State v. Curry

• Decision Date: 16 August 2018
• Docket Number: No. 94681-7,94681-7
• Citation: 423 P.3d 179
• Parties: STATE of Washington, Petitioner, v. Jerome CURRY, Jr., Respondent.
• Court: Washington Supreme Court

423 P.3d 179

STATE of Washington, Petitioner,

v.Jerome CURRY, Jr., Respondent.

No. 94681-7

Supreme Court of Washington.

Filed AUGUST 16, 2018

Brian Clayton O'Brien, Spokane County Prosecuting Attorney, 1100 W. Mallon Avenue, Spokane, WA 99260-2043, for Petitioner.

Marie Jean Trombley, Attorney at Law, P.O. Box 829, Graham, WA 98338-0829, for Respondent.

WIGGINS, J.

¶ 1 After unsuccessfully representing himself at trial, Jerome Curry Jr. appealed his drug convictions to the Court of Appeals, challenging the trial court's decision to allow Curry to represent himself. The Court of Appeals reversed, holding that the trial court should not have granted Curry's request to proceed pro se. The State of Washington now appeals to this court. To determine whether the trial court abused its discretion when it granted Curry's request for self-representation, we must determine whether Curry's request to represent himself was unequivocal. We hold that it was. We therefore reverse the Court of Appeals and remand to the appellate court to resolve the remaining outstanding issues.

FACTS AND PROCEDURAL HISTORY

¶ 2 In 2015, Jerome Curry was facing drug charges and an approaching trial date when he was appointed a new defense attorney. Curry's new attorney determined that he would not be ready for trial by the scheduled date and thus sought a continuance. Curry was unwilling to accept a trial delay, so he asked his attorney to set a motion hearing to allow him to represent himself or, alternatively, to substitute counsel. On Curry's behalf, defense counsel filed a motion to act pro se or select new counsel. The motion explicitly stated that Curry made the request to represent himself "without any equivocation":

Mr. Curry has again requested to represent himself as a Pro Se. He states that he is expressing this desire with knowledge of the possible risks and without any equivocation. The record supports the conclusion that he does in fact understand what it means to represent himself.

Clerk's Papers (CP) at 51. The court held a hearing on the motion. The judge engaged Curry in a lengthy colloquy and ultimately granted Curry's request to proceed pro se.

¶ 3 The colloquy addressed the following subjects: confirmation of Curry's desire to proceed to trial; a recitation of the charges against Curry and the potential sentences for those charges; confirmation that Curry understood the charges, potential sentences, and standard ranges; Curry's reason for wanting to proceed pro se, which was to avoid further delay; Curry's education and ability to read and write; Curry's prior experience representing himself, with mixed results; cautionary warnings about self-representation, e.g., "if you are representing yourself, you're on your own," Report of Proceedings (RP) at 10; admonition that if Curry represented himself, he "would still be required to follow the very same rules that the attorney, the prosecutor would have to follow," id. at 11; Curry's reasons for dissatisfaction with current and confirmation that Curry had not been influenced, threatened, or promised anything for representing himself, and that this was "a voluntary decision just from [Curry's] own thinking about it," id. at 14-15.

¶ 4 In addition, the trial judge repeatedly cautioned Curry that self-representation was not a wise choice: "I don't think it's a wise choice to represent yourself....You're facing a lot of downside here if convicted ... and the danger of being convicted of these matters would result in a lot of prison time." Id. at 14.

¶ 5 Curry stated several times that he felt he had "no choice" but to represent himself, id. at 4, 12, and at one point stated that "[i]t's not voluntary. It's I have no choice in the matter," id. at 19. The trial court pursued these remarks, and Curry agreed that he felt he had no choice because he did not want any more continuances of the trial date and his attorney could not be adequately prepared without one or more continuances.¹

¶ 6 Ultimately, the trial judge granted the motion and permitted Curry to represent himself. The trial judge also assigned standby counsel and published an order that outlined the findings from the hearing, including a finding that Curry's request to proceed pro se was unequivocal.

¶ 7 Curry represented himself pro se at trial. The jury found Curry guilty on all counts. Curry appealed his convictions, claiming his request for self-representation was not unequivocal. On direct review, the Court of Appeals reversed, holding that Curry's request to represent himself was equivocal and was based on Curry's desire to avoid a trial delay and therefore should not have been granted.

¶ 8 We now reverse the Court of Appeals and hold that Curry's request to represent himself was unequivocal and that the trial court did not abuse its discretion by granting the request.

ANALYSIS

¶ 9 Criminal defendants have a right to self-representation under the Washington Constitution and the United States Constitution. State v. Madsen, 168 Wash.2d 496, 503, 229 P.3d 714 (2010) (citing WASH. CONST. art. I, § 22 ("the accused shall have the right to appear and defend in person"); Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L. Ed. 2d 562 (1975) ). However, the right to self-representation is neither self-executing nor absolute. Id. at 504, 229 P.3d 714. In fact, the right to self-representation is in tension with another crucial constitutional right: a defendant's right to the assistance of counsel. State v. DeWeese, 117 Wash.2d 369, 376, 816 P.2d 1 (1991). Because of this tension, a defendant must unequivocally request to proceed pro se before he or she will be permitted to do so. Id. This requirement protects defendants from inadvertently waiving assistance of counsel and protects trial courts from "manipulative vacillations by defendants regarding representation." Id. Additionally, "a trial court must establish that a defendant, in choosing to proceed pro se, makes a knowing and intelligent waiver of the right to counsel." Id. at 377, 816 P.2d 1.

¶ 10 Here, Curry contends that his request to proceed pro se was not unequivocal and that, as a result, the trial court abused its discretion when it allowed Curry to represent himself at trial.² The Court of Appeals reversed the trial court, finding that "[t]he qualifications attached to Mr. Curry's request for self-representation constituted equivocation." State v. Curry, 199 Wash. App. 43, 45, 398 P.3d 1146, review granted, 189 Wash.2d 1009, 403 P.3d 41 (2017). The Court of Appeals further held that when a defendant requests to proceed pro se to avoid a trial delay, it is valid only if the record as a whole "demonstrate[s] the defendant is clear eyed in his strategy and not merely frustrated with the slow pace of the legal process." Id. at 50, 398 P.3d 1146.

¶ 11 The State appealed, again on the narrow question of whether Curry's request to represent himself was unequivocal. We hold that the trial court did not abuse its discretion in granting Curry's request to represent himself, and thus we reverse and remand to the Court of Appeals to resolve the remaining issues.

I. Abuse of Discretion

¶ 12 We review a trial court's decision to grant or deny a defendant's request to proceed pro se for abuse of discretion. Madsen, 168 Wash.2d at 504, 229 P.3d 714. A trial court has abused its discretion if its decision "is manifestly unreasonable or ‘rests on facts unsupported in the record or was reached by applying the wrong legal standard.’ " Id. (quoting State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003) ).

¶ 13 A trial judge afforded discretion is not free to act at whim or in boundless fashion, and discretion does not allow the trial judge to make any decision he or she is inclined to make:

"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains."

Coggle v. Snow, 56 Wash. App. 499, 504-05, 784 P.2d 554 (1990) (quoting BENJAMIN CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 141 (1921) ). But, within bounds set by case law and statute, the grant of discretion is broad: "Affording discretion to a trial court allows the trial court to operate within a ‘range of acceptable choices.’ " State v. Sisouvanh, 175 Wash.2d 607, 623, 290 P.3d 942 (2012) (internal quotation marks omitted) (quoting Rohrich, 149 Wash.2d at 654, 71 P.3d 638 ).

¶ 14 Thus, we give great deference to the trial court's determination: even if we disagree with the trial court's ultimate decision, we do not reverse that decision unless it falls outside the range of acceptable choices because it is manifestly unreasonable, rests on facts unsupported by the record, or was reached by applying the wrong legal standard. See State v. Dye, 178 Wash.2d 541, 548, 309 P.3d 1192 (2013).

¶ 15 We must remain mindful of several factors when reviewing a trial court's decision to grant or deny self-representation for abuse of discretion. First, the trial court is in a favorable position compared to that of an appellate court. Trial judges have far more experience considering requests to proceed pro se and are better equipped to balance the competing considerations. State v. McKenzie, 157 Wash.2d 44, 52, 134 P.3d 221 (2006) (stating that " ‘the trial judge,’ having ‘seen and heard’ the proceedings ‘is in a better position to evaluate and adjudge than can we from a cold, printed record’ " (quoting State v. Wilson, 71 Wash.2d 895, 899, 431 P.2d 221 (1967) ) ). Additionally, trial courts have the benefit of observing the behavior and...