Opinion
No. 24799-6-III.
August 21, 2007.
Appeal from a judgment of the Superior Court for Benton County, No. 04-1-01070-9, Carrie L. Runge, J., entered December 1, 2005.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Schultheis and Brown, JJ.
Kenneth Klym appeals convictions for first degree assault and felony stalking. He asserts that the court effectively denied him his right to represent himself, that the prosecutor committed misconduct, and that his booking photograph should not have been admitted into evidence at trial. We disagree on all counts and affirm his convictions.
FACTS
Brandi Martin broke off her relationship with Kenneth Klym and moved from the apartment they shared. Mr. Klym called Ms. Martin a couple of times a day, both at work and on her cell phone. He also made phone calls to the homes of family members where Ms. Martin stayed. Ms. Martin kept track of the phone calls and contacts. Mr. Klym would show up at the house where Ms. Martin stayed. He drove past the house. Ms. Martin obtained a no contact order against Mr. Klym.
Mr. Klym continued to follow and watch her. Mr. Klym also may have cancelled Ms. Martin's debit card using her social security number. Ms. Martin returned to her parents' home out of fear for her safety. Mr. Klym drove a truck at a high rate of speed up to the back of Ms. Martin's car as she drove home from work. He passed her, then pulled over to the side of the road and turned off the truck's lights. She passed the truck. He again entered the highway and again caught up with Ms. Martin's car. This time he kept pace with her car. Mr. Klym wore a black, hooded sweatshirt. Ms. Martin reached for her cell phone to call the police. Mr. Klym sped off. Ms. Martin caught up again to the truck further down the road. Mr. Klym threw what looked like a "ball of fire" at her car. The driver of a following car saw Mr. Klym throw the flaming material at Ms. Martin's car window.
Ms. Martin called police to report the incident. The flaming object he threw at her car left a dent where it hit the door. There were scratches in the paint of her car where the ignited gasoline had dripped down. The heat from the flames melted the molding of the car's back window and left scratches on the glass.
Police arrested Mr. Klym. The jail released him on bail. Less than two weeks later, Mr. Klym circled a restaurant Ms. Martin was at. She had recently seen a truck similar to the one he drove cruising her neighborhood.
The State charged Mr. Klym with first degree assault and stalking.
The court ordered a competency evaluation. Representatives from the state mental hospital pronounced Mr. Klym competent, but expressed concern over his alcohol abuse and mood disorders. The court concluded he was competent.
Mr. Klym moved to discharge his court-appointed counsel and proceed pro se. The trial court permitted Mr. Klym's trial counsel to withdraw. The court first refused to permit Mr. Klym to represent himself, but then suggested that Mr. Klym might be able to act pro se with standby counsel. Mr. Klym agreed.
Conflicts built between Mr. Klym and standby counsel. Mr. Klym wanted counsel to do legal research and to travel to the jail to make and deliver copies of documents. Standby counsel refused. He thought there was no basis in law for Mr. Klym's assertions, and the cost of travel and making copies was not justified. The court agreed. Mr. Klym also wanted the court to appoint an investigator. He also moved to have access to a law library and a copy machine. The court denied these motions, primarily because Mr. Klym had standby counsel to assist him.
Mr. Klym then asked the court to appoint counsel for him because the court had denied these motions. The court agreed but refused, at first, to delay the trial further. Appointed counsel, nonetheless, secured two continuances to prepare for trial. And the appointed counsel also hired an investigator.
The State told Mr. Klym and his counsel that it intended to charge Mr. Klym's alibi witness and friend, Hank Mulder, with telephone harassment and rendering criminal assistance. Mr. Mulder harassed Ms. Martin by phone on Mr. Klym's behalf. The State said that it had delayed prosecution so that Mr. Mulder could testify at trial without any fear of prosecution. But the trial had been delayed too long and so the State decided to proceed.
The court admitted Mr. Klym's booking photograph over his objection.
The State presented its case, rested, and then proceeded to arraign Mr. Mulder. The court informed Mr. Mulder and counsel of the charges. Mr. Mulder's attorney then advised him not to testify on Mr. Klym's behalf. The State next offered Mr. Mulder immunity for anything that he would testify to at Mr. Klym's trial. Mr. Mulder nonetheless refused to testify. Mr. Klym moved for a mistrial. He argued that Mr. Mulder's testimony was central to his defense and that the timing of Mr. Mulder's arraignment deprived Mr. Klym of a fair trial. The State responded that it had made Mr. Klym aware of the charges against Mr. Mulder several weeks before, and therefore the charges should not have come as a surprise. It also noted that the offer of immunity to Mr. Mulder for any of his testimony removed any potential prejudice. The court denied the motion for a mistrial.
The jury found Mr. Klym guilty of first degree assault and felony stalking. He moved to dismiss the charges based upon prosecutorial misconduct and the admission of the booking photograph. The court refused.
DISCUSSION
Right to Self-Representation
Mr. Klym has the right to waive the assistance of counsel and represent himself. State v. Stenson, 132 Wn.2d 668, 737, 940 P.2d 1239 (1997). The request must be unequivocal. In re Det. of Turay, 139 Wn.2d 379, 396, 986 P.2d 790 (1999). The right to self-representation is not unlimited, however. A trial court may appoint standby counsel even over a defendant's objections. State v. McDonald, 143 Wn.2d 506, 511, 22 P.3d 791 (2001). The role of standby counsel is to provide technical legal information and advice and to step in if the defendant winds up not representing himself. Id. at 511-12.
Our review of this question of constitutional importance is de novo. See, e.g., State v. Jones, 159 Wn.2d 231, 237, 149 P.3d 636 (2006), cert. denied sub nom. Thomas v. Washington, 127 S. Ct. 2066 (2007).
Mr. Klym contends that the court's refusal to allow him access to the law library or a copy machine or to require standby counsel to do legal research and the court's refusal to appoint an investigator forced him to abandon his choice to represent himself and accept counsel. But Mr. Klym must show the inadequacy or unavailability of those resources. See People v. Lawley, 27 Cal. 4th 102, 142, 115 Cal. Rptr. 2d 614, 38 P.3d 461 (2002). And it is impossible on this record to decide what resources were or were not made available to him. He also did not, and does not, show the need for an investigator and therefore can show no prejudice. State v. Silva, 107 Wn. App. 605, 624, 27 P.3d 663 (2001).
Finally on this point, the appointment of standby counsel satisfies the due process requirement of meaningful access to the courts and legal resources. State v. Dougherty, 33 Wn. App. 466, 471, 655 P.2d 1187 (1982). The court appointed standby counsel. Standby counsel was available for advice on legal issues. The court refused to require standby counsel to research frivolous legal issues on Mr. Klym's behalf. This was not an abuse of discretion. See State v. Rosales, 3 Neb. App. 26, 32-33, 521 N.W.2d 385 (1994) (extent of standby counsel's involvement in a case is at the trial court's discretion). Standby counsel was still available to aid Mr. Klym in presenting a defense at trial that was justified in light of the law and the facts of the case. Silva, 107 Wn. App. at 628-29.
Mr. Klym was not forced to waive his right to represent himself. And his right to meaningful access to the courts was not denied. See State v. Bebb, 108 Wn.2d 515, 525-26, 740 P.2d 829 (1987).
Prosecutorial Misconduct Alibi Witness
Mr. Klym next contends that the State denied him a fair trial by charging his alibi witness, right before the witness was to testify, with crimes related to that witness's contact with Ms. Martin.
Mr. Klym must show that the prosecutor's conduct was improper and that it was prejudicial. See State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999). Misconduct by the prosecutor is not prejudicial unless there is a substantial likelihood that the misconduct affected the jury's verdict. Id. How and when a prosecutor files criminal charges is largely a discretionary function with the prosecutor. State v. Korum, 157 Wn.2d 614, 625, 141 P.3d 13 (2006). And a prosecutor may grant immunity to an unwilling witness to assure his testimony at trial. See State v. Bryant, 146 Wn.2d 90, 97, 42 P.3d 1278 (2002).
Here, the State announced well before Mr. Klym's trial that it intended to charge Mr. Mulder based on his harassment of Ms. Martin. Mr. Klym was then, or should have been, aware that Mr. Mulder would be formally charged at any time prior to, or during, his trial. There is no showing here of bad faith or nefarious tactics by the State to discourage Mr. Mulder from testifying.
And even if we assumed impropriety, there is no prejudice here. The State informed Mr. Klym early on about the likelihood of charges against Mr. Mulder because he harassed Ms. Martin. And the State obviated any potential prejudice by offering Mr. Mulder immunity for any statements made during Mr. Klym's trial. State v. Bryant, 97 Wn. App. 479, 483-85, 983 P.2d 1181 (1999). Admission of Booking Photograph
Mr. Klym next assigns error to the court's admission of his booking photograph. He argues the court erred because the State did not disclose this evidence to Mr. Klym and his attorneys. The State responds that it did not have access to the photograph until just before trial. And, moreover, Mr. Klym and his attorneys always had the same access to the photograph as the State.
We review a judge's rulings on the admission of evidence for abuse of discretion. State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002). A court abuses its discretion when its decision is based on untenable grounds or reasons. Id.
The State must disclose all books, papers, documents, photographs, or tangible objects that the State intends to introduce into evidence at trial. CrR 4.7(a)(1)(v). The obligation on the State to disclose this information is continuing. State v. Greiff, 141 Wn.2d 910, 919-20, 10 P.3d 390 (2000). And a defendant's right to due process is violated if the State fails to disclose evidence material to guilt or punishment. In re Pers. Restraint of Gentry, 137 Wn.2d 378, 396, 972 P.2d 1250 (1999). But that does not apply if the defendant himself could have secured the material with reasonable diligence. Id. And that is the case here.
The State was prompted to obtain and introduce the photograph only after a witness testified about it at trial. There is no showing here that the State had the photograph and just refused to disclose it. Regardless of whether Mr. Klym was able to independently obtain his booking photograph, there was no discovery violation on the part of the State. The State did not have knowledge of the photograph before trial. And it did not, then, violate CrR 4.7(a)(1). In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 485-86, 965 P.2d 593 (1998). Here, the State was only informed of the booking photograph after one of its witnesses testified at trial.
Finally, we conclude that introduction of the booking photograph did not materially affect the outcome of this trial. State v. Turner, 143 Wn.2d 715, 729, 23 P.3d 499 (2001). The photograph was accurate. It related to this prosecution, not other charges. State v. Rivers, 129 Wn.2d 697, 710-12, 921 P.2d 495 (1996). Certainly a booking photograph from a prior, unrelated arrest may be prejudicial. State v. Sanford, 128 Wn. App. 280, 285-87, 115 P.3d 368 (2005). But juries know that booking procedures exist and would be followed upon the arrest of the defendant for the charged offense. Rivers, 129 Wn.2d at 712. The court did not abuse its discretion when it admitted Mr. Klym's booking photograph into evidence.
We affirm the convictions.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, J., BROWN, J., concur.