State v. Chavis

• Decision Date: 04 May 1982
• Docket Number: No. 4035-III-9,4035-III-9
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Thomas Clavis CHAVIS, Appellant.

Page 784

31 Wn.App. 784

644 P.2d 1202

STATE of Washington, Respondent, v. Thomas Clavis CHAVIS, Appellant.

No. 4035-III-9.

Court of Appeals of Washington, Division 3, Panel Four.

May 4, 1982.

John O. McLendon, Bruce A. Kaiser, McLendon & Kaiser, Spokane, for appellant.

Donald C. Brockett, Pros. Atty., Patricia

Thompson, Deputy Pros. Atty., Spokane, for respondent.

McINTURFF, Chief Judge.

Thomas Clavis Chavis appeals his conviction for third degree statutory rape under RCW 9A.44.090. ¹ The pivotal issue concerns the waiver of the defendant's constitutional right to be represented by a lawyer.

During the early morning hours of October 13, 1979, Mr. Chavis, the victim and Thomas Davis were located at Mr. Davis' house. Mr. Davis was married at the time but was having a relationship with the victim. The victim testified she had performed sexual intercourse with Mr. Davis, ² who then left the residence to purchase cigarettes. It was during this absence the victim alleges to have been raped by Mr. Chavis, who denies the incident.

At his arraignment on December 27, 1979, the trial judge read part of the information charging Mr. Chavis with the offense and stated:

THE COURT: Before I take your plea, you don't have to enter your plea at this time and you may wait until you've had time to talk to an attorney, and you are entitled to a lawyer throughout the proceedings. If you can't afford one, I will appoint one. You want me to appoint one before entering your plea?

DEFENDANT: No.

THE COURT: And you're not asking me to appoint one?

DEFENDANT: No.

THE COURT: You intend to hire one yourself?

DEFENDANT: Yes, if I can get out and one meets my budget.

THE COURT: ... (I)nform the prosecuting attorney of your attorney's name when you do retain one, and if you are unable to retain one and you want one, you should come back in and ask that one be appointed.

DEFENDANT: Okay.

Prior to trial on February 15, 1980, the following exchange took place:

THE COURT: ... I also have an Order waiving your right to counsel. Do you understand, Mr. Chavis, that you do have a right to an attorney, is that correct?

MR. CHAVIS: Yes.

THE COURT: These rights, I take it, have been explained to you in some previous hearing have they not?

MR. CHAVIS: Yes.

THE COURT: Mr. Chavis, what is your experience, have you ever been a law student or anything like that?

MR. CHAVIS: No, sir, I haven't.

THE COURT: Have you ever conducted a trial on your own?

MR. CHAVIS: Yes.

THE COURT: You do understand you have a right to act as your attorney, but you are still bound to follow the same rules as the attorneys follow. You understand that?

MR. CHAVIS: Yes, sir.

Mr. Chavis subsequently appeared pro se, cross-examined witnesses, called witnesses in his behalf and testified in narrative form concerning his theory of the case. After considering the evidence presented, the trial judge found Mr. Chavis guilty as charged.

The central issue on appeal is whether there was a knowing and voluntary waiver of a right to counsel. ³

Generally, a defendant in a criminal case who is sui juris and mentally competent has the right to conduct his defense in person, without assistance of counsel. ⁴ Faretta v. California, 422 U.S. 806, 812-13, 95 S.Ct. 2525, 2530, 45 L.Ed.2d 562, 569 (1975). Whether a valid waiver of counsel exists is within the discretion of the trial judge. State v. Kolocotronis, 73 Wash.2d 92, 102, 436 P.2d 774 (1968); State v. Fritz, 21 Wash.App. 354, 361, 585 P.2d 173 (1978). In Fritz, the court set forth basic principles for asserting and implementing the right of self-representation. Among those principles is the necessity of a knowing and intelligent waiver. Fritz, supra at 359, 585 P.2d 173. As stated in the oft-quoted passage from Faretta, supra at 422 U.S. 835, 95 S.Ct. 2541:

When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must "knowingly and intelligently" forgo those relinquished benefits. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he 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."

(Citation omitted. Italics ours.)

In Faretta, "(t)he record affirmatively (indicated) that Faretta was literate, competent, and understanding," Faretta, supra at 422 U.S. 835, 95 S.Ct. 2541. Questioning by the judge revealed Mr. Faretta had once represented himself in a criminal prosecution and that he had a high school education. ⁵ Prior to trial, "the judge sua sponte held a hearing to inquire into (Mr.) Faretta's ability to conduct his own defense, and questioned him specifically about both the hearsay rule and the state law governing the challenge of potential jurors." Faretta, supra at 422 U.S. 808, 95 S.Ct. 2528. After consideration of Mr. Faretta's answers and observation of his demeanor, the judge ruled Mr. Faretta had not made an intelligent and knowing waiver of his right to the assistance of counsel ⁶ and ruled Mr. Faretta had no constitutional right to conduct his own defense. On certiorari, the United States Supreme Court vacated the judgment and remanded the case, holding that a defendant has a constitutional right to proceed pro se when he voluntarily and intelligently elects to do so.

Although questions were asked of Mr. Chavis regarding his understanding of the right to counsel and regarding prior experience, his passive responses were not adequate for the trial judge to adequately weigh the character of his waiver:

THE COURT: Mr. Chavis, what is your experience, have you ever been a law student or anything like that?

MR. CHAVIS: No, sir, I haven't.

THE COURT: Have you ever conducted a trial on your own?

MR. CHAVIS: Yes.

THE COURT: You do understand you have a right to act as your own attorney, but you are still bound to follow the same rules as the attorneys follow. You understand that?

MR. CHAVIS: Yes, sir.

(Italics ours.) These single answer responses do not satisfy us that Mr. Chavis fully understood the "dangers and disadvantages of self-representation". Faretta, supra at 422 U.S. 835, 95 S.Ct. 2541.

An accused should not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into the accused's comprehension of the offer and capacity to make the choice intelligently and understandably has been made. In Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), the plurality opinion stated at 332 U.S. 723-24, 68 S.Ct. 323:

"The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused-whose life or liberty is at stake -is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused." To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.

This case graphically illustrates that a mere routine inquiry -the asking of several standard questions followed by the signing of a standard written waiver of counsel-may leave a judge entirely unaware of the facts essential to an informed decision that an accused has executed a valid waiver of his right to counsel.

(Footnote omitted. Italics ours.) See also State v. Verna, 9 Or.App. 620, 498 P.2d 793, 797 (1972).

Since the question ultimately is the subjective understanding of the accused rather than the quality or content of the explanation provided, the court should question the accused in a manner designed to reveal understanding, rather than framing questions that call for a simple "yes" or "no" response. See United States ex rel. Miner v. Erickson, 428 F.2d 623, 636 (8th Cir. 1970). The judge must make a penetrating and comprehensive examination in order to properly assess that the waiver was made knowingly and intelligently. See United States ex rel. Martinez v. Thomas, 526 F.2d 750, 755 (2d Cir. 1975). Although a lack of legal technical knowledge generally will not serve as a basis for denying assertion of the right to self-representation, see People v. Freeman, 76 Cal.App.3d 302, 142 Cal.Rptr. 806, 809 (1977); Faretta, supra at 422 U.S. 836, 95 S.Ct. 2541, waivers of counsel have been held invalid where they were not intelligently or understandingly made due to factors indicating inability to comprehend the matter. ⁷ United States ex rel. Martinez v. Thomas, supra at 755; Cooper v. Griffin,455 F.2d 1142 (5th Cir. 1972); United States ex rel. Simon v. Maroney, 228 F.Supp. 800, 801 (W.D.Pa.1964).

The court in Faretta said 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...