State v. DeWeese
| Citation | 816 P.2d 1,117 Wn.2d 369 |
| Decision Date | 12 September 1991 |
| Docket Number | No. 57570-3,57570-3 |
| Parties | STATE of Washington Respondent, v. Larry DeWEESE Appellant. |
| Court | United States State Supreme Court of Washington |
Larry DeWeese challenges his conviction on three counts of forcible rape, contending he did not knowingly, voluntarily, and intelligently waive his right to counsel. He further contends his removal from the courtroom during his trial denied him a fair trial. The Court of Appeals certified the appeal to this court, and we accepted review. We affirm the convictions.
In April 1989, Larry DeWeese was convicted by a jury of one count of first degree rape and two counts of second degree rape. During preparation for trial, conflicts developed between Mr. DeWeese and his first court-appointed counsel, Paul Bruce. Judge Johnson allowed Mr. Bruce to withdraw as counsel. While Mr. Bruce was not able to advise Judge Johnson of all of the ethical conflicts existing between himself and Mr. DeWeese (he stated there were at least five) as some might prejudice his client, Mr. Bruce did explain that a significant problem was Mr. DeWeese's consistent refusal to follow the professional advice of counsel. After Mr. Bruce's withdrawal, a second attorney, Mark Baum, was appointed by Judge Johnson to represent Mr. DeWeese. Judge Johnson recused herself at the defendant's request.
Mr. DeWeese had disagreements with the second court-appointed counsel and discharged him before trial. Mr. Baum was subsequently reinstated and assisted in pretrial preparation after the court continued the trial date from January 23 to March 20, 1989. Prior to trial, Mr.
DeWeese again discharged attorney Mark Baum. On March 9, 1989, Judge Lodge heard Mr. DeWeese's request for appointment of a third attorney to replace Mr. Baum.
Judge Lodge refused this request and allowed Mr. DeWeese the option of either being represented by Mr. Baum or representing himself. Judge Lodge also advised Mr. DeWeese of the crimes with which he was charged and their possible sentences, including possible enhancement.
The judge advised Mr. DeWeese of possible defenses and warned him that he would receive no lenient treatment in court because of self-representation. The record reflects Judge Lodge engaged in a lengthy and involved discussion with Mr. DeWeese regarding the disadvantages, consequences, and details of pro se representation. Judge Lodge advised Mr. DeWeese against opting for self-representation rather than remaining with Mr. Baum as appointed counsel. Mr. DeWeese chose to represent himself
Mr. DeWeese conducted his own defense without incident on the first day of trial. On the second day of trial, Judge Lodge appointed Mr. Baum as standby or consulting counsel at the defendant's initiative. Mr. DeWeese consulted Mr. Baum; however, Mr. DeWeese conducted his own defense. During this second day of trial, Mr. DeWeese cross examined two of the three women he was alleged to have forcibly raped. On the third day of trial, Mr.
DeWeese's courtroom behavior degenerated into a series of disruptions of the State's case. Later, Mr. DeWeese discharged attorney Mark Baum from any further participation, and Judge Lodge excused Mr. Baum from the courtroom. Mr. DeWeese's disruptive outbursts included a statement that the alleged victim witnesses were prostitutes (this after the State's motion in limine had been granted, prohibiting references to the background of the complaining witnesses), and other repeated interruptions of direct examination.
In response, the court placed Mr.
DeWeese in a bailiff's office with a television monitor from which Mr. DeWeese could follow proceedings. When invited to do so, Mr. DeWeese declined to return to court to cross examine the witnesses. By court instruction, Mr. DeWeese was returned to court for identification by one of the rape victims, who had earlier failed to identify the defendant from a photo montage. The record/videotape reveals Mr. DeWeese was unobtrusively placed in the court's public Prior to this identification, the court advised Mr. DeWeese outside the presence of the jury of the consequences of his continued refusal to return to the courtroom. Mr. DeWeese insisted on his need for representation by a new attorney. He refused to participate in the rest of his trial until his demand for counsel was met, despite repeated invitations to return by the trial judge. Mr. DeWeese requested to be returned to jail. While in jail, he threatened to physically resist any attempts to bring him back to the courtroom. After the State rested, Judge Lodge advised Mr. DeWeese of the opportunity to present his case and call witnesses. Mr. DeWeese responded that he would not proceed without new counsel. Mr. DeWeese walked away from the bench as Judge Lodge was advising him that if he did not present a case, the next step would be closing arguments. Mr. DeWeese did not present any evidence or closing argument in his defense and was convicted on three counts of rape.
seating area in a row alongside other persons and then was identified by this complaining witness.
Mr. DeWeese appealed his conviction to the Court of Appeals, which certified the matter for review by this court.
The trial court acted within its discretion as to both issues, and we affirm Mr. DeWeese's convictions.
The United States Supreme Court recognizes a constitutional right of criminal defendants to waive assistance of counsel and to represent themselves at trial. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the rule was announced that a court cannot force a defendant to accept counsel if the defendant wants to conduct his or her own defense, as the Sixth Amendment grants defendants the right to make a personal defense with or without the assistance of an attorney. The rationale for this rule is respect for the defendant's individual autonomy. See, generally, McKaskle v. Wiggins, 465 U.S. 168, 198 n. 6, 104 S.Ct. 944, 961 n. 6, 79 L.Ed.2d 122 (1984) (White, J., dissenting) (citing Chapman v. United States, 553 F.2d 886, 891 (5th Cir.1977)). The right to representation by counsel of choice is, however, limited in the interest of both fairness and efficient judicial administration. Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988). Mr. DeWeese contends he was denied a fair trial because of a lack of representation by counsel. He argues the trial court failed to determine whether he knowingly, voluntarily, and intelligently waived his right to representation before he was allowed to proceed pro se. Specifically, Mr. DeWeese submits the trial judge did not adequately examine him to ascertain he was competent, could make a valid waiver of counsel, and understood his rights. Mr. DeWeese contends he was equivocal about his desire to proceed without counsel both before and during trial.
This case involves both the limits which must exist on the indigent defendant's choice of appointed counsel and the necessary consequences which adhere to a defendant's right of self-representation.
The Supreme Court's holding that a criminal defendant has a right under the Sixth Amendment to We observe a tension between a defendant's autonomous right to choose to proceed without counsel and a defendant's right to adequate representation. To protect defendants from making capricious waivers of counsel, 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. Once an unequivocal waiver of counsel has been made, the defendant may not later demand the assistance of counsel as a matter of right since reappointment is wholly within the discretion of the The requirement that a request to proceed pro se be stated unequivocally derives from the fact that there is a conflict between a defendant's rights to counsel and to self-representation. Because of this conflict, a defendant's request for self-representation can be a "heads I win, tails you lose" proposition for a trial court. People v. Sharp, 7 Cal.3d 448, 462 n. 12, 499 P.2d 489 , 103 Cal.Rptr. 233, 242 (1972), cert. denied, 410 U.S. 944 [93 S.Ct. 1380, 35 L.Ed.2d 610] (1973). If the court too readily accedes to the request, an appellate court may reverse, finding an ineffective waiver of the right to counsel. But if the trial court rejects the request, it runs the risk of depriving the defendant of his right to self-representation. People v. Sharp, supra. To limit baseless challenges on appeal, courts have required that a defendant's request to proceed pro se be stated unequivocally.
represent himself if he chooses does not encompass a right to choose any advocate if the defendant wishes representation. Wheat, 486 U.S. at 159, n. 3, 108 S.Ct. at 1697 n. 3. Whether an indigent defendant's dissatisfaction with his court-appointed counsel is meritorious and justifies the appointment of new counsel is a matter within the discretion of the trial court. State v. Sinclair, 46 Wash.App. 433, 730 P.2d 742 (1986). When an indigent defendant fails to provide the court with legitimate reasons for the assignment of substitute counsel, the court may require the defendant to either continue with current appointed counsel or to represent himself. Sinclair, at 437-38, 730 P.2d 742. If the defendant chooses...To continue reading
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