Opinion
No. 61623-4-I.
September 21, 2009.
Appeal from the Superior Court, King County, No. 07-1-04352-3, Steven C. Gonzalez, J., entered April 21, 2008.
Affirmed by unpublished opinion per Leach, J., concurred in by Grosse and Appelwick, JJ.
Earl Ira Bowman appeals his conviction for violation of the Uniform Controlled Substances Act, delivery of cocaine, RCW 69.50.401(1)(2)(a), and assault in the fourth degree, RCW 9A.36.041. Bowman argues that the trial court erred in denying his request to proceed pro se and in finding that he voluntarily absented himself when the jury returned its verdict. Because Bowman's request was equivocal and untimely, we hold that the trial court did not abuse its discretion when it denied his request. We further hold that the court acted within its discretion in accepting the jury's verdict in Bowman's absence because it followed the proper procedure in finding voluntary waiver. The arguments raised by Bowman in a statement of additional grounds relate to matters outside the record, so we cannot review them. Accordingly, we affirm.
Background
On March 1, 2007, Seattle Police Department Officers Christine Nichols and Susanna Guyer were in a white sport utility vehicle (SUV) conducting an undercover "buy-bust" operation. The officers saw two African American men standing in a gas station parking lot at 7301 Rainier Avenue South and drove into the lot. One of the men, named Tex, approached the driver's side of the vehicle. Guyer rolled down the window and asked if she could get some "cream," a slang term for crack cocaine in a $40 amount. Tex said that he could help her out. The other man, identified as Bowman, said that he did not want to make the deal in the open, and both men tried to open the doors of the SUV. The officers refused to let them inside the SUV and started to drive away.
Bowman then told the officers that his nephew had "cream" and directed them to pull into an apartment complex parking lot down the street and wait for him. When the officers arrived at the lot, Bowman approached the passenger's side of the vehicle. He dropped a rock of crack cocaine into Nichols's hand, and she gave him two $20 bills. Bowman then pressed the knuckles of his left hand into Nichols's neck and said, "I'm going to fucking kill you, trust me, next time, you fucking cop." Guyer heard the threat and leaned forward to unholster her gun but then saw that Bowman did not have a weapon. As Nichols quickly rolled up the window, Guyer put the SUV in reverse and drove away. Arrest team officers moved in and arrested Bowman. They found the prerecorded $20 bills in Bowman's pocket. The rock obtained during the operation tested positive for cocaine.
On May 18, 2007, Bowman was charged with violation of the Uniform Controlled Substances Act, delivery of cocaine, RCW 69.50.401(1)(2)(a), and assault in the fourth degree, RCW 9A.36.041. After pretrial hearings and the trial date were continued numerous times, the case was scheduled for trial on February 5, 2008, and assigned to Judge Steven Gonzalez.
On the morning of that day, Bowman requested a continuance. Judge Cheryl Carey denied the request, noting that it was the sixth request for a continuance of the trial date. Shortly afterward, before Judge Gonzalez, Bowman moved to proceed pro se for the first time. Bowman explained that he wanted to represent himself "because I feel like I tried to get [my attorney] to give me a continuance." He further explained,
I'd like to go pro se because I feel that my attorney is not — I mean, he's doing the best he can, whatever, but the fact is that I need to call witnesses. I have two main witnesses on my side that — you know — and they're not letting me call them. Therefore, I feel that I'm not being — having a fair trial.
The court stated that it was concerned with the timing of Bowman's motion and conducted a colloquy with Bowman about the charges, the penalties, the trial process, and Bowman's background, experience, and familiarity with the law. Regarding his ability to represent himself, Bowman stated that he understood he would be held to the same standards as a lawyer and said, "I've been in the system over 20 years, been doing research." Bowman then repeated his frustration with his counsel in the following exchange:
Bowman: What I'm saying is I need to go pro se because I feel that I'm not getting the right representation. Because I need him on my side to coach me, too, but at the same time I need to get me what I know what's going to help me in court to find me not guilty. . . . I'm being denied process because I'm not getting witnesses, and stuff. That's the only reason I'm going pro se, because I feel I'm not getting what I deserve, true justice.
The Court: So your position isn't necessarily you want to represent yourself. It's that you're dissatisfied with —
Bowman: I'm dissatisfied with my counsel.
Defense counsel explained that Bowman was dissatisfied because counsel had been unable to investigate a medical defense that had come to his attention within the last week and because he had failed to obtain a continuance to pursue this defense. When the court asked Bowman if he had anything further to say in support of his motion, Bowman asked, "I'd like to know, if I go pro se, will I still have counsel next to me to help me?"
The court ruled that it would deny Bowman's request, stating that it was untimely and "more properly described as a request for new counsel." When Bowman argued that he was being denied his constitutional rights, the court repeated, "It is made on the day of trial, and it is based on dissatisfaction with counsel."
Bowman was tried before a jury, which completed deliberations and notified the court they had reached a verdict on February 8, 2008, at about 9:10 a.m. When the court reconvened at 10:07 a.m., Bowman was not present. Noting that Bowman had been told that he needed to be within 15 minutes of the courthouse for the jury's verdict, the court inquired into Bowman's absence. Defense counsel stated that he had told Bowman that "he needed to be within 15 minutes at all times when the jury was out deliberating." Defense counsel further stated that Bowman was reminded by the bailiff that he had to "be here tomorrow and . . . to be here within 15 minutes." Finally, defense counsel explained that he had called Bowman that morning and told him there was a verdict. Bowman said he would be there in 20 minutes. About 20 to 25 minutes later, defense counsel called Bowman a second time. A woman answered the phone and told him that Bowman would be there in an hour because he had gotten on the 9:36 bus. The court then found that Bowman had voluntarily absented himself from the proceedings. The court accepted the jury's guilty verdict on both counts. Although the court ordered a bench warrant, the record shows that Bowman returned to court by February 11, 2008, and was present when he was remanded to jail that day.
At sentencing on April 18, 2008, Bowman filed a handwritten motion to arrest judgment and for a new trial, which the court denied. Before sentencing Bowman, the court asked if he had anything to say. Bowman did not explain his absence, but instead described his problems with substance abuse and mental illness. The court ordered a drug offender sentencing alternative for 20 months confinement followed by 20 months community custody. The court imposed a concurrent 365-day term on the misdemeanor assault charge with a 12-month term of probation.
Discussion
1. Pro Se Representation
Bowman argues that he is entitled to a new trial because the trial court erred in denying his request to represent himself. The state and federal constitutions guarantee a defendant the right to self-representation. To exercise this right, a defendant's request must be both unequivocal and timely. "Courts should indulge every reasonable presumption against finding that a defendant has waived the right to counsel." We review a trial court's denial of a request for self-representation for abuse of discretion. Discretion is abused if the trial court's decision is manifestly unreasonable or is based on untenable grounds.
U.S. Const., amend. VI and XIV; Wash. Const., art. I § 22.
State v. Breedlove, 79 Wn. App. 101, 106, 900 P.2d 586 (1995).
State v. Vermillion, 112 Wn. App. 844, 851, 51 P.3d 188 (2002).
Breedlove, 79 Wn. App. at 106.
Vermillion, 112 Wn. App. at 855.
A. Unequivocal Request
We first consider whether the trial court properly exercised its discretion in deciding that Bowman's request was equivocal. A request to proceed pro se as an alternative to substitution of new counsel may be an indication to the trial court, in light of the whole record, that the request is equivocal. Even when a request appears unequivocal, a defendant may still waive the right of self-representation by subsequent words or conduct.
State v. Stenson, 132 Wn.2d 668, 740-41, 940 P.2d 1239 (1997).
Vermillion, 112 Wn. App. at 851 (citing State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995)).
Here, in light of the record as a whole, Bowman's request was equivocal. Over the course of the court's colloquy with Bowman, Bowman repeatedly phrased his request for self-representation in terms of his frustration with his counsel. In response to the court's first question about his pro se motion, Bowman explained that he was dissatisfied with his counsel's failure to investigate a medical defense and to obtain a continuance to pursue that defense. When the court proceeded to inquire into Bowman's background and experience with the law, Bowman stated that he understood the risks of proceeding pro se and reiterated his frustration with his counsel. Indeed, when the court sought to clarify what Bowman wanted by asking, "So your position isn't necessarily you want to represent yourself. It's that you're dissatisfied with —," Bowman interrupted, stating, "I'm dissatisfied with my counsel." Defense counsel confirmed that Bowman's dissatisfaction was connected to his failure to raise the medical defense and to obtain a continuance. Finally, when the court asked if Bowman had anything further to state in support of his motion, Bowman asked if he proceeded pro se, whether he would "still have counsel next to me to help me." On this record, the trial court did not abuse its discretion in holding that Bowman's request to represent himself was an expression of his dissatisfaction with his counsel and a request for new counsel.
Bowman compares his request to the unequivocal requests in State v. Breedlove and State v. Vermillion. In Breedlove, the defendant filed several written pro se motions. Viewing the record as a whole, the appellate court held that the defendant's request was unequivocal, stating that although the defendant "at first did not clearly and unequivocally ask to proceed pro se . . . he had [later] refined his petition into an unequivocal request that the court allow him to `proceed as pro se counsel and [that the court] appoint standby-counsel assistance.'" The court further pointed out that the defendant made a separate, unequivocal request orally before the court. In Vermillion, the defendant stated his pro se request on five separate occasions before three different judges. In ruling that the defendant met the equivocality requirement, this court, viewing the record as a whole, stated that even if defendant's request before the second judge was equivocal, the three requests before the third judge were unequivocal. Here, unlike in Breedlove and Vermillion, the record, when viewed as a whole, shows that Bowman couched his request before Judge Gonzalez in terms of his dissatisfaction with his counsel. At no point during the colloquy did Bowman clarify his request. The trial court did not abuse its discretion in finding Bowman's request equivocal.
79 Wn. App. 101, 900 P.2d 586 (1995).
112 Wn. App. 844, 51 P.3d 188 (2002).
Breedlove, 79 Wn. App. at 104.
Breedlove, 79 Wn. App. at 108.
Breedlove, 79 Wn. App. at 108-09.
Vermillion, 112 Wn. App. at 852-55.
Vermillion, 112 Wn. App. at 856.
B. Timeliness of Request
We next consider whether the trial court acted within its discretion in denying Bowman's request as untimely. The timeliness of a request to proceed pro se affects the trial court's level of discretion. If the request is made shortly before trial, the court has greater discretion to deny the request than if it was made well before trial. The trial court may deny a request for self-representation made shortly before trial if it finds either "(1) that the motion is made for improper purposes, i.e., for the purpose of unjustifiably delaying a trial or hearing, or (2) that granting the request would obstruct the orderly administration of justice."
Breedlove, 79 Wn. App. at 107.
State v. Fritz, 21 Wn. App. 354, 361, 585 P.2d 173 (1978).
Breedlove, 79 Wn. App. at 108.
Here, Bowman's request was made on the morning of trial. While pro se motions made on the day of trial are not necessarily untimely, the trial court acted within its discretion in denying Bowman's motion. The record shows that the trial date had been continued numerous times and that Bowman moved to proceed pro se for the first time after Judge Carey denied his request for a continuance. Furthermore, granting Bowman's request would have caused a delay in the trial as Bowman stated that he wanted to subpoena several doctors in presenting the medical defense. The trial court did not abuse its discretion in denying Bowman's request as untimely.
See Stenson, 132 Wn.2d at 738.
2. Voluntary absence
Bowman next argues that the trial court erred in finding that he voluntarily absented himself when the jury returned its verdict. A defendant has a right under the state and federal constitutions to be present at trial. But this right may be knowingly and voluntarily waived. An express waiver is not required; it may be implied when a defendant is voluntarily absent after the trial has commenced in the defendant's presence. Whether an absence is voluntary is determined by looking at the totality of the circumstances. The trial court uses a three-part test to determine whether a defendant's absence is voluntary:
State v. Thomson, 123 Wn.2d 877, 880, 872 P.2d 1097 (1994).
Thomson, 123 Wn.2d at 880.
CrR 3.4; State v. Garza, 150 Wn.2d 360, 367, 77 P.3d 347 (2003).
Thomson, 123 Wn.2d at 881.
First, the court looks into the circumstances of the defendant's disappearance in order to justify a finding that the absence is voluntary. Second, the court makes a preliminary finding of voluntariness. Finally, the court provides the defendant with an adequate opportunity to explain his absence once the defendant is returned to custody and before the imposition of a sentence.
State v. Beasley, 126 Wn. App. 670, 693, 109 P.3d 849 (2005) (citing Thomson, 123 Wn.2d at 881).
State v. Beasley, 126 Wn. App. 670, 693, 109 P.3d 849 (2005) (citing Thomson, 123 Wn.2d at 881).
Courts should indulge every reasonable presumption against a voluntary waiver. We review a trial court's decision to proceed with trial in the defendant's absence for abuse of discretion.
Garza, 150 Wn.2d at 367.
Garza, 150 Wn.2d at 365-66.
In this case, the trial court met the first prong by inquiring into the circumstances of Bowman's absence before finding him voluntarily absent. Both defense counsel and the bailiff informed the court that they told Bowman he had to be within 15 minutes of the courthouse that day. Defense counsel further stated that he had called Bowman's number twice and received conflicting accounts as to when Bowman would arrive. Based on this information, the court made a justified finding that Bowman voluntarily absented himself, satisfying the second prong. The trial court also complied with the third prong since Bowman had the opportunity to explain his absence at sentencing. The record supports that the trial court did not abuse its discretion in deciding to accept the jury's verdict in Bowman's absence.
Cf. Garza, 150 Wn.2d at 369 (stating that finding was unjustified when the court waited only five minutes after the time defendant stated he would arrive).
See Thompson, 123 Wn.2d at 880, 884 (holding that the court provided the defendant an adequate opportunity to explain his absence when the defendant, at his sentencing, offered an apology for his absence but no explanations).
3. Statement of Additional Grounds
In a statement of additional grounds for review, Bowman raises several other issues. These issues include claims that (1) Bowman received ineffective assistance because his counsel did not adequately investigate surveillance videos of the "buy-bust" operation, (2) Bowman was denied due process because his counsel failed to investigate the medical defense, (3) Bowman was denied equal protection because the court failed to consider his mental illness and apply the mental health court statute, RCW 2.28.180, to him, and (4) the trial court incorrectly calculated his offender score. Because these claims relate to matters outside the record, we cannot address them on direct appeal.
State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995).
Conclusion
The trial court did not abuse its discretion in denying Bowman's request to proceed pro se because his request was equivocal and untimely. The court also acted within its discretion when it accepted the jury's verdict in Bowman's absence because the court followed the proper procedure for finding voluntary waiver. Finally, the arguments raised in Bowman's statement of additional grounds are insufficient to allow review.
Affirmed.
WE CONCUR.