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State v. Martinez

The Court of Appeals of Washington, Division One
Mar 19, 2007
137 Wn. App. 1044 (Wash. Ct. App. 2007)

Opinion

No. 57422-1-I.

March 19, 2007.

Appeal from a judgment of the Superior Court for King County, No. 04-1-01420-1, John P. Erlick, J., entered May 3, 2005.

Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Seattle, WA.

Sarah Mcneel Hrobsky, Washington Appellate Project, Seattle, WA.

Gregory Charles Link, Washington Appellate Project, Seattle, WA.

Felix Repilado Martinez — Info Only (Appearing Pro Se), Seattle, WA.

Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Seattle, WA.

Andrea Ruth Vitalich, King County Prosecutor's Office, Seattle, WA.


Affirmed by unpublished per curiam opinion.


Upon learning that his motion to substitute new counsel was being denied, Felix Martinez asked whether he could simply represent himself. When told he could, Martinez responded, "Then I'll go completely by myself." Despite that request, Martinez was represented by court-appointed counsel throughout his trial and sentencing proceedings. Martinez now asks us to decide on appeal whether he was denied his constitutional right to self-representation. Given the relevant facts in this case and the nature of our review, we hold he was not. Nor has Martinez established that he was denied effective assistance of counsel because his attorney had a conflict of interest. Accordingly, we affirm.

FACTS

On the morning of February 11, 2004, Seattle Police Officers conducted a "buy and slide" operation in Seattle. In the undercover operation, the police employed Henry Morton to purchase drugs from street-level drug dealers. Morton gave a "good buy" signal after meeting with Martinez. Thereafter, Martinez was fingerprinted by police and released. Martinez was eventually charged with delivery of cocaine.

Martinez was also charged with three counts of possession of cocaine. A separate trial was held of the possession counts, which is the subject of another appeal filed by Martinez in State v. Martinez, No. 56250-9-I (2006).

After Martinez moved for substitution of new counsel, the attorney appointed to represent him on the three possession counts was allowed to withdraw on August 30, 2004. John Ostermann, who already had been representing Martinez on the delivery count, was assigned to represent him on the possession counts as well.

On September 29, 2004, King County Superior Court Judge Julie Spector heard a motion by Martinez for appointment of new counsel. Martinez indicated that he did not trust Ostermann and requested new counsel. court denied the motion, ruling that Martinez had failed to present a sufficient legal basis to warrant appointment of new counsel.

Martinez then asked the court if he could defend himself, to which the court replied, "You all have the right to be pro se." At that point Martinez stated, "Then I'll go completely by myself."

The court then engaged in a lengthy colloquy with Martinez, asking him a series of questions about the nature of the crimes he was charged with committing, his knowledge of the law, and the criminal justice system. Martinez admitted his lack of knowledge of details of the case against him, and of virtually every aspect of trial procedure. The court concluded that Martinez lacked even "a basic understanding of how a trial proceeds," and stated, "It would certainly mandate a continuance if I were to allow you to proceed pro se." The court denied the motion, finding Martinez's request was not timely made.

Over the next several months, Ostermann was allowed to withdraw as counsel and Yvonne Curtis, an attorney with the Society of Counsel Representing Accused Persons (SCRAP), was substituted as counsel of record.

On February 16, 2005, pretrial motions were heard before Judge William L. Downing. Curtis moved to withdraw because of a perceived conflict of interest. As she explained to the court, Curtis had learned the day before that SCRAP had represented or appeared to have represented Morton under a different name on a 1996 first-degree theft conviction. The State indicated that it had no reason at that time to believe the theft conviction was not part of Morton's criminal history. The court denied the motion:

All right. I'm not sure there is a necessity to cause this disruption in Mr. Martinez' life. I think that you could continue ethically to represent him zealously, with the stipulation as to Mr. Morton's criminal history, the fact that there is so much age, and you did not handle the case. You obviously would have no — should have no access to his files or any other information.

Trial lasted two days. Morton identified Martinez in court as the man who sold him the substance resembling cocaine. A surveillance officer testified he observed Morton Martinez engage in a "hand-to-hand" transaction. The substance Morton received from Martinez was tested and found to contain cocaine. A jury found Martinez guilty as charged. This appeal followed.

ANALYSIS

Martinez first contends he was denied his right to represent himself. He claims that he clearly informed the trial court that he wished to proceed without counsel. Because he was deprived of his constitutional right to self-representation, Martinez argues, this court should reverse his conviction and remand for a new trial. We disagree.

Under the state and federal constitutions, criminal defendants may waive their right to be represented by counsel and choose instead to represent themselves at trial and conduct their own defense. State v. Fritz, 21 Wn. App. 354, 357, 585 P.2d 173 (1978). "The State and Federal Constitutions guarantee a criminal defendant the right to self-representation." State v. Vermillion, 112 Wn. App. 844, 850, 51 P.3d 188 (2002). The defendant's request or demand to be pro se must be stated unequivocally and must be made in a timely fashion. State v. DeWeese, 117 Wn.2d 369, 377, 816 P.2d 1 (1991). Courts should indulge every reasonable presumption against finding that a defendant waived the right to assistance of counsel. State v. Chavis, 31 Wn. App. 784, 789, 644 P.2d 1202 (1982).

Martinez argues that his request was made in a timely manner. Because his request to proceed pro se was made over three weeks before the scheduled trial date and without a motion for a continuance, Martinez argues the court erroneously concluded the motion was untimely. Even if we were inclined to agree, which we are not, a "request to proceed pro se must be both timely and unequivocal." State v. Stenson, 132 Wn.2d 668, 740, 940 P.2d 1239 (1997).

Although the State appears to agree with Martinez that his request for self-representation was timely, this court is not bound by an erroneous concession of legal error. State v. Law, 110 Wn. App. 36, 42, 33 P.3d 374 (2002). In rejecting virtually the same claim in Martinez's companion case, this court held that "the trial court did not abuse its discretion in determining that Martinez's motion to proceed pro se was not made in a timely manner." State v. Martinez, No. 56250-9-I, noted at 132 Wn. App. 1051 (2006). We adopt that holding as our decision in this case.

Martinez's argument that his request to proceed pro se was unequivocal is based solely on the fact he stated, "Then I'll go completely by myself." But this statement cannot be viewed in isolation. The request to be pro se "must be unequivocal in the context of the record as a whole." Stenson, 132 Wn.2d at 741-42. When viewed in the context of the record as a whole, Martinez's request was merely an expression of his dissatisfaction with his appointed counsel and not an unwavering commitment to self-representation. As the court was explaining the risks and pitfalls of being pro se, Martinez interjected: "I need an attorney to do a motion or petition for report." At several other points during the hearing, Martinez asked for a "better attorney" and "a person who can talk to the prosecutor." Given Martinez's inconsistent demands, we conclude that his request to proceed pro se was ambiguous and equivocal. Under the circumstances, Martinez was not denied his constitutional right to represent himself.

Martinez next contends he was denied a fair trial because of his trial attorney's conflict of interest. Thus, Martinez argues his conviction must be reversed and the matter remanded for a new trial. We again disagree.

The Sixth Amendment right to counsel includes the right to assistance of counsel free from conflicts of interest. State v. Davis, 141 Wn.2d 798, 860, 10 P.3d 977 (2000); State v. Tjeerdsma, 104 Wn. App. 878, 882, 17 P.3d 678 (2001). If one member of a law firm, including a public defender agency, is precluded from representing a client due to a conflict of interest, then all members of that firm are prohibited from representing that client. State v. Hunsaker, 74 Wn. App. 38, 42, 873 P.2d 540 (1994). "The determination of whether a conflict exists precluding continued representation of a client is a question of law and is reviewed de novo." State v. Ramos, 83 Wn. App. 622, 629, 922 P.2d 193 (1996).

Martinez's argument rests on the mistaken assumption that SCRAP had previously represented Morton in a matter that resulted in a conviction for theft in the first degree. As the deputy prosecutor explained during a discussion of pretrial motions on March 15, 2005,

Your Honor, the only other issue I wanted to bring to your attention, and I discussed this with Ms. Curtis prior to coming in here this morning, there was an issue awhile back regarding a conviction that was on the record of our confidential witness. It was a theft conviction. Ms. Curtis had actually made a motion to withdraw as counsel on the basis of that conviction because her agency had represented the confidential witness at one point; and at that time, the State didn't have any reason to believe that that conviction didn't actually belong to the confidential witness.

Late last week, I had an opportunity to speak with that witness and talk with him a little more about that particular conviction, and he persuaded me over and over that he — that didn't belong to him. That was not a crime that he committed. I had an opportunity to investigate it.

The investigation conducted by the deputy prosecutor established that Morton had not been a client of SCRAP. In other words, Martinez's trial counsel was not burdened with an actual conflict of interest. Thus, Martinez fails to establish a claim of ineffective assistance of counsel. Affirmed.


Summaries of

State v. Martinez

The Court of Appeals of Washington, Division One
Mar 19, 2007
137 Wn. App. 1044 (Wash. Ct. App. 2007)
Case details for

State v. Martinez

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. FELIX REPILADO MARTINEZ, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Mar 19, 2007

Citations

137 Wn. App. 1044 (Wash. Ct. App. 2007)
137 Wash. App. 1044