Opinion
No. 49418-0-I, c/w 49485-6-I
Filed: June 2, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 01-1-04116-5 Judgment or order under review Date filed: 10/19/2001
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Sharon Jean Blackford, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Oliver Ross Davis, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), John Bramwell Castleton Jr, King Co Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
It is an established rule in this state that a criminal trial commences when the trial court calls the case and entertains preliminary motions, including a motion to exclude witnesses such as was made here. Thus, David Route's trial commenced within the speedy trial period and because he thereafter agreed to further continuances there was no violation of his speedy trial right. Once trial commenced, Route waived his right to self-representation by agreeing to appointment of counsel and then to a stipulated trial. We affirm.
FACTS
On March 2, 2001, an information was filed charging David Route with taking a motor vehicle without permission and attempting to elude a pursuing police vehicle under cause number 01-1-02113-0 SEA. Route was later charged by information filed April 26, 2001 with second degree burglary and attempting to elude a pursuing police vehicle under cause number 01-1-04116-5 SEA. Route was identified by the pursuing police officer in the first case and by two witnesses in the burglary case. He was arraigned on both cases on May 10, 2001. Both cases were given a trial date of July 3, 2001. On June 18, 2001, the court granted Route's motion to proceed pro se at trial and sent the order to the King County Corrections Facility. Route was given the police report, a list of witnesses, and the names of the police officers involved. The court allowed the State to redact witness phone numbers, and stated that Route would have to obtain the services of an investigator to help him interview witnesses and conduct discovery from the corrections facility. On June 23, 2001, Route filed a request for telephone access for purposes of obtaining a legal investigator, but personnel at the corrections facility did not recognize his pro se status and would not grant the request. On June 29, 2001, Route informed the court that he encountered problems obtaining access to a telephone or other services from the corrections facility and thus had been unable to find an investigator to assist him. Route requested the court order the corrections facility to allow him access to a direct dial telephone, rather than a collect call only telephone because investigators would not accept collect calls. At Route's request, the court set a new speedy trial date of August 7 for both cases. The court contacted Frank Fleetham, the Correctional Program Administrator at the corrections facility, whose job duties included assisting pro se defendants. After the hearing, Route sent a letter to Fleetham asking whether the corrections facility had been contacted by the court or instructed to give him access to an unrestricted telephone in order for him to hire an investigator. Route later asserted that Fleetham did not respond.
The record does not indicate that the court entered an order granting Route access to a direct dial telephone, but the order stated that the continuance was necessary to allow Route additional time to obtain an investigator.
At the omnibus hearing on July 16, 2001, Route stated to the court that he still had not been given access to a direct dial telephone and that he was unable to contact investigators by collect call. The court entered an order specifically directing the corrections facility to provide Route with access to a direct dial telephone to facilitate his efforts to obtain a defense investigator. Route later testified that he presented the court order to Nancy Light, a corrections facility staff member. Route then made two requests to the corrections facility to use the telephone. After the first request he was informed that telephone access was limited to family emergencies. In his second request, he stated that he had a family emergency in that a family member had died, but he was informed that his court order only allowed telephone access for purposes of hiring an investigator. On July 20, Route informed the court he had not been allowed telephone access. The corrections facility then allowed Route to make one monitored telephone call and Route set up an appointment with an investigator. The investigator did not appear for the appointment and Route was not allowed to contact him again. On July 27, after Route again complained about his lack of telephone access, the court entered a second order directing the corrections facility to provide Route with access to a telephone to contact at least five different investigators. His telephone access was not to be monitored after the corrections facility verified that Route was speaking to an investigator. Route gave the court order to Light, who faxed it to Fleetham. Light then told Route that she was not authorized to allow unmonitored telephone access. She allowed Route to make one monitored telephone call to the investigator he had previously contacted but who had not appeared for the appointment. He was unable to contact the investigator. Route later made a formal request for telephone access for legal matters, but he was informed that telephone access was not available for private calls.
At an omnibus hearing on August 3, 2001, Route stated to the court that he still had not been given unmonitored access to a telephone and he had only been able to leave a message with one investigator. The court stated that Fleetham had contacted the court by telephone and e-mail and informed the court that the only room with a direct dial telephone contained classified files and presented security issues. Fleetham suggested having the corrections facility personnel contact various investigators in advance and have them agree to reimburse collect calls. The court found this option acceptable and, while Route disagreed, he stated he would abide by the court's decision to use this option. Route provided the court and Fleetham with a list of seven potential investigators. On August 7, 2001, the day set for trial, the court heard motions in the burglary and attempting to elude a pursuing police vehicle matter. Route stated he had a motion to present, he still had not been given access to a telephone, and he had not obtained a defense investigator. The court did not inquire into the motion, but stated that corrections facility personnel had contacted the investigators on Route's list on his behalf but none were willing to take Route's case. Route again indicated that he had a motion, but the court opined that every delay in the case had been occasioned by Route and asked if he had any objections to starting trial. Route asked the court to consider his motion before starting the trial, and the court replied that it was granting the State's motion to exclude witnesses. The court asserted that it would 'scratch' the start of trial if Route wanted a continuance, and Route stated he did. Route apologized to the court for the problems occasioned by his choice to proceed pro se and attempted again to present his motion, a motion to continue both cases, but the court denied it. The court reasserted that it had started trial for purposes of the speedy trial rule. The court appointed Route standby counsel at his request. The case involving second degree burglary and attempting to elude a pursuing police vehicle (cause number 01-1-04116-5) was then continued until August 8. On August 8, the court entered an order continuing the trial date for both cases to August 15. Route signed acknowledgments extending his speedy trial date for both cases until then. On August 15, 2001, the trial was again begun for the burglary and attempting to elude a pursuing police vehicle case (cause number 01-1-04116-5), and Route's standby counsel was present. Route stated that he had only recently obtained a defense investigator, that the investigator had not yet been able to interview witnesses, and the State had not provided the names of all the arresting officers. The court responded by stating, '[W]e are here to start trial. We shouldn't be conducting pretrial interviews . . . .' The court also granted the State's motion to exclude witnesses.
The proposal sent via e-mail by Fleetham to the court was also forwarded to Bob Deneui, Doug Hjellen, Chris Boone, David Eldred, and Nancy Light. With the exception of Hjellen, these individuals are identified as corrections facility staff in other exhibits.
Although August 7 was also the trial date for the charges of taking a motor vehicle without permission and attempting to elude a pursuing police vehicle (cause number 01-1-02113-0), this court did not receive any report of proceedings for the matter. As Route does not claim that the court did not hear any motions for this case on the date of speedy trial, we assume that it did.
A memo from Fleetham to Route dated August 6, 2001 also indicated that Fleetham had contacted an eighth investigator who was interested in taking Route's case.
Route learned on either August 7 or 8 that Fleetham found an investigator who was not on his original list to Fleetham, and Route talked to the investigator on either August 8 or 9.
No report of proceedings was filed for the continuance hearing held on August 8, 2001.
This court did not receive any report of proceedings for cause number 01-1-02113-0 for August 15.
The next day, Route filed a motion to dismiss all charges under cause number 01-1-04116-5. Route testified that despite the court's specific orders, he had only been allowed to make two monitored calls to the same investigator between June and August 2001, and that the investigator had neither shown for an appointment nor answered the second phone call. Route emphasized that he had not been allowed to personally contact or talk to other potential investigators. Route also presented evidence of the internal requests he had made for telephone access. He explained to the trial court that he had finally been able to retain an investigator on August 8 however he had been unable to engage in discovery or conduct interviews because his investigator had prior engagements. Fleetham testified that he was the 'pro se lead' and stated that he attempted to comply with the court's orders. He stated that he first learned that Route was pro se when he received the July 16 order. He said he then arranged for use of a direct dial telephone, understood that Route had obtained an investigator, and prepared staff to let Route interview the investigator in the corrections facility. After he received the order regarding unmonitored telephone access, he stated that he e-mailed and called the judge to offer the option of having corrections facility staff contact investigators on Route's behalf and find one who would accept collect calls. Fleetham asserted that this was the procedure the corrections facility often used to contact the court to clarify or change court orders. Fleetham stated that he then called the investigators on Route's list several times and left messages, but none were willing to take Route's case. Therefore, he found an investigator not on Route's list who was interested in assisting Route. After additional argument on August 20, 2001, the court denied Route's motion to dismiss. The court ruled that despite the existence of errors made by the court, including ex parte contact with Fleetham, the corrections facility had initially been unaware of Route's pro se status but had thereafter attempted to comply with the orders of the court. The court also determined there had not been a showing that Route had been prejudiced because the trial had not yet occurred. The court's written findings and conclusions reflected this determination. However, the court indicated it was surprised that there was no procedure in place for these types of situations, despite the fact that Fleetham had been the pro se lead for 1-1/2 years. The court later denied Route's motion to dismiss in cause number 01-1-02113-0, taking a motor vehicle without permission and attempting to elude a police vehicle. This motion was based on the same argument and evidence as Route's motion to dismiss in his burglary charge and the court denied it 'for exactly the same reasons' as his previous motion.
The trial court noted that it only had cause number 01-1-04116-5 before it, the charge of second degree burglary and attempting to elude a pursuing police vehicle case. Cause number 01-1-02113-0 was still with the presiding judge.
The court then granted Route's requests for a continuance and that his standby counsel be appointed his attorney. The new trial date for both cases was set for September 24, 2001. At a September 4 hearing, Route's attorney argued, and the court granted, a motion to have witnesses deposed.
The court also accepted proposed written findings and conclusions based on its previous oral ruling denying Route's motions to dismiss both cases. Route was not present. On September 25, 2001, the court ordered the corrections facility to grant Route the same access to the corrections facility library as a pro se defendant. A second round of e-mail communications from Fleetham to the court also occurred around this time. These e-mails discussed the nature and direction of Route's law library research and Fleetham's objections to providing law library access on issues he believed were unrelated to the case. These e-mails were forwarded to other corrections facility staff and the prosecuting attorney. The court forwarded the e-mails to both parties without reading them. Route's counsel then renewed his previous motion to dismiss, arguing that these e-mails were an example of how the corrections facility had prevented Route from meaningful self-representation. The court denied the motion. Route thereafter agreed to stipulated trials based on the facts in the police records. On September 26, 2001, Route was convicted of one count of burglary in the second degree and not guilty of the crime of attempting to elude a pursuing police vehicle in cause number 01-1-04116-5. On October 11, 2001, Route was convicted of attempting to elude a pursuing police vehicle and possession of a vehicle without permission in cause number 01-1-02113-0. On appeal, Route claims that the court denied his right of self-representation, denied his right to a speedy trial, and failed to find an essential element of the crime charged in his conviction of attempting to elude a pursuing police vehicle. Route also asserts other trial errors in his pro se brief.
DISCUSSION
1. Right to Represent Self and Right to a Speedy Trial. Route argues that the corrections facility repeatedly hindered and delayed his access to court-ordered resources and thus violated his pro se rights. Alternatively, Route argues that the final telephone procedure instituted on August 3, 2001 did not satisfy the constitutional requirement that he be allowed access to reasonable resources for his defense. Route asserts that even if the final telephone procedure satisfied constitutional requirements, his right to a speedy trial was violated when the court started trial on August 7, 2001, although it knew trial would not proceed for several days. Thus, Route argues his case should be reversed.
The Washington State Constitution explicitly guarantees both the right to counsel and the right to represent oneself pro se, and also provides a pro se pretrial detainee a greater right of access to the courts than the federal constitution provides. Washington courts have held that the Washington Constitution affords pro se defendants a specific corollary right of 'reasonable access to state-provided resources' that will enable a defendant to prepare a meaningful pro se defense. In State v. Silva, this court held that what constitutes 'reasonable access' lies within the sound discretion of the trial court after consideration of all the circumstances of the case, 'including, but not limited to, the nature of the charge, the complexity of the issues involved, the need for investigative services, the orderly administration of justice, the fair allocation of judicial resources, . . . legitimate safety and security concerns, and the conduct of the accused.'
State v. Silva, 107 Wn. App. 605, 609, 27 P.3d 663 (2001); Washington State Constitution, art. I, § 22; State v. Kolocotronis, 73 Wn.2d 92, 97, 436 P.2d 774 (1968).
Silva, 107 Wn. App. at 622.
Silva, 107 Wn. App. at 623 (citing State v. Fritz, 21 Wn. App. 354, 361, 363, 585 P.2d 173 (1978); Taylor v. List, 880 F.2d 1040, 1047 (9th Cir. 1989)).
Here, the trial court initially granted, but the corrections facility did not recognize, Route's pro se status. Then, on two separate occasions, the trial court entered specific orders that Route was to be given access to a direct dial telephone. At the time the orders were entered, the trial court had considered all the circumstances then before it and found that Route needed the services of an investigator and access to a direct dial telephone to hire one. Although the State claims that both the corrections facility and the court worked diligently to facilitate Route's access to the courts, the facts show that the court orders simply were not complied with. The access that was given, one telephone call to an investigator that failed to show for an appointment, and one follow-up telephone call to the same investigator, did not provide the 'access' that the court's first order anticipated. The corrections facility's numerous negative responses to Route's requests also did not provide access. The State has offered no justification why the corrections facility ignored the court's first specific order. As the State points out, Silva also recognizes that trial courts may properly consider security concerns when determining what resources are necessary for court access. However, there is no indication here that the alleged security concerns were unique to Route. Further, the alternate process to contact an investigator was implemented only four days before trial and Route did not learn about the results of the process until trial.
Silva, 107 Wn. App. at 622-23.
The investigator was not able to work on his case until after the court started the trial. At a minimum, an incarcerated pro se defendant must be afforded time to prepare and some access to materials and witnesses. Route was not able to interview witnesses or adequately prepare his case by the date of trial. It clearly appears from the record that the corrections facility obstructed and delayed Route's access to a telephone for five weeks and engaged in improper ex parte communication with the judge. Further, an investigator was not found for Route until the day after the speedy trial date. This course of events was and is unacceptable. Nevertheless, the trial court started trial on August 7, the speedy trial date. Thus, Route's right to a speedy trial was not violated. Thereafter he waived his additional claim that his right to self-representation was violated. CrR 3.3 provides: 'A defendant not released from jail pending trial shall be brought to trial not later than 60 days after the date of arraignment.' CrR 3.3 is complied with if the case is called and the court entertains a preliminary motion, such as a motion to exclude witnesses under ER 615, within the speedy trial period. This motion is sufficient to start the trial, absent the showing of prejudice or undue delay in proceeding with trial after it is assigned to a judge. On August 7, 2001, the date of speedy trial, the trial court started the trial by granting the State's motion to exclude witnesses. The court thereafter continued the trial until August 15 and then until September 24. This was done with Route's agreement and therefore does not constitute undue delay. In fact, on August 7, Route attempted to continue both cases to a later date to allow him to prepare for trial. Thus, no prejudice exists and Route's right to a speedy trial was not violated. Further, these continuances allowed Route more time to retain an investigator and develop his defenses as a pro se defendant, exactly what Route wanted. He was given standby counsel and had access to investigative services. Nevertheless, he then agreed to appointed counsel on September 20, nearly six weeks after he first contacted the investigator. Route received everything he requested, short of dismissal. However, even with the continuances, access to an investigator, and appointment of counsel, he provided no defense, agreed to appointment of counsel, and eventually agreed to stipulated trials. There was no prejudice and Route waived any claim that his right to proceed pro se was violated.
Faretta v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Taylor, 880 F.2d 1040.
CrR 3.3(c)(1).
State v. Andrews, 66 Wn. App. 804, 810-11, 832 P.2d 1373 (1992) (citing State v. Redd, 51 Wn. App. 597, 608, 754 P.2d 1041 (1988); State v. Mathews, 38 Wn. App. 180, 183, 685 P.2d 605 (1984)).
Andrews, 66 Wn. App. at 812.
2. Route's Remaining Claims.
Route's remaining arguments lack merit. Route claims that substantial evidence did not support his conviction for attempting to elude a pursuing police vehicle in cause number 01-1-02113-0. One element of the crime of attempting to elude a pursuing police vehicle is that the officer who asks a driver of a vehicle to stop must be in uniform at the time of the incident. The State bears the burden of proving this fact. Route claims that although the trial court concluded that the officer was in uniform, it failed to make a specific finding of fact on that element of the crime.
RCW 46.61.024 ('The officer . . . shall be in uniform and his vehicle shall be appropriately marked showing it to be an official police vehicle.).
State v. Hudson, 85 Wn. App. 401, 403-04, 932 P.2d 714 (1997).
In the absence of a factual finding, the reviewing court indulges the presumption that 'the party with the burden of proof failed to sustain their burden on this issue.' However, a finding of fact is reviewed as such, even though erroneously labeled a conclusion of law. Further, a claim of lack of substantial evidence admits the truth of the State's evidence and all reasonable inferences therein, and these inferences must be drawn in favor of the State.
State v. Armenta, 134 Wn.2d 1, 14, 948 P.2d 1280 (1997).
State v. Ross, 141 Wn.2d 304, 309, 4 P.3d 130 (2000).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
The record here shows that the court concluded that the following elements of the crime of attempting to elude a pursuing police vehicle as charged in cause number 01-1-02113-0 were proven by the State proved beyond a reasonable doubt:
1. That on or about the 31st day of December, 2000, the defendant drove a motor vehicle;
2. That the defendant was signaled to stop by a uniformed police officer by hand, voice, emergency light or siren;
3. That the signaling police officer's vehicle was appropriately marked, showing it to be an official police vehicle; . . . .
Order on Stipulated Facts — Findings of Fact and Conclusions of Law filed October 17, 2001.
While labeled conclusions of law, they are findings of fact. After viewing the evidence in a light most favorable to the State, any trier of fact could have found guilt beyond a reasonable doubt. Therefore, substantial evidence supports Route's conviction for attempting to elude a pursuing police vehicle.
Salinas, 119 Wn.2d at 201 (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)).
Route also argues in his pro se brief that his due process rights were violated because although his attorney was present at the September 4, 2001 hearing, he was not. A defendant has the right to be present at a proceeding when his presence has a reasonably substantial relation to the fullness of his opportunity to defend against the charges, but not when merely legal matters are being addressed. Presentation of findings and conclusions that formalize a court's decision, which were originally announced in the defendant's presence, is not a critical stage of the proceedings and a defendant's interests are properly represented by counsel.
In re Personal Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835 (1994) (citing United States v. Gagnon, 470 U.S. 522, 526, 84 L.Ed.2d 486, 105 S.Ct. 1482 (1985)).
State v. Corbin, 79 Wn. App. 446, 449-50, 903 P.2d 999 (1995).
The September 4 hearing first addressed a motion to have witnesses deposed. This was purely a legal matter and did not involve Route's ability to defend against charges. The court also accepted proposed findings of fact and conclusions of law based on the court's previous oral rulings denying Route's motions to dismiss. Route's appointed counsel was present at the hearing. Thus, neither of the issues at the hearing required Route's presence and his due process rights were not violated.
Route also argues that the cumulative error doctrine requires reversal, citing State v. Johnson, 90 Wn. App. 54, 950 P.2d 981 (1998). He lists cumulative errors relating to claimed violations of his right to proceed pro se, ex parte communications, his absence from critical stages in the trial, violation of equal protection, and discovery violations. However, Route has not effectively briefed the issues of equal protection or alleged discovery violations.
Route finally argues that ongoing ex parte communications regarding the corrections facility's ability to provide unmonitored telephone access were fundamentally unfair and not subject to harmless error analysis, requiring reversal. Route also asserts that his private communications regarding his legal research were later intercepted and shared with other parties, including the prosecutor and the judge, and that this requires reversal of his convictions.
Canon 3(A)(4) of the Code of Judicial Conduct provides in part:
Judges should accord to every person who is legally interested in a proceeding, or that person's lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.
It is clear that these communications took place without the knowledge or participation of Route or Route's counsel, and thus were prohibited under the Code of Judicial Conduct. It is also clear that the court considered the early communications by Fleetham when it fashioned an alternative to its second order which allowed Route unmonitored phone access. Thus, an appearance of unfairness existed. However, the record also shows that Route did not properly object to the ex parte communications or request disqualification of the trial judge when they occurred. When Route discovered that Fleetham had contacted the court and proposed an alternate method of telephone contact, he objected to adoption of the method because Fleetham was not present at the hearing to answer questions. He did not object that the judge would be partial or unfair. In fact, Route had previously requested that the court contact the corrections facility to facilitate telephone access for him.
Buckley v. Snapper Power Equip Co., 61 Wn. App. 932, 938, 813 P.2d 125 (1991); State v. Romano, 34 Wn. App. 567, 569, 662 P.2d 406 (1983).
Buckley, 61 Wn. App. at 938.
The record also shows that after Route's attorney discovered the later communications between Fleetham and the court, he made a motion to dismiss. However, the motion focused on Route's theory that this final e-mail illustrated how the corrections facility had obstructed Route's pro se efforts. Neither Route nor his counsel stated that the judge's receipt of the e-mail created an appearance of unfairness or caused the judge to be partial to one party or the other. Because Route never properly objected to the communications based on their ex parte nature, he waived his right to object here on that basis. Furthermore, Route was tried before a different judge.
Buckley, 61 Wn. App. at 939 (citing Harbor Enters., Inc. v. Gudjonsson, 116 Wn.2d 283, 290-91, 803 P.2d 798 (1991)).
In sum, because the court started trial on the speedy trial date and Route thereafter agreed to two continuances, his speedy trial rights were not violated. Despite the continuances, access to an investigator, and standby counsel, Route thereafter agreed to appointed counsel nearly six weeks after he first contacted the investigator. Thus, he waived his right to claim here that his pro se rights were violated. Further, Route's additional claims have no merit and he failed to properly object during trial to ex parte communications.
The decision of the trial court is affirmed.