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State v. Burch

The Court of Appeals of Washington, Division One
Oct 1, 2007
140 Wn. App. 1037 (Wash. Ct. App. 2007)

Opinion

No. 57652-6-I.

October 1, 2007.

Appeal from a judgment of the Superior Court for King County, No. 04-1-06022-9, Andrea A. Darvis, J., entered September 2, 2005.


Affirmed by unpublished opinion per Grosse, J., concurred in by Baker and Agid, JJ.


To warrant the substitution of counsel, good cause such as a conflict of interest or a complete breakdown in communication between the attorney and the defendant must be shown. A defendant may not rely on personal embarrassment, dissatisfaction, or a general loss of confidence or trust alone to justify the appointment of substitute counsel. The decision to substitute counsel is within the discretion of the trial court. Here, Jeffrey Burch fails to carry his burden to establish an abuse of discretion by the trial court. We affirm.

FACTS

Jeffrey Burch and Dawnette Sedgwick were living in a van owned by Sedgwick. After a heated argument, during which Sedgwick said she no longer thought the two should live together, the pair got into the van and drove towards Burch's father's house. Sedgwick told Burch she was going to drop him off there with his belongings. Sedgwick did not possess a valid driver's license, so Burch was driving. Sedgwick said she allowed Burch to drive the van, but there was no understanding that he could take the van without her permission. The argument continued in the van and Burch pulled off the main arterial. He stopped, hit Sedgwick, slammed her into the windshield and dashboard, got out of the van, went around and pulled her out by her hair, and continued to hit and kick her. Burch returned to the van and began driving away. Sedgwick unsuccessfully attempted to get the keys to the van away from Burch.

Sedgwick flagged down a passerby who called 911 because Sedgwick was crying and bleeding. King County police responded and found a distraught Sedgwick, crying with cuts on her face and forehead. She was gasping for breath. She told an officer that Burch beat her up, pushed her head and face into the dashboard and windshield, and stole her van. Sedgwick was taken to a nearby hospital and treated for a broken rib and cuts and bruises.

Two days after the incident, police learned Burch was in a Burien barbershop. King County deputies were dispatched and as they approached him inquired if he was Burch. He replied that he was not and claimed he had no identification. The shop owner indicated otherwise by nodding and as the officers came towards him, Burch attempted to run. As they went outside, the officers and Burch fell to the ground. Burch began kicking, punching, and flailing his elbows. One of the officers, Officer Bryce Storseth, was hit and kicked by Burch. Burch fled, but eventually was found hiding under a van in a nearby parking lot, where he was arrested.

The State charged Burch with one count of second degree assault for the assault against Sedgwick, one count of third degree assault for the assault against Officer Storseth, and one count of first degree robbery for taking Sedgwick's van.

Before trial, in a jail sweep for drugs, jail officials seized documents from Burch's cell. Six letters addressed to "Sexy," or "Vicky," or "Attorney Lady" were found. Jail officials briefly scanned the letters that contained Burch's sexual or romantic fantasies towards one of his attorneys. Suspecting inappropriate sexual conduct, an investigation ensued. The trial prosecutor was told about the letters but did not see them. Burch's defense counsel were notified. The trial prosecutor sent a number of e-mails to the lead counsel, Victoria Freer, asking if she was resigning from the case. At the time, Freer took a wait and see stance, and did not resign. In addition, a couple of months later there was an unprofessional prank played on the trial deputy. Another deputy prosecutor signed Burch's name to a faux e-mail valentine.

Thereafter, Burch, through counsel, moved under CrR 8.3(b) to dismiss the case, claiming the jail improperly seized his legal mail containing personal comments regarding one of his attorneys. The letters were not provided to the court for in camera review. The motion to dismiss was heard and denied by Judge Deborah Fleck. The court ruled the letters were not legal mail and that jail personnel properly examined them having reasonable grounds to believe they may have contained drugs.

In a motion before another judge, Burch moved to substitute counsel claiming there was a breakdown in communication with counsel because the letters contained comments regarding one of them. Burch claimed ineffective assistance of counsel, asserting that Freer's representation could be affected by the letters. However, there is nothing in the record to show whether Freer read the full content of the letters or not. Again, Burch did not permit the court to review the letters. Judge Michael Trickey found that Burch was not prejudiced by the seizure of the letters and denied the motion to discharge counsel. However, the court barred the State from introducing, using or relying on the content of the letters.

Later, Burch renewed his motion to discharge counsel claiming the relationship with his attorneys had been impacted by the examination of the letters by jail personnel. Burch also attempted to have the prosecutor disqualified due to the valentine e-mail prank. The motion to discharge counsel was denied. The court referred the motion to disqualify the prosecutor to the trial judge, Judge Andrea Darvas. The day after trial began, Burch made new pro se motions to discharge counsel and for substitute counsel, claiming ineffective assistance of counsel. He again sought to disqualify the prosecutor. The court denied the motions.

In the middle of the jury trial, Burch moved to represent himself. Although he attempted to discharge counsel several times before trial, this was the first time Burch made an unequivocal request to represent himself, although he asked that Freer be appointed backup counsel. The trial court denied Burch's demand to continue pro se, specifically noting that he did not make the request until well after trial began.

The jury found Burch guilty of all charges. The court imposed a standard range sentence. Burch appeals.

ANALYSIS

Burch claims he was denied his Sixth Amendment right to counsel due to irreconcilable conflicts or differences with his attorneys. Burch made a number of pretrial motions before various judges of the King County Superior Court seeking substitute counsel. He claimed he was denied a right to a conflict-free counsel and representation by an effective advocate. He claims there was an irreconcilable conflict with counsel due to jail personnel examining his "legal mail;" letters containing personal romantic and sexual fantasy comments regarding one of his attorneys.

Burch asserts the judges before whom he appeared abused their discretion in denying the motions for substitution of counsel and ineffective assistance claims, thus denying him his rights under the Sixth Amendment. But a defendant does not have an absolute Sixth Amendment right to his choice of a particular advocate. Whether a defendant's dissatisfaction or personal embarrassment surrounding his interactions with his counsel is meritorious or justifies the appointment of new counsel is a matter within the discretion of the trial court.

State v. DeWeese, 117 Wn.2d 369, 375-76, 816 P.2d 1 (1991) (citing Wheat v. United States, 486 U.S. 153, 159 n. 3, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988)).

State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 (1997) (Stenson I).

Burch must show good cause to warrant substitution of counsel, such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant. Counsel and defendant must be at such odds as to prevent presentation of an adequate defense. The defendant may not rely on a general loss of confidence or trust alone to justify appointment of a substitute new counsel. Here, Burch concentrates his appeal on his claims of an irreconcilable conflict or complete breakdown in communication with counsel. Burch claims he had an irreconcilable conflict with one of his attorneys. But an irreconcilable conflict occurs when the breakdown of the relationship results in the complete denial of counsel. Here, he specifically requested one of his counsel be appointed to be backup counsel.

Stenson I, 132 Wn.2d at 734 (citing Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991)).

State v. Lopez, 79 Wn. App. 755, 766, 904 P.2d 1179 (1995) (citing United States v. Morrison, 946 F.2d 484, 498 (7th Cir. 1991).

Stenson I, 132 Wn.2d at 734.

In re Pers. Restraint of Stenson, 142 Wn.2d 710, 722, 16 P.3d 1 (2001) (Stenson II).

A trial court considers a number of factors in deciding whether to grant a motion for substitute counsel. Those are "(1) the reasons given for the dissatisfaction, (2) the court's own evaluation of counsel, and (3) the effect of any substitution upon the scheduled proceedings." Further, upon review, where a defendant claims to have an irreconcilable conflict with his counsel, a reviewing court considers: "(1) the extent of the conflict, (2) the adequacy of the inquiry, and (3) the timeliness of the motion."

Stenson II, 142 Wn.2d at 723.

Stenson II, 142 Wn.2d at 724 (citing United States v. Moore, 159 F.3d 1154, 1158-59 (9th Cir. 1998)); see also United States v. Nguyen, 262 F.3d 998 (9th Cir. 2001).

When examining the extent of the conflict, this court examines the extent and nature of the breakdown in the relationship and its effect on the representation actually presented. If the representation is inadequate, prejudice is presumed. If the representation is adequate prejudice must be shown. Because the purpose of providing assistance of counsel is to ensure that defendants receive a fair trial, the appropriate inquiry necessarily must focus on the adversarial process, not only on the defendant's relationship with his lawyer as such. "[T]he essential aim of the [ Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers."

Stenson II, 142 Wn. 2d at 724.

Wheat, 486 U.S. at 159.

There is nothing in the record to substantiate Burch's claim that he could not actually communicate with his attorneys. While Burch may have possessed a subjective belief that he could not communicate with one of his trial lawyers after the discovery of letters showing his sexual fantasy about her, in fact his claim is conjectural. He continued to communicate with counsel and actively participated in his defense. He may not always have agreed with the tactics taken, but that does not rise to the level of a complete failure to communicate. As a result, Burch did not prove a complete breakdown in communication or other irreconcilable conflict.

Burch also argues the inquiries conducted by the various judges were inadequate. But an inquiry is adequate where the defendant and counsel are permitted to express their concerns fully. A review of the record shows that the extent of the conflict was not as great, or the breakdown in communication as severe, as either of the precedents from the Ninth Circuit cited by Burch. Here, the various judges allowed Burch to file a number of motions and make argument explaining himself to the court. He was questioned by the judges regarding his letters and how they actually affected the representation. He was also questioned as to how he arrived at his belief that the prosecutor should be replaced because of the faux valentine. Formal inquiry is not always essential where the defendant otherwise states his reasons for dissatisfaction on the record.

State v. Varga, 151 Wn.2d 179, 200-01, 86 P.3d 139 (2004); Stenson II, 142 Wn.2d at 731.

United States v. Adelzo-Gonzalez, 268 F.3d 772 (9th Cir. 2001); Nguyen, 262 F.3d 998; Moore, 159 F.3d 1154.

United States v. Willie, 941 F.2d 1384, 1391 (10th Cir. 1991); United States v. Padilla, 819 F.2d 952, 956 n. 1 (10th Cir. 1987).

The majority of Burch's motions are couched in terms of ineffective assistance of counsel. "Review of an ineffective assistance claim begins with a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." To show that counsel was ineffective, Burch would have to show his attorneys' representation fell below an objective standard of reasonableness, and that the errors were so serious as to deprive him of a fair trial. Burch does not show that his counsel's performance was ineffective.

In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998) (citing Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

Strickland, 466 U.S. at 687; In re Pers. Restraint of Rice, 118 Wn.2d 876, 888-89, 828 P.2d 1086 (1992).

In fact, counsel aggressively litigated the motion to dismiss based on the examination of the letters by jail personnel. Counsel raised a myriad of legal and evidentiary motions both pretrial and on Burch's behalf during the trial. Counsel performed professionally and acted vigorously in his defense. The record demonstrates Burch received highly competent and qualified representation. Burch cannot show that any of the judges abused discretion in denying the motions for new counsel.

Next, Burch alleges the trial court abused its discretion by denying his motion for pro se representation once trial began. We disagree.

A criminal defendant's right to self-representation is guaranteed by the Sixth and Fourteenth Amendments to the federal constitution and article I, section 22 of the state constitution. However, the assertion of a defendant's right to proceed pro se must be unequivocal, and timely. We review a trial court's denial of a request for self-representation for an abuse of discretion.

Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Woods, 143 Wn.2d 561, 585, 23 P.3d 1046 (2001); State v. Bebb, 108 Wn.2d 515, 524, 740 P.2d 829 (1987).

Bebb, 108 Wn.2d at 524; State v. Vermillion, 112 Wn. App. 844, 851, 51 P.3d 188 (2002).

Woods, 143 Wn.2d at 586; Stenson I, 132 Wn.2d at 737.

State v. Breedlove, 79 Wn. App. 101, 106, 900 P.2d 586 (1995).

The right to self-representation is not an absolute, and the defendant's motion to act pro se must be made in a timely fashion or the right is relinquished and the matter of his representation is left to the discretion of the trial judge.

DeWeese, 117 Wn.2d at 377.

The numerous motions to discharge counsel all involved an attempt to substitute new counsel or complain about ineffective assistance. The motions did not seek pro se representation. An attempt to discharge counsel does not equate to an unequivocal request for pro se representation. It was only during the middle of the trial, after the complaining witness and most of the State's other witnesses testified, that Burch made his motion to represent himself.

In fact, once Burch's trial was assigned to Judge Darvas, he stated he did not waive his right to have an attorney present, even though he again sought to discharge his lawyers.

State v. Garcia, 92 Wn.2d 647, 655, 600 P.2d 1010 (1979).

Burch's motion was untimely, and would have disrupted the proceedings. The trial court properly declined Burch's pro se request.

Burch next contends the trial court violated his constitutional right to confrontation by limiting the scope of cross-examination regarding evidence claimed to be relevant to Sedgwick's overall veracity. Specifically, Burch wanted to inquire about a pending arrest warrant and ask if she was receiving preferential treatment from the prosecutor's office. Burch also sought to question Sedgwick as to why she was not permitted to drive her car, whether she threw a toaster at him during the argument that preceded the incident, or whether she was using drugs on the day in question.

Under ER 611(b), the trial court has discretion to determine the scope of cross-examination. This court will not disturb a trial court's rulings on the scope of cross-examination absent a manifest abuse of that discretion.

ER 611(b) provides in part:

Cross examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

State v. Dixon, 159 Wn.2d 65, 75, 147 P.3d 991 (2006); State v. Young, 89 Wn.2d 613, 628, 574 P.2d 1171 (1978).

The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution guarantee criminal defendants the right to confront and cross-examine adverse witnesses. Although this right is of constitutional magnitude, it is subject to limitation. The evidence sought to be admitted must be relevant, and the defendant's right to introduce the evidence must be balanced against the State's interest in precluding prejudicial evidence that could disrupt the fairness of the fact-finding process. Evidence that is not relevant is not admissible. Evidence of a victim's character or a trait of his or her character is generally not admissible for purposes of proving that he or she acted in conformity on a given occasion, unless there is an issue of first aggressor in a self-defense case.

State v. Russell, 125 Wn.2d 24, 73, 882 P.2d 747 (1994).

State v. McDaniel, 83 Wn. App. 179, 185, 920 P.2d 1218 (1996).

ER 401, 402.

ER 404(a)(2).

Burch failed to offer evidence, or even claim that Sedgwick was under the influence of drugs on the day of the incident. For evidence of drug use to be admissible to impeach, there must be a reasonable inference that the witness was under the influence of drugs at the time of the event or at the time the witness was testifying. Here, there was no such showing. The trial court did not abuse its discretion in prohibiting such inquiry.

State v. Tigano, 63 Wn. App. 336, 344, 818 P.2d 1369 (1991).

Further, Burch sought to introduce testimony that Sedgwick threw a toaster at him shortly before they left in the van. However, Burch did not present a claim of self-defense surrounding the assault or robbery charges. Absent a self-defense claim, Burch's state of mind regarding Sedgwick was simply not relevant. The trial court was correct in limiting the cross-examination on this issue.

Burch also wanted to question Sedgwick about the fact that she had an outstanding misdemeanor warrant. He claims that such questioning would show that Sedgwick was receiving favorable treatment by the prosecution and the police because she was never served with the warrant or arrested. Further, because the alleged crime was one of dishonesty, Burch claimed he could use it to impeach her. The trial court conducted a hearing on the issue and Sedgwick testified. The court determined that no promise had been made to Sedgwick with regard to the warrant. Further, the court did not bar Burch from asking Sedgwick whether she had been promised anything in exchange for her testimony, but refused to permit questioning regarding the fact that Sedgwick had an outstanding warrant because under ER 403, the evidence would be more prejudicial than probative. This determination is not an abuse of discretion.

Burch also sought to question Sedgwick about why she did not drive her van, claiming it would be relevant as to whether he actually stole the van. Sedgwick testified she kept the keys to the van and did not usually give Burch permission to drive it unless she was in the vehicle. But there was no evidence at trial that Burch was simply borrowing the van and meant to return it later. Sedgwick's testimony was to the contrary and there was no testimony Burch had permission to take the van.

None of the rulings regarding the scope of the cross-examination of Sedgwick are shown to be an abuse of discretion.

Finally, Burch claims that the trial court should have severed the charge of third degree assault against Officer Storseth from the assault and robbery charges pertaining to Sedgwick. He argues that the denial of his motion to sever was error because the prejudice of joinder far outweighed any considerations of judicial economy. He contends he could have been resisting arrest for other reasons and that the jury would be unfairly prejudiced if it heard evidence that he allegedly assaulted both Sedgwick and Storseth.

A motion to sever criminal charges is addressed to the sound discretion of the trial court whose determination will be affirmed absent abuse of that discretion. Joinder of offenses is regulated by CrR 4.3 and 4.4. Washington courts have long favored a broad joinder rule. Separate trials are not favored in Washington because of concerns for judicial economy, "[f]oremost among these concerns is the conservation of judicial resources and public funds."

In re Pers. Restraint Petition of Davis, 152 Wn.2d 647, 711, 101 P.3d 1 (2004).

CrR 4.3 provides in part:

(a) Joinder of Offenses. Two or more offenses may be joined in one charging document, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both:

(1) Are of the same or similar character, even if not part of a single scheme or plan; or (2) Are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

Offenses properly joined under CrR 4.3(a), however, may be severed if "the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense." CrR 4.4(b).

State v. Robinson, 38 Wn. App. 871, 881, 691 P.2d 213 (1984).

State v. Bythrow, 114 Wn.2d 713, 723, 790 P.2d 154 (1990).

In a ruling on a motion to sever counts, the trial court considers the strength of the State's evidence on each count, the clarity of the defenses as to each count, court instructions to the jury to consider each count separately, and the admissibility of evidence of the other charges even if not joined for trial. Here, there is little dispute that the State's evidence on each count was strong, that the trial court properly instructed the jury to consider the crimes separately, and that the crimes are not difficult to compartmentalize. The dispute lies with the cross-admissibility of the evidence.

The court initially thought it would grant the motion to sever, but did not fully consider the cross-admissibility issue. The fact that the separate counts would not be cross-admissible in separate proceedings does not necessarily represent a sufficient ground to sever as a matter of law. But after the court heard additional argument from the State, it concluded that the evidence would be cross-admissible, as Burch's resisting arrest could be considered evidence of flight, which is admissible in the assault and robbery counts. Evidence of flight is admissible in the court's discretion, because it shows a consciousness of guilt.

State v. Kalakosky, 121 Wn.2d 525, 538, 852 P.2d 1064 (1993) (citing Bythrow, 114 Wn.2d at 720; State v. Markle, 118 Wn.2d 424, 439, 823 P.2d 1101 (1992)).

State v. Hebert, 33 Wn. App. 512, 515, 656 P.2d 1106 (1982).

Under the circumstances, the court concluded that the concern for the judicial economy outweighed any residual prejudice from the joinder of the counts for trial. There was no abuse of discretion.

The decision of the trial court is affirmed.


Summaries of

State v. Burch

The Court of Appeals of Washington, Division One
Oct 1, 2007
140 Wn. App. 1037 (Wash. Ct. App. 2007)
Case details for

State v. Burch

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. JEFFREY MICHAEL BURCH, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Oct 1, 2007

Citations

140 Wn. App. 1037 (Wash. Ct. App. 2007)
140 Wash. App. 1037