Opinion
No. 60537-2-I.
September 15, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-08724-7, Sharon S. Armstrong, J., entered August 10, 2007.
Awaz Madow appeals from the judgment entered on a jury's verdict finding him guilty of one count of felony possession of cocaine and one count of misdemeanor possession of marijuana. He contends that his request to represent himself during pretrial proceedings was equivocal and, therefore, the trial court erred by granting his request. Because Madow unequivocally, knowingly, and voluntarily waived his right to counsel, we affirm.
After proceeding pro se during a pretrial suppression hearing, Madow changed his mind and requested the reappointment of counsel. The trial court also granted this request. Thus, at trial, Madow was represented by appointed counsel.
I
Madow was initially charged with illegal possession of cocaine. Prior to trial, the information was amended to add a charge of misdemeanor possession of marijuana.
At a pretrial hearing, Madow's counsel informed the court that Madow desired to represent himself in defending against both the initial felony cocaine possession charge and an unrelated pending assault charge. The trial court then engaged in a lengthy colloquy with Madow.
The trial court began by asking Madow why he wished to represent himself. Madow answered, confusingly, "Well because I was already proven guilty without . . . me really going through the court process or whatever, and everything is on camera, therefore "and I am the victim."
Madow's attorney interjected that he believed that Madow was mistakenly referring to the unrelated assault case. Madow went on to state, "It is just that I want to represent myself because everything is on camera."
The trial court then asked Madow if he had ever studied law. Madow responded, "No, but I mean I have got a high school diploma. . . . I know I can represent myself." The trial court asked Madow whether his desire to represent himself was the result of frustration over the amount of time the case had been pending. Madow replied, "No, ma'am. No, your Honor." The trial court next informed Madow of the maximum sentences for both the cocaine possession charge that was currently before it and the assault charge and informed him that, if he waived his right to counsel and proceeded pro se, he would be held to the same standards as a lawyer. Madow indicated that he understood.
The trial court then illustrated to Madow his lack of familiarity with the rules of evidence by asking him what hearsay was. Madow was unable to answer. Madow was then informed by the trial court that, without knowledge of the rules of evidence, he might be unable to get evidence into the record if the prosecutor objected. In response, Madow insisted that, "if I have got to read all that, I'll do it. . . . I took myself to school. I know this. I can do it all." Upon being asked whether he was familiar with the rules of criminal procedure, Madow responded, "If I have got to read things, if I have got to prove to you guys that I can represent myself, I am going to do whatever it takes." The trial court then stated, "I just want you to know that I think that it is a really bad decision. I think it is a terrible decision "that you are, in my opinion, far worse off representing yourself than having [counsel] represent you. It doesn't mean you don't have a right to do that, but I just want to make sure you understand." Madow replied, "I do. I want to represent myself."
The trial court again attempted to determine why Madow desired to proceed without the assistance of an attorney. Madow stated:
Okay, why I want a lawyer? The first case happened in June of 06 and I am still waiting on it. I haven't even been to court. I keep coming back and forth, a daily thing, and the whole process "I figured that out later, you know, how the thing works. I am not going to say it, you know, who told me or how it works, but now I know how it works. That whole eight months while I was waiting for it" I am not going to say the reason for what took so long, or what is the purpose for them. I know what it is. I found that out, but I'm not going to say it. I'm not going to mention it.
(Emphasis added).
The trial court then confirmed with Madow that his desire to waive his right to the assistance of counsel was not the product of any threat having been made. The trial court then asked again, "In light of the penalty that you might suffer if you are found guilty, and the incredible difficulties in representing yourself, do you still wish to represent yourself?" Madow replied, "Yes, ma'am." The court then asked again whether Madow was making the request voluntarily. Madow affirmed that he was. Madow acknowledged that he understood that if he changed his mind later, it was not certain that he would again be appointed a lawyer to assist him. Finally, the trial court found that Madow had "knowingly and voluntarily waived his right to counsel."
Approximately one month later, Madow represented himself in a suppression hearing. During the hearing, Madow was unprepared and attempted to testify during his cross-examination of the arresting officer. The trial court denied the defense motion to suppress evidence.
The following day, the trial court asked Madow if he would now like another opportunity to have an attorney represent him, given the difficulties that he had experienced during the suppression hearing. Madow replied, "That would be good." The trial court ordered the appointment of counsel for Madow and continued the case to facilitate counsel's appearance.
II
Madow contends that the trial court erred by granting his request to discharge his attorney and proceed pro se. According to Madow, instead of granting his request, the trial court should have denied it. This is so, Madow now asserts, because, rather than accepting the truth of Madow's statements to the court, the court should have instead discerned that his request to waive his right to counsel was equivocal because his explanations to the court regarding the basis for his request were unclear, he expressed frustration with his attorney and the delay in bringing his case to trial, and he was confused about which case was being discussed. We disagree. The record supports the trial court's ruling that Madow unequivocally, knowingly, and voluntarily waived his right to the assistance of counsel.
We review the trial court's grant of a motion to proceed pro se for abuse of discretion. State v. Modica, 136 Wn. App. 434, 442, 149 P.3d 446 (2006), aff'd, ___ Wn.2d ___, 186 P.3d 1062 (2008). The constitutional right to proceed without counsel is guaranteed to a criminal defendant by both article I, section 22 of the Washington State Constitution and the Sixth Amendment to the United States Constitution. "The right reflects, `a nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.'" Indiana v. Edwards, 554 U.S. ___, 128 S. Ct. 2379, 2390, ___ L. Ed. 2d ___ (2008) (Scalia, J., dissenting) (quoting Faretta v. California, 422 U.S. 806, 817, 95 S. Ct. 2525, 45 L.Ed.2d 562 (1975)). The right to proceed pro se must be affirmatively requested by the defendant and, when viewed in the context of the record as a whole, the request must be unequivocal. State v. Luvene, 127 Wn.2d 690, 698-99, 903 P.2d 960 (1995). Moreover, a waiver of the right to counsel must be made knowingly, voluntarily, and intelligently. City of Bellevue v. Acrey, 103 Wn.2d 203, 208-09, 691 P.2d 957 (1984). "When a defendant appreciates the risks of forgoing counsel and chooses to do so voluntarily, the Constitution protects his ability to present his own defense even when that harms his case." Edwards, 128 S. Ct. at 2391 (Scalia, J., dissenting); accord State v. Hoff, 31 Wn. App. 809, 811, 644 P.2d 763 (1982).
The preferred means of assuring that a defendant understands the risks of self-representation is a colloquy on the record. State v. Buelna, 83 Wn. App. 658, 660, 922 P.2d 1371 (1996). This colloquy should include a discussion about the seriousness of the charge, the possible maximum penalty involved, and the existence of technical procedural rules governing the presentation of the accused's defense. State v. Lillard, 122 Wn. App. 422, 427-28, 93 P.3d 969 (2004).
There is, however, no formula for determining a waiver's validity. State v. DeWeese, 117 Wn.2d 369, 378, 816 P.2d 1 (1991). "The trial court has the duty to review the disadvantages of proceeding without counsel with a defendant and ensure the record reflects this effort." State v. Vermillion, 66 Wn. App. 332, 340, 832 P.2d 95 (1992). In the absence of a colloquy, the record must indicate that the defendant appreciated the dangers of proceeding without counsel. State v. Nordstrom, 89 Wn. App. 737, 742, 950 P.2d 946 (1997). "This standard is met by a showing that the defendant knew and understood (1) the seriousness of the charges against him, (2) the possible maximum penalty, and (3) that presenting a defense requires the observance of technical rules and is not just a matter of `telling one's story.'" Nordstrom, 89 Wn. App. at 742 (quoting Acrey, 103 Wn.2d at 211).
Finally,
[i]t is true that when a defendant's request to proceed pro se is actually an expression of frustration with a trial's delay, rather than a true desire to proceed without an attorney, the request is equivocal. [State v.] Woods, 143 Wn.2d [561,] 585-87 [ 23 P.3d 1046 (2001)]; [State v.] Luvene, 127 Wn.2d [690,] 698-99 [ 903 P.2d 960 (1995)]. However, when a defendant makes a clear and knowing request to proceed pro se, such a request is not rendered equivocal by the fact that the defendant is motivated by something other than a singular desire to conduct his or her own defense. State v. DeWeese, 117 Wn.2d 369, 378-79, 816 P.2d 1 (1991) (defendant's request to proceed pro se was unequivocal, despite being motivated by frustration with attorney's performance).
Modica, 136 Wn. App. at 442.
The record indicates that, during the lengthy colloquy, the trial court informed Madow of the potential risks and burdens that he would face by representing himself. The trial court confirmed that Madow understood the seriousness of the charges and, as to each, the maximum penalty that he could face. Madow was alerted that he would be held to the same standard as a lawyer, that there were technical procedural rules that he would need to follow, and that his lack of understanding of the rules might present difficulties for him.
Despite being advised by the trial court that he was making a "terrible decision," Madow repeatedly confirmed his desire to represent himself. When the trial court asked Madow if he had been coerced into waiving his right to counsel, Madow replied, "No . . . I am taking my chances myself." This colloquy was sufficient to establish that Madow's waiver of his right to the assistance of counsel was made knowingly, voluntarily, and intelligently.
Madow's contention that his waiver was rendered equivocal because of his unclear reasons for desiring to proceed pro se, his expressed frustrations with the trial delay, and the fact that he sometimes referred to the separate pending case is unavailing. First, Madow was not confused about which case was being discussed. Madow confirmed to the trial court that he understood the maximum penalties for the charge of possessing cocaine that was currently being heard and he maintained his request to represent himself on that charge.
Second, Madow unambiguously stated that his request was not motivated by frustration with the trial delay. We reject his current argument that, despite his clear answer to the contrary, he was in fact so motivated, rendering his request equivocal. Madow cannot now, being unsatisfied with the trial's outcome, successfully claim that he should benefit from his own untrue statement to the trial court, if in fact the statement was untrue when made.
Third, even assuming, without accepting, that Madow's answer was indeed untrue, his frustration with the delay was at most only part of the motivation for his request. Madow revealed to the trial court that he had a reason for his request to represent himself but that he was unwilling to share with the court what that reason was. Madow's present contention ignores the fact that any lack of clarity as to his motivation for requesting to proceed pro se solely results from his refusal to share his reasoning with the trial court. Moreover, it is not the responsibility of the trial court to judge the wisdom of a defendant's motivation for waiving the right to the assistance of counsel. So long as the request was made voluntarily and with an appreciation of its risks, Madow possessed an undeniable right to present his own defense, "even when that harms his case." Edwards, 128 S. Ct. at 2391 (Scalia, J., dissenting).
The trial court did not abuse its discretion by granting to Madow that which he requested. No discretion was abused by granting his request to proceed pro se. No discretion was abused by granting his later request for re-appointment of counsel. There was no trial court error.
Affirmed.