State v. Christensen

• Decision Date: 16 April 1985
• Docket Number: No. 5963-III-4,5963-III-4
• Citation: 698 P.2d 1069,40 Wn.App. 290
• Parties: STATE of Washington, Respondent, v. Paul CHRISTENSEN, Appellant.
• Court: Washington Court of Appeals

Page 290

40 Wn.App. 290

698 P.2d 1069

STATE of Washington, Respondent, v. Paul CHRISTENSEN, Appellant.

No. 5963-III-4.

Court of Appeals of Washington Division 3.

April 16, 1985.

Review Denied June 21, 1985.

William E. Garnett, Oroville, for appellant.

Douglas S. Boole, Pros. Atty., Okanogan, for respondent.

McINTURFF, Acting Chief Judge.

Paul Christensen appeals his conviction of possession of controlled substances, cocaine and LSD. The primary issue concerns whether Mr. Christensen knowingly and intelligently waived his right to counsel. We reverse.

At his preliminary appearance September 13, 1982, Mr. Christensen appeared in person and was not represented by counsel. He was advised by both the prosecutor and the court to obtain counsel and the arraignment was postponed for 1 week to give Mr. Christensen an opportunity to reconsider his decision to represent himself and to secure the services of counsel. The arraignment was actually held October 13, when Mr. Christensen appeared pro se, did not request court-appointed counsel and was advised once again by the court of his right to counsel.

On December 9, Mr. Christensen requested a continuance of the trial date but the motion was denied because he was unable to give the court sufficient reason for the continuance. On December 16, a second motion for continuance was made by Mr. Christensen and was again denied by the court for the same reason. The trial commenced the same day; defendant was found guilty by the jury on both charges.

State v. Fritz, 21 Wash.App. 354, 358, 585 P.2d 173 (1978), extensively reviews a defendant's right to represent himself. Relying on Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the court listed eight basic principles for implementing and asserting the right to a pro se defense. Among those elements is the factor that the right must be exercised knowingly and intelligently. A thorough examination of that issue is found in Bellevue v. Acrey, 103 Wash.2d 203, 691 P.2d 957 (1984). We quote extensively from that opinion at 208-11, 691 P.2d 957:

A waiver of counsel must be knowing, voluntary, and intelligent, as with any waiver of constitutional rights. Argersinger v. Hamlin, 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006 (1972). If counsel is properly waived, a criminal defendant has a right to self-representation. Const. art. 1, § 22 (amend. 10); U.S. Const. amend. 6; Faretta v. California, 422 U.S. 806, 45 L.Ed.2d 562, 95 S.Ct. 2525 (1975).

In Faretta, the Court articulated the test for valid waiver of counsel:

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." Adams v. United States ex rel. McCann, 317 U.S. [269, 279, 87 L.Ed. 268, 63 S.Ct. 236 , 143 A.L.R. 435 (1942) ].

(Italics ours.) Faretta [422 U.S.] at 835 [, at 2541]:

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The federal circuit courts interpret Faretta in two ways. A number of the circuits require a colloquy on the record between the judge and defendant whereby the judge informs the defendant of the risks of self-representation. The colloquy must show that the trial judge advised defendant in unequivocal terms of the technical problems he may encounter in self-representation, United States v. Welty, 674 F.2d 185 (3d Cir.1982), or that the judge has, in some fashion, explained and explored the risks of self-representation with the defendant. United States v. Donahue, 560 F.2d 1039 (1st Cir.1977); United States v. Aponte, 591 F.2d 1247 (9th Cir.1978); United States ex rel. Tonaldi v. Elrod, 716 F.2d 431 (7th Cir.1983); United States v. Bailey, 675 F.2d 1292 (D.C.Cir.1982).

Division Three of the Court of Appeals has also interpreted Faretta to require a colloquy on the record. That court held in State v. Chavis, 31 Wn.App. 784, 644 P.2d 1202 (1982) that a valid waiver requires a thorough inquiry into the defendant's understanding of self-representation. The Chavis court specifically rejected as inadequate the form of waiver undertaken by Chavis:

[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 ...

Chavis, at 789-90 (citing Von Moltke v. Gillies, 332 U.S. 708, 92 L.Ed. 309, 68 S.Ct. 316 (1948)). Accord, State v. Dougherty, 33 Wn.App. 466, 655 P.2d 1187 (1982), review denied, 99 Wn.2d 1023 (1983).

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In our judgment, the trial court should assume responsibility for assuring that decisions regarding self-representation are made with at least minimal knowledge of what the task entails. The United States Supreme Court recognized this 36 years ago in Von Moltke v. Gillies, supra at [332 U.S.] 723-24 , where the Court stated:

[A] judge must investigate as long and as thoroughly as the circumstances ... 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.

In interpreting Faretta, we agree that a colloquy on the record is the preferred means of assuring that defendants understand the risks of self-representation. We strongly recommend such a colloquy as the most efficient means of limiting appeals. That colloquy, at a minimum, should consist of informing the defendant of the nature and classification of the charge, the maximum penalty upon conviction and that technical rules exist which will bind defendant in the presentation of his case.

Nonetheless, in cases where no colloquy exists on the record, this court will look at any evidence on the record that shows defendant's actual awareness of the risks of self-representation. However, in no case will mere evidence of a defendant's literacy, educational level, common sense, or prior experience with the criminal justice system be sufficient to show an awareness of these risks.

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In the absence of a colloquy, the record must somehow otherwise show that the defendant understood the seriousness of the charges and knew the possible maximum penalty. The record should also show that the defendant was aware of the existence of technical rules and that presenting a defense is not just a matter of telling one's story. See Maynard v. Meachum, 545 F.2d 273 (1st Cir.1976). Accordingly, only rarely will adequate information exist on the record, in the absence of a colloquy, to show the required awareness of the risks of self-representation.

The court then reviewed the evidence and concluded the defendants did not appreciate the seriousness of the charge, the penalties involved or the technical aspects of presenting a defense. The convictions were reversed and the cause remanded for a new trial.

The record in this case presents a fact-pattern similar to that in Bellevue v. Acrey, supra. The court advised the defendant on two occasions regarding his constitutional right to have an attorney present, outlined the charges and the maximum penalties for both. The court inquired as to Mr. Christensen's educational level (11th grade) and his ability to read and write English. A jury was impaneled and the trial proceeded.

Mr. Christensen was not advised of the technical aspects ¹ of conducting a defense nor the rules regarding procedures used to preserve error. The judge did not offer advice to the effect that presenting a defense is not just a matter of telling one's story. The lack of knowledge and appreciation for his plight is evidenced by Mr. Christensen's total lack of participation in his own case, e.g. his lack of participation during voir dire of the jurors, his minimal cross-examination of witnesses, his lack of argument, pre-trial motions, objections and jury instructions on his own behalf. Thus, we find Mr. Christensen did not make a knowing and intelligent waiver of his right to have counsel represent him at no expense to him.

In Bellevue, at 211, 691 P.2d 957, our Supreme Court stated that "a colloquy on the record is the preferred means of assuring that defendants understand the risks of self-representation" and the defendant should be advised "that technical rules exist which will bind [him] in the presentation of his case." However, the court did not specify what those technical rules were. It is only through an appreciation for and an ability to use these technical rules, gleaned from 3 years of specialized legal education and in many instances, years of criminal defense experience, that one is assured of a proper legal defense. Imparting this aspect of the law to the average criminal defendant may take much effort on the part of the trial judge. By way of attempting to assist the state trial bench, we have set out in a footnote an amplified list of the questions used by the federal bench to explore the subject of waiver of legal representation by criminal defendants. ² These questions, in layman's terms, seek to ascertain the defendant's ability to understand and appreciate not only some of the complexities involved in the defense of a criminal charge, but more importantly, his understanding of the catastrophic results that can occur if an individual unschooled in the law attempts to cope with these complexities alone, i.e., complete loss of liberty or life.

Mr. Christensen also raises other issues in his pro se brief regarding the constitutionality of the statute under which he was convicted. However, he does not offer any legal authority to support his conclusions other than vague references to the Constitution. We will not consider his arguments as they do not appear on their face to have merit. State v. Young, 89 Wash.2d 613, 625, 574 P.2d 1171 (1978) (citing DeHeer v. Seattle Post-Intelligencer...