Opinion
No. 53512-9-I
Filed: December 20, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-1-10224-3. Judgment or order under review. Date filed: 12/10/2003. Judge signing: Hon. Gain Brian D.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Andre Kristin Goings (Appearing Pro Se), Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Patrick Joseph Preston, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
A criminal defendant has a constitutional right to self-representation. `In order to exercise the right, a defendant's request must be unequivocal, knowingly and intelligently made, and must be timely.' Andre Goings' mid-trial dismissal of his appointed counsel was not an unequivocal request to represent himself. Accordingly, we affirm. The State charged Goings with robbery in the first degree and assault in the second degree for his participation in the beating and robbery of a homeless man on February 3, 2002. On the sixth and final day of Goings' trial, the following exchange took place out of the presence of the jury: Goings: Sir, I object to yesterday's proceedings where the witness Gerald Wood I.D.'d me in an open trial. Mr. Woods [sic] pointed at me saying, because I was sitting next to an attorney, he assumed that I was the one that assaulted and robbed him. I asked my attorney prior to trial for Mr. Woods [sic] to pick me out of a line up or a picture line up. He refused, saying it would show guilt. All I am trying to do now is prove my innocence.
State v. Vermillion, 112 Wn. App. 844, 850-51, 51 P.3d 188 (2002), review denied, 148 Wn.2d 1022 (2003).
Vermillion, 112 Wn. App. at 851.
I spoke saying to my attorney that I was trying to prevent exactly just what happened yesterday. Sir, at this point I would move for dismissal on the grounds of prejudice and ineffective use of counsel, by an officer of the court. I do now dismiss counsel and fire him on court record. There is no way to repair the damage that has been done since Mr. Wood made reference to identifying me just because I was sitting in the courtroom.
The Court: Any response? [Defense Counsel]?
[Defense Counsel]: Your Honor, I believe that when a person discharges counsel the court is obligated to inquire as to whether or not Mr. Goings would be qualified to represent himself in the immediate proceedings.
The Court: Well, that would normally be the case. But what is the state's position?
[State]: I do agree that the court should make an inquiry and colloquy with Mr. Goings. I think it is far too late in the proceedings to do that. We have been through three-quarters of the trial and to discharge counsel now, besides not being wise, I think it is at this point too late. I do understand he has the right to represent himself, but that, frankly, was addressed I think a few times before we ever got sent to court.
The Court: Mr. Goings, I am going to deny your motion at this point. It is too late. We are in the middle of trial. Frankly, what you give me as the ground Mr. Chalverus has not been ineffective, and he has established the grounds to argue Mr. Wood's identification of you as the suspect and the basis for a jury to have reasonable doubt. At this stage, although you would normally have the right to represent yourself, we are almost done with the trial and your motion is denied.
The trial concluded the following day. The jury acquitted Goings of the robbery charge but convicted him of second degree assault. Goings appealed.
RIGHT TO SELF-REPRESENTATION
Goings claims that he made an unequivocal request to represent himself at trial. Goings further contends that both attorneys, as well as the judge, recognized that Goings was asserting his right to proceed pro se when he fired his appointed counsel on the record and moved for a dismissal due to ineffective assistance of counsel. The record does not support this assertion.
The United States Constitution, amendment VI and XIV, and the Washington Constitution, article I, section 22, guarantees a criminal defendant the right to self-representation. Indeed, the unjustified denial of this right requires reversal. `This right is afforded [a] defendant despite the fact that [exercising the right] will almost surely result in detriment to both the defendant and the administration of justice.'
See Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Bebb, 108 Wn.2d 515, 524, 740 P.2d 829 (1987).
State v. Woods, 143 Wn.2d 561, 586-87, 23 P.3d 1046 (citing State v. Breedlove, 79 Wn. App. 101, 111, 900 P.2d 586 (1995)), cert. denied, 534 U.S. 964 (2001).
State v. Fritz, 21 Wn. App. 354, 359, 585 P.2d 173 (1978).
`The right is not absolute, however . . . In order to exercise the right, a defendant's request must be unequivocal, knowingly and intelligently made, and must be timely.' The right may not be exercised for the purpose of delaying the trial or obstructing justice, and even an unequivocal request may be waived, by subsequent words or conduct. `Courts should indulge every reasonable presumption against finding that a defendant has waived the right to counsel.' This is `[t]o protect defendants from making capricious waivers of counsel, and to protect trial courts form manipulative vacillations by defendants.' `We review a trial court's denial of a request for self-representation for abuse of discretion.'
Vermillion, 112 Wn. App. at 851.
State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995).
Vermillion, 112 Wn. App. at 851 (citing State v. Chavis, 31 Wn. App. 784, 789, 644 P.2d 1202 (1982)).
State v. Deweese, 117 Wn.2d 369, 376, 816 P.2d 1 (1991).
Vermillion, 112 Wn. App. at 855.
In spite of the manner in which the prosecution and defense may have interpreted Goings' remarks, Goings did nothing more than express dissatisfaction with the manner in which his appointed counsel was handling his case. His statements were similar to those made by the defendant in State v. Garcia on the morning trial was to begin. In that case, the closest Garcia came to stating that he intended to proceed pro se was:
92 Wn.2d 647, 600 P.2d 1010 (1979).
Mr. Garcia: The case is — I don't want this attorney to be there representing me because I don't believe that he has counseled me right and I know that I don't have no money to pay for a lawyer, but maybe my folks would be able to afford one for me. They live in Texas. I'd have to get in contact with them and see if they could.
The Court: No.
Mr. Garcia: But in that case I do not wish to have this attorney with me because I believe that he hasn't been representing me right and I believe I haven't been represented.
The Court: Well, that's a matter that you would take to the Appellate Court. In this particular situation we are here at the day of trial, this case has been set for trial for some time and you have come up here today on the day of trial.
Garcia, 92 Wn.2d at 653.
Though Garcia's attorney mentioned, in Garcia's presence that self-representation was an option. Nonetheless, the state supreme court concluded that the defendant `never made the required request.' A defendant's desire to fire his attorney does not, by itself, constitute an unequivocal request for self-representation.
Garcia, 92 Wn.2d at 655.
Garcia, 92 Wn.2d at 655.
Goings claims Garcia is distinguishable because in expressing dissatisfaction with his appointed counsel, Garcia made a request for substitute counsel. The trial court determined that Garcia did want to be represented by an attorney, but wanted to pick and choose his appointed counsel, a right he did not have. Goings argues that here, he made no such motion for substitute counsel and made his own motion to dismiss the charges against him, clearly indicating his desire to proceed without counsel. This attempt to distinguish Garcia is unpersuasive.
More is required from a defendant than merely making spontaneous motions or objections to the court in order to indicate an intention to proceed pro se. Notwithstanding the reaction of the court or the State, Goings' actions cannot be deemed an unequivocal assertion of the right to self-representation when taken in context of the record as a whole. In a pretrial motion to dismiss counsel nearly six months before trial, Goings expressed similar dissatisfaction with his previous attorney stating `I have not — I do not have a lawyer. I have not hired this man. I have not — he's not my lawyer.' Goings also made several objections, primarily to the jurisdiction of the trial court, which could be interpreted as an attempt to proceed pro se. The court denied Goings' motion to dismiss his attorney noting, `you have a right to court-appointed counsel and you have a constitutional right to represent yourself Right now, I'm denying your request to fire your lawyer. Think carefully about your options here and try to work with him.'
`The defendant's request to proceed pro se must be unequivocal in the context of the record as a whole.' Woods, 143 Wn.2d at 586 (citing State v. Luvene, 127 Wn.2d 690, 698-99, 903 P.2d 960 (1995)).
As a result of Goings' other actions at the April hearing, the court ordered Goings to be committed for observation in order to determine his competency to stand trial. In July, the court granted Goings' request to substitute counsel. A continuance was also granted, in order to give newly appointed counsel time to prepare for trial.
Given the fact that Goings expressed dissatisfaction with his appointed counsel on two prior occasions, as well as the substitution of his first attorney, Goings' mid-trial firing of counsel can hardly be read as an unequivocal request to represent himself. Previous discussions of the issue are telling as to what type of statement on the part of the defendant constitutes an `unequivocal' request to proceed without counsel.
Vermillion, on which Goings primarily relies, is distinguishable. Vermillion asserted his right to proceed pro se on five separate occasions, telling the court: he `would like to make a motion to go pro se;' he `would prefer to represent himself;' he moved to discharge his attorney `and go forward pro se;' and `under the state and federal constitutions I have the right to represent myself.'
Vermillion, 112 Wn. App. at 852-53. See also Deweese, 117 Wn.2d at 378 (defendant, given choice of accepting second appointed counsel or proceeding pro se, remarked he had `no choice but to represent himself rather than remain with appointed counsel' and claimed on the record that he was `forced to represent himself at trial.'); State v. Barker, 75 Wn. App. 236, 240, 881 P.2d 1051 (1994) (defendant dismissed appointed counsel, clarifying, `I am saying, to represent myself'); State v. Breedlove, 79 Wn. App. 101, 900 P.2d 586 (1995) (defendant requested that the court allow him to `proceed as pro se counsel' and `that I be able to handle my own defense').
Conversely, the defendant in State v. Woods voiced dissatisfaction with his attorney similar to that expressed by Goings. Woods recognized, when asked by the judge, that he had the right to represent himself. Woods told the court, `I will be prepared to proceed with [this matter] without counsel come October 21st I've already consented to one continuance And they — they have done nothing but grossly misuse that time.' The court found Woods' exchange with the trial court was not an unequivocal request to go pro se, but rather, in light of the whole record, an expression of Woods' displeasure with trial counsel's request for a continuance. The court further noted that `[w]e are satisfied that telling a trial judge he `will be prepared to proceed without counsel' is qualitatively different than telling a judge that one wishes to proceed pro se.'
Woods was unhappy with continuances requested by his appointed counsel, delaying Woods' trial date. Goings was unhappy with the manner in which his appointed counsel conducted cross examination of the complaining witness. See Woods, 143 Wn.2d at 587.
Woods, 143 Wn.2d at 587.
Woods, 143 Wn.2d at 587.
Woods, 143 Wn.2d at 588.
Goings also argues that the trial court abused its discretion by summarily dismissing his request without conducting a colloquy on the record. We disagree. Absent a defendant's unequivocal request to proceed pro se, such a colloquy is not required. Because Goings did not make an unequivocal request to proceed pro se, we need not address any other issues.
Woods, 143 Wn.2d at 588.
We affirm the judgment and sentence.
COX, C.J., APPELWICK, J. and BAKER, J.