State v. Berrysmith
| Decision Date | 11 August 1997 |
| Docket Number | Nos. 36169-4-,35939-8-I,s. 36169-4- |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent v. Lionel BERRYSMITH, Appellant. In re Personal Restraint Petition of Lionel BERRYSMITH, Petitioner. |
Norm Maleng, King County Prosecuting Attorney and Francis Zavatsky, Seattle, for Respondent.
Following an in camera hearing held outside Lionel Berrysmith's presence on the day that his jury trial for delivery of cocaine was scheduled to begin, Berrysmith's court-appointed attorney was permitted to withdraw on the ground that he could not dissuade Berrysmith from perjuring himself on the witness stand. In both his direct appeal and his personal restraint petition, Berrysmith contends that the in camera hearing was a critical stage of the proceedings because the motion to withdraw required the resolution of disputed facts, i.e., whether Berrysmith truly intended to commit perjury, and because the speedy trial expiration date was at hand so that Berrysmith was forced to choose between continuing his trial beyond the expiration date or representing himself. Berrysmith also contends that the court's decision to allow the attorney to withdraw was based upon insufficient evidence that Berrysmith intended to commit perjury so that the court erred both in allowing counsel to withdraw and by continuing the trial past the CrR 3.3 speedy trial expiration date to allow new counsel time to prepare for trial. We conclude that withdrawal of counsel in these circumstances is a matter governed by ethical standards and is, therefore, a matter of law. Because the court was not required to decide whether Berrysmith actually intended to commit perjury, but rather whether his counsel had sufficient grounds to support a reasonable belief that perjury would occur, Berrysmith had no constitutional right to be present at the in camera hearing. The record fully supports the court's determination that counsel's belief was reasonable. Withdrawal was, therefore, appropriate. A different judge then determined that Berrysmith was equivocal with respect to his announced decision to represent himself, appointed an attorney to serve as co-counsel with Berrysmith, and continued the trial to allow new counsel time to prepare. We conclude that this was entirely appropriate under CrR
3.3(h)(2). Accordingly, we affirm the conviction and dismiss the personal restraint petition. 1
Lionel Berrysmith was charged with delivery of cocaine in violation of RCW 69.50.401(a)(1)(i), after selling rock cocaine to an undercover Seattle Police officer during a "buy-bust" operation in Seattle.
On the first day of Berrysmith's jury trial, his appointed attorney, Terry Mulligan, moved in camera before Judge Finkle to be allowed to withdraw, based on Mulligan's strong belief that Berrysmith intended to perjure himself on the witness stand and Mulligan's inability to dissuade Berrysmith from that course. Berrysmith was not present during this hearing. Mr. Mulligan explained to the judge that Berrysmith initially wrote him a letter setting out Berrysmith's version of the facts leading to his arrest. Later, after Mulligan successfully obtained a court order allowing Berrysmith to review discovery documents, Berrysmith told the attorney a different story, one that appeared to have been woven around the facts contained in the police reports, and one that was contrary to Berrysmith's initial story in several significant respects. Mulligan stated that his belief was reinforced by Berrysmith's claim that a hat linking Berrysmith to the crime (which had been taken from him at the jail but which had not been booked into evidence) was not Berrysmith's hat. At Berrysmith's request that Mulligan retrieve the hat, Mulligan directed a paralegal at the Public Defender's office to pick up the hat from the jail property room; she did so and signed a receipt for it. Mulligan explained that the hat was, at that moment, on his desk in his office and that he believed that once Berrysmith made the claim that he had no hat when he was booked into jail, the property room records would be checked and his paralegal would Mulligan also indicated that his efforts to dissuade Berrysmith from testifying falsely at the trial were unavailing, in that Berrysmith angrily refused to discuss the matter with him, and felt that Mulligan was betraying him. Mulligan told the judge that Berrysmith had said, that very morning, that he wanted a new attorney. Judge Finkle granted Mr. Mulligan's motion to withdraw.
likely be called as a witness for the State to explain how it was that she came to retrieve the hat from among Berrysmith's personal effects being held at the jail.
Back in the courtroom, Judge Finkle explained to Berrysmith that his attorney had been allowed to withdraw and that Berrysmith was no longer represented by counsel. The judge asked Berrysmith whether he wished to have new counsel substituted, explaining that such would delay the trial, or whether he wished to represent himself. Berrysmith stated that he did not want to wait for a new attorney to prepare to try his case, and that he also did not want to represent himself, but felt that he had no other choice in that he had been in jail for 60 days. Judge Finkle conducted a lengthy Faretta 2 colloquy, approved Berrysmith's request to represent himself, appointed attorney Roger Ley to act as standby counsel, and proceeded with the trial.
The following day, Berrysmith moved for dismissal of the cocaine delivery charge on the ground that he had been "forced" to represent himself. Judge Finkle denied the motion to dismiss and referred the matter to the criminal presiding department. Concluding after a thorough colloquy that Berrysmith was equivocal about whether or not he wanted to be represented by counsel, Judge DuBuque changed Mr. Ley's designation from standby counsel to co-counsel and, despite Berrysmith's strong objection, continued the case for 3 weeks to allow Mr. Ley to prepare for trial.
At trial, which was presided over by Judge Alsdorf, Berrysmith
acted as his own attorney. The jury found him guilty as charged. Berrysmith was sentenced within the standard range. This timely appeal and personal restraint petition followed.
Direct Appeal
A criminal defendant has a constitutional right under the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to be present during all "critical stages" of the criminal proceedings. United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985). The Due Process Clause is implicated in situations where the defendant is not actually confronting witnesses or evidence against him or her. Id. A defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his or her presence would contribute to the fairness of the procedure. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987); Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332, 78 L.Ed. 674, 90 A.L.R. 575 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); In re Personal Restraint of Lord, 123 Wash.2d 296, 306, 868 P.2d 835, 123 Wash.2d 737, 870 P.2d 964 (). Due process does not require the defendant's presence "when presence would be useless, or the benefit but a shadow." Snyder, 291 U.S. at 106-07, 54 S.Ct. at 332. Thus, when the right of confrontation is not at issue, the two questions that must be addressed in determining whether the hearing was a critical stage of the proceedings are: (1) whether the subject of the hearing related purely to a legal matter; (2) and if so, whether absence of the defendant nevertheless bore a reasonably substantial relation to the fullness of his or her opportunity to defend against the charge, or whether a fair and just hearing was thwarted by his absence. Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484; Lord, 123 Wash.2d at 306, 868 P.2d 835.
Berrysmith contends that the in camera hearing in Judge Finkle's chamber was a critical stage of the criminal proceedings because factual assertions were at issue, i.e., whether or not Berrysmith intended to commit perjury while testifying at the trial, and because the resolution of that issue implicated not only Berrysmith's right to be represented by counsel at trial but also his right to a speedy trial under CrR 3.3. Berrysmith argues that a fair and just hearing was thwarted by his absence, in that he had no opportunity to refute the allegation that he intended to commit perjury.
Berrysmith raises a question of first impression in Washington, and one that has been addressed by several state and federal courts, some with differing views. In Lowery v. Cardwell, 575 F.2d 727 (9th Cir.1978) the court held that the issue of whether counsel who believed that his client was about to give perjured testimony would be allowed to withdraw was solely a legal matter and that the presence of the defendant was not constitutionally required. Similarly, in State v. Fosnight, 235 Kan. 52, 679 P.2d 174, 181, (1984) the court held:
The matter of the withdrawal of counsel, upon being advised that his client intends to commit perjury, is a matter governed by ethical standards, and is, therefore, a matter of law.... [I]n-chambers conferences dealing with legal or procedural questions are not stages of the trial at which a defendant's presence is required in order to avoid prejudice.
Accord Harris v. State, 632 So.2d 503, 509-12 (Ala.Cr.App.1992), aff'd, 632...
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