Opinion
No. 60733-2-I.
November 24, 2008.
Appeal from a judgment of the Superior Court for King County, No. 04-1-11764-6, Paris K. Kallas, J., entered October 12, 2007.
Affirmed by unpublished per curiam opinion.
Nicolay Sloboda appeals his jury trial conviction for intentional murder in the second degree and felony murder in the second degree, both while armed with a deadly weapon, for the killing of Michael Behm in a road rage incident. Sloboda argues that (1) the trial court erred in denying his motion to proceed pro se with standby counsel, (2) the prosecutor committed reversible misconduct during closing argument by vouching for the credibility of the State's witnesses, and (3) the State's evidence was insufficient to disprove self-defense beyond a reasonable doubt. We conclude that the trial court did not abuse its discretion in denying Sloboda's motion to proceed pro se, that the prosecutor's argument was not improper, and that there was sufficient evidence for the jury to conclude beyond a reasonable doubt that the homicide was justifiable. We affirm.
FACTS
Nicolay Sloboda was charged with three counts based on the killing of Michael Behm: first degree murder, first degree felony murder based on robbery, and second degree felony murder based on second degree assault. At trial, witnesses testified to the following events.
In the early morning hours of March 7, 2004, 18-year-old Michael Behm and his friend Richard Walden were riding in Behm's car when they encountered a blue Mitsubishi at a four-way stop. Sloboda was driving the Mitsubishi, and his friends Ilya Melnik, Lauren Maus, and Megan Wise were passengers. Behm flashed his lights at the Mitsubishi, passed at a high rate of speed, and then slowed down. Sloboda and Melnik became angry at the way Behm was driving. Sloboda flashed his lights and pursued Behm. Both cars came to a stop in Behm's neighborhood near the intersection of South 370th Street and 28th Avenue South in King County. Sloboda leaned out the window and yelled, "[P]ull your car over." Report of Proceedings (RP) (Sept. 10, 2007) at 89. Behm stopped the car, and he and Walden got out. Sloboda said, "I'm going to beat his ass" as he and Melnik exited the car. RP (Sept. 11, 2007) at 42.
Sloboda said, "Let's go, fatty" and Behm responded, "I am ready." RP (Sept. 10, 2007) at 91. Sloboda and Behm began to fight. At first they just "danc[ed] around each other" while Walden and Melnik watched. RP (Sept. 10, 2007) at 93. But when Behm slipped and fell down, Melnik joined in and punched Behm in the face. Walden grabbed Melnik and threw him off of Behm. Behm picked up Sloboda, threw him to the ground, and kicked him in the stomach. Sloboda got up, ran back to his car, and asked Maus to retrieve his knife. She found the knife and tossed it to him.
Armed with the knife, Sloboda reapproached Walden and Behm. Walden saw the knife and said, "That's it. You know, we are done. We are done here." RP (Sept. 10, 2007) at 100. Sloboda charged at Walden with the knife, and Walden ran 20 or 30 feet away. Sloboda then advanced on Behm and stabbed him in the arm. Behm ran, and Sloboda pursued him. Sloboda caught up with Behm, stabbed him in the chest, and continued to kick and punch him.
Meanwhile, Melnik got a car jack from Sloboda's car and swung it at Walden's head. Walden dodged the car jack, pushed Melnik, and jumped into the driver's seat of Behm's car. Melnik threw the jack through the driver's side window at Walden. The jack narrowly missed Walden and landed on the front passenger seat.
Walden then drove around looking for Behm. He found Behm lying facedown in the grass along the shoulder of the roadway not far from where the fight started. Walden called 911. Attempts to revive Behm were unsuccessful, and he was pronounced dead at the scene. An autopsy revealed that Behm had been stabbed three times and sustained blunt force injuries to his face.
Sloboda, Melnik, Maus, and Wise got into Sloboda's car and drove away. They stopped at a Rite Aid in Federal Way where Sloboda and Melnik washed blood from their hands and clothes. They stopped at a friend's house for awhile, and then Sloboda drove Maus and Wise home. The next morning, Maus learned from a news report that Behm had died. She called Sloboda, and he came to her house. Sloboda told Maus that he killed Behm. Sloboda told Maus not to talk to the police or she could get in trouble. Maus noticed that Sloboda was wearing a hat that she had never seen before. It was later determined to be the hat that Behm was wearing just before he was murdered. Sloboda hid the hat and the spoiler he had removed from the back of his car under Maus's bed.
The first degree felony murder charge, of which Sloboda was acquitted, was based upon the allegation that Sloboda took the hat from Behm.
On March 10, 2004, Sloboda was apprehended by a state trooper in Warren County, Missouri. Sloboda was with Melnik and another friend at the time of arrest. Police investigator Sam Steward interviewed Sloboda at the Warren County jail. Sloboda described the car chase and ensuing fight, but claimed that he fought Behm with brass knuckles, not a knife. When Steward told Sloboda that he did not believe him, Sloboda changed his story and admitted stabbing Behm. Sloboda told Steward that he retrieved his knife after Behm grabbed him and threw him onto his head. Sloboda said that he just wanted to scare Behm away. Sloboda told Steward, "I think [Behm] started approaching me" so he stabbed Behm. RP (Sept. 12, 2007) at 113. Sloboda remembered stabbing Behm in the chest and the right shoulder. Sloboda said that Behm ran away and fell onto the ground. Sloboda said, "[H]e couldn't think" and "All I wanted to do was hit him." Id. at 115. Sloboda caught up to Behm and continued to kick and punch him as he lay on the ground. Sloboda did not remember stabbing Behm a third time.
Sloboda's trial was set to begin in May 2005, but the proceedings were delayed due to a medical emergency. At a status hearing on July 8, 2005, defense counsel raised concerns about Sloboda's competency to stand trial. The court ordered Sloboda to undergo a competency evaluation at Western State Hospital (Western). Sloboda expressed a desire to represent himself, but the court deferred ruling on the issue and told Sloboda that he could bring a motion to proceed pro se after the competency issue was resolved.
On August 29, 2005, Sloboda was deemed incompetent to stand trial. He spent nearly a year at Western undergoing competency restoration. Between August 2005 and March 2006, Sloboda returned to court three times. At each hearing, the court determined that Sloboda was incompetent and returned him to Western. In September 2006, Sloboda was discharged and returned to King County jail. On October 25, 2006, Sloboda appeared before the court to address his noncompliance with medications. Sloboda complained that many of his rights were being violated, including his right to self-representation. The court again told Sloboda that he could address his concerns after the competency issue was resolved.
On March 19, 2007, Sloboda's competency hearing began. At one point, Sloboda interjected and asked, "Is there any way I can go pro se?" RP (Mar. 19, 2007) at 83. The court told Sloboda that the attorney would address the court on his behalf. Neither Sloboda nor his attorney raised the issue with the court again during the competency trial.
On April 13, 2007, the court found Sloboda competent to stand trial. On April 17, 2007, Sloboda appeared at court for a trial status conference. On April 30, 2007, Sloboda appeared at another status conference during which his attorneys asked to withdraw from the case due to a breakdown in communication. On May 21, 2007, Sloboda appeared at the hearing on defense counsel's motion to withdraw, which the court denied. On May 29, 2007, Sloboda appeared for a motion to continue the trial date. On August 7, 2007, he appeared for an omnibus hearing. There is no record that Sloboda mentioned self-representation at any of these hearings.
Trial began on September 4, 2007. The parties completed a CrR 3.5 hearing and all other pretrial motions in limine. They also discussed jury selection and finalized the jury questionnaire for voir dire the following day. Defense counsel renewed the motion to withdraw. Finding no grounds to revisit the prior ruling, the court denied the motion to withdraw. Sloboda did not join in the motion or request to represent himself.
Trial resumed the following day. Defense counsel informed the court that Sloboda wanted to proceed pro se. The following exchange occurred.
[SLOBODA]: Yeah. I would like to go pro se, defend myself in the case with standby counsel under Criminal Rule —
THE COURT: Tell me why.
[SLOBODA]: I'll tell you why, because I believe that I can prepare a defense for myself. And I have been studying the law, not as much as the attorneys know, but enough to understand what goes on, and I think I could prepare a defense with standby counsel as sufficient, as long as it's going by the rules.
. . . .
THE COURT: Anything else regarding your request to represent yourself?
[SLOBODA]: Well, basically that's it. I'd say that I can — I have studied the law a little bit, and I am pretty aware of the attorney position. I think I could prepare a defense for myself, and my intelligence is pretty up there, and I have studied the law a little bit. I think I could defend myself with standby counsel helping me out . . .
. . . .
[SLOBODA]: [A]s a person that's trained.
RP (Sept. 5, 2007) at 7-9.
The court asked the prosecutor for a response, and he stated that he was not prepared to respond to the motion. Defense counsel told the court, "I believe at this point Mr. Sloboda's made this request because he's not comfortable with Ms. Mulligan and myself representing him." Id. at 10.
The court denied Sloboda's request.
Well, there is a constitutional right to represent oneself so long as it's knowing, intelligent and voluntary, but the case law is equally clear that the right is not absolute, and it needs to be exercised in a timely fashion. There are numerous cases that have denied it simply on the timing of the motion being made.
I am prepared to deny it on those grounds. We are not only on the eve of trial, we have started trial. Our jury is completing the questionnaire as we speak. I don't find it's timely, and I do think it's, in essence, a motion to reconsider the motion to withdraw based on dissatisfaction with defense counsel.
The timing, alone, however, with the nature of these charges, the complexity of these charges, and there is no right to standby counsel. I would not appoint standby counsel. I never have, I never would. You either exercise your right to go by yourself, or you defer to your counsel's judgment.
Id. at 10-11. The trial court then gave Sloboda another opportunity to speak.
[SLOBODA]: I wanted to add to that — I wanted to say I think — why I say standby counsel, I think the defendant is not fully trained and aware of the courtroom procedures to the best of the knowledge — I mean up there with the attorney, because the attorney's trained, qualified.
So I think the standby counsel is a reasonable thing, because they need to work together and kind of — because the standby counsel is more aware, trained and knows what's going on in the courtroom. But the defendant is somehow up there, getting up there to the level, but not there fully trained law — in the law. So that's just my — that's just supporting it.
Id. at 11-12. The trial court reiterated that there was no right to standby counsel and that the conditional request rendered Sloboda's motion "somewhat equivocal." Id. at 12.
The case proceeded to trial. Sloboda's theory was self-defense. On September 21, 2007, the jury found Sloboda guilty of a lesser charge of intentional murder in the second degree and felony murder in the second degree. The jury also found that Sloboda was armed with a deadly weapon. The court merged the counts at sentencing and sentenced Sloboda to a total of 244 months. Sloboda appealed.
ANALYSIS
Self-Representation
Sloboda argues that he is entitled to a new trial because the trial court erred in denying his timely, unequivocal request on September 5, 2007, to proceed pro se. A trial court's denial of a request for self-representation is reviewed for abuse of discretion. State v. Breedlove, 79 Wn. App. 101, 106, 900 P.2d 586 (1995). Discretion is abused if the trial court's decision is manifestly unreasonable or is exercised on untenable grounds or for untenable reasons. State v. Woods, 143 Wn.2d 561, 626, 23 P.3d 1046 (2001). Courts indulge every reasonable presumption against finding that a defendant has waived the right to counsel. State v. Chavis, 31 Wn. App. 784, 789, 644 P.2d 1202 (1982).
"Criminal defendants have a constitutional right to waive assistance of counsel and represent themselves." State v. Stenson, 132 Wn.2d 668, 737, 940 P.2d 1239 (1997) (citing Faretta v. California, 422 U.S. 806, 813, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)). Defendants are afforded this right even though exercising it "will almost surely result in detriment to both the defendant and the administration of justice." State v. Vermillion, 112 Wn. App. 844, 851, 51 P.3d 188 (2002). But this right is not absolute or self-executing. Woods, 143 Wn.2d 561, 585-86, 23 P.3d 1046 (2001). The defendant's request must be timely and unequivocal. Vermillion, 112 Wn. App. at 851.
We conclude that the trial court did not abuse its discretion in ruling that Sloboda's request was untimely. The trial court's discretion to grant or deny a motion to proceed pro se lies along a continuum based upon the timing of the request.
If the demand for self-representation is made (1) well before the trial or hearing and unaccompanied by a motion for a continuance, the right of self-representation exists as a matter of law; (2) 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 (3) during the trial or hearing, the right to proceed pro se rests largely in the informed discretion of the trial court.
State v. Barker, 75 Wn. App. 236, 241, 881 P.2d 1051 (1994). Factors to be considered in assessing a motion to proceed pro se made during trial include
"the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion."
State v. Jordan, 39 Wn. App. 530, 541, 694 P.3d 47 (1985) (quoting State v. Fritz, 21 Wn. App. 354, 363, 585 P.2d 173 (1978)).
Here, the court properly exercised its discretion in finding that Sloboda's motion to proceed pro se was untimely. Sloboda waited until the second day of trial to bring his motion. Sloboda made his initial request approximately six months earlier, when his competency was at issue. The court twice informed him that he could bring his motion as soon as the competency issue was resolved. Sloboda was present in court several times between the competency finding and the first day of trial, yet he did not raise the issue again until after trial commenced. This delay was unreasonable. Moreover, given the complexity of the issues, granting the request would have likely delayed or disrupted the trial.
We further conclude that the trial court did not abuse its discretion in ruling that Sloboda's motion was equivocal. This requirement prevents a defendant "from making capricious waivers of counsel and . . . protect[s] trial courts from manipulative vacillations by defendants regarding representation." Stenson, 132 Wn.2d at 740. "An unequivocal request is one that is clear and lacks ambiguity." In re Detention of J.S., 138 Wn. App. 882, 892, 159 P.3d 435 (2007). A request to proceed pro se in lieu of substitution of new counsel may indicate that the request is not unequivocal. Stenson, 132 Wn.2d at 740-41.
The record shows that Sloboda's request was conditioned on the appointment of standby counsel. During the colloquy with the court, Sloboda consistently maintained that he could represent himself with the assistance of standby counsel. But defendants do not have an absolute right to standby counsel or hybrid representation through which defendants serve as co-counsel with their attorneys. State v. DeWeese, 117 Wn.2d 369, 379, 816 P.2d 1 (1991). And although Sloboda did not expressly tell the court that he wanted different counsel, the record suggests that his request to proceed pro se with standby counsel was also motivated by his dissatisfaction with his current counsel.
Prosecutorial Misconduct
Prosecutorial misconduct during closing argument may deprive the defendant of the constitutional right to a fair and impartial trial. State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984). Sloboda argues that his conviction must be reversed because the prosecutor impermissibly vouched for the credibility of the State's witnesses during closing argument by arguing, "[T]he State has no obligation to call witnesses whose credibility is in doubt because of their biases and their alliances." RP (Sept. 19, 2007) at 92. Sloboda contends that this comment was so prejudicial that it could not have been cured by an instruction to the jury. We disagree.
During closing argument, Sloboda argued his theory of self-defense and sought to portray Behm as the aggressor. Although Sloboda did not request a missing witness instruction, Sloboda made the following argument.
But what you didn't hear from is the people that were actually there. Where was Ilya? What about Megan Wise? They were both there and witnessed everything. The State didn't call them.
What about Mr. Chase? That's the guy where everybody went over to his house right after this happened. Nobody called him. Where was Petroff? He went with him to Missouri. He was in the car with them. None of these guys testified. The State didn't call those witnesses. You can assume that they would have been testifying against the State, at least not favorable to the State.
Id. at 70-71.
During rebuttal, the prosecutor responded to the argument.
There is a claim that there is a reasonable doubt because all the possible witnesses weren't called, that everybody who may have been in the police reports weren't called. I mean, two of the examples thrown out are Mr. Melnik and Ms. Wise. There is no — and I think the defense also said you should assume that because the State didn't call somebody that they were going to testify bad for the State and good for the defense.
Well, take a look at the instructions. There is nothing in there that says that's a legal proposition that you need to follow. There is nothing —
Id. at 91. Sloboda objected, arguing that the prosecutor shifted the burden of proof.
The court reminded the jury that the State carries the burden of proof, and the prosecutor continued.
That is certainly true. But you go looking in there as to whether there is an instruction that specifically says that State must call all the witnesses or call every conceivable witness, and you will find none.
The State — let's just look at Mr. Melnik. You know, you know what Mr. Melnik did. He was the friend of the defendant. He was at the scene. At one point he attacks [Behm], and Walden needs to pull him off. He and Walden scuffle, and then what does he do? He runs off to the trunk of the Mirage and gets a jack and goes after Walden, who is unarmed, takes a swing at Walden's head with the jack. Walden dives into the car, and then what happens? The jack comes through the driver's window and misses his head by inches.
That's the witness that the State — excuse me, the defense would expect the State to call. The State has no obligation to call witnesses whose credibility is in doubt because of their biases and their alliances.
Id. at 91-92 (emphasis added). Sloboda did not object to this allegedly improper and prejudicial remark.
To establish prosecutorial misconduct, the defendant must show that the prosecutor's conduct was both improper and prejudicial. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). Comments are prejudicial only where "there is a substantial likelihood the misconduct affected the jury's verdict." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). The comments must be viewed in the context of the total argument, the issues in the case, the instructions given by the trial court, and the evidence addressed in the argument. State v. Perez-Mejia, 134 Wn. App. 907, 916-17, 143 P.3d 838 (2006). Where the defense fails to object to an allegedly improper comment, the error is waived "unless the improper argument was so flagrant and ill-intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by an admonition instruction to the jury." Perez-Mejia, 134 Wn. App. at 917 n. 9.
We conclude that Sloboda has not met his burden of demonstrating that the prosecutor's remark was improper. "`[T]here is a distinction between the individual opinion of the prosecuting attorney, as an independent fact, and an opinion based on or deduced from the testimony in the case.'" McKenzie, 157 Wn.2d at 53 (quoting State v. Armstrong, 37 Wash. 51, 54-55, 79 P. 490 (1905)). "Counsel may comment on a witness's veracity or invite the jury to make reasonable inferences from the evidence so long as counsel does not express a personal opinion." State v. Stover, 67 Wn. App. 228, 232, 834 P.2d 671 (1993). A prosecutor is given wide latitude in closing argument to draw and express reasonable inferences from the evidence. State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). A prosecutor's remarks are not grounds for reversal if they were invited or provoked by defense counsel and were pertinent to reply to his arguments. State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004).
Here, the prosecutor did not impermissibly vouch for the credibility of the State's witnesses. The challenged statement was a reasonable response to Sloboda's argument that the jury could assume that the State did not call certain witnesses because they would have testified unfavorably to the State. The prosecutor did not advance his own personal opinion regarding the veracity of the State's witnesses. Rather, he argued from facts and evidence in the record. This was entirely proper under the circumstances. Moreover, the comment was not so flagrant and ill-intentioned that it caused an enduring prejudice that could not be neutralized with a curative instruction.
Statement of Additional Grounds for Review
In a statement of additional grounds for review, Sloboda argues that he acted in self-defense and that his actions were reasonable under the circumstances. This allegation impliedly asserts that the State failed to meet its burden of disproving self-defense beyond a reasonable doubt. The argument is without merit. "The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). An insufficiency claim admits the truth of the State's evidence and any reasonable inferences from it. Salinas, 119 Wn.2d at 201. We "defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). Here, the jury had sufficient evidence to conclude beyond a reasonable doubt that the homicide was not justifiable.
The trial court did not abuse its discretion in denying Sloboda's motion to proceed pro se with standby counsel. There was no prosecutorial misconduct. And sufficient evidence supports the conviction. We affirm.