Opinion
No. 61664-1-I.
July 28, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 94-1-01051-8, Christine A. Pomeroy, J., entered May 4, 2007.
Affirmed by unpublished per curiam opinion.
Kenneth Clark appeals multiple convictions for child rape and child molestation, contending that they must be reversed both because the trial court erroneously denied him his right to represent himself and because the trial court violated his right to a speedy trial. Because Clark never unequivocally requested to represent himself, and because the trial court violated neither CrR 3.3 nor Clark's constitutional speedy trial right, we affirm.
I
In 1994, Clark voluntarily confessed to Tumwater Police Sergeant Charles Davis that he had, over the course of many years, sexually abused and raped his adoptive and natural children. That year, based on Clark's confession and Sergeant Davis's investigations, the State filed an information charging Clark with two counts of rape of a child in the first degree and two counts of child molestation in the first degree. The Thurston County Superior Court also authorized a warrant for Clark's arrest; when the warrant issued, however, Clark could not be found.
In 2005, while attempting to re-enter the United States from Mexico, Clark was arrested on the warrant, as well as on a related warrant issued by the Mason County Superior Court. Clark had fled to Mexico after the charges against him were filed in Thurston County; while there, he had been convicted of raping two minors and had served seven years imprisonment in Ciudad Juarez.
Clark was subsequently tried in Mason County and convicted of nine counts of indecent liberties. See State v. Clark, noted at 142 Wn. App. 1015, 17, 2007 Wash. App. Lexis 3313 (Dec. 24, 2007). On November 8, 2006, after sentencing on the Mason County convictions, Clark was arraigned on the charges at issue herein. Clark was assigned counsel and a jury trial was scheduled for January 2, 2007.
On December 8, 2006, the trial court held a pretrial hearing at which Clark moved to stay his trial pending final resolution of his appeal in the Mason County prosecution. Clark also moved the court to allow him to "proceed pro se, but with the assistance of competent counsel." Noting that a hearing on self-representation was scheduled for December 18 and that miscellaneous criminal motions were only heard on designated days, the court declined to rule on Clark's motions.
On December 18, Clark renewed his motion to stay his trial until he exhausted his appeal of the Mason County convictions. At the same time, the prosecution requested a continuance. Notwithstanding his request for a stay, Clark objected to the continuance. The deputy prosecutor made clear that the basis for the requested continuance was that, during the more than 10 years between the filing of the charges against Clark and his arrest, Sergeant Davis had retired and moved to the Philippines. Sergeant Davis was willing to fly back to the United States to testify against Clark, but the earliest date on which he could arrive was March 12, 2007. The deputy prosecutor also noted that she was already scheduled to be away from her office between March 2 and March 26, 2007, and so requested that the trial be further continued until April 2, 2007. After a recitation by the deputy prosecutor of the role that Sergeant Davis would play in the State's case at trial, the court stated, "I'm going to grant the motion to continue this case. There are clearly good grounds for doing so."
The trial court then stated to Clark: "I will address . . . your motion to proceed without representation. Did I understand . . . that that is your desire?" Clark responded:
[CLARK]: These motions have been filed. And the motion is not to proceed pro se. The motion is to proceed pro se with the assistance of counsel as provided in the United States Constitution.
THE COURT: You are talking about standby counsel.
[CLARK]: No. With the assistance of counsel is the way that the Sixth Amendment reads.
The trial court asked, "What do you mean by `assistance of counsel'?" Clark responded:
[CLARK]: I have very little knowledge of the law. This is the — the second, i.e., the first time that I've been involved with the law. And because of my limited knowledge, I need a resource in order to draw information about particular statutes or court rules or motions and the continuances and things like that.
I need the living dictionary or encyclopedia of counsel.
At this point, the trial court attempted to communicate to Clark the distinction between the role of assigned counsel and the role of standby counsel:
THE COURT: [I]f you're given the opportunity to represent yourself, then you may do so. And you may have standby counsel to assist you with giving you advice, discussing matters with you, but not fulfilling the role of an attorney.
You can't send this standby counsel out to do the investigation, to interview your witnesses, to conduct your research. That's the matter of either your responsibility or your attorney's responsibility. Standby counsel has a more limited role than that.
To give Clark time to consider and to have time to review Clark's submissions, the court then rescheduled its ruling on Clark's motion.
On December 21, 2006, Clark again requested to "proceed pro se with the assistance of counsel." The court responded: "To proceed pro se." Clark responded: "With the assistance of counsel." At this point the court engaged in an extended colloquy with Clark regarding the scope of his right to counsel "under the Sixth Amendment and the under the Washington State Constitution." The court informed Clark that "[n]umerous courts throughout the land have ruled that the Sixth Amendment does not guarantee the right of a person to have what they call hybrid representation, in other words, co-counsel as you suggested last week. There is no such right." The court continued:
And as I indicated, our courts of appeal in this state and many other states have already ruled that there is no right of co-counsel where an accused is representing himself and is also represented by counsel.
Now, we do have a process that has been recognized under the law of standby counsel, and it has — the right of standby counsel is not guaranteed to you in the Constitution, but courts may grant you standby counsel. And in this state courts do grant standby counsel. . . .
But you should understand that the role of standby counsel is limited, and before you make a waiver of your right to be represented by counsel at trial, you need to understand what those limitations are.
The court then proceeded to both describe and quote at length from State v. Silva, 107 Wn. App. 605, 27 P.3d 663 (2001), in which this court delineated the role of standby counsel. The court expressly informed Clark that, under the guidelines announced in Silva, standby counsel "does not do research," and is not "a runner to do errands or to conduct investigations or interviews for the defendant." The court informed Clark that "in terms of interviewing for court and learning information that would be directly conveyed to you other than through an independent investigator, that would be up to you, not standby counsel." The court then asked Clark: "Do you understand all this?"
Clark replied that he did, but then proceeded to debate with the court whether, in fact, he was required to waive assigned counsel in order to represent himself. He then stated that "[e]ffective assistance of counsel is what I'm looking for." The court again asked Clark if he understood that, by waiving representation, he would be foregoing having counsel do research for him, conduct interviews, or prepare testimony. The exchange continued:
[CLARK]: Yes. I understand that.
THE COURT: And you understand
[CLARK]: But I also believe that one of his delineated responsibilities, which you didn't list all of them, would be that if I say I'm going to testify this or that or something else, that he would advise me as to the appropriateness of it.
THE COURT: He cannot do that. He can outline for you the consequences of your choice, discuss with you those factors, but his role as standby counsel is not to advise you on specific items such as that.
[CLARK]: Then what assistance is that?
Clark proceeded to describe the numerous and various duties that his assigned attorney would be required to perform in his role as standby counsel in order to provide what Clark perceived to be "effective assistance." The court then denied Clark's motion.
The court then revisited with the deputy prosecutor the issue of the length of the continuance granted in order to secure Sergeant Davis's appearance. During this discussion, the deputy prosecutor described her efforts to determine whether Sergeant Davis's appearance on a date prior to March 12, 2007, could be facilitated through the Philippine Consulate. Demonstrating that this procedure, if successful, would likely take longer than simply continuing the trial until April 2, 2007, the deputy prosecutor requested (over Clark's objection) confirmation of the court's continuance of trial until that date. The court found that there was good cause for the continuance until April 2, and confirmed that as the trial date. At this point, Clark renewed his motion to have his trial stayed until the resolution of his appeal in the Mason County case. The trial court denied that motion.
On March 28, 2007, the trial court held a status conference, at which Clark again stated, "I want to go pro se." The trial court granted Clark a hearing on this request, scheduled for the next day. During this hearing, which was before a different judge, Clark maintained his earlier position, that the Sixth Amendment guaranteed both his right to represent himself and, at the same time, his right to have the assistance of an attorney whose duties exceeded those of standby counsel. He stated:
[S]o do I think that I would be better representing myself than having counsel? No. I would like the assistance of counsel as provided for in the Constitution, which is not hybrid representation. Obviously hybrid representation is standby with a lawyer standing by with his hands tied behind his back and unable to assist the person representing themselves.
After another extended colloquy, in which the court again attempted to determine the particulars of Clark's request, the court asked whether Clark would require a continuance in order to prepare for the upcoming trial. Clark responded: "Absolutely." Counsel for the State then proceeded to apprise the court of the history of the case, including the expense and effort of securing Sergeant Davis's appearance from the Philippines. Finding that "Mr. Clark still believes that he should be entitled to a different kind of representation than this court is able to offer him," and that "the state and the victim in this case would be severely prejudiced by a further continuance," the court denied Clark's motion.
On the first day of his trial, Clark once again renewed his motion to represent himself. In response to the court's questioning concerning whether his waiver was voluntary, he stated: "I've been coerced into asking to represent myself at this late date." The court responded: [I]s it voluntarily. That's the question before you. You're doing this because you want to[?]" Clark responded in turn: "I've been doing this because I have been forced to." He continued:
The counsel that I asked for was, as per the [ Sixth] Amendment of the United States Constitution, for the assistance of counsel. I did not want a standby. I wanted somebody to assist me that was knowledgeable with the Rules of Evidence and other things associated with the law, that had access to the legal encyclopedia and all of the past cases.
It is not a hybrid representation. If we look at the constitution, we would have to say that standby would be a hybrid representation and that assistance of counsel would be the representation that our founding fathers intended.
The trial court then asked: "Mr. Clark, are [you] willing [to] say that unequivocally, voluntarily you want to go forward by yourself, no reservations?" Clark responded: "I have wanted to represent myself since the first day in court. I'm sorry that it has been forced upon me to say yes in the 11th hour, but I am willing to say yes." The court expressly found that Clark's attempted waiver of counsel was both equivocal and untimely, and denied his motion to represent himself.
Clark's trial proceeded, with assigned counsel representing him throughout. He was convicted on all charges. He now appeals.
II
Clark first contends that his conviction must be reversed based on what he characterizes as the trial court's erroneous denial of his voluntary, knowing, and unequivocal request to represent himself. According to Clark, his repeated requests to proceed "pro se with the assistance of counsel" were consistent with both the right of self-representation and the right to the assistance of counsel enshrined in the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution, and that those rights are not mutually exclusive. He further contends that, even if we conclude that he is not constitutionally entitled to simultaneously represent himself while being represented by counsel, his request on the day of his trial to represent himself was both sufficiently timely and sufficiently unequivocal that the trial court erred by denying it. We disagree. Because there is no constitutional right to state-provided co-counsel, which is what Clark consistently demanded, and because Clark maintained that he was "forced" to represent himself in his final motion to do so, the trial court correctly ruled that Clark never unequivocally waived his right to counsel and so did not properly assert his right to represent himself.
The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." U.S. Const. Amend VI. Similarly, article I, section 22 of the Washington State Constitution provides: "In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel." Wash. Const. art. I, § 22.
There is a conflict of authority with respect to what standard we use when reviewing trial court determinations as to whether a defendant has unequivocally waived the right to counsel; some appellate courts have reviewed trial courts' decisions on this question for abuse of discretion, while others have engaged in de novo review. See State v. Nordstrom, 89 Wn. App. 737, 741, 950 P.2d 946 (1997) (comparing cases). As expressed in Nordstrom, however, "[w]e need not decide in this case which standard is appropriate" because the result is the same under either standard. Nordstrom, 89 Wn. App. at 741.
"[A] defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so." Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). But "[e]xercising the right of self-representation requires waiving the right to counsel. A defendant may represent himself only when he `knowingly and intelligently' waives the lawyer's assistance that is guaranteed by the Sixth Amendment." Indiana v. Edwards, 554 U.S. ___, 128 S. Ct. 2379, 2391, ___ L. Ed. 2d ___ (2008) (Scalia, J., dissenting) (quoting Faretta, 422 U.S. at 835).
"A waiver of counsel must be knowing, voluntary, and intelligent, as with any waiver of constitutional rights." City of Bellevue v. Acrey, 103 Wn.2d 203, 208-09, 691 P.2d 957 (1984) (citing Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972)). Appellate courts, however, including the United States Supreme Court in its landmark Faretta decision, have recognized "a tension between a defendant's autonomous right to choose to proceed without counsel and a defendant's right to adequate representation." State v. DeWeese, 117 Wn.2d 369, 376, 816 P.2d 1 (1991); see also Faretta, 422 U.S. at 832 ("right of an accused to conduct his own defense seems to cut against the grain" of right to assistance of counsel). For this reason, "and to protect trial courts from manipulative vacillations by defendants regarding representation, we require a defendant's request to proceed in propria persona, or pro se, to be unequivocal." DeWeese, 117 Wn.2d at 376.
As our Supreme Court observed in DeWeese, due to the cross-cutting effect of the right both to representation and to proceed without it, "a defendant's request for self-representation can be a `heads I win, tails you lose' proposition for a trial court." DeWeese, 117 Wn.2d at 377 (quoting State v. Imus, 37 Wn. App. 170, 179-80, 679 P.2d 376 (1984) (internal citations omitted)). This being the case, we are sensitive to the possibility that vacillating or ambiguous requests to waive counsel may be "nothing more than game-playing." State v. Sherrill, No. 25193-4-III, 2008 Wash. App. Lexis 1532, at *15 (Jul. 1, 2008).
Further, Washington appellate courts have unanimously rejected the proposition that criminal defendants are entitled to have state-appointed attorneys act as "co-counsel" in the preparation and presentation of their chosen defenses. See DeWeese, 117 Wn.2d at 379 ("there is no Sixth Amendment right to `hybrid representation' through which defendants may serve as cocounsel with their attorneys"); State v. Bebb, 108 Wn.2d 515, 524, 740 P.2d 829 (1987) ("There is, moreover, no Sixth Amendment right to `hybrid representation,' whereby a defendant serves as cocounsel with his attorney."); State v. Hegge, 53 Wn. App. 345, 348-49, 766 P.2d 1127 (1989) (defendant repeatedly requested to represent himself "with the assistance of counsel"; court holding that "right to proceed pro se and the right to assistance of counsel are mutually exclusive").
Clark contends that our decision in State v. Silva, 107 Wn. App. 605, 27 P.3d 663 (2001), demonstrates that article I, section 22 of the Washington State Constitution provides broader protection than does the Sixth Amendment with respect to the right to self-representation and the guarantee of access to legal assistance in such circumstances. Clark is correct — this is precisely what we held in Silva. See Silva, 107 Wn. App. at 622-23. It does not follow, however, (as Clark contends that it does) that those broader protections ensure that pro se defendants have a state constitutional right to state-provided co-counsel. Silva itself set the parameters of the self-representation rights provided by article I, section 22, and does not require that a state-licensed attorney serve as a self-represented defendant's co-counsel.
Given this uncontroverted authority, we hold that each and every request to waive the right to counsel that Clark made prior to the day of his trial was equivocal because each and every request had as its predicate Clark's demand for a hybrid representational status, the right to which is not guaranteed by either the Washington or United States constitutions. By definition, in order for a waiver of counsel to be unequivocal, it cannot be premised on the assertion that it also includes the continued right to counsel after it is made. Put another way, a defendant does not unequivocally request to proceed without the assistance of counsel if that request is contingent on a demand to simultaneously proceed "with the assistance of counsel." We are unwilling to sufficiently torture the English language to conclude otherwise.
Moreover, contrary to Clark's contention, his final request to represent himself, made on the morning of trial, was likewise equivocal. Clark repeatedly told the trial court that he was being "forced to" represent himself solely because of the trial court's (correct) refusal to require Clark's public defender to serve as "second chair" throughout Clark's trial. Accordingly, contrary to Clark's contention, even his purported waiver on the day of trial — notwithstanding whether it was timely, an issue we need not reach — did not meet the requirement that it be knowingly, willingly, and unequivocally made.
"The trial court's discretion to grant or deny a motion to proceed pro se lies along a continuum that corresponds with the timeliness of the request. If the request is made well before trial, the right exists as a matter of law. If the request is made shortly before trial, the existence of the right depends on the facts of the case with a measure of discretion reposing in the trial court. If made during trial, the right rests largely in the informed discretion of the trial court." State v. Modica, 136 Wn. App. 434, 443, 149 P.3d 446 (2006), aff'd, No. 79767-6, 2008 Wash. Lexis 615 (Jul. 10, 2008).
There was no error.
III
Clark next contends that the trial court violated his right to a speedy trial, as guaranteed by the Sixth Amendment of the United States Constitution and article I, section 22 of the Washington State Constitution. The basis for this contention is Clark's assertion that the trial court failed to follow the strictures set forth in Superior Court Criminal Rule 3.3 when it granted the State continuances, first, to secure Sergeant Davis's appearance at trial and, second, to accommodate the deputy prosecutor's unavailability. However, because the trial continuances were granted for good cause shown and because no prejudice to Clark resulted therefrom, neither the provisions of CrR 3.3 nor the protections of the state and federal constitutions were violated. Accordingly, Clark's contention that his speedy trial rights were violated is meritless.
The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. Amend VI. Similarly, article I, section 22 of the Washington State Constitution provides: "In criminal prosecutions the accused shall have the right . . . to have a speedy public trial." Wash. Const. art. I, § 22.
Challenges alleging the denial of a speedy trial are reviewed de novo on appeal. State v. Kenyon, 143 Wn. App. 304, 312, 177 P.3d 196 (2008).
Both the United States and Washington State constitutions guarantee to criminal defendants the right to a speedy trial. But neither constitution specifies what "speedy" means in terms of days, months, or years. Hence, courts consider four factors in determining whether a delay in bringing a defendant to trial impairs the constitutional right to the prompt adjudication of criminal charges: "the `[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.'" In re Personal Restraint of Benn, 134 Wn.2d 868, 920, 952 P.2d 116 (1998) (quoting Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972)).
At the same time, the superior courts in Washington are bound to follow the timeframes established in CrR 3.3. However, CrR 3.3's provisions do not delineate the scope of the constitutional speedy trial right. Instead, CrR 3.3 is simply "a framework for the disposition of criminal proceedings." State v. Wieman, 19 Wn. App. 641, 644-45, 577 P.2d 154 (1978). Accordingly, by its own terms, "[i]f a trial is timely under the language of [CrR 3.3], . . . the pending charge shall not be dismissed unless the defendant's constitutional right to a speedy trial was violated." CrR 3.3(a)(4). It follows that there are two related — but not coextensive — inquiries concerning whether a criminal defendant received a sufficiently speedy trial: (1) whether the terms of CrR 3.3 were complied with, and (2) whether the time before trial exceeded that which is constitutionally permissible.
Clark's contention fails under either examination. Clark's trial was timely held pursuant to CrR 3.3. That rule provides that a defendant who is confined in jail must be brought to trial either within 60 days of arraignment or no more than 30 days after periods excluded from the time from trial calculation, whichever is longer. CrR 3.3(b)(1); CrR 3.3(b)(5); CrR 3.3(c)(1). The period of days excluded from the time for trial computation includes any length of time covered by a continuance granted by the court either upon its own motion or upon a motion by one of the parties. CrR 3.3(e)(3); CrR 3.3(f)(2).
Here, the trial court granted the State's request for a continuance on December 18, 2006, one month and 10 days after Clark's arraignment. On December 21, 2006, the trial court confirmed that the continuance would extend until April 2, 2007, the day it set for Clark's trial. Under the terms of CrR 3.3, the period during which the trial was continued was excluded from the computation of the time for trial period. Thus, under the terms of the CrR 3.3, Clark was timely brought to trial unless he can demonstrate that the continuance was wrongly granted.
"We review the trial court's decision to grant or deny a motion for a continuance for abuse of discretion." Kenyon, 143 Wn. App. at 313. A trial court only abuses its discretion in granting a continuance if there was not good cause to do so. See Kenyon, 143 Wn. App. at 313 ("Without `good cause' for the continuance, dismissal [is] required.") (citing State v. Mack, 89 Wn.2d 788, 794, 576 P.2d 44 (1978)). "The unavailability of a material state witness is a valid ground for continuing a criminal trial where there is a valid reason for the unavailability, the witness will become available within a reasonable time, and there is no substantial prejudice to the defendant." State v. Nguyen, 68 Wn. App. 906, 914, 847 P.2d 936 (1993). Likewise, a brief period of prescheduled unavailability on the part of an attorney constitutes good cause for a continuance if no prejudice results to the defendant from the continuance. See, e.g., State v. Jones, 117 Wn. App. 721, 730, 72 P.3d 1110 (2003).
Accordingly, the trial court did not abuse its discretion in continuing Clark's trial for the two reasons it cited in doing so: first, until mid-March 2007, due to the unavailability of Sergeant Davis, a material prosecution witness, and second, until April 2, 2007, to accommodate the deputy prosecutor's prescheduled unavailability. The sole reason that Sergeant Davis was unavailable to testify against Clark in the first place was because, during the more than 10-year delay caused by Clark's attempt to escape the adjudication of the charges against him, Sergeant Davis retired from his service as a police officer and moved to the Philippines. He nonetheless was willing to return from overseas to testify. The trial court acted properly by giving the prosecution sufficient time to secure the appearance of this witness. Moreover, any claim of prejudice by Clark is given lie to by virtue of Clark's own simultaneous request for an even longer delay in the form of his motion for a stay of proceedings pending the outcome of the appeal of his Mason County convictions.
Thus, because Clark's trial was timely under CrR 3.3, he is only entitled to relief if, notwithstanding compliance with the rule, the delay between his arraignment and his trial violated his constitutional speedy trial right. Under the factors that we are to consider, no such violation occurred. The length of the delay caused by the continuance was short (especially when compared with the period during which Clark was a fugitive), the need for a continuance was a direct result of Clark's flight from prosecution, and the length of the continuance in no way resulted in unfair prejudice to Clark's defense.
Clark was timely tried pursuant to CrR 3.3 and the state and federal constitutions.
There was no error.
Affirmed.