State v. Burns, 95528-0
| Decision Date | 18 April 2019 |
| Docket Number | No. 95528-0,95528-0 |
| Citation | 438 P.3d 1183,193 Wash.2d 190 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Michael I. BURNS, Petitioner. |
Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Avenue, Suite 610, Seattle, WA 98101-1683, for Petitioner.
Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Avenue, Suite 201, Bellingham, WA 98225-4038, for Respondent.
¶1 This case involves, first, whether Michael Burns was improperly denied his right to waive counsel and represent himself at trial and, second, whether he may assert a violation of the confrontation clause for the first time on appeal. The trial court judge denied Burns’s request to proceed pro se based on a lack of understanding of the nature of the charges against him where he indicated that the criminal charges did not pertain to him and that he had not entered into a contract such that the State could bring charges against him. Burns claimed on appeal that his right to confrontation was violated when statements of his victim came in as evidence through testimony of her neighbor and the responding police officer, although she herself did not testify. Burns did not object to the testimony on confrontation grounds at trial. The Court of Appeals held that the trial court judge did not abuse her discretion in denying Burns’s request to proceed pro se and that Burns waived his right to assert a confrontation violation when he did not object at trial. We affirm the Court of Appeals.
¶2 The State charged Michael Burns with assault in the second degree—domestic violence, and felony violation of a no contact order—domestic violence, for strangling Christina Jackson while a no contact order was in effect.1 Clerk’s Papers (CP) at 25-27.
¶3 At one of his first court appearances, Burns said, "I just want to request new legal representation" because "I haven’t been represented the way I see fit." Verbatim Report of Proceedings (VRP) (Dec. 10, 2015) at 17. The trial court informed Burns that he was not entitled to a public defender of his choosing.
VRP (Jan. 13, 2016) at 2-3. The court then began to explain the nature of the charges in all three of Burns’s pending cases. Interrupting this explanation, Burns stated, "These matters being spoken of do not pertain to me, okay?" and the following exchange occurred:
¶6 The court then inquired into the alleged threats and coercion that Burns referred to at the beginning of the hearing, and the following exchange occurred:
¶7 At this point, the court and the attorneys had a discussion regarding Burns’s competency to stand trial. Burns’s attorney indicated she did not see a reason to get a competency evaluation. The prosecutor described Burns’s past requests to proceed pro se and indicated, while he was not asking for a competency evaluation, he was concerned as to whether Burns could make a knowing, voluntary, and intelligent waiver of counsel based on Burns’s representations to the court.
¶8 Burns again indicated, "I would love to waive counsel period." VRP (Jan. 13, 2016) at 19. Then the following exchange occurred:
¶9 At this point, the court cut Burns off and again attempted to explain the three separate cases against Burns. The judge then denied Burns’s motion to proceed pro se explaining, "I don’t think that Mr. Burns understands the nature of the charges and the seriousness of the situation" and "Mr. Burns, is not in my view competent to represent himself." VRP (Jan. 13, 2016) at 22. The judge further indicated she would leave any competency concerns to counsel.
¶10 After a brief recess off the record, Burns was removed from the courtroom because of his disruptive behavior in reaction to the denial of the motion. The parties then discussed a written order, and the judge indicated she could not find that Burns knew enough about the charges against him to make a knowing waiver of his right to counsel. The court then filed a written order, which stated that the court was concerned Burns did not appreciate the nature of the charges against him and that the court was unable to find he could knowingly and voluntarily waive his right to counsel.
¶11 The trial court held another motion hearing on the issue of representation on May 3, 2016. The court again denied the motion, again based on Burns not knowingly and intelligently waiving his right to...
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