Opinion
No. 57760-3-I.
March 12, 2007.
Appeal from a judgment of the Superior Court for Whatcom County, No. 05-1-01844-8, Steven J. Mura, J., entered February 2, 2006.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Seattle, WA, 98101, Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, 98101-3635.
Counsel for Respondent(s), Christopher David Quinn, Whatcom County Prosecutor's Office, Bellingham, WA, 98225-4079, Kimberly Anne Thulin, Whatcom Cty Pros Atty's Office, Bellingham, WA, 98225-4038.
Reversed and remanded by unpublished per curiam opinion.
Marc Vingrinsven drove to a Haggen's grocery store one evening to pick up his girlfriend after work. As he stepped out of his car, he noticed Dirk DeRaad walking down the sidewalk, staring intently at him. Vingrinsven did not know DeRaad, but greeted him anyway. In response, DeRaad began cursing, and demanded "You want a fucking piece of me?" He held up a knife in a menacing way and ran towards Vingrinsven, who fled to the relative safety of the store. When he reached the entrance, Vingrensven turned to see that DeRaad had broken off his pursuit and was running back towards Vingrinsven's car.
Report of Proceedings (RP) (January 31, 2006) at 11.
DeRaad crouched down in front of the car, still cursing, and plunged his knife into the right front tire. He then wandered off into the dark in the direction from which he had come.
Vingrinsven called the police and described the distinctive appearance of the man who had menaced him. DeRadd, Vingrensven said, was wearing a black or blue trench coat, derby hat, had long gray hair, and was carrying a cane. The police arrived and quickly found DeRaad hiding behind some bushes.
The police found an open pocket knife in DeRaad's pocket as well as a smaller, closed pen knife. The larger, open knife had what appeared to be blood on the blade. DeRaad had a cut on his thumb and his hands were bloody.
DeRaad was charged with second degree assault and third degree malicious mischief.
When DeRaad petitioned the court to proceed pro se, the court engaged him in the following colloquy.
MR. STEARNS (Public Defender): This is Mr. DeRaad's application to proceed pro se on this matter. He informs me he has proceeded pro se on other cases.
THE COURT: Mr. DeRaad, you're here today to ask to be allowed to represent yourself?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Have you had any experience with court proceedings in the past?
THE DEFENDANT: Yes, Your Honor, I do.
THE COURT: Do you understand that if I let you represent yourself that you're going to be bound by the same knowledge of the law and rules of evidence that an attorney is charged with and bound by?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And that with one exception in my 30 years of working in criminal law that I have only seen one person in 30 years that's done what I would consider to be a competent job in representing themselves, and that most people who represent themselves in criminal cases, most people, even if they're not guilty of the offense, end up getting convicted because of their inability to represent themselves?
THE DEFENDANT: Yes, Your Honor, but I'm not most people.
THE COURT: Is anyone threatening or coercing you in any way to get you to come here and ask that you be allowed to represent yourself?
THE DEFENDANT: No, Your Honor.
THE COURT: I will permit you to represent yourself with counsel to remain standby counsel. I'm not going to release — I will order that he be present in court and sit with you at table and he is there to assist you if you have any questions or need assistance. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Is that acceptable?
THE DEFENDANT: Yes, Your Honor, it is. Later, during closing argument, the prosecutor discussed the presumption of innocence as follows:
RP (Jan. 12, 2006) at 3-4.
RP (Jan. 12, 2006) at 3-4.
But I want to start off by saying during voir dire we spoke about the presumption of innocence. And we talked about how that's carried through trial. I'm here to tell you right now that the presumption of innocence stops with the closing evidence. Mr. DeRaad is no longer shielded or wears the cloak of the presumption of innocence now.
RP (Feb. 1, 2006) at 92.
RP (Feb. 1, 2006) at 92.
DeRaad did not object to the prosecutor's statement. He was subsequently found guilty on both charges.
We review a lower court's decision regarding a request to proceed pro se for abuse of discretion.
State v. Breedlove, 79 Wn. App. 101, 106, 900 P.2d 586 (1995).
The right to represent oneself in court is grounded in the federal constitution. The United States Supreme Court, in Faretta v. California, held that the Sixth Amendment provides a right to self-representation. The Washington State Constitution expressly guarantees a defendant's right to self representation: "In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel."
422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
Faretta, 422 U.S. at 807.
Wash. Const. art. I, §§ 22 (amend. 10).
Our Supreme Court has held that a trial court must establish that a defendant, in choosing to proceed pro se, makes a knowing and intelligent waiver of the right to counsel. "We approach the question of whether [the defendant's] waiver was knowing and intelligent with caution, recognizing the serious nature of the inquiry and the Supreme Court's admonition that `courts indulge in every reasonable presumption against waiver.'" Self-representation is a grave undertaking, one not to be encouraged, and courts should indulge in every reasonable presumption against waiver.
State v. DeWeese, 117 Wn.2d 369, 377, 816 P.2d 1 (1991).
U. S. v. Keen, 104 F.3d 1111, 1114, (9th Cir. 1997) (quoting U.S. v. Arlt, 41 F.3d 516, 520 (9th Cir. 1994)).
Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977); DeWeese, 117 Wn. 2d at 379.
The trial court should assume responsibility for assuring that decisions regarding self-representation are made with at least minimal knowledge of what is required in pro se representation. Our Supreme Court enumerated the criteria for determining the validity of a waiver of counsel in City of Bellevue v. Acrey. The court held that a colloquy on the record is the preferred means of assuring that a defendant understands the risks of self-representation.
City of Bellevue v. Acrey, 103 Wn.2d 203, 210, 691 P.2d 957 (1984).
103 Wn.2d 203, 691 P.2d 957 (1984).
Acrey, 103 Wn.2d at 211.
The colloquy, at a minimum, should serve to inform the defendant of the nature and classification of charges, the maximum penalty upon conviction, and of the existence of technical and procedural rules which would bind the defendant at trial.
Acrey, 103 Wn.2d at 211.
If a defendant seeks to represent himself and the court fails to explain the consequences of such a decision to him, the government is not entitled to have a resulting conviction affirmed, and the defendant is entitled to a reversal and an opportunity to make an informed and knowing choice. Further, the right to counsel is so fundamental to the right to a fair trial that any deprivation of it is not subject to a harmless error analysis. Even the most skillful of defendants cannot make an intelligent choice without knowledge of all facts material to the decision. Absent this critical information, a defendant cannot make a knowledgeable waiver of his constitutional right to counsel.
U. S. v. Arlt, 41 F.3d 516, 521 (9th Cir. 1994).
State v. Silva, 108 Wn. App. 536, 542, 31 P.3d 729 (2001).
Silva, 108 Wn. App. at 541.
DeRaad describes his colloquy with the court as "cursory." The court asked but five questions of DeRaad. It inquired whether DeRaad had any previous experience with court proceedings and accepted DeRaad's answer of "Yes, Your Honor," without determining what that experience might have been. It properly asked if DeRaad understood that he would be bound by the same knowledge of the law and rules of evidence as an attorney, but did not explain the rules or how they might militate against DeRaad's pro se defense.
The judge then told DeRaad that in 30 years of working criminal law he had encountered only one defendant able to mount a competent defense, and that "most people, even if they are not guilty of the offense" are generally convicted if they defend themselves. DeRaad's responded that he was not "most people."
After inquiring if DeRaad was being threatened or coerced into representing himself, the court granted his request.
This brief exchange does not meet the minimal requirements laid out by the Acrey court. The court certainly offered a strong general warning about the hazards of self-representation, but it did not discuss the charges or the penalties DeRaad might face if convicted.
The State admits that the colloquy fell short, but argues that the record as a whole demonstrates DeRaad intelligently, voluntarily, and knowingly waived his right to counsel. It argues that since DeRaad was made aware of the charges against him at his preliminary appearance, his acknowledgment of the charges at that time satisfies the Acrey requirements. The Acrey court, while strongly favoring a colloquy, did state that, in the absence of a colloquy, the record may otherwise show that the defendant understood the seriousness of the charges and the possible maximum penalties. The record should also show that the defendant was aware of the existence of technical rules and that presenting a defense is not just a matter of telling one's story. Only rarely, the court said, will adequate information exist on the record, in the absence of a colloquy, to show the required awareness of the risks of self-representation.
Acrey, 103 Wn.2d at 211.
Acrey, 103 Wn.2d at 211.
Acrey, 103 Wn.2d at 211.
Acrey, however, strongly favors a colloquy, and that colloquy should, at a minimum, address the three issues laid out above. It does not suggest an abbreviated colloquy supplemented by papers signed six weeks prior to the colloquy.
The Ninth Circuit took up the issue of supplementing an incomplete colloquy with the record in United States v. Keen.
104 F.3d 1111 (9th Cir. 1997).
[W]e have recognized that a limited exception may exist whereby a district court's failure to discuss each of the elements in open court will not necessitate automatic reversal when the record as a whole reveals a knowing and intelligent waiver. In this regard, we look to the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused. We have rarely found this exception to be applicable unless the case involved an unusual fact situation in which the background and experience of the defendant in legal matters was apparent from the record.
Keen, 104 F.3d at 1115 (internal quotation marks and citations omitted).
Nothing in the record, beyond DeRaad's assertion that he had defended himself in previous cases, suggests he had any notable experience in legal matters. Indeed, the prosecutor stated at sentencing that he could find no evidence of prior felony history. The record is a meager substitute for a full colloquy.
Our holding in State v. Silva illustrates our traditional reluctance to affirm pro se representation without sufficient inquiry by the trial court. Silva was allowed to represent himself in a criminal trial. He had just completed one trial with counsel, displayed exceptional skill during numerous, successful pretrial motions, and left a lasting impression of intelligence, ability, and industry. However, this court reversed on the basis that Silva was never advised of the maximum possible penalties for the crimes with which he was charged. We held that absent that critical information, Silva could not make a knowledgeable waiver of his constitutional right to counsel.
108 Wn. App. 536, 31 P.3d 729 (2001).
Silva, 108 Wn. App. at 542.
Silva, 108 Wn. App. at 541.
Silva, 108 Wn. App. at 541.
Silva, 108 Wn. App. at 541.
DeRaad's statement that he was "not most people" smacks of bravado, not legal sophistication. The trial court offered a generalized warning without specific reference to charges, penalties, or procedures. It did not impart sufficient information by which DeRaad could make a knowing, voluntary, and intelligent waiver of his right to counsel.
The burden of proof is on the defendant asserting that his right to counsel was not competently, and intelligently waived. DeRaad has met that burden. We therefore reverse and remand for retrial.
State v. Hahn, 106 Wn.2d 885, 901, 726 P.2d 25 (1986).
In view of our ruling, we need not address DeRaad's alternative argument challenging the prosecutor's misstatements in closing argument regarding the presumption of innocence. We trust that the error will not be repeated on retrial.
REVERSED AND REMANDED.