Opinion
No. 26554-4-III.
November 13, 2008.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 06-1-00154-8, Donald W. Schacht, J., entered October 31, 2007.
Affirmed by unpublished opinion per Brown, J., concurred in by Kulik, A.C.J., and Korsmo, J.
Washington State Penitentiary inmate Robert Glenn Michael appeals his custodial assault conviction. Through counsel, Mr. Michael contends the trial court erred in denying his request for new counsel, and, if we agree, he asks us to direct the State to avoid certain improper arguments on retrial. Pro se, Mr. Michael raises five additional grounds for review. The trial court did not abuse its discretion when ruling his request for new counsel was untimely when made on the morning of trial. We also reject Mr. Michael's pro se concerns. Accordingly, we affirm.
FACTS
In April 2006, while Mr. Michael was imprisoned at the Washington State Penitentiary, the State charged him with one count of custodial assault against penitentiary staff member Eugene J. Medutis. The trial court appointed Gail Lyn Siemers to represent Mr. Michael. Mr. Michael signed two speedy-trial waivers; the last listed a commencement date of November 30, 2006. In January 2007, defense counsel successfully moved for a 15-day competency hearing at Eastern State Hospital. In March 2007, the court moved the examination to the penitentiary. Following a May 18 report, the trial court found Mr. Michael competent to stand trial on July 11, 2007.
On December 7, 2006, Judge Schacht wrote Mr. Michael, returning pro se pleadings misfiled in the local district court and noting several pro se superior court pleadings. The judge informed Mr. Michael not to file further pleadings on his own behalf or attempt to act as co-counsel with his appointed attorney, but rather discuss his legal issues with his attorney. Replying on December 12, 2006, Mr. Michael complained about his attorney and demanded new counsel because she would not give him discovery or pursue his citizen's complaint. Alternatively, Mr. Michael asserted his right to represent himself with "different counsel appointed to act as my co-counsel." Clerk's Papers (CP) at 30 (emphasis in original).
Before trial, the court held a hearing under State v. Hartzog, 96 Wn.2d 383, 635 P.2d 694 (1981), regarding trial security matters. The court noted that Mr. Michael was incarcerated for crimes including four assaults (first degree to third-degree); that Mr. Michael's temperament and character showed numerous infractions, fighting, throwing objects, and self-mutilation; and that he challenged authority, had anger management problems, and showed a record of threats to harm others or cause disturbances. When ruling Mr. Michael could attend trial unshackled and generally unrestricted, the court warned, "[i]f you become disruptive or interfere with the process in some way, I won't hesitate to have you removed from the courtroom." Report of Proceedings (RP) at 6.
Before jury selection on August 9, 2007, Mr. Michael unsuccessfully asked the court to replace Ms. Siemers, who he believed had lied to him, had failed to give him discovery, and had not told him of hearings. The judge allowed that Mr. Michael could request self-representation, but that request was ruled "untimely." RP at 12. During a 10-page colloquy, Mr. Michael continually interrupted and argued with the judge, and grew increasingly profane and belligerent. In response to Mr. Michael's escalating behavior the court stated, "[w]ell, I am not going to argue with you today, Mr. Michael. If you wish to proceed to trial today with Ms. Siemers representing you [Mr. Michael interrupted, refusing] — in this matter, then we'll do that. If you wish not to participate in this trial, then that's your business. I can't force you to be here." RP at 13-14.
Finally, the court inquired:
[Judge Schacht:] Do you wish to be present for this trial today, Mr. Michael?
[Mr. Michael:] Yes, sir.
[Judge Schacht:] Are you going to be —
[Mr. Michael:] I'm going to object to my violations of my rights. Yes, sir.
I'm going to object strenuously.
[Judge Schacht:] Okay. Are you going to sit there and be quiet as appropriate and allow your attorney to represent you?
[Mr. Michael:] No. She does not represent me.
[Judge Schacht:] Okay. I'm then going to require that you be removed from the courtroom. We are going —
[Mr. Michael:] All right. You are going to violate my rights, you f___ing piece of shit.
[Judge Schacht:] Okay.
[Mr. Michael:] Fuck you, punk.
[Judge Schacht:] We are going — Just leave him there for a second. We are going to proceed to trial without you.
RP at 16-17.
Following a string of profanities directed at the court by Mr. Michael, the court began explaining Mr. Michael's rights in the face of his continuing disruptive behavior. Finally, the court remarked that Mr. Michaels had failed to show respect for the court, "[a]nd so I do not believe it is appropriate for you to continue to be present." RP at 18.
The court made a record of Mr. Michael's removal, first mentioning his Hartzog hearing concerns, then relating Ms. Siemers had, before trial, advised him of her safety concerns. Ms. Siemers thought another Hartzog hearing was wise, summarizing, "[s]o the bottom line is that he made it clear he would hurt me or cause me to be in a situation where I would fear for my life or safety during this time, and that one day with me next to him in trial would potentially cause me bodily injury and/or worse." RP at 23-24. The court noted it had that morning received a penitentiary employee's report about Mr. Michael. The employee testified she heard Mr. Michael make "negative comments" about a judge and a lawyer and "I took those comments as threats." RP at 25.
The State called Mr. Medutis and four other penitentiary employees who witnessed the alleged assault. The defense rested without calling witnesses. The State's rebuttal argument included this now criticized, but then un-objected portion:
In order to find Mr. Michael not guilty, you would have to believe that those four officers and [Mr.] Medutis for whatever reason decided to set up Mr. Michael. So they make up their stories, get them all together and then what, a year and a half later, they come to court and under oath completely lie? Does that make any sense? Ask yourself, is that reasonable?
RP at 64.
The jury received the case at 2:18 p.m. (1 RP (Aug. 9, 2007) 64). At 2:30 p.m., the jury found Mr. Michael guilty as charged. He appealed.
ANALYSIS A. New-Lawyer Request
The issue is whether the trial court erred in declining, as untimely, Mr. Michael's request for new counsel. Mr. Michael argues his request should relate back to his December 12, 2006 letter to the trial court complaining about Ms. Siemers.
Unless made during a hearing or trial, motions must state the grounds, be in writing, and ask for relief under CR 7(b)(1), which is made applicable to criminal cases by CrR 8.2. Service is required under CR 5(a). The December 12, 2006 letter did not conform to the rules for specifying a motion. The letter was addressed to Judge Schacht, and at the top it showed, "Re: Case No. 06-1-00154-8 Your letter dated Dec. 7, 2006." CP at 29. The letter was not a motion and was not served on the State.
Moreover, "[a] defendant does not have an absolute, Sixth Amendment right to choose any particular advocate." State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 (1997) (citing State v. DeWeese, 117 Wn.2d 369, 375-76, 816 P.2d 1 (1991)). "Whether or not an indigent defendant's dissatisfaction with court-appointed counsel is justified and warrants the appointment of a new lawyer lies within the sound discretion of the trial court." State v. Sinclair, 46 Wn. App. 433, 436, 730 P.2d 742 (1986) (citing State v. Dougherty, 33 Wn. App. 466, 471, 655 P.2d 1187 (1982); State v. Brittain, 38 Wn. App. 740, 741, 689 P.2d 1095 (1984)). We find no abuse of discretion.
The defendant supports a new-counsel request with good cause, "such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant." Stenson, 132 Wn.2d at 734. "The general loss of confidence or trust alone is not sufficient to substitute new counsel." Id. (citing Johnston v. State, 497 So. 2d 863, 868 (Fla. 1986)). In new-counsel rulings, the court considers: "(1) the reasons given for the dissatisfaction, (2) the court's own evaluation of counsel, and (3) the effect of any substitution upon the scheduled proceedings." Id. (citing State v. Stark, 48 Wn. App. 245, 253, 738 P.2d 684 (1987)).
Mr. Michael's concerns were (1) not receiving copies of discovery materials, and (2) not conducting an omnibus hearing. Neither concern warrants new counsel. First, defendants have no right to obtain copies of police reports received by their counsel. State v. Coe, 101 Wn.2d 772, 785, 684 P.2d 668 (1984). Discovery materials furnished to an attorney "shall remain in the exclusive custody of the attorney." CrR 4.7(h)(3); see also State v. Hughes, 106 Wn.2d 176, 206, 721 P.2d 902 (1986) ("discovery material is specifically restricted to the exclusive custody of defense counsel").
Second, omnibus hearings under CrR 4.5 are procedural, not substantive. State v. Wilson, 29 Wn. App. 895, 901, 626 P.2d 998 (1981), overruled on other grounds, State v. Koloske, 100 Wn.2d 889, 676 P.2d 456 (1984). "An attorney is impliedly authorized to waive procedural matters in order to facilitate a hearing or trial." Id. (citing In re Adoption of Coggins, 13 Wn. App. 736, 739, 537 P.2d 287 (1975); State v. Franulovich, 18 Wn. App. 290, 567 P.2d 264 (1977)). Therefore, Ms. Siemers properly waived the hearing and submitted an agreed order. The trial court did not err.
B. Prosecutor's Argument
The issue is whether the prosecutor committed misconduct in his rebuttal closing argument when arguing the jury must conclude the witnesses were lying in order to acquit. Because this argument is first raised on appeal, Mr. Michael bears the burden of proving that a remark was "so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995) (citing State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991)).
The State concedes the criticized argument was likely prosecutorial misconduct. See State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996) (finding it was improper for the prosecutor to argue in order to find the defendant not guilty, the jury must find the victim was lying or confused); see also State v. Barrow, 60 Wn. App. 869, 874-75, 809 P.2d 209 (1991) (lying). However, a curative instruction could have neutralized the prejudice. Accordingly, Mr. Michael fails to meet the standard to raise this issue for the first time on appeal. In any event, Mr. Michael asks only that direction be given on remand should we reverse, conceding "[g]iven the unchallenged evidence of the [State's] witnesses, the misconduct is unlikely to have affected the jury's decision." Appellant's Br. at 12.
C. Pro Se Additional Grounds for Review
1. Speedy Trial. Mr. Michael first contends he was denied a speedy trial under court rule. See CrR 3.3. "Objections to a trial date on speedy trial grounds must be made within 10 days after notice of the trial date is given." State v. Bobenhouse, 143 Wn. App. 315, 322, 177 P.3d 209 (2008) (citing CrR 3.3(d)(3)). Mr. Michael's sole speedy-trial objection was made on the day of trial, long after 10 days of notice. Therefore, Mr. Michael waived his right to object under CrR 3.3.
Mr. Michael next contends he was denied a constitutional speedy trial. See Const. art. I, § 22. The constitutional right to a speedy trial is violated after a reasonable, not a fixed time. State v. Monson, 84 Wn. App. 703, 711, 929 P.2d 1186 (1997). The reasonableness threshold is high, with four factors to consider: "`[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'" In re Pers. Restraint of Benn, 134 Wn.2d 868, 920, 952 P.2d 116 (1998) (alteration in original) (quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)).
Mr. Michael was charged on April 25, 2006 while incarcerated, obviating the need to detain him on the charge. He was tried on August 9, 2007 well within the 90 days allowed after signing two speedy trial waivers and completing a lengthy competency evaluation completed after the July 11, 2007 competency order. No evidence shows Mr. Michael suffered any unreasonable delay or prejudice.
Mr. Michael next argues his trial counsel was ineffective for not raising the speedy trial issue before trial. To establish ineffective assistance of counsel a defendant must satisfy two test prongs: (1) the performance of counsel was so deficient that it fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Representation is ineffective if "the result of the proceeding would have been different but for counsel's deficient representation." State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251 (1995) (citing State v. Thomas, 109 Wn.2d 222, 224-25, 743 P.2d 816 (1987)).
Even assuming deficient performance, Mr. Michael fails the second Strickland prong because, as analyzed above, he has not shown a speedy trial violation. Mr. Michael was brought to trial within the 90-day requirement. Accordingly, Mr. Michael has not shown how the proceedings would have been different if his trial counsel had raised the speedy trial issue on the day of trial.
2. Presence at Trial. Mr. Michael contends the court erred in removing him from his trial. Mr. Michael argues the court did not follow Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970). Specifically, Mr. Michael argues he was not warned he would be removed and was not given the opportunity to return to the courtroom.
"A criminal defendant has a constitutional right to be present in the courtroom at all critical stages of the trial." State v. Chapple, 145 Wn.2d 310, 318, 36 P.3d 1025 (2001). But, this right is not absolute. Id. Persistent, disruptive conduct by a defendant can constitute a voluntary waiver of this right. Id. (citing Allen, 397 U.S. at 343; DeWeese, 117 Wn.2d at 381)). Illinois v. Allen involved the removal of a defendant from the courtroom for repeated disruptive behavior. Allen, 397 U.S. at 340-41. The Court reasoned a defendant should be warned that removal will result from disruptive courtroom behavior, and if removed the right could be reclaimed when the defendant is willing to conform to the decorum and respect inherent in judicial proceedings. Id. at 343, 346.
Although "the appropriate method for dealing with a disruptive defendant should be left to the discretion of the trial judge," four guidelines are helpful:
First, the defendant should be warned that his conduct could lead to removal. Second, the defendant's conduct must be severe enough to justify removal. Third, [our Supreme] court has expressed a preference for the least severe alternative that will prevent the defendant from disrupting the trial. [Fourth], the defendant must be allowed to reclaim his right to be present upon assurances that the defendant's conduct will improve.
Chapple, 145 Wn.2d at 320 (internal citations omitted). The guidelines do not constrain trial court discretion, but are meant to assure "a fair trial while maintaining the safety and decorum of the proceedings." Id.
The court warned Mr. Michael at the Hartzog hearing, "[i]f you become disruptive or interfere with the process in some way, I won't hesitate to have you removed from the courtroom." RP at 6. On the morning of trial, the court said it would not argue with Mr. Michael and warned him, "[i]f you wish to proceed to trial today with Ms. Siemers representing you [Mr. Michael interrupted, refusing] — in this matter, then we'll do that. If you wish not to participate in this trial, then that's your business. I can't force you to be here." RP at 13-14. The court warned Mr. Michael after denying his new-counsel motion, "[a]re you going to sit there and be quiet as appropriate and allow your attorney to represent you?" RP at 17.
Mr. Michael's severe, disruptive conduct justified his removal. Shackling and gagging him during trial would not better advance a fair trial. The court patiently endured Mr. Michael's interruptive, argumentative, and increasingly profane and belligerent behavior before removing him. Further, the post-removal record shows Ms. Siemers had advised the court before trial that Mr. Michael might hurt her and made her fear for her life and safety at trial. A prison representative told the court that she took Mr. Michael's comments on the way as threats against a judge and lawyer.
Finally, given that the jury returned its verdict at 2:30 p.m. the same day, little time was available for Mr. Michael to reclaim his right to be present or give better-conduct assurances. The trial court acted consistently with the Chapple guidelines. In sum, the trial court did not abuse its discretion in removing Mr. Michael from his trial.
3. Self-representation. Mr. Michael contends the trial court denied him the right of self-representation. He argues he made a timely request to represent himself in his December 12, 2006 letter to Judge Schacht and merely reasserted his right at trial.
We review a trial court's self-representation ruling for an abuse of discretion. State v. Breedlove, 79 Wn. App. 101, 106, 900 P.2d 586 (1995). The self-representation request must be both timely and unequivocal. Stenson, 132 Wn.2d at 737. Further, conditional requests "must be unequivocal." Id. at 741.
Mr. Michael's December 12 letter was, at best, an equivocal conditional self-representation request because it was not a formal motion and mainly addressed his dissatisfaction with Ms. Siemers without elaborating on self-representation. At trial, Mr. Michael again did not specifically ask to represent himself. Accordingly, the court did not abuse its discretion in denying his request. Stenson, 132 Wn.2d at 740-41.
4. Expert Witness. Mr. Michael contends defense counsel failed to obtain an expert witness, apparently for his competency hearing, under RCW 10.77.020(2), and that the court failed to ensure due process by not appointing two qualified experts, one with a developmental disabilities background, pursuant to RCW 10.77.060(1)(a). Both arguments are raised for the first time on appeal.
RAP 2.5(a)(3) precludes review of an issue for the first time on appeal unless the trial court committed a "manifest error affecting a constitutional right." See, e.g., State v. McDonald, 138 Wn.2d 680, 691, 981 P.2d 443 (1999). Accordingly, we decline review. Although Mr. Michael argues the trial court's failure to appoint two qualified experts pursuant to RCW 10.77.060(1)(a) violated due process, this requirement "is not a constitutional right but is statutory and may be waived by counsel." State v. Israel, 19 Wn. App. 773, 779, 577 P.2d 631 (1978).
It is unclear how the experts would have aided Mr. Michael in the competency determination or changed the trial result. See McFarland, 127 Wn.2d at 334-35 (citing Thomas, 109 Wn.2d at 225-26) (ineffective assistance requires a showing of prejudice). Mr. Michael's arguments are speculative and appear to rely on evidence outside of the record. Thus, they are better addressed in a personal restraint petition. See McFarland, 127 Wn.2d at 338 n. 5.
Ineffective Assistance of Appellate Counsel. Mr. Michael complains his appellate counsel failed to label the assignments of errors as constitutional violations thereby hampering his potential federal habeas corpus review. At this juncture, such a claim is speculative and outside our jurisdiction. Thus, he fails to show prejudice. Strickland, 466 U.S. at 687.
After filing his additional grounds for review, Mr. Michael, pro se, filed several additional documents with this court. Because there is no authority in the Rules of Appellate Procedure for such additional filings, we decline to consider them.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, A.C.J. and KORSMO, J., concur.