State v. Burns, 95528-0

Decision Date18 April 2019
Docket NumberNo. 95528-0,95528-0
Citation438 P.3d 1183,193 Wash.2d 190
CourtWashington 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.

¶4 After numerous requests to proceed pro se, the court held a hearing on January 13, 2016 regarding Burns’s request to represent himself. At the hearing Burns stated,

I would like to go pro se for reasons other than just becoming aware of certain things. And furthermore, I just, you know, I’d rather handle my own business considering certain matters especially when I’ve gotten lied to, threatened, and coerced into certain things that I wasn’t aware of at the time but I am aware of now. So I would like to go pro se because of those certain aspects of things so.

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:

THE COURT: You say these charges don’t pertain to you. It looks to me like they do. You’ve been charged and we’re here in court, why don’t they pertain to you in your view?
MR. BURNS: Because they don’t. I’m not a corporate entity, I’m a human being, and I’m not contracted into your place of business. Furthermore, I will not be contracted in your place of business, okay.
THE COURT: Well, the law doesn’t require any contract if a person is accused of a crime, the person is tried in a court whether they agree to that or not. And so you’ve been charged with some serious crimes and if there is a trial and you’re convicted of those crimes you’ll be serving sentences for those crimes. It’s my job to make sure that you understand exactly how serious those sentences could be and that’s why I’m going through all of the crimes and all of the potential sentences.
MR. BURNS: Ma’am, I understand completely what you’re talking about. I understand that there is some, I, you know, somebody could be charged and sentenced to a serious amount of time for those matters, but like I said, they do not pertain to me and I’m not going to allow this. I would like to relieve counsel of their duties so I can become pro se.

VRP (Jan. 13, 2016) at 6-7.

¶5 The court continued explaining the pending charges against Burns and the potential sentences and fines associated with all three cases. When asked about his education, Burns stated, "I don’t think that really matters." VRP (Jan. 13, 2016) at 11. When the court inquired further, Burns said, "I think I’m highly educated enough to represent myself because other than maybe a little looking into a few things about the law I think I can handle it because it’s mostly just keeping your composure and acting." VRP (Jan. 13, 2016) at 11. The court explained that Burns would be held to the same standards as the prosecution and would have to abide by the rules of procedure and evidence. Burns replied,

I completely understand everything that I’m up against, okay, Your Honor? I completely understand what is up, what sentencing may occur, all of that stuff. I completely understand all of that and it doesn’t phase [sic] me a bit. And, you know, I just, I made a mistake on asking for a public defender because I, I have a right to be represented as I see fit and the only person that’s going to represent me as I see fit is me so that’s why I’m here today, Your Honor.

VRP (Jan. 13, 2016) at 13.

¶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:

MR. BURNS: My lawyer .... [S]he has tried to get me to sign this contract that I’m not going to, I’m not going to sign. I’m not going to -- and furthermore, her and [the prosecutor] have coerced me into opening a contract without my knowledge or consent and I shot that down.
THE COURT: I don’t know what you are referring to as a contract.
MR. BURNS: Well, it is a contract.
THE COURT: Well, what is it? What are you talking about?
MR. BURNS: It’s a contracts [sic] in the corporation and I’m not buying.
THE COURT: What’s the corporation that you’re referring to?
MR. BURNS: It’s, the corporation is the United States, Your Honor, and I am not a citizen of that corporation. So I am not, I’m here to stand here today and tell you that I want to represent myself as pro se and I’m not buying into the company, okay? And I demand —
THE COURT: Mr. Burns, do you believe there’s a corporation involved in the prosecution of these charges?
MR. BURNS: Yes, there always is.

VRP (Jan. 13, 2016) at 14-15.

¶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:

THE COURT: I understand that. The question for me, as [the prosecutor] pointed out, is whether you’re able to do that with full understanding of the situation that you’re in. And, frankly, I am concerned that you don’t seem to have a full understanding of the situation you’re in because just observing you you’ve not, you’ve been very impatient for me to finish describing the charges and potential penalty to you, you’ve indicated that doesn’t matter to you.
MR. BURNS: Oh, it matters.
THE COURT: You also indicated a belief that there is a corporation involved here that you were required to be involved with and that your not being involved with the corporation has something to do with your, with the fact that you’re going to have to go to trial. And you’ve said that you don’t believe the charges against you apply to you. I’ve tried to explain that they very much apply to you.
MR. BURNS: It’s not a case, Your Honor.
THE COURT: You have trial in those cases because you’ve been charged with these crimes. So all in all I’m concerned about whether you understand how the criminal system works and what the consequences of criminal charges can be. And if you don’t understand how that legal system works and what the results of being charged with a crime can be, you’re going to need legal help.
MR. BURNS: Your Honor, from what I just said I, my understanding is that Mr. Burns is contracted into two cases that have been globalized into one matter, okay. There is a matter at your fingertips that is not a case yet, I have rejected the contract for it to become a case and --

VRP (Jan. 13, 2016) at 19-21.

¶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...

To continue reading

Request your trial
67 cases
  • State v. Bergstrom
    • United States
    • Washington Supreme Court
    • January 27, 2022
    ..."as required" element of bail jumping. 195 Wash. App. 449, 456, 381 P.3d 142 (2016), abrogated on other grounds by State v. Burns , 193 Wash.2d 190, 438 P.3d 1183 (2019). The Court of Appeals reasoned that the phrase "[a ] subsequent court appearance" could mean " ‘any’ subsequent court app......
  • State v. Melland
    • United States
    • Washington Court of Appeals
    • August 19, 2019
    ...department.5 A defendant must assert violation of the right to confrontation at trial or the right is waived. State v. Burns. 193 Wash.2d 190, 206-07, 438 P.3d 1183 (2019) ; accord Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). We conclude Mell......
  • Stahl v. Haynes
    • United States
    • U.S. District Court — Western District of Washington
    • February 8, 2021
    ...the objection. In the absence of objections based on the confrontation clause, Mr. Stahl waived such objections. State v. Burns, 193 Wn2d 190, 210-12, 438 P.3d 1183 (2019).7 Mr. Stahl also argues that the trial court erred in admitting photographs of Ms. Nickerson's injuries that effectivel......
  • City of Seattle v. Levesque
    • United States
    • Washington Court of Appeals
    • March 16, 2020
    ...category of drug and whether or not the individual is impaired. Baity, 140 Wash.2d at 4, 991 P.2d 1151.2 See State v. Burns, 193 Wash.2d 190, 209, 438 P.3d 1183 (2019) ("Applying ER 103 and requiring a defendant to object at trial ‘protects the integrity of judicial proceedings by denying a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT