Opinion
No. 53347-9-I
Filed: March 14, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 96-1-01332-8. Judgment or order under review. Date filed: 11/04/2003. Judge signing: Hon. Ellen J. Fair.
Counsel for Appellant/Cross-Respondent, Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Jennifer L. Dobson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent/Cross-Appellant, Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Late in Abdul Jones' second trial for first degree assault with a firearm, attempting to elude a pursuing police vehicle, unlawful possession of a firearm, and failure to return from furlough, the court denied Jones' request to dismiss his counsel and proceed pro se. A jury ultimately convicted him as charged. Because the trial court was within its discretion in denying the request, and because Jones' arguments regarding his counsel's performance and the admission of statements he made to police lack merit, we affirm.
FACTS
At Jones' first trial, the State presented evidence that he attempted to elude and fired a gun at police while on furlough from the Snohomish County Jail. Police found shell casings near Jones' car. Tests showed the casings came from a gun found near the car. A jury convicted Jones as charged.
Jones appealed, and this court reversed due to the trial court's failure to conduct an in camera review of a shooting review hearing. On remand, the trial court concluded the evidence reviewed in camera would not have affected the outcome of the trial. Jones appealed again. This court affirmed, but the State Supreme Court reversed, holding that Jones was entitled to a new trial.
On the third day of the second trial, Jones suddenly said that he wanted to ask Officer Ron Meek a question. Defense counsel told the court that Jones wanted 'to ask questions that I don't think are going to be very helpful.' Jones indicated that he wanted to impeach Meek with his testimony in the first trial. The court asked defense counsel if he had read the transcript of the first trial, and counsel said, 'Yes.' Counsel then offered to 'make it easier' by going ahead and asking Meeks the question.
At the end of Meek's testimony, Jones said he wanted to fire his counsel. When the court asked why, Jones said counsel had failed to impeach Meek on a certain point with his testimony at the first trial. Jones also vaguely alleged that other witnesses had changed their testimony. The court noted that defense counsel 'was extremely competent' and had 'been impeaching every witness when there have been significant differences in testimony [.]' Jones disagreed. At that point, the court advised Jones to confer with his counsel over the lunch hour.
When court reconvened, Jones told the court he wanted to proceed pro se. The court asked for examples of things Jones felt his counsel had mishandled. Jones said his counsel should have brought out the fact that, during the first trial, an officer testified he picked up the gun at the scene without gloves on and thus tampered with the evidence. Jones asked the court for 30 to 40 minutes to put together a list of testimonial inconsistencies that his counsel had failed to confront the witnesses with. The court then asked Jones for another example. Jones said defense counsel could have brought up prior testimony that the gun had been fired over 100 times, thus making it impossible to say exactly when the recovered shell casings had been ejected from the gun.
Jones then accused the court of not giving him 'a chance to bring things to you to get a proper inquiry.' The court requested another example of something counsel had mishandled. Jones said counsel had failed to elicit testimony that the gun was in a holster, not a backpack, when it was found at the scene.
The court then questioned Jones about his plans for presenting a defense pro se. Jones indicated he wished to call one defense witness and recall several State's witnesses. He estimated he could be done with his case by Thursday '[o]r at least Friday.' After evaluating several considerations on the record, the court denied Jones' request. The jury subsequently convicted Jones as charged.
DECISION
Jones first challenges the admission of his statements to Officer Meek. He contends the Miranda warnings he received ten hours prior to the statements were stale and, therefore, the statements should have been suppressed. We rejected this argument in Jones' previous appeal and decline to revisit it here.
Miranda v. Arizona, 384 U.S. 436, 457-58, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Under the law of the case doctrine, this court normally adheres to decisions declaring the applicable law in previous appeals of the same case. This court may, however, reconsider a decision in a prior appeal if the decision was clearly erroneous, application of the law of the case doctrine would result in manifest injustice, and there would be no injustice to the other party. In this case, Jones fails to address the law of the case doctrine or the criteria relevant to its application. He makes no attempt to explain why this court's prior decision was erroneous. That omission is fatal to his argument here.
Folsom v. County of Spokane, 111 Wn.2d 256, 263, 759 P.2d 1196 (1988).
Folsom, 111 Wn.2d at 264; RAP 2.5 (c)(2).
In any case, we have reviewed our prior decision in this case and conclude it was not clearly erroneous. That decision correctly noted that Washington courts have upheld the admission of statements made 'from five hours to four days' after Miranda warnings. A number of federal decisions are in accord. There is no manifest injustice in applying the law of the case doctrine here.
State v. Jones, 111 Wn. App. 1022, slip op. at 2 (2002).
See e.g., United States v. Andaverde, 64 F.3d 1305 (9th Cir. 1995) (one day); Puplampu v. United States, 422 F.2d 870 (9th Cir. 1970) (two days); Maguire v. United States, 396 F.2d 327 (9th Cir. 1968) (three days); Martin v. Wainwright, 770 F.2d 918, 930-31 (11th Cir. 1985) (one week), cert. denied, 479 U.S. 909, 107 S. Ct. 307, 93 L. Ed. 2d 281 (1986); United States ex rel. Henne v. Fike, 563 F.2d 809, 814 (7th Cir. 1977) (nine hours), cert. denied, 434 U.S. 1072, 98 S. Ct. 1257, 55 L. Ed. 2d 776 (1978); People of Territory of Guam v. Dela Pena, 72 F.3d 767 (9th Cir. 1995) (fifteen hours).
Jones contends his trial counsel was ineffective for failing to impeach Officer Meek with inconsistent testimony he gave in the first trial. To prevail on this claim, Jones must demonstrate both deficient performance and prejudice and must overcome a strong presumption of effective representation. He must also demonstrate that the challenged conduct cannot be characterized as legitimate trial strategy or tactics. Jones contends 'there was no legitimate tactical reason' for defense counsel's failure to impeach Meek with his prior inconsistent testimony. We disagree.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
State v. McFarland, 127 Wn.2d at 336.
In the first trial, Meeks testified that while he could not recall Jones' exact words, Jones told him that Officer Keith Poteet was lucky because Jones' gun jammed; otherwise, he would have 'done him.' At the second trial, Meek testified that Jones' 'exact wording was, 'Motherfucker's lucky my gun jammed or I'd have done him.'' Jones contends his trial counsel should have questioned Meeks about his sudden ability to recall Jones' exact words. But it is clear from the record that defense counsel reviewed the transcript from the first trial and made a tactical decision not to impeach Meeks on that point. Given the relatively minor nature of the discrepancy in Meek's testimony, counsel could legitimately conclude that the downside of the proposed impeachment was greater than its upside. As the trial court noted: 'I would surmise that the words that you said, that [defense counsel] does not wish to highlight this over and over again for the jury, which is an extremely intelligent tactical decision on his part.' We agree.
Jones' final argument is that the trial court 'failed to exercise informed discretion' when it denied his request to dismiss his trial counsel for ineffective assistance. He concedes that the trial court considered the correct legal standards. He argues, however, that prior to ruling, the court should have either reviewed Meek's testimony or allowed a brief recess for Jones to gather his notes regarding Meek's inconsistent testimony. Again, we disagree.
Criminal defendants generally have a constitutional right to waive assistance of counsel and represent themselves at trial. But a request to proceed pro se must be timely. When, as here, the request is made during trial, the defendant has no right to proceed pro se, and the decision is discretionary with the trial court. In exercising that discretion, a trial court must consider (1) the quality of the defendant's representation, (2) the defendant's proclivity to substitute counsel, (3) the reasons for his request to dismiss counsel, (4) the length and stage of the proceedings, and (5) the disruption or delay that would result from granting the request.
State v. Barker, 75 Wn. App. 236, 238, 881 P.2d 1051 (1994).
Barker, 75 Wn. App. at 239-41.
State v. Fritz, 21 Wn. App. 354, 361, 525 P.2d 173 (1978).
State v. Fritz, 21 Wn. App. at 363.
The trial court considered each of these factors. It concluded that while Jones had not demonstrated a proclivity to substitute counsel, his counsel's representation was 'outstanding', his reason for requesting new counsel was essentially a disagreement over trial tactics, his request was made very late in the proceedings, and granting the request would disrupt the trial. As to the latter factor, the court pointed out that there would be at least a day's delay in the proceedings and that trial would resume Thursday afternoon at the earliest. Because the court had no alternate jurors left and one juror was scheduled to leave town on Monday, the court was concerned the delay could result in a mistrial. Accordingly, the court denied Jones' request. The record supports the court's reasoning and decision.
Jones argues, however, that the court did not exercise sufficiently informed discretion because it did not allow him adequate time to demonstrate counsel's inadequacies. The record is to the contrary. The court repeatedly asked Jones for examples of his counsel's alleged mistakes. Each time, Jones described a different instance of what he perceived to be deficient performance. Although Jones maintains he needed more time to make his points below, he has not demonstrated what, if anything, he would have added to his presentation had he had additional time.
The trial court did not abuse its discretion in denying Jones' untimely request to dismiss his counsel and proceed pro se. Affirmed.
GROSSE, SCHINDLER, COLEMAN, JJ.