Opinion
No. 58662-9-I.
March 10, 2008.
Appeal from a judgment of the Superior Court for King County, No. 04-1-06136-5, Michael S. Spearman, J., entered August 9, 2006.
Affirmed by unpublished opinion per Lau, J., concurred in by Grosse and Dwyer, JJ.
Kurt Madsen appeals his conviction for three counts of felony violation of a no-contact order involving three telephone calls to his former girl friend. He argues that the trial court erred in repeatedly denying his timely, unequivocal requests to proceed pro se and that the sentencing court erred in finding that the telephone calls did not encompass the same criminal conduct. Because Madsen's requests were untimely and equivocal and because the crimes do not encompass the same intent, we affirm.
FACTS
On September 2, 2004, Deborah Stuart called 911 and reported that Kurt Madsen had just called her on the telephone and asked her to come to his house, in violation of a valid no-contact order. That call was placed at 10:32 p.m. and lasted for three minutes. Madsen called Stuart again at 10:40 p.m. She tried unsuccessfully to keep him on the phone until police arrived. This call lasted about 18 minutes. At around 11 p.m., a sheriff's deputy arrived at Stuart's home. He took a statement from Stuart and wrote down the phone numbers of the incoming calls recorded on her phone log. At 11:17 p.m., Madsen called Stuart a third time. She picked up the phone and handed it to the sheriff's deputy. He identified himself as a police officer and asked the caller if he was Kurt Madsen. Madsen admitted that he was, but claimed that he thought Stuart was in the process of dropping the protection order. Madsen was arrested and charged with three counts of domestic violence felony violation of a court order.
On January 24, 2006, before the presiding judge, private counsel Erik Kaeding withdrew because his relationship with Madsen had "become unworkable." Report of Proceedings (RP) (Jan. 24, 2006) at 3. The court then explained to Madsen that the Office of Public Defense (OPD) would need to assign new counsel. Madsen responded, "No. I want a pro se order, Your Honor. . . . Pro se. Yes. Exactly." Id. at 4-5. When the court inquired into his motives, Madsen stated, "[T]he whole charge is just a pathetic joke, and I'd rather — I mean, I just get to trial and I could resolve the whole issue, honestly." Id. at 5. Madsen also asked the court to address his bail, access to legal research, and speedy trial rights. The court deferred ruling on Madsen's requests and continued the hearing until OPD could appoint new counsel, adding, "[A]fter you have a chance to talk with them, if you still want to proceed pro se, I'm more than happy to hear the motion." Id. at 6.
On January 31, 2006, the presiding judge confirmed Michael McCullough as Madsen's new counsel. At that hearing, Madsen asked the court to hear his pro se motions. The court stated, "I won't hear pro se motions . . . if you have an attorney. Either you represent yourself or an attorney represents you. There is no hybrid representation." RP (Jan. 31, 2006) at 5. Madsen did not ask to proceed pro se or to terminate counsel at that hearing. And at subsequent hearings in February, Madsen did not request to proceed pro se or to terminate counsel.
On March 7, 2006, McCullough moved to withdraw or for Madsen to proceed pro se, explaining, "I cannot provide an adequate defense for Mr. Madsen at this point because he simply won't listen." RP (Mar. 7, 2006) at 4. He also told the presiding judge that communications with Madsen had broken down. When the court inquired into Madsen's motives, Madsen began to argue his other motions. The court repeatedly questioned Madsen to clarify the basis for his pro se request. But Madsen frequently interrupted the court and offered various reasons for his dissatisfaction with counsel. He then said, "[A]s far as him representing me, Your Honor, I'm just not satisfied with it and I think that — I think that I'd be better off representing myself." Id. at 8. Madsen then asked the court to hear his other motions.
When the court told Madsen that it would not hear his motions yet, Madsen became increasingly agitated, asserted his constitutional right to proceed pro se, suggested that the court could appoint standby counsel, and again started arguing his other motions. The court explained standby counsel's role to Madsen and again sought to clarify his request by asking "do you want to really represent yourself or do you want a different attorney?" Id. at 10-11. The court suggested that he try a different attorney as an "in between" solution. Id. at 11. Madsen again suggested standby counsel, but then said, "I'd rather just represent myself, Your Honor, honestly. And I don't think that — who do you have in mind. . . . to change to?" Id. at 12. Madsen also suggested that McCullough's supervisor could assist him, but then said, "I'd rather just represent myself and then address my motions right now. . . ." Id. at 12.
Concerned about Madsen's behavior, the court asked McCullough if he had concerns about Madsen's competency, and McCullough said that he did. Madsen became angry, asserted his right to self-representation, and again started arguing his motions. The court told Madsen that he had a right to represent himself, but his waiver must be knowing, intelligent, and voluntary. The court then granted McCullough's request to withdraw effective upon the appointment of new counsel and deferred ruling on Madsen's motion to proceed pro se.
I want new counsel to have an opportunity to talk to Mr. Madsen, find out what their perspective is with regard to him, find out whether he can communicate with that attorney or whether or not we're at the same loggerhead, and revisit this as soon as they've had an opportunity to do that. And then if Mr. Madsen wishes to proceed pro se with standby counsel, I'll entertain the motion. But I think I need somebody to talk to him and find out, number one, whether he's competent, and if there are no issues with regard to that, great. And, number two, whether or not he's going to get along with new counsel and not want to represent himself.
Id. at 16-17. Madsen objected and said that the court had already denied his pro se motion so it could not revisit the issue.
At a hearing on March 9, the presiding judge confirmed Leona Thomas as new counsel. She told the court that after talking to Madsen, she had no concerns about his competency and no issues to bring to the court's attention. Madsen did not renew his request to proceed pro se at that hearing. Nor did he raise the issue again over the next two months as Thomas continued to represent him.
Madsen's trial began on May 2, 2006, with pretrial motions. During Thomas's arguments on motions, Madsen's behavior became increasingly disruptive. The trial court noted that "once every three minutes [Madsen] makes a comment that is very loud that everybody in the courtroom can hear." RP (May 2, 2006) at 66. After a recess, Madsen said that he wanted to proceed pro se and immediately began to argue his other motions. The court stopped Madsen and said that Madsen was not prepared to represent himself. Madsen told the court that his counsel did not have enough time to prepare for trial, but when the court asked if he wanted more time, he said, "No, I'm not asking for more time because it's already too late for that." Id. at 83. The court again asked Madsen if he wanted to represent himself, and Madsen said, "[A]t this point I am forced, almost forced into doing that, so I would say yes. Because, I mean, not forced into it, but like I said before, I didn't really get finished what I was saying." Id. at 87. The trial court denied Madsen's motion to proceed pro se.
The following day, May 3, 2006, the trial court warned Madsen not to be disruptive. But Madsen's behavior continued, and the court ordered that he be removed to jail. When Madsen returned in the afternoon, the court noted that it had denied Madsen's motion to proceed pro se the day before because his "eyes were rolling" and he "did not appear to relish the idea" of selecting a jury. RP (May 3, 2006) at 138. The court also observed that Madsen's request was brought on the eve of trial. The court again asked Madsen if he wanted to proceed pro se. Madsen responded that the trial court could not revisit its previous ruling, and he refused to answer any more questions.
On May 4, 2006, Madsen refused to be transported to court for trial, and the court signed an order authorizing the jail to use reasonable force to compel him to appear. The court also signed an order denying Madsen's motion to proceed pro se. The order stated that Madsen's behavior on May 2 was "extremely disruptive," that his outbursts were "rambling and unfocused," that he "persistently interrupted his defense counsel, the deputy prosecuting attorney, and the judge," and that he "consistently showed an inability to follow or respect the court's directions." Clerk's Papers (CP) at 21. The order also stated that Madsen was "at first equivocal about his request, and said that he had concerns about his defense attorney's preparedness for trial." CP at 21. The order further noted that his request to proceed pro se occurred after his disruptive behavior began, the request occurred one day before jury selection and two days before trial was to commence, it was not accompanied by a motion to continue with a waiver of speedy trial rights, and Madsen's desire to track down another witness would likely have necessitated a continuance. The court concluded that Madsen's request was untimely, and if granted, the request would obstruct the orderly administration of justice. Trial commenced four days later, with Madsen present. The jury convicted him as charged.
More than two months later, before the sentencing judge, Madsen's new counsel Juanita Holmes moved for a new trial. She argued that the presiding judge and trial judge improperly denied Madsen's right to represent himself. The court denied the motion after reviewing the record as a whole, including video tapes of the January, February, and March proceedings. The court found that Madsen's January 24 request was made in connection with the withdrawal of counsel and was appropriately deferred pending consultation with new counsel. It found that the presiding judge was properly cautious when it deferred ruling on Madsen's March 7 request pending appointment of new counsel based on the court's difficulty in getting clear answers from Madsen and concerns about Madsen's competency. The court further observed that Madsen did not renew his request until May 2, despite having many opportunities to do so. The court therefore concluded that prior to the commencement of trial, "there was not an explicit, unequivocal request to proceed pro se and a knowing, intelligent and voluntary waiver of the right to counsel. . . ." RP (Aug. 9, 2006) at 26. The court found that Madsen's May 2 request was equivocal, noting that it was not brought until after almost a full day of pretrial motions had taken place, that his responses to questions were indirect, that he said he was "almost forced" into representing himself, and that he refused to answer when the court gave him yet another chance. Id. at 27. The court also accepted the trial court's findings that the May 2 request was not timely and would hinder the administration of justice if granted at that time.
Madsen appeals.
ANALYSIS
Self-representation
Madsen argues that he is entitled to a new trial because the trial court erred in denying his timely, unequivocal requests to proceed pro se on January 24, March 7, and May 2, 2006. 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. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993). 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 to represent themselves. Wash. Const. art. I, § 22; U.S. Const. amend. VI; Faretta v. California, 422 U.S. 806, 814, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); Breedlove, 79 Wn. App at 105-06. This right is afforded even though it is likely to prove detrimental to the accused and to the administration of justice. State v. Vermillion, 112 Wn. App. 844, 850, 51 P.3d 188 (2002). But this right is not absolute or self-executing. State v. Woods, 143 Wn.2d 561, 585-86, 23 P.3d 1046 (2001).
First, the defendant's request must be unequivocal. Vermillion, 112 Wn. App. at 851. This requirement serves to "protect defendants from making capricious waivers of counsel and to protect trial courts from manipulative vacillations. . . ." State v. Stenson, 132 Wn.2d 668, 740, 940 P.2d 1239 (1997). A request to proceed pro se as an alternative to substitution of counsel may be an indication that the request was equivocal in light of the record as a whole. Stenson, 132 Wn.2d at 740.
Second, the waiver must be knowingly and intelligently made. State v. Imus, 37 Wn. App. 170, 173, 679 P.2d 376 (1984).
Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open."
Faretta, 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268 (1942)). The legal competency standard for pleading guilty or waiving the right to counsel is (1) whether the defendant understands the nature of the charges and (2) whether he is capable of assisting in his defense. In re Pers. Restraint of Fleming, 142 Wn.2d 853, 862, 16 P.3d 610 (2001). "The determination of whether a competency examination should be ordered rests generally within the discretion of the trial court." Id. at 863.
Third, the request must be timely and not exercised for the purpose of delaying the trial or obstructing justice. Vermillion, 112 Wn. App. at 844.
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). A request for self-representation may be properly denied when the defendant consistently engages in disruptive behavior that obstructs the orderly administration of justice. State v. Hemenway, 122 Wn. App. 787, 792, 95 P.3d 408 (2004).
Madsen argues that the trial court erred in denying his timely, unequivocal requests to proceed pro se on January 24 and March 7. But the trial court did not deny Madsen's requests on those dates — it continued the hearings and deferred its rulings pending appointment of new counsel and concerns over Madsen's competency. A trial court has the discretionary authority to manage its own affairs so as to achieve the orderly and expeditious disposition of cases. Woodhead v. Discount Waterbeds, 78 Wn. App. 125, 129, 896 P.2d 66 (1995). "Because trial calendar control and management necessarily involves the exercise of judicial discretion, granting a continuance is reviewable on appeal only for a manifest abuse of discretion." State v. Grilley, 67 Wn. App. 795, 798, 840 P.2d 903 (1992). Discretion is abused when it is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
On January 24, noting that private counsel had just withdrawn over conflicts with Madsen, the presiding judge deferred ruling on Madsen's motion to proceed pro se and told Madsen he could renew his request after he conferred with new counsel. But Madsen allowed counsel to represent him for the next six weeks without renewing his request to proceed pro se. This decision was a proper exercise of the court's discretion to manage its trial calendar.
On March 7, noting that Madsen's second attorney had just withdrawn, the presiding judge deferred ruling on Madsen's second request until Madsen could consult with new counsel. Given that Madsen's March 7 request to proceed pro se was interspersed with criticisms of his attorney and punctuated by angry outbursts and interruptions, that the court was unable to get a clear answer from Madsen regarding the basis of his request, and that the court had concerns about Madsen's competency, the decision to defer ruling pending the appointment of new counsel was well within the trial court's discretion.
Moreover, viewing the record as a whole, we agree with the sentencing court that Madsen's January 24 and March 7 requests were equivocal. Following both deferred rulings, Madsen had ample opportunities to renew his request to proceed pro se. Instead, he allowed new counsel to represent him, thereby demonstrating that he was no longer asserting his right to represent himself and rendering his requests equivocal.
We observe that Madsen did not explicitly assign error in his opening brief to the order denying his motion for a new trial, as required by RAP 10.3(a)(3). But because the relevant underlying issues are argued in the body of the brief, we nonetheless reach the issue in the interest of clarity. Wright v. Colville Tribal Enter. Corp., 127 Wn. App. 644, 648, 111 P.3d 1244 (2005), rev'd on other grounds, 159 Wn.2d 108, 147 P.3d 1275 (2006).
Madsen further argues that the trial court erred in denying his May 2 request on numerous grounds, none of which we find persuasive. First, he contends that the ruling was improperly based on the trial court's decision that he was not sufficiently prepared. The record does suggest that the court's initial oral ruling was at least partially based on that ground, but the subsequent written order makes clear that Madsen's request was denied because it was untimely and would obstruct the orderly administration of justice.
Second, Madsen argues that his May 2 request was unequivocal. The trial court's May 4 written order denying Madsen's request to proceed pro se did not explicitly address that issue. But the sentencing court's subsequent order denying Madsen's motion for a new trial considered the record as a whole and found the May 2 request equivocal. Madsen couched his request in terms of frustration with counsel, and when given yet another chance to clarify himself on May 3, he refused to answer any questions. This was not an abuse of discretion.
Third, Madsen argues that granting his request would not have obstructed the orderly administration of justice because he did not ask for a continuance. But the record amply demonstrates that Madsen was highly disruptive throughout the proceedings. "[C]ourts upholding a defendant's right to self-representation involve a record completely absent of any disruption or disrespect by the defendant." Hemenway, 122 Wn. App at 795 (citing Vermillion, 112 Wn. App. at 848). Madsen claims that his disruptive behavior stemmed from frustration at not being allowed to represent himself and that "denial of one's rights [cannot] be justified by reference to the nature of subsequent complaints protesting that denial." United States v. Dougherty, 473 F.2d 1113, 1126 (D.C. Cir. 1972). But Madsen's disruptive behavior began long before his request was denied.
Fourth, relying on Breedlove, Madsen contends that the timeliness of his May 2 request must be measured from the date of his original request on January 24 and that he was therefore entitled to proceed pro se as a matter of law. We disagree. In Breedlove, the defendant asked to proceed pro se almost two weeks before the scheduled trial date, but the court deferred its ruling until the day before trial and then denied his renewed request. The appellate court reversed, holding that the timing of the defendant's request was not a sufficient reason for denial where there was no evidence that his motion was designed to delay his trial or that granting it would impair the orderly administration of justice. The court ruled that "where a court is put on notice that the defendant wishes to assert his right to self-representation but it nevertheless delays ruling on the motion, the timeliness of the request must be measured from the date of the initial request." Breedlove, 79 Wn. App. at 109. In contrast, after both deferred rulings, Madsen allowed new counsel to represent him for substantial periods of time before changing his mind and reasserting his request to proceed pro se. Moreover, unlike Breedlove, Madsen's persistent disruptions impaired the orderly administration of justice. Under these circumstances, Madsen is not entitled to claim that the timeliness of his motion should be measured from the date of his first request.
Sentencing
Madsen argues that the sentencing court abused its discretion in finding that his three felony court order violations had to be counted separately because they did not constitute the same criminal conduct. A trial court's determination regarding same criminal conduct will not be disturbed absent a clear abuse of discretion. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999).
When calculating a defendant's offender score under the Sentencing Reform Act of 1981, multiple prior offenses are presumptively counted separately unless the trial court finds that the offenses encompass the same criminal conduct. RCW 9.94A.589(1)(a). Two or more crimes constitute the "same criminal conduct" if the crimes (1) required the same criminal intent, (2) were committed at the same time and place, and (3) involved the same victim. Id. Courts narrowly construe "same criminal conduct" to disallow most assertions of it. State v. Price, 103 Wn. App. 845, 858, 14 P.3d 841 (2000).
The standard for the "same criminal intent" prong is whether the defendant's intent, viewed objectively, changed from one crime to the next. State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237, 749 P.2d 1960 (1987). This can be partially measured by whether one crime furthered the other. State v. Garza-Villarreal, 123 Wn.2d 42, 864 P.2d 1378 (1993). A defendant has the opportunity to form a new criminal intent when the crimes are sequential, rather than simultaneous or continuous. In re Pers. Restraint of Rangel, 99 Wn. App 596, 600, 996 P.2d 620 (2000).
In State v. Grantham, 84 Wn. App. 854, 858, 932 P.2d 657 (1997), the defendant forced anal intercourse on the victim, paused to kick and threaten her, then forced oral sex a few minutes later. The court held that even though the two rapes had the same general intent — sexual intercourse — the second rape "was accompanied by a new objective `intent'" because the defendant "had the time and opportunity to pause, reflect, and either cease his criminal activity or proceed to commit a further criminal act." Id. at 859. On the other hand, in State v. Tili, 139 Wn.2d 107, 124, 985 P.2d 365 (1999), the court held that the defendant's three penetrations of the victim had the same criminal intent because they were nearly simultaneous and comprised an unchanging pattern of conduct.
We hold that the trial court did not abuse its discretion in finding that Madsen did not meet the "same intent" prong of the test. Over eight minutes elapsed between the first and second calls and over fifteen minutes between the second and third calls. Each call was clearly terminated, with Stuart advising Madsen there was no wish for further communication. Although the general intent of the calls was to contact Stuart, Madsen had the opportunity after each call to reflect and decide not to call her again. Yet he chose, knowing there was a no-contact order, to call her two more times.
Because failure to meet one prong precludes a finding of same criminal conduct, State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994), we need not go further. We note, however, that the "same time" prong was not satisfied either. Two or more crimes can meet the "same time" requirement, even when not simultaneous, if they are "part of a continuous, uninterrupted sequence of conduct over a very short period of time." State v. Porter, 133 Wn.2d 177, 183, 942 P.2d 974 (1997). In contrast, Madsen's calls occurred over a period of forty-five minutes with clear breaks in between each violation.
Statement of Additional Grounds
Madsen raises a number of additional issues in his statement for additional grounds, none of which have merit. The gist of his claims is that his counsel was ineffective for failing to take certain actions that Madsen deemed appropriate and necessary. "To prevail on a claim of ineffective assistance of counsel, a defendant must establish both ineffective representation and resulting prejudice." State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). Legitimate trial strategy or tactics cannot serve as a basis for the claim. Id. The record indicates that Madsen's counsel had valid legal or tactical reasons for each of these alleged omissions.
Madsen also argues that his free speech rights were violated because the no-contact order criminalized conversations that were, in his view, nonviolent and consensual. Madsen is mistaken. The State may validly impose reasonable time, place, and manner restrictions on speech "if they `are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.'" Bering v. Share, 106 Wn.2d 212, 222, 721 P.2d 918 (1986) (quoting United States v. Grace, 461 U.S. 171, 177, 103 S. Ct. 1702, 75 L. Ed. 2d 736 (1983). In State v. Noah, 103 Wn. App. 29, 41-42, 9 P.3d 858 (2000), this court upheld an antiharassment order against a claim that it was an unconstitutional prior restraint on free speech.
Protecting citizens from harassment is a compelling state interest. The legislature authorizes the court to order that the defendant have no contact with his intended victim. . . . The statute is content neutral — no contact — whether profession of love, screams of hate or anything in between. The interest to be served is the safety, security, and peace of mind of the victim. It is narrowly tailored by focus on the victim and a no-contact zone around the victim. It leaves open ample alternative channels of communications. . . .
The no-contact order against Madsen meets these criteria.
We concur:
Affirmed.