In the Matter of The Pers. Restraint Petition of Demar Rhome

Citation260 P.3d 874,172 Wash.2d 654
Decision Date15 September 2011
Docket NumberNo. 83788–1.,83788–1.
PartiesIn the Matter of the Personal Restraint Petition of Demar RHOME, Petitioner.
CourtUnited States State Supreme Court of Washington

OPINION TEXT STARTS HERE

Michael Filipovic, Federal Public Defender, Seattle, WA, for Petitioner.Daniel Todd Satterberg, Deborah A. Dwyer, King Co. Pros. Office/Appellate Unit, Seattle, WA, for Respondent.STEPHENS, J.

[172 Wash.2d 656] ¶ 1 In this original personal restraint petition, Demar Rhome argues that the state and federal constitutions require independent findings of fact that a defendant is competent to waive counsel and represent himself at trial. He also argues that the colloquy conducted by the trial court here was inadequate to secure a valid waiver of counsel. We disagree and dismiss his personal restraint petition.

FACTS AND PROCEDURAL HISTORY

¶ 2 In November of 2003, 17–year–old Lashonda Flynn was stabbed to death. Seventeen-year-old Kialani Brown confessed to the killing but pointed to Rhome as the mastermind behind the slaying.1 Rhome was charged in King County Superior Court with first degree murder with a deadly weapon.

¶ 3 Rhome's mental competency became an issue at trial. Since early childhood, Rhome has been treated for psychiatric disturbances, including several in-patient stays at psychiatric hospitals. Personal Restraint Petition (PRP), Ex. A at 2. He received multiple diagnoses during those stays, including psychotic disorder, delusional disorder, oppositional defiant disorder, mild mental retardation, obsessive-compulsive personality traits , and pervasive development disorder (Aspergers disorder). Id. at 4. On June 8, 2005, the trial court held a competency hearing to address Rhome's lengthy history of mental health issues. After considering the evidence and arguments of counsel, King County Superior Court Judge Gregory P. Canova found that the defense had not met the burden of proving Rhome was incompetent to stand trial. Verbatim Report of Proceedings (VRP) (June 8, 2005) at 149. Shortly after the competency hearing, Rhome received new counsel.

¶ 4 Throughout pretrial proceedings, Rhome asserted the right to represent himself. On June 27, 2005, King County Superior Court Judge Ronald Kessler denied Rhome's initial request to proceed pro se, finding it to be equivocal. VRP (June 27, 2005) at 15. On August 30, 2005, Judge Kessler considered a renewed request from Rhome to proceed pro se. He advised Rhome of the risks of representing himself and engaged in a colloquy to determine if Rhome understood the significance of his undertaking. Rhome's mental health issues were not specifically addressed during the colloquy. At the conclusion of the hearing, Judge Kessler granted Rhome's request to proceed pro se, and appointed standby counsel. VRP (Aug. 30, 2005) at 12.

¶ 5 Proceedings began in February of 2006 with King County Superior Court Judge Nicole MacInnes presiding. Rhome represented himself throughout. In reviewing Rhome's performance during pretrial and trial proceedings, a defense expert opined that Rhome's mental illness impacted his ability to defend himself in court, including engaging in “perseverative, aggressive questioning that often was incoherent or intimidating” and impairment in terms of [e]ngaging in adequate self-regulation of his emotions and inhibiting his behavior in an appropriate manner.” PRP, Ex. A at 58–60 (Report of David M. White, Licensed Psychologist). Rhome was convicted by a jury as charged and sentenced to 371 months in prison.

¶ 6 Rhome timely filed a direct appeal with the Court of Appeals. On December 7, 2007, the United States Supreme Court granted certiorari in Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), which posed the question whether a state trial court could constitutionally consider a defendant's mental health history when deciding whether the defendant should be allowed to waive counsel and represent himself. On December 19, 2007, Rhome's appellate counsel moved to stay his appeal in light of Edwards. The Court of Appeals denied the stay and in February 2008 it affirmed Rhome's conviction and sentence. On June 19, 2008, Edwards announced that a trial court may insist a defendant proceed with counsel even though he has been found competent to stand trial. On November 6, 2008, this court denied review of Rhome's direct appeal.

¶ 7 This petition stems from a habeas petition filed on February 3, 2008 with the United States District Court for the Western District of Washington. On March 6, 2009, the federal district court appointed counsel to represent Rhome. On June 15, 2009, the district court granted Rhome's request to stay the federal proceedings to allow him to present unexhausted claims to the state courts. Accordingly, on October 23, 2009, represented by his appointed federal public defenders, Rhome filed this original personal restraint petition challenging the trial court's decision to allow him to waive counsel and proceed pro se.

ANALYSIS

¶ 8 Rhome challenges the trial court's decision on three grounds. Two of his arguments have a constitutional flavor, and one is a challenge to the trial court's discretionary decision accepting his waiver of counsel under the abuse of discretion standard. These arguments are independent of one another, but they all rely on a handful of relevant cases. Accordingly, it is helpful to begin by reviewing the case law.

Background: Relevant Authority on the Question of Waiver of Counsel Federal Cases

¶ 9 In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court affirmed a defendant's constitutional right to represent himself at trial, implied under the federal Sixth and Fourteenth Amendments. In Faretta, there was no question as to the defendant's competency. See id. at 835, 95 S.Ct. 2525 (observing that [t]he record affirmatively shows that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will”). The Court did not find an absolute right to self-representation, but rather required that the waiver of counsel be knowing and intelligent. Id. In choosing self-representation, a defendant “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.’ Id. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942)). Thus, although Faretta recognized that the right to self-representation is rooted in ‘that respect for the individual which is the lifeblood of the law,’ id. at 834, 95 S.Ct. 2525 (quoting Illinois v. Allen, 397 U.S. 337, 350–51, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (Brennan, J. concurring)), it placed on that right certain limits.

¶ 10 The outer bounds of those limits were explored in Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379. There, the United States Supreme Court considered whether a state may insist that a defendant who is found mentally competent to stand trial must nevertheless proceed to trial with counsel, rather than be allowed to represent himself. Id. at 167, 128 S.Ct. 2379. Recognizing that Faretta and authority since Faretta placed limits on the right to self-representation, id. at 171, 128 S.Ct. 2379, the Edwards Court further held that it is constitutionally permissible for a state to deny a defendant pro se status “on the ground that [he] lacks the mental capacity to conduct his trial defense” even though he was found competent to stand trial. Id. at 174, 128 S.Ct. 2379.

¶ 11 The Edwards Court observed that the standard to determine whether a defendant is competent to stand trial assumes he will assist in his defense, not conduct his defense, and therefore competency to stand trial does not automatically equate to a right to self-representation. Id. at 174–75, 128 S.Ct. 2379. In addition, while the dignity and autonomy of an individual underscore the right to self-representation, in the Edwards court's view,

[A] right of self-representation at trial will not “affirm the dignity” of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel. To the contrary, given that defendant's uncertain mental state, the spectacle that could well result from his self-representation at trial is at least as likely to prove humiliating as ennobling.

Id. at 176, 128 S.Ct. 2379 (citation omitted) (quoting McKaskle v. Wiggins, 465 U.S. 168, 176–77, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)). Furthermore, “insofar as a defendant's lack of capacity [for self-representation] threatens an improper conviction or sentence, self-representation in that exceptional context undercuts the most basic of the Constitution's criminal law objectives, providing a fair trial.” Id. at 176–77, 128 S.Ct. 2379. Finally, in addition to a concern that the proceeding be fair, the Edwards court also worried that self-representation in this context might damage the appearance of fairness observers expect from our justice system. Id. at 177, 128 S.Ct. 2379.

¶ 12 With these concerns in mind, the Edwards Court concluded that it is constitutionally permissible for a state to set limits on a defendant's pro se right even when he is competent to stand trial. However, the Edwards Court declined to announce a constitutional standard by which courts must judge a defendant's right to self-representation when his competency to stand trial has been questioned. Id. at 178, 128 S.Ct. 2379.

State Cases

¶ 13 Well before the United States Supreme Court addressed a federal constitutional right to self-representation in Faretta, this court considered a right to self-representation under our state constitution. State v. Kolocotronis, 73 Wash.2d 92, 97, 436 P.2d 774 (1968) (quoting Wash. Const. art. I, sec. 22). There, the defendant had a lengthy history of admission to psychiatric hospitals, and his...

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