting that he did not "feel like [he was] being represented fairly." Report of Proceedings (RP) (July 17, 2006) at 48. Specifically, Brooks stated:

The Hon. David Draper presided over the trial.

Well, first off, Your Honor, there ain't no witnesses for my defense first off. The day I was supposed to originally go to trial, this man didn't even show up in court and the issue was never even brought back and forth in front of a judge to, you know, find out what was really going on with my trial. And, I mean, we put together a trial at the last minute, you know, and I don't understand, you know, all the, you know, little curve balls being thrown at me and whatnot, you know, with what's being said and how all of a sudden you know, the Pretrial lady is, you know, involved in this, you know, and I mean, a lot of this is all just new to me today and I'm not understanding none of it.

Jefferson had objected to the State's attempt to introduce evidence that Brooks had admitted to a Pretrial Services employee that he had been living at the protected party's residence before his arrest. The trial court had excluded this evidence. Brooks' reference to the "pretrial lady" is apparently to this proposed evidence.

RP(July 17, 2006) at 48-49.

The trial court then explained to Brooks that it had excluded the "pretrial lady" evidence; attempted to explain the possible reasons why Jefferson was not presenting any witnesses; and stated that, based on what it had seen, Jefferson was providing adequate representation. Brooks responded that he understood and said he had no further questions for the trial court. At no time during this discussion did Brooks specifically ask to represent himself, and the trial court did not advise him that he had a right to represent himself.

B. Testimony

The State called as witnesses: Deputy Nathan Konschuh; Deputy George Oplinger; and Amber Trautman, the protected party. The deputies testified that on April 10, 2006, they responded to a call reporting a disturbance at 326 Choker Street Southeast, Unit B, in Lacey, Washington. While the deputies were on route, dispatch confirmed that there was a current no-contact/protection order prohibiting Brooks from contacting Trautman. Both deputies had previously responded to calls to this residence and had had prior contact with both Trautman and Brooks.

In addition to this testimony, the State presented two judgment and sentences showing that Brooks had two prior convictions for violating protection or no-contact orders pertaining to Trautman.

The deputies also identified a copy of a domestic-violence no-contact order prohibiting Brooks from contacting Trautman until May 11, 2009. The trial court admitted this document into evidence.

Konschuh testified that after he was dispatched, it took him approximately 10 minutes to reach Trautman's residence. When he arrived, Brooks was standing in the doorway of the residence; Trautman was standing inside the residence, talking with Brooks. Although Brooks initially identified himself as Nathan Zimmerman, both Konschuh and Oplinger knew Brooks' true identity from their prior contacts. Konschuh arrested Brooks for violating the no-contact order.

Trautman testified on direct examination that (1) Brooks was her boyfriend and the father of one of her children and that she still cared for Brooks; (2) there was a no-contact order prohibiting him from contacting her until 2009; and (3) Brooks had been at her residence on April 10, 2006, when the deputies arrived. On cross-examination, she testified that on April 10, (1) her mother had arranged for Brooks to watch her (Trautman's) children; (2) she (Trautman) was not supposed to be there when Brooks arrived shortly before the deputies; (3) but she did not leave immediately when Brooks arrived; and (4) she did not tell the deputies that she was planning to leave, that Brooks was there to care for the children, or that her contact with Brooks was unintentional.

Brooks presented no witnesses. Nor did he take the stand in his own behalf.

The jury found Brooks guilty of violating the no contact order, and returned a special verdict finding that he had been twice previously convicted of violating a no contact or protection order. These previous convictions made the current offense a felony. The trial court imposed an exceptional downward sentence of 36 months confinement, based on mitigating circumstances.

Before being sentencing for the current offense, Brooks also pleaded guilty to four additional counts of felony violation of a domestic-violence no-contact order charged under a separate cause number. These convictions are not at issue in this appeal.

The Hon. Christine Pomeroy presided over Brooks' sentencing hearing.

The sentencing court found that an exceptional sentence below the standard range was appropriate because "the victim was a willing participant to the crime and the parties agree to the downward departure," Brooks had not communicated any threats, and there had been no violence during the contact. Clerk's Papers (CP) at 27.

Brooks appeals his conviction.

Analysis I. Right to Self-Representation

Brooks first argues that, when he expressed dissatisfaction with his appointed counsel, the trial court erred in failing to advise him that he had a right to represent himself. Br. of Appellant at 5. He contends that this amounts to a violation of Art. 1, § 22 of the Washington State Constitution and the Sixth Amendment of the United States Constitution. This argument fails.

Other than his broad assertion that the trial court violated his state and federal constitutional rights by failing to advise him of his right to represent himself, Brooks cites no authority establishing such a requirement. Furthermore, the Washington State Supreme Court has specifically rejected this argument in State v. Garcia:

In his appellate brief, Brooks neither acknowledge Garcia nor attempts to explain why we are not bound by its express holding that the trial court does not have a duty to advise a defendant of his right to self-representation.

Is the trial court required to tell defendant of his right to conduct his own defense and to ask if he wishes to exercise it? We hold there is no duty for the trial court to inform the defendant of or to ask if he wishes to exercise his right to proceed pro se. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) does not impose these requirements. In this connection we adopt the language of Judge Green in his dissenting opinion in State v. Garcia, 21 Wn. App. 58, 583 P.2d 1253 (1978) [, rev'd, 92 Wn.2d 647 (1979)], wherein he said at page 67:

Under Faretta, the trial court must give the defendant the opportunity to represent himself when he so requests. In that case, Mr. Faretta made his request 3 weeks before trial. Here, there was no request before or at trial. Faretta does not impose an affirmative duty upon the trial judge to advise a defendant of his right to represent himself unless the defendant first indicates that he desires to proceed pro se.

In the vast majority of cases it is contrary to the best interests of a defendant to proceed pro se. Routinely informing all defendants of that "right" or inquiring whether they wish to exercise it would encourage many to waive the valuable right to be represented by competent counsel. Further, a defendant cannot claim that by having counsel — because he was not informed of his self-representation right or asked if he wished to waive it — he has been denied a fair trial or due process.

92 Wn.2d 647, 654-55, 600 P.2d 1010 (1979) (first emphasis added). See also State v. Jessup, 31 Wn. App. 304, 309-10, 641 P.2d 1185 (1982) (quoting State v. Fritz, 21 Wn. App. 354, 358-63, 585 P.2d 173 (1978), review denied, 92 Wn.2d 1002 (1979)).

We note that Brooks does not argue his objections to his court-appointed counsel's representation were the functional equivalent of specific requests to proceed pro se. Nor does our review of the record so indicate. Furthermore, Brooks does not argue on appeal that his defense counsel rendered ineffective assistance at trial.

Following Garcia, we hold that the trial court had no duty to inform Brooks of his right to self-representation and that, therefore, its failure to do so is not reversible error.

II. Sufficiency of Evidence

Brooks next argues that the evidence was insufficient to support his conviction because it did not establish that his contact with Trautman was "willful." We disagree.

A. Standard of Review

When facing a challenge to the sufficiency of the evidence, we ask whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Because credibility determinations are for the trier of fact and are not subject to review, State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990), we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d (1992).

B. Evidence In Light of Instructions

The trial court instructed the jury that to find Brooks guilty of violating the no-contact order, it had to find that he "willfully" contacted Trautman. It further instructed the jury that "[a] person acts willfully when he or she acts knowingly." Clerk's Papers (CP) at 40 (Jury Instruction 7). And it defined "knowledge" as follows:

Specifically, Jury Instruction 5 provided:

A person commits the crime of violation of a domestic violence no-contact order when he or she willfully has contact with another when such contact was prohibited by a no-contact order or violates the restraint provisions of a no-contact order and the person knew of the existence of the no-contact order.

CP at 38 (emphasis added). Additionally, Jury Instruction 6, the to-convict instruction also required that the jury find that Brooks " willfully had contact with" Trautman. CP at 39 (emphasis added).

A person knows or acts knowingly or with knowledge when he is aware of a fact, circumstance or result which is described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.

If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.

CP at 41 (Jury Instruction 8).

Taken in the light most favorable to the State, we hold that the evidence was sufficient to establish that Brooks willfully contacted Trautman. Responding to a call reporting a disturbance at Trautman's residence the deputies arrived approximately ten minutes later and found Brooks standing near and talking to Trautman. Although the record does not show how long Brooks had been there, there was no evidence that Brooks was attempting to avoid contact with Trautman.

On the contrary, he was engaged in conversation with her when the deputies arrived. This ongoing conversation is sufficient evidence of intentional contact, even if the initial contact had been accidental.

Furthermore, although Trautman testified at trial that her contact with Brooks had been unintended, she also acknowledged that she did not tell the officers about the accidental nature of her initial contact with Brooks; thus, the jury could have reasonably found her testimony not credible. Accordingly, we conclude that a rational trier of fact could have found Brooks had willful contact with Trautman and, in so doing, violated the no-contact order. We hold, therefore, that the evidence was sufficient to support Brooks' conviction.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

BRIDGEWATER, P.J. QUINN-BRINTNALL, J.


Summaries of

State v. Brooks

The Court of Appeals of Washington, Division Two
Oct 16, 2007
141 Wn. App. 1009 (Wash. Ct. App. 2007)
Case details for

State v. Brooks

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. NATHAN ALLEN BROOKS, Appellant

Court:The Court of Appeals of Washington, Division Two

Date published: Oct 16, 2007

Citations

141 Wn. App. 1009 (Wash. Ct. App. 2007)
141 Wash. App. 1009