Opinion
No. 63152-7-I.
September 20, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 07-1-09999-5, Christopher A. Washington, J., entered February 9, 2009.
Reversed by unpublished opinion per Becker, J., concurred in by Ellington and Lau, JJ.
Eleven days before trial, appellant Kirk Saintcalle requested permission to represent himself on a charge of possession of cocaine. At the same time, he asked for a continuance. The trial court denied Saintcalle's request to go pro se, judging that he was improperly trying to delay the trial. A simultaneous request for a continuance does not establish that an otherwise timely motion to go pro se is made for the purpose of delay. Under the circumstances, denial of the motion was an abuse of discretion. We reverse.
The State filed the information against Saintcalle on August 2, 2007. The record reflects that Saintcalle agreed to extend the speedy trial deadline seven times. New counsel substituted in on January 30, 2008. On March 28, with the trial set to begin 11 days later on April 8, Saintcalle moved to proceed pro se.
The trial judge asked Saintcalle to explain why he wanted to do that, and the following colloquy ensued:
Mr. Saintcalle: `Cause I believe I might be able to properly assist myself better.
Court: You believe you'd be able to handle the case better?
Mr. Saintcalle: Yes, sir.
Court: Why do you think that?
Mr. Saintcalle: `Cause I been looking over, reading legal material and I just believe I can.
Court: What's your educational level?
Mr. Saintcalle: High school.
Court: How old are you?
Mr. Saintcalle: 23, sir.
Court: And it's not anything with regard to this particular lawyer?
Mr. Saintcalle: No. No.
Court: Do you have any legal training?
Mr. Saintcalle: Not, not, not legally, no.
Court: You've had prior trials before. Is that correct?
Mr. Saintcalle: Yes, sir.
Court: All right. Do you know the rules of evidence?
Mr. Saintcalle: Yes. I know some of it.
Court: How do you know the rules of evidence?
Mr. Saintcalle: `Cause I have a Washington state courtroom book that I purchased from another inmate several months ago, so I been looking over that. And I also go the Washington state local courtroom rules too.
Court: Do you recognize that you'd have to be your own lawyer in front of a — have you requested a jury in this case?
Mr. Saintcalle: Yes, sir.
Court: I'm sorry?
Mr. Saintcalle: Yes, sir.
Court: Do you realize how awkward and difficult that is for someone in your position to be addressing a jury as both the defendant and the lawyer?
Mr. Saintcalle: Yes. I believe I can handle the situation, sir.
Court: Do you know the elements of the crime that the State has to prove?
Mr. Saintcalle: That I was intent and I was — I not — what's that word, the word you always use? That I knew. Basically I knew I had the drugs in my possession.
Court: Have you ever represented yourself before?
Mr. Saintcalle: No, sir.
Court: What's the standard of proof that the prosecutor has? Do you know that? In a criminal case.
Mr. Saintcalle: 99.9 percent I believe.
Court: No, that's not right.
Mr. Saintcalle: What is it then?
Court: Well, I'm, I'm going to ask the questions, but you don't know the burden of proof in a criminal case.
Mr. Saintcalle: I'm learning.
Court: Well, you don't know it now. It would be very, very foolish of you to go in front of a jury and try to represent yourself when you don't have the legal training. I'm just, I'm, you know, it's not in your interest to do that. It really isn't.
Mr. Saintcalle: I understand that, but I have the time on my side. I have all the time to learn.
Court: Excuse me?
Mr. Saintcalle: I understand that, but I —
Court: What's the trial date?
Mr. Saintcalle: I don't know. The 8th? The 8th, sir. Have to get a continuance.
Court: You're asking for a continuance? Is that what you're saying?
Mr. Saintcalle: Yes.
Court: And why do you need a continuance?
Mr. Saintcalle: To go learn some more stuff and go over some stuff.
Court: Why is it that you're bringing this issue up now as opposed to before?
Mr. Saintcalle: Because before I wasn't really considering. I just, it was going through my mind. I just —
Court: All right. Well, based on my colloquy with you, I don't think you're making a knowing and voluntary and intelligent waiver of your right to counsel and to go pro se. And I also find that what you're really doing is using this in order to delay the trial date and I'm not going to allow that, so I'm going to deny your motion to go pro se and deny any motion to continue the trial date.
Report of Proceedings (March 28, 2008) at 6-9.
Report of Proceedings (March 28, 2008) at 6-9.
Saintcalle went to trial with counsel and was convicted. Saintcalle appeals. He contends his conviction must be reversed for violation of the right to self-representation.
"As a request for pro se status is a waiver of the constitutional right to counsel, appellate courts have regularly and properly reviewed denials of requests for pro se status under an abuse of discretion standard." State v. Madsen, 168 Wn.2d 496, 504, 229 P.3d 714 (2010). Discretion is abused if a decision is manifestly unreasonable or rests on facts unsupported in the record or was reached by applying the wrong legal standard. Madsen, 168 Wn.2d at 504.
Because the right to self-representation is so fundamental, a defendant may choose to proceed pro se even if the trial court believes it is not in the defendant's best interest to do so.
The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of "that respect for the individual which is the lifeblood of the law." Illinois v. Allen, 397 U. S. 337, 350-351[, 90 S. Ct. 1057, 1064, 25 L. Ed. 2d 353 (1970)] (Brennan, J., concurring).
Faretta v. California, 422 U.S. 806, 834, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
As recently summarized in Madsen, the law permits a trial court to indulge every reasonable presumption against finding that a defendant has waived the right to counsel, but the court may not deny a motion to proceed pro se without stating a reason that rests "on some identifiable fact":
Criminal defendants have an explicit right to self-representation under the Washington Constitution and an implicit right under the Sixth Amendment to the United States Constitution. Wash Const. art. I, § 22 ("the accused shall have the right to appear and defend in person"); Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). This right is so fundamental that it is afforded despite its potentially detrimental impact on both the defendant and the administration of justice. Faretta, 422 U.S. at 834; State v. Vermillion, 112 Wn. App. 844, 51 P.3d 188 (2002)[, review denied, 148 Wn.2d 1022 (2003)]. "The unjustified denial of this [pro se] right requires reversal." State v. Stenson, 132 Wn.2d 668, 737, 940 P.2d 1239 (1997) (emphasis added), [cert. denied, 523 U.S. 1008 (1998)].
. . . .
The right to proceed pro se is neither absolute nor self-executing. State v. Woods, 143 Wn.2d 561, 586, 23 P.3d 1046 [, cert. denied, 534 U.S. 964] (2001). When a defendant requests pro se status, the trial court must determine whether the request is unequivocal and timely. Stenson, 132 Wn.2d at 737. Absent a finding that the request was equivocal or untimely, the court must then determine if the defendant's request is voluntary, knowing, and intelligent, usually by colloquy. Faretta, 422 U.S. at 835; State v. Stegall, 124 Wn.2d 719, 881 P.2d 979 (1994). . . . Again, the court shall indulge in "`every reasonable presumption' against a defendant's waiver of his or her right to counsel." [In re Det. of] Turay, 139 Wn.2d [379, 396, 986 P.2d 790] (quoting Brewer [v. Williams], 430 U.S. [387, 404, 97 S. Ct. 1232), cert. denied, 531 U.S. 1125 (2001)].
This presumption does not give a court carte blanche to deny a motion to proceed pro se. The grounds that allow a court to deny a defendant the right to self-representation are limited to a finding that the defendant's request is equivocal, untimely, involuntary, or made without a general understanding of the consequences. Such a finding must be based on some identifiable fact; the presumption in Turay does not go so far as to eliminate the need for any basis for denying a motion for pro se status. Were it otherwise, the presumption could make the right itself illusory.
Madsen, 168 Wn.2d at 503-05 (some alterations in original) (footnote omitted).
As Madsen states, when a defendant requests pro se status, the trial court must determine whether the request is unequivocal and timely. Here the State does not dispute that Saintcalle's motion was unequivocal. His motion was also timely, coming 11 days before his scheduled trial date. See State v. Breedlove, 79 Wn. App. 101, 109, 900 P.2d 586 (1995) (request to proceed pro se accompanied by request for continuance made 12 days before set trial date not untimely).
Although the trial court found that Saintcalle's waiver of his right to counsel was involuntary, unknowing, and unintelligent, the State does not defend that finding on appeal. We agree the record of the colloquy contains no identifiable fact that would support the finding. Saintcalle was unable to correctly articulate the State's burden of proof, but he knew what he was charged with. When advised that it would be "very, very foolish" and to his detriment to represent himself, Saintcalle acknowledged the risk.
A court "may not deny pro se status merely because the defendant is unfamiliar with legal rules." Madsen, 168 Wn.2d at 509.
The purpose of asking the defendant about his experience, if any, in representing himself and his familiarity, if any, with the rules of evidence and other aspects of courtroom procedure is not to determine whether he has sufficient technical skill to represent himself. Rather, the purpose is to determine whether he fully understands the risks he faces by waiving the right to be represented by counsel, such as the risk that lack of familiarity with evidentiary rules could result in admission of prosecution evidence that could have been excluded by a proper objection, or exclusion of defense evidence that the defendant would like to present but cannot for some reason based on evidentiary rules of which he has no knowledge. See State v. Hahn, 106 Wn.2d 885, 889-90 n. 3, 726 P.2d 25 (1986). A defendant need not himself have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, but the record should establish that "`he knows what he is doing and his choice is made with eyes open.'" Id. at 889 (quoting Faretta, 422 U.S. at 835).
Vermillion, 112 Wn. App. at 857. Any consideration of a defendant's ability to exercise the skill and judgment necessary to secure himself a fair trial was rendered inappropriate by Faretta. Vermillion, 112 Wn. App. at 858.
While the court could have been more thorough in exploring with Saintcalle the specific disadvantages of self-representation, nothing in the colloquy suggests Saintcalle had any misgivings about the prospect. Where there is no evidence to the contrary, the only permissible conclusion is that the defendant's request is voluntary, knowing, and intelligent. Madsen, 168 Wn.2d at 506.
See "Questions to Ask Defendant — Colloquy," Criminal Procedure Benchbook, Superior Court § 4.11(D) (Office of the Administrator for the Courts, State of Washington CD_ROM, Nov. 2000); see also Vermillion, 112 Wn. App. at 858 n. 3 ("We commend to trial courts the advisory list of questions for examining prospective pro se defendants found in State v. Christensen, 40 Wn. App. 290, 295 n. 2, 698 P.2d 1069 (1985), and the `textbook examination' of such a defendant found in Hahn, 106 Wn.2d at 896 n. 9. The trial court's colloquy with the defendant in Hahn also illustrates the kind of conversation that should have already taken place between the defendant and his appointed counsel before the defendant asks the trial court to allow self-representation.").
A defendant's request to proceed pro se that is otherwise valid may still be properly denied if the trial finds "that the motion is made for improper purposes, i.e., for the purpose of unjustifiably delaying a trial." Breedlove, 79 Wn. App. at 107-08. The concern that a defendant is invoking the right to self-representation to obstruct or delay the administration of justice is closely related to the requirement of timeliness. Madsen, 168 Wn.2d at 509. Illustrative of this concern is State v. Fritz, 21 Wn. App. 354, 585 P.2d 173 (1978), review denied, 92 Wn.2d 1002 (1979). In Fritz, this court affirmed, on the basis of improper motive to delay, the trial court's denial of the defendant's concurrent motions for continuance and to proceed pro se, where the defendant made the motion on the first day of trial, after having avoided one previous trial date by fleeing the state and another previous trial date by obtaining a substitution of counsel. Fritz, 21 Wn. App. at 365.
Here, the trial court plainly believed that Saintcalle was attempting to delay the trial, as the court ceased the pro se colloquy abruptly when Saintcalle requested a continuance. The court found "that what you're really doing is using this in order to delay the trial date and I'm not going to allow that."
But combining an otherwise timely motion to proceed pro se with a request for a continuance does not, by itself, support an inference of improper motive. Breedlove, 79 Wn. App. at 109. The court could have tested Saintcalle's resolve by asking him if he would still want to represent himself even if held to the trial date 11 days off. Without any exploration of that question in the record, there is no support for the finding that Saintcalle was merely looking for a way to delay the trial. Furthermore, while a defendant seeking to replace counsel "is not entitled to a continuance as a matter of right," State v. Early, 70 Wn. App. 452, 457, 853 P.2d 964 (1993),review denied, 123 Wn.2d 1004 (1994), it is not self-evident that Saintcalle's request for a continuance would have been unjustified. See Fritz, 21 Wn. App. at 362.
The State suggests that we should defer to the trial court's assessment of Saintcalle's credibility. However, our courts have repeatedly underscored the importance of the trial court making an adequate record and identifying the factual basis for a denial of self-representation. Fritz, 21 Wn. App. at 363; Madsen, 168 Wn.2d at 505. In this case, the record is simply too sparse.
The unjustified denial of the pro se right requires reversal.Madsen, 168 Wn.2d at 503. Following Madsen, we conclude Saintcalle is entitled to a new trial.
SEARCH BY PARAMEDIC
Saintcalle contends reversal is required for the additional reason that the trial court improperly refused to suppress the cocaine which served as the basis for his conviction.
According to unchallenged findings entered by the trial court after a suppression hearing, Kent police officers were dispatched to an apartment complex to investigate a possible burglary in progress. When they responded, they found Saintcalle sitting on a landing of the complex. He matched the suspect's description. Saintcalle was unresponsive, lethargic, sweaty, and unable to care for himself. They decided to involuntarily commit him.
The officers called a private ambulance service to transport Saintcalle. The ambulance service provided such services under contract with the City of Kent. Marshall Lineberger, an emergency medical technician employed by the company, drove the ambulance. It was Lineberger's job to secure Saintcalle to a gurney, and he did so with the help of the officers after someone else had checked Saintcalle's medical condition. Lineberger saw a plastic baggie hanging out of Saintcalle's shoe, but its contents were not visible. "On his own, without consulting or discussing with officers, Mr. Lineberger removed the plastic baggie from the defendant's shoe . . . because he was curious and believed it could be relevant to the situation." Lineberger immediately gave it to an officer. The baggie contained a substance later identified as cocaine.
The parties agree the cocaine was not in plain view.
Saintcalle contends the findings from the suppression hearing establish that Lineberger conducted a warrantless search, illegal because he was a state actor. We review legal conclusions de novo. State v. Johnson, 155 Wn. App. 270, 277, 229 P.3d 824 (2010).
The basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials. Thus, it "extends beyond the paradigmatic entry into a private dwelling by a law enforcement officer in search of the fruits or instrumentalities of crime."Michigan v. Tyler, 436 U.S. 499, 504, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1977).
In Tyler, the Supreme Court determined that the warrant requirement of the Fourth Amendment extends to searches conducted by firemen who look inside a building for the cause of a fire once they are no longer confronted with the immediate exigencies of fighting the fire and preventing it from spreading. Tyler, 436 U.S. at 505.
Thus, there is no diminution in a person's reasonable expectation of privacy nor in the protection of the Fourth Amendment simply because the official conducting the search wears the uniform of a firefighter rather than a policeman, or because his purpose is to ascertain the cause of a fire rather than to look for evidence of a crime, or because the fire might have been started deliberately. Searches for administrative purposes, like searches for evidence of crime, are encompassed by the Fourth Amendment. . . . The showing of probable cause necessary to secure a warrant may vary with the object and intrusiveness of the search, but the necessity for the warrant persists.
Tyler, 436 U.S. at 506 (footnote omitted). Similar protection for privacy interests exists under our state constitution, article 1, section 7; like the Fourth Amendment, it was "intended as a restraint upon sovereign authority."State v. Ludvik, 40 Wn. App. 257, 262, 698 P.2d 1064 (1985).
But in the absence of state action, these constitutional provisions "have no application regardless of the scope of protection which would otherwise be afforded under either provision." Ludvik, 40 Wn. App. at 262. Whether state action has occurred depends on the circumstances of a given case. The party asserting the unconstitutionality of an action bears the burden of establishing that state action is involved.City of Pasco v. Shaw, 161 Wn.2d 450, 460, 166 P.3d 1157 (2007), cert. denied, 552 U.S. 1275 (2008). A person is a state actor if that person "functions as an agent or instrumentality of the state." City of Pasco, 161 Wn.2d at 460.
The State maintains that the search was not state action because Lineberger was a private citizen. Law enforcement officers cannot use a private citizen to obtain evidence without a search warrant where a warrant would otherwise be required.State v. Swenson, 104 Wn. App. 744, 754, 9 P.3d 933 (2000), review denied, 148 Wn.2d 1009 (2003). A private citizen acts as an agent of the government under the Fourth Amendment when: (1) the government knows of and acquiesces to the intrusive conduct; and (2) when the party performing the search intends to assist law enforcement rather than to further his own ends. United States v. Reed, 15 F.3d 928, 931 (9th Cir. 1994).
Citing Reed, Saintcalle contends Lineberger functioned as an agent of the police. But unlike inReed, the officers here were not made aware of Lineberger's search of Saintcalle's shoe, and therefore could not acquiesce to or encourage it. According to the trial court's unchallenged findings, Lineberger pulled the baggie from Saintcalle's shoe because he was curious and believed it could be "relevant to the situation," not because he was intending to assist the law enforcement officials who were present or act on their behalf. Thus, to the extent Lineberger was a private citizen and his conduct can be described as a private search, we agree with the State that the findings do not support a conclusion that the officers transformed it into a governmental search by their active encouragement or acquiescence. See State v. McWatters, 63 Wn. App. 911, 914-15, 822 P.2d 787,review denied, 119 Wn.2d 1012 (1992) ("While a person may believe turning over evidence may be helpful to the police, such unilateral conduct does not convert that person into an agent.").
Saintcalle also contends, however, that Lineberger was himself a state actor, directly subject to search and seizure rules like the firemen in Tyler. As Saintcalle argues, the fact that Lineberger was wearing "the uniform of an ambulance driver rather than a police officer" is not determinative under a functional analysis. He acknowledges that this court has previously rejected an argument that search and seizure rules necessarily apply to paramedics. McWatters, 63 Wn. App. at 914. But he contends he has shown Lineberger was a state actor under the circumstances of this case because: (1) Lineberger's employer had a contract with the City of Kent to handle emergency transports; (2) Lineberger was responding, along with Kent firefighters, to a call from Kent police officers; and (3) Lineberger, at the behest of the police officers, was preparing Saintcalle for involuntary commitment — a governmental function.
Br. of Appellant at 16.
Without deciding the issue, we will assume that Lineberger was a state actor under these circumstances. But if he was, he did not conduct an unreasonable search when he pulled the baggie out of the shoe. Dealing with an unconscious person is a recognized exigency that will justify a search of the person. State v. Jordan, 79 Wn.2d 480, 484-85, 487 P.2d 617 (1971). In a case not cited by the parties, the Missouri Supreme Court reached the same conclusion. State v. Gilpin, 836 S.W.2d 49, 53 (Mo. App. 1992). In Gilpin, the defendant was found unconscious. An ambulance attendant removed a vitamin bottle from his pockets and handed it to a police officer. The trial court denied the motion to suppress cocaine found in the vitamin bottle, applying the exigent circumstances doctrine and reasoning that a person found unconscious has no reasonable expectation of privacy in the contents of his trousers when receiving emergency medical treatment.Gilpin, 836 S.W.2d at 53. The Missouri Supreme Court affirmed in an opinion we find persuasive.
We conclude the trial court did not err in denying the motion to suppress.
PROSECUTORIAL MISCONDUCT
Saintcalle argues that the prosecutor committed misconduct during closing argument by stating that testifying officers had no motive to lie to the jury. He did not object below, but even if he had, we would not find the challenged remarks to be misconduct. A prosecutor, "as an advocate, is entitled to make a fair response to the arguments of defense counsel." State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994),cert. denied, 514 U.S. 1129 (1995). Saintcalle alleged during closing argument that the testifying officers were lying to the jury and had planted the cocaine on Saintcalle. In response, the prosecutor stated that the officers had no motive to lie and reviewed the evidence showing why this was so. This was not misconduct.
MANDATORY DNA FEE
Saintcalle assigns error to the court's decision to treat as mandatory a statute calling for the imposition of a $100 DNA sampling fee. In 2008, the legislature amended the fee statute to make the fee mandatory effective June 12, 2008, where formerly it had been subject to trial court discretion. Saintcalle contends the newer version of the statute does not apply to him because it was not in effect at the time he committed the crime charged. His analysis is incorrect. The fee became mandatory for anyone sentenced after the amendment's effective date. State v. Thompson, 153 Wn. App. 325, 223 P.3d 1165 (2009); State v. Brewster, 152 Wn. App. 856, 218 P.3d 249 (2009), review denied, 168 Wn.2d 1030 (2010). Saintcalle is in the group affected by the amendment.
Reversed.
WE CONCUR: