Filed: March 28, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-1-00097-0. Judgment or order under review. Date filed: 01/23/2004. Judge signing: Hon. Ronald Kessler.
Counsel for Appellant(s), David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
St McCain — Information Only (Appearing Pro Se), Doc #861393, b4-19-L, Monroe Correctional Complex, PO Box 777, Monroe, WA 98272.
Counsel for Respondent(s), Patrick Joseph Preston, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Stanton McCain appeals his convictions of first degree rape and first degree burglary, arguing that the trial court erred in admitting evidence of the victim's statements to police a few minutes after the incident and improperly denied his request to proceed pro se at the beginning of trial. The trial court did not abuse its discretion in concluding the statements were admissible as excited utterances and that the request to proceed pro se was equivocal and untimely. We affirm.
Theresa Green attempted to end a romantic relationship she had begun with the defendant, Stanton McCain, while she was separated from her husband Mark. Theresa entered marriage counseling with Mark, moved out of the house she had shared with McCain and began house-sitting a house Mark owned. McCain began calling Theresa one morning while he was at his construction job and Theresa was at home. After talking to Theresa about their relationship, McCain drove to Theresa's house and entered through a back door.
The Greens' first names are used for the sake of clarity.
According to Theresa, she had repeated during their phone conversations that she was leaving McCain permanently. McCain surprised her by coming to the house, and when she refused to reconsider leaving him, McCain said he was taking a last `piece' and forcibly raped her. Mark called right after McCain had stopped, and when McCain allowed Theresa to answer, she told Mark that McCain had raped her and to call police.
According to McCain, Theresa asked him during the phone conversations to come have sex with her because she was feeling distraught about other things in her life. He complied with her request even though he was not comfortable in Mark's house. They were still having consensual sex when Mark called, and Theresa fabricated the rape claim when Mark heard McCain's voice and asked what McCain was doing there.
Mark immediately called the police, who arrived at the house within a few minutes, finding Theresa distraught and crying on the front porch. While Theresa spoke with police inside the house, the phone rang several times with calls from McCain. Mark arrived, and took Theresa to the hospital for a medical examination. McCain was ultimately charged with first degree rape and first degree burglary.
At the conclusion of pretrial motions, the court ruled that statements Theresa made over the phone to Mark and the 911 dispatcher immediately after the rape were admissible as excited utterances, as were Theresa's statements to Officer Michael Moorfoot at the scene. The court found, however, that the passage of time and intervening events rendered Theresa's statements to Mark on the way to the hospital inadmissible.
On the second day after the case had been called for trial, just before jurors were to be brought into the courtroom for jury selection, McCain told the court he wanted to exercise his right to proceed pro se, explaining that one of his appointed counsel had assaulted him. The court questioned McCain about his request and allegations, and upon learning that McCain alleged the assault by counsel had happened in the judge's presence, the court concluded no assault had occurred and denied McCain's request as untimely and equivocal. The court also denied McCain's counsel's request to withdraw from the case because of McCain's threats to press criminal charges against them.
McCain was convicted of both charges. Through new counsel, McCain made a motion for a new trial, renewing the argument that he should have been allowed to proceed pro se. The court agreed that it would have been better to have conducted a complete colloquy with McCain as to the risks of self-representation, but ultimately concluded the request still had been equivocal and denied the motion. McCain appeals.
McCain first argues that Theresa's statements to Officer Moorfoot should not have been admitted as excited utterances because she had the opportunity to reflect between the time of the rape and the statements. A trial court's decision to admit hearsay statements as excited utterances will only be overturned for an abuse of discretion. State v. Woods, 143 Wn.2d 561, 597, 23 P.3d 1046, cert. denied, 122 S. Ct. 374, 151 L. Ed. 2d 285 (2001).
ER 803(a)(2) sets forth the excited utterance exception to the hearsay rule. Under ER 803(a)(2), an out-of-court statement is admissible if it relates to `a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.' The exception `is based upon the theory that a statement made as a spontaneous reaction to the stress of a startling event offers little to no opportunity for misrepresentation or conscious fabrication.' State v. Davis, 141 Wn.2d 798, 843, 10 P.3d 977 (2000). An excited utterance requires three preliminary factual findings: (1) a startling event or condition, (2) a declarant under the stress of a startling event or condition, and (3) a connection to the startling event or condition. Davis, 141 Wn.2d at 843. The second element is at issue here. The key to the requirement that the statements be made while under the stress of excitement caused by the startling event is spontaneity. State v. Chapin, 118 Wn.2d 681, 688, 826 P.2d 194 (1992). In determining spontaneity, courts look to the amount of time that passed between the startling event and the utterance, as well as any other factors relevant to whether the witness had an opportunity to reflect on the event and fabricate a story. Chapin, 118 Wn.2d at 688. Acknowledging that police arrived within a few minutes of the incident, McCain focuses on Officer Moorfoot's pretrial testimony that he took Theresa inside to calm down `so she could try to relax and take everything in and explain to us in detail what happened' and his affirmative response on cross-examination when asked if she stopped periodically to pull herself together. But Moorfoot also testified that Theresa's initial demeanor of being `quite upset[,]' `crying' and `a little hysterical' changed only `[s]lightly' during the 20 to 30 minutes he spoke with her. In addition, the phone kept ringing with calls from McCain. And according to Mark's pretrial testimony, when he arrived at the house Theresa was slumped in a chair crying with her head down as she was speaking to the officers. Given the range of evidence before the trial court, we find no abuse of discretion in admitting Theresa's statements.
McCain cites two cases, neither of which is helpful. In Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 195-96, 668 P.2d 571 (1983), the trial court erred by admitting a firefighter's taped statement after he had 30 to 40 minutes `to calm down and reflect' following an accident. In contrast, here only a few minutes passed during which Theresa merely briefly spoke to Mark on the phone, answered a threatening call from McCain and spoke to the 911 operator.
And in State v. Dixon, 37 Wn. App. 867, 873-75, 684 P.2d 725 (1984) this court held the trial court erred by admitting a written statement given by the victim to police over a two-hour period beginning an hour after the incident. Other than being described as upset, nothing showed the victim's ability to reflect was impeded given that her 4-page statement was highly detailed and she added previously omitted facts to the last page. 37 Wn. App. at 873-74. Here, Theresa's level of distress was greater than the Dixon victim's, her statements were closer in time to the event and Theresa did not write a detailed statement or add facts she had omitted.
McCain also argues that Theresa in fact reflected on the events to falsify them. He contrasts Theresa's trial testimony that McCain unbuttoned her pants and the fact the pants were not damaged with her use of the word `ripped' to Moorfoot. But McCain does not explain how this affected the trial court's exercise of discretion since this discrepancy was not presented when the trial court considered admissibility of the statements. Moreover, as was clarified in Moorfoot's redirect examination, Theresa had said that the pants were `ripped off' her, not that they were `ripped.' McCain next contends that the trial court erred by failing to allow him to proceed pro se. The United States Constitution and the Washington Constitution guarantee the right to self-representation. 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). The unjustified denial of this right requires reversal. Woods, 143 Wn.2d at 586-87 (citing State v. Breedlove, 79 Wn. App. 101, 111, 900 P.2d 586 (1995)), cert. denied, 534 U.S. 964 (2001). The right exists `despite the fact that its exercise will almost surely result in detriment to both the defendant and the administration of justice.' 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.' State v. Vermillion, 112 Wn. App. 844, 851, 51 P.3d 188 (2002). (internal citations omitted) 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. State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995). `Courts should indulge every reasonable presumption against finding that a defendant has waived the right to counsel.' Vermillion, 112 Wn. App. at 851 (citations omitted). One of the purposes of this is `to protect trial courts from manipulative vacillations by defendants.' State v. DeWeese, 117 Wn.2d 369, 376, 816 P.2d 1 (1991). `We review a trial court's denial of a request for self-representation for abuse of discretion.' Vermillion, 112 Wn. App. at 855.
McCain explained his request as resulting from his counsel's misconduct: Your Honor, may it please the court, first and foremost I would like to request my right to proceed as pro se under Article 1, Subsections 21 and 22 of the Washington State Constitution. I have experienced through firsthand knowledge a violation of my attorney/client interests privileges through verbal assault and physical battery, which are violations of the Professional Rules of Conduct and the Rules of Superior Court 2003, Washington State Bar Association, American Bar Association, Counsel of Washington Trial Lawyers Association, including the rules of Ethics.
The court inquired further and McCain said his appointed counsel had assaulted him in open court the preceding Thursday by violently shaking his dislocated shoulder while threatening him and cursing at him. When the judge said he had seen no such thing, McCain suggested the judge was looking at his computer screen. McCain would not set forth his other complaints against counsel even though he wanted counsel removed because it might endanger his criminal charges against them. He said he had `no choice' but to represent himself with his `minor abilities.'
When the court indicated it would deny McCain's request as untimely and equivocal, McCain said his attorneys had a conflict of interest. During further discussion, McCain's counsel moved to withdraw in light of McCain's threat to file criminal charges. But the court ultimately found that the alleged assault never happened, that none of McCain's other complaints established a conflict of interest, and that McCain was playing games the court with his partial allegations. The court denied counsel's request to withdraw and again denied McCain's request to proceed pro se. McCain focuses on the request to proceed pro se without adequately considering the surrounding context of the claimed assault and other matters related to his representation. But `[t]he 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)). In light of this record, the trial court did not abuse its discretion by finding McCain's request equivocal, linked as it was to his false claim of an assault by his counsel and his protestation that he was being forced to go pro se because of his attorneys' shortcomings that he refused to divulge. See State v. Stenson, 132 Wn.2d 668, 940 P.2d 1239 (1997) (defendant's motion to represent himself not unequivocal when he said he was forced to do so by counsel); Luvene, 127 Wn.2d at 698-99 (defendant's request not unequivocal when he said both that he was prepared and unprepared to represent himself). And because the request was equivocal, though it would have been the better practice, the court had no duty to warn McCain of the risks of self-representation. Woods, 143 Wn.2d at 588. We need not reach the issue of whether McCain's request was timely.
The trial court did not abuse its discretion in denying McCain's request to proceed pro se as equivocal. We affirm.
APPELWICK, KENNEDY and COX, JJ.