State v. Anderson, 021919 WACA, 75074-7-I
| Opinion Judge | CHUN, J. |
| Party Name | STATE OF WASHINGTON, Respondent, v. MICHELE ANDERSON, Appellant. |
| Case Date | February 19, 2019 |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
CHUN, J.
A jury convicted Michele Anderson of six counts of aggravated murder in the first degree with a firearm sentencing enhancement for each charge. On appeal, Anderson contends the trial court denied her right to counsel of choice on multiple occasions. She also raises issues relating to the right to a public trial, the right to be present at critical stages of trial, the jury's consideration of the information, and communication with the jury regarding the death penalty. For the reasons discussed below, we affirm.
I.
BACKGROUND
On the morning of December 26, 2007, Judy Anderson did not appear for work. After attempting to reach Judy[1] by telephone, her friend and co-worker, Linda Thiele, drove to the Anderson house. When she entered the home, Thiele discovered several dead bodies. Thiele called 911. Law enforcement discovered the bodies of Judy and her husband, Wayne, behind the house. Inside the house, they found the bodies of Scott Anderson (Wayne and Judy's son), his wife, and their two young children. All six victims had been shot.
Later that day, Michele Anderson and her boyfriend, Joe McEnroe, arrived at the house. Anderson told the King County Sheriff detectives she was Wayne and Judy's daughter and lived on the property in a trailer. During her initial conversation with a detective, Anderson did not question law enforcement's presence or inquire about her family. The detective became suspicious that Anderson was withholding information. Eventually, Anderson told the detectives she had shot and killed all six family members. In recounting the details to detectives, Anderson changed her story several times, and eventually implicated McEnroe in the deaths as well.
On December 28, 2007, the King County Prosecuting Attorney's Office charged Anderson and McEnroe with six counts of aggravated murder in the first degree with a firearm sentencing enhancement for each charge. In October 2008, prosecutors provided notice of a special sentencing proceeding to determine whether to impose the death penalty, but subsequently withdrew the notice. In April 2011, the trial court severed Anderson's and McEnroe's cases. After years of proceedings, Anderson's trial began in January 2016 and concluded on March 3, 2016 with guilty verdicts on all six counts, including the aggravating circumstances and firearm enhancements. She now appeals.
II.
ANALYSIS
A. Right to Counsel of Choice
Anderson contends the trial court violated her Sixth Amendment right to counsel of choice on three separate occasions. The State argues Anderson abandoned her initial request for substitution of retained counsel, thereby waiving the issue on appeal, and never effectively renewed that request. We agree with the State.
"The Sixth Amendment guarantees the right to select and be represented by one's preferred attorney." State v. Aguirre, 168 Wn.2d 350, 365, 229 P.3d 669 (2010). This right includes a defendant's right to choice of private counsel. Aguirre, 168 Wn.2d at 365. However, a defendant's right to choice of private counsel has limitations. Aguirre, 168 Wn.2d at 364. For example, a defendant does not have the right to representation by an attorney the defendant cannot afford or one who declines to serve as counsel. Aguirre, 168 Wn.2d at 365. Additionally, the right to choose counsel does not permit a defendant to unduly delay proceedings. Aguirre, 168 Wn.2d at 365. The trial court weighs the defendant's right to choose counsel against the public's interest in the prompt and efficient administration of justice. Aguirre, 168 Wn.2d at 365.
Erroneous deprivation of the right to counsel of choice constitutes structural error requiring reversal without a showing of prejudice. United States v. Gonzalez-Lopez, 548 U.S. 140, 146, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). However, when retention of counsel of choice requires a continuance, the trial court must balance the defendant's right with the trial court's need to manage its calendar. Aguirre, 168 Wn.2d at 365. In such cases, resolution of the balancing of defendant's rights and efficient administration of justice "falls squarely within the discretion of the trial court." Aguirre, 168 Wn, 2d at 365. Therefore, an appellate court reviews such a decision for abuse of discretion. See Aguirre, 168 Wn.2d at 365-66.
1. Motion to Substitute M. Julian Denes as Retained Counsel
In June 2008, Anderson's appointed counsel, attorneys Cindy Arends and Kevin Dolan, moved to withdraw due to fundamental differences with their client on the direction of the defense. Soon after, Anderson moved to discharge Arends and Dolan, and substitute privately retained attorneys Philip Sayles and M. Julian Denes. Before the trial court heard the motion, Sayles declined to represent Anderson, leaving only Denes as private counsel.
At the time of the request for substitution, more than seven years before her trial began, Anderson still faced the possibility of a death sentence. The Washington Association of Criminal Defense Lawyers Death Penalty Committee filed a brief to express concern about Sayles and Denes as Anderson's representatives in a capital case. The brief focused on the importance of complying with Special Proceeding Rules-Criminal (SPRC) 2 pertaining to death penalty representation, which specifies requirements for attorneys appointed to defend capital cases. Sayles and Denes did not meet the requirements of SPRC 2.
In early July 2008, the trial court considered briefing and oral argument on whether SPRC 2 applied to retained counsel and whether Anderson's Sixth Amendment right to retain attorneys of her choice superseded the requirements of SPRC 2. During oral argument, Denes informed the trial court of Sayles's departure and requested appointment of an SPRC 2 lawyer to help litigate the case. The court concluded that Anderson's right to counsel of choice was subject to SPRC 2 and denied the motion to substitute Denes as counsel. The trial court granted Arends and Dolan's motion to withdraw, ordered new appointed counsel, and requested Arends and Dolan remain as representatives until filing of a notice of appearance by new counsel.
During a hearing on July 31, 2008, the trial court considered the question of who represented Anderson in light of Arends and Dolan withdrawing as counsel and the denial of the motion to substitute Denes. Prior to the hearing, Denes had filed a motion for reconsideration of the motion to substitute counsel on Anderson's behalf. Also, the court had appointed attorney Colleen O'Connor to provide Anderson with advice on her right to counsel. At the hearing, O'Connor informed the court she had spoken with Anderson about the SPRCs, the constitutional right to counsel, the right to counsel of choice, and the court's role in providing adequate representation.
After this consultation, Anderson wanted O'Connor to serve as her counsel. Denes withdrew the motion for reconsideration. He informed the court that Anderson had not executed the motion because she no longer sought his representation. In court, Anderson affirmatively stated she no longer desired to retain Denes as her attorney.
Anderson now claims the trial court incorrectly interpreted SPRC 2 and denied her right to retained counsel of choice. But Anderson waived this claim.
A party may abandon or waive a constitutional claim by affirmatively withdrawing the related motion. State v. Valladares, 99 Wn.2d 663, 672, 664 P.2d 508 (1983). "Once a constitutional challenge has been affirmatively withdrawn or abandoned, the challenge will not be considered on appeal." In re Pers. Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014) (abrogated on other grounds by State v. Gregory, __Wn.2d__, 427 P.3d 621 (2018)).
Here, Anderson raised the issue of her Sixth Amendment right to counsel of choice in her initial motion for substitution, oral arguments, and in the motion for reconsideration. However, she abandoned her constitutional challenge to the court's decision when she withdrew the motion to reconsider and her request for Denes to represent her. She affirmatively stated her desire to withdraw the request for Denes's representation after consultation with an attorney appointed to advise her on her right to counsel of choice. At this point, Anderson had explicitly discontinued her request for Denes as her counsel of choice. Therefore, she has waived any constitutional claim related to the trial court's rejection of her motion to substitute Denes as counsel.
2. Request for "Furlough"
Anderson experienced significant turnover in representation and frequently expressed displeasure with appointed counsel. In February 2015, appointed counsel Colleen O'Connor and David Sorenson moved to withdraw, citing a complete breakdown in communication and irreconcilable conflict. At the hearing on this motion, Anderson asked the court, "Can I just hire somebody myself? I don't like public defenders anymore. Ilia was the only private one, and he was awesome. Why can't I just, you know, hire some private attorneys?" The trial court did not address this question, other than to inquire as to Illa's qualities.
After further discussion with the trial court and her attorneys, Anderson again asked, "Can't I just have a furlough so I can go hire a private attorney?"[2]The trial court did not respond to this request. The court subsequently denied counsel's motion to withdraw, noting "[t]he conflict that exists is of Ms. Anderson's own making; her refusal to cooperate is neither reasonable nor justified."
Anderson contends the trial court failed to address her...
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