Opinion
No. 56462-5-I.
October 2, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-14266-7, Nicole Maclnnes, J., entered June 22, 2005.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA, 98101.
David L. Donnan, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.
Nancy P Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.
Nakia Tanaka Smith (Appearing Pro Se), Doc# 789124, Stafford Creek Corrections Center, 191 Constantine Way, Aberdeen, WA, 98520.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104.
Scott Frederick Leist, King County Prosecutors Office, W554 King County Courthouse, 516 3rd Ave, Seattle, WA, 98104-2390.
Affirmed by unpublished per curiam opinion.
Following a jury trial in King County Superior Court, Nakia Smith was convicted of two counts of rape in the first degree. Smith appeals from the judgment entered on the verdicts, contending that the trial court violated his right to self-representation, that a sentencing condition requiring him to provide a DNA sample violated his rights under both the United States and Washington Constitutions, and that the trial court's imposition of consecutive sentences violated his rights under both the Sixth and Fourteenth amendments. Finding no error, we affirm.
FACTS
On the first day of Smith's trial, his attorney informed the court that Smith desired to represent himself in the proceedings. The court then engaged in a lengthy colloquy with Smith. Smith expressed frustration with his attorney's performance, stating, "I feel that I [would] be better off representing myself." The court asked Smith about his expertise in areas such as DNA analysis, the rules of evidence, and cross-examination, and strongly advised him against proceeding pro se. Smith stated, "I shouldn't represent myself, but I don't think he should represent me either." The court then told Smith that his attorney would continue to represent him, and the trial continued.
Smith was found guilty of both charges of rape in the first degree. The court sentenced Smith to 318 months on the first count and 123 months on the second count, to be served consecutively. The court also ordered Smith to provide a biological sample for DNA testing purposes.
DISCUSSION I. Request for Self-Representation
Smith first contends that the trial court erred by denying his request to represent himself. We disagree.
Both the state and federal constitutions guarantee a criminal defendant the right to self-representation. U.S. Const. amends. VI and XIV; Wash. Const. art. I, § 22; Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L.Ed. 2d 562 (1975); State v. Luvene, 127 Wn.2d 690, 698, 903 P.2d 960 (1995). However, the right is not self-executing. State v. Woods, 143 Wn.2d 561, 586, 23 P.3d 1046 (2001). Accordingly, a criminal defendant's request to proceed pro se must be (1) timely made and (2) unequivocally stated. State v. Stenson, 132 Wn.2d 668, 737, 940 P.2d 1239 (1997).
The request to proceed pro se must be unequivocal in the context of the record as a whole. Luvene, 127 Wn.2d at 698-99. Even when a request is made unequivocally, a defendant may still waive the right to self-representation by subsequent words or conduct. Luvene, 127 Wn.2d at 699. Courts 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).
These standards are designed both to protect defendants from making capricious waivers of counsel and to protect trial courts from manipulative vacillations by defendants. Stenson, 132 Wn.2d at 740.
An examination of the record in this case demonstrates that Smith's request to represent himself was equivocal and properly denied by the trial court. On the first day of trial, Smith's attorney informed the trial court that Smith had expressed to him a desire to represent himself in the proceedings. During the subsequent colloquy between the trial court and the defendant, Smith stated that it was his attorney who suggested self-representation. Following an extensive discussion with the trial court regarding his attorney's performance, Smith stated, "I feel that I [would] be better off representing myself." The court responded by asking about Smith's knowledge regarding the rules of evidence, DNA analysis, and cross-examination. After considering Smith's answers to these questions, the court advised Smith that it would be a "catastrophe" for him to represent himself in the trial. After more discussion regarding his attorney's competence, Smith requested a different attorney. That request was denied. Smith then stated, "I shouldn't represent myself, but I don't think he should represent me either." The court ended the discussion at that point, telling Smith that his lawyer "will go forward, and defend you to the best of his ability." The jury then entered the courtroom and voir dire commenced.
We also note that it was within the trial court's discretion to deny the request for self-representation in this case because preliminary motions had already been argued and decided, and trial had begun. To be timely, the demand for self-representation should be made a reasonable time before trial. State v. Fritz, 21 Wn. App. 354, 361, 585 P.2d 173 (1978). If a request is 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.
Viewed as a whole, the statements by Smith constitute an expression of frustration with his attorney, rather than an unequivocal request to proceed pro se. Smith's contention that he was "strong armed" into proceeding with his lawyer is not supported by the record. It is entirely proper for a court to apprise a defendant of the disadvantages of self-representation, which is what the trial court did here. Woods, 143 Wn.2d at 588. There was no error.
II. DNA Sample
Smith also challenges the sentencing condition requiring him to provide a DNA sample. However, we rejected an identical Fourth Amendment challenge to this procedure in State v. Surge, 122 Wn. App. 448, 460, 94 P.3d 345 (2004), review granted, 153 Wn.2d 1008 (2005). Smith also advances an argument under article I, section 7 of the Washington Constitution. But we do not consider this claim because Smith fails to provide the analysis required by State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). State v. Nguyen, No. 55443-3-I (Wash.Ct.App. Sept. 11, 2006). Accord State v. Reichenbach, 153 Wn.2d 126, 131 n. 1, 101 P.3d 80 (2004).
III. Consecutive Sentences
When an offender is sentenced for two or more "serious violent offenses" that arise from "separate and distinct criminal conduct," the trial court must impose the resulting sentences consecutively to one another. RCW 9.94A.589. Smith argues that the trial court's determination that his two offenses were "separate and distinct" violated his rights under the Sixth and Fourteenth amendments. This same argument was previously rejected by our Supreme Court. State v. Cubias, 155 Wn.2d 549, 551, 120 P.3d 929 (2005). Once that court has decided an issue of state law, its decision is binding on us and on the trial court. State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984). There was no error.
Finally, Smith contends that the trial court erred by determining that his two rape offenses were separate and distinct. However, Smith's argument in this regard ignores the principle set forth in State v. Tili, 139 Wn.2d 107, 985 P.2d 365 (1999), that multiple offenses that do not meet the statutory definition of "same criminal conduct" necessarily fall into the category of "separate and distinct" criminal conduct. There was no error.
Affirmed.
COX and BAKER, JJ., concur.