Opinion
No. 61073-2-I.
April 13, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-06526-8, Nicole Maclnnes, J., entered December 11, 2007.
Affirmed by unpublished per curiam opinion.
A defendant is not entitled to act pro se when he makes the request to do so in an untimely manner. If the request is clearly untimely, a court need not engage the defendant in a colloquy to evaluate the request on the record. This is particularly true here where the circumstances indicate the request was for the improper purpose of evading compliance with the rules of evidence and criminal procedure in addition to the norms of courtroom decorum. We affirm.
FACTS
On August 26, 2007, Ricky Hence surreptitiously took four bottles of sparkling wine from a grocery store in the Leschi area. Ian and Zach Brusseau, two store employees, followed him out of the store on foot. A third employee, Steve Shulman, followed driving a van. Hence yelled at his pursuers to stop following him and at one point threw two of the bottles at the Brusseaus.
A police officer eventually arrived and arrested Hence at the scene. The State charged Hence with two counts of third degree assault and one count third degree theft.
Approximately three months later, Hence's trial began before the Honorable Nicole MacInnes. The State presented its case and rested. Before defense counsel, Aimee Sutton, had presented any argument on behalf of Hence, she presented the court with Hence's motion to act pro se. Judge MacInnes immediately denied the motion. The judge did not ask Hence or defense counsel any questions regarding whether Hence's request to proceed without representation was voluntary, willingly, and knowingly made and if he fully understood the consequences of proceeding pro se. In other words, the court did not engage in a formal colloquy with Hence before ruling against his motion. The trial continued with Sutton serving as Hence's defense counsel and he made no further requests for her removal. The jury convicted him on all three counts as charged. Hence timely appeals.
ANALYSIS
Both the Washington and federal Constitutions guarantee criminal defendants the right to represent themselves at trial. The United States Supreme Court held in Faretta v. California that a State "may [not] constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense." There is a federal constitutional right to self-representation:
Washington's guarantee is express, providing: "In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel." Wash. Const. art. I, § 22. And the Sixth Amendment's guarantee is implied by language providing in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defense." U.S. Const. amend. VI, XIV; see also Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Fritz, 21 Wn. App. 354, 585 P.2d 173 (1978).
422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of "that respect for the individual which is the lifeblood of the law."
Faretta, 422 U.S. at 834 ((quoting Illinois v. Allen, 397 U.S. 337, 350-51, 905 S. Ct. 1057, 25 L. Ed. 2d 353 (1970)); see also State v. Breedlove, 79 Wn. App. 101, 109-11, 900 P.2d 586 (1995).
Faretta, 422 U.S. at 834 ((quoting Illinois v. Allen, 397 U.S. 337, 350-51, 905 S. Ct. 1057, 25 L. Ed. 2d 353 (1970)); see also State v. Breedlove, 79 Wn. App. 101, 109-11, 900 P.2d 586 (1995).
This right to self-representation, however, is neither absolute nor self-executing. A court bears no affirmative duty to inform a defendant that he has the right. Rather, the defendant must personally ask to exercise the right, especially considering that its exercise will almost always be detrimental. "[T]he judicious and orderly administration of justice requires that certain procedural requirements be observed in order to assert such right."
See generally State v. Woods, 143 Wn.2d 561, 586, 23 P.3d 1046 (2001); Fritz, 21 Wn. App. 354.
State v. Garcia, 92 Wn.2d 647, 654, 600 P.2d 1010 (1979).
Fritz, 21 Wn. App. at 356.
It is essential that a defendant's request to exercise the right be timely and unequivocal. Usually, upon receiving such a request, the court will engage the defendant in a colloquy to determine whether the defendant's waiver of his right to counsel is voluntarily, knowingly and willingly made, and further, that the defendant is competent to assert such waiver. If a court finds these elements satisfied, then the court must grant the defendant's request as a matter of law.
Woods, 143 Wn.2d 561.
See Faretta, 422 U.S. at 808-09; State v. Lillard, 122 Wn. App. 422, 427-28, 93 P.3d 969 (2004).
Fritz, 21 Wn. App. 354.
A request to proceed pro se, however, does not automatically trigger an obligation on behalf of the trial court to perform a colloquy on the record. If the request was patently untimely, then no further inquiry is required before the court denies the request. "Even when a request is unequivocal, a defendant may still waive the right of self-representation by subsequent words or conduct." And, "[c]ourts should indulge every reasonable presumption against finding that a defendant has waived the right to counsel."
State v. Vermillion, 112 Wn. App. 844, 851, 51 P.3d 188 (2002) (citing State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995)).
Vermillion, 112 Wn. App. at 851 (citing State v. Chavis, 31 Wn. App. 784, 789, 644 P.2d 1202 (1982)).
The reasonableness of the time of Hence's mid-trial request depends on the circumstances. We review the entire record in evaluating the trial court's decision for an abuse of discretion.
State v. DeWeese, 117 Wn.2d 369, 378, 816 P.2d 1 (1991).
When the lateness of the request and even the necessity of a continuance can be reasonably justified the request should be granted. When, on the other hand, a defendant merely seeks to delay the orderly processes of justice, a trial court is not required to grant a request for self-representation without any ability to test the request by reasonable standards.
People v. Windham, 19 Cal. 3d 121, 129 n. 5, 560 P.2d 1187, 1191 n. 5 (1977).
People v. Windham, 19 Cal. 3d 121, 129 n. 5, 560 P.2d 1187, 1191 n. 5 (1977).
In State v. Fritz, this court cited favorably the Supreme Court of California in People v. Windham for its analysis on the reasonableness of the time of the request.
19 Cal. 3d 121, 129, 560 P.2d 1187, 1191 (1977); Chapman v. United States, 553 F.2d 886, 893-95 (1977).
The cases which have considered the timeliness of a proper demand for self-representation have generally held: (a) if made well before the trial or hearing and unaccompanied by a motion for continuance, the right of self-representation exists as a matter of law; (b) if made as the trial or hearing is about to commence, or shortly before, the existence of the right depends on the facts of the particular case with a measure of discretion reposing in the trial court in the matter; and (c) if made during the trial or hearing, the right to proceed pro se rests largely in the informed discretion of the trial court.
Fritz, 21 Wn. App. at 361 (emphasis added).
Fritz, 21 Wn. App. at 361 (emphasis added).
Here, Hence's request was simply untimely. He made his request halfway through his brief jury trial. No surprise evidence or other reason arose at that late time that would support granting a motion to proceed pro se made in the middle of trial.
Hence was seeking to testify without being subject to direct or cross examination, to speak directly to the jury in a closing argument, and to object to the prosecutor's many references to bottles even though there was no valid basis on which to object to this testimony. Under these circumstances, the trial court did not abuse its discretion in denying Hence's motion to proceed pro se.
The trial court is affirmed.