State v. Davis
| Decision Date | 05 November 2018 |
| Docket Number | No. 76806-9-I,76806-9-I |
| Citation | 429 P.3d 534 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Keith Adair DAVIS, Appellant. |
Eric J. Nielsen, Dana M. Nelson, Nielsen Broman Koch PLLC, Attorney at Law, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant.
Raul Robert Martinez, Attorney at Law, Ann Marie Summers, King County Prosecutor's Office, Prosecuting Attorney King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104-2362, for Respondent.
PUBLISHED OPINION
¶ 1 Defendant appeals a judgment convicting him of two counts of possession of a stolen vehicle and one count of possession of a controlled substance. He assigns error to the trial court’s decisions to (1) deny his motions for standby counsel, (2) remove him from the courtroom during trial, and (3) proceed with trial in his absence while he was self-represented.
¶ 2 The trial court did not abuse its discretion in denying Davis’s requests for standby counsel. Nor did the trial court abuse its discretion in removing Davis from the courtroom during trial, after it warned him, due to his disruptive behavior. The court, however, allowed two material witnesses to testify in Davis’s absence, with an empty defense table, and it did not afford him an opportunity to cross-examine either witness. For the reasons set forth below, we conclude this decision violated Davis’s Sixth Amendment right to representation.
¶ 3 We affirm Davis’s criminal judgment and sentence as to count 1 (possession of stolen vehicle). However, as the portion of the trial held in Davis’s absence included testimony to support counts 2 (possession of a stolen vehicle) and 3 (possession of a controlled substance), we reverse as to those counts and remand.
¶ 4 On January 23, 2014, Sergeant Timothy Gillette of the King County Sheriff’s Office arrested Davis for possession of a stolen Hyundai vehicle.
¶ 5 Two and a half weeks later, on February 11, 2014, Officer Danny Graf of the Federal Way Police Department observed a Buick parked near a park-and-ride and saw Davis standing outside the car, making furtive movements. As Davis got into the car to drive away, Officer Graf recorded the license plate. The owner had reported the vehicle as stolen. Officer Graf then initiated a traffic stop and arrested Davis for possession of a stolen vehicle - the Buick. Officer Justin Antholt, also of the Federal Way Police Department, arrived as backup and conducted a search incident to arrest. He discovered 2.18 grams of crack cocaine in Davis’s shirt pocket.
¶ 6 On May 19, 2014, the State charged Davis with two counts of possession of a stolen vehicle, and one count of possession of a controlled substance. On February 6, 2015, Davis moved to proceed without legal counsel. The court granted the motion. During the trial court’s colloquy to assure a proper waiver, Davis requested standby counsel. The court warned Davis it would likely not grant such a request, but told him he could file a motion.
¶ 7 Davis moved for standby counsel at a case setting hearing on January 28, 2016.1 The court explained to Davis that he did not have a right to standby counsel and ordering such counsel could raise ethical and practical concerns. Davis then elaborated on his reasons for requesting standby counsel, namely access to office equipment, and unfamiliarity with the judicial process. The trial court denied Davis’s motion.
¶ 8 At another case setting hearing on February 11, 2016, Davis again moved for standby counsel. Davis stated he needed standby counsel because The trial court stated Washington law does not favor standby counsel. The court denied the motion.
¶ 9 On April 1, 2016, Davis renewed his motion for standby counsel. Citing State v. Romero, 95 Wash. App. 323, 975 P.2d 564 (1999), the trial court reiterated to Davis that he did not have a right to standby counsel. Davis claimed an "implied right" to standby counsel in the event he could not continue representing himself. The court declined to order standby counsel, and stated Davis must choose between having counsel and representing himself. Davis chose to proceed without a lawyer.
¶ 10 Davis made another motion for standby counsel on May 10, 2016. The trial court asked if Davis’s circumstances had changed since his last motion for standby counsel. In response, Davis referenced "doctor appointments" and being a "layperson." Seeing no change in circumstances, the trial court denied Davis’s motion.
¶ 11 On February 27, 2017, the parties appeared for pretrial hearings. Davis moved for a continuance. The trial court denied the request, as trial was set to begin the next day and the case had already been significantly delayed.3 Davis then stated he wanted to "withdraw" as his counsel and that the court could go to trial without him. The court attempted to clarify Davis’s statements and asked him if he was requesting counsel when he said he wanted to withdraw, but Davis just repeated he would not come to trial and cited health issues. The trial court denied Davis’s motion to withdraw as counsel because it would unnecessarily delay trial. The court also declined to appoint standby counsel.
¶ 12 Trial started the next day and Davis moved for standby counsel and a continuance. The court denied both motions because it had already ruled on them. The case proceeded to trial.
¶ 13 After a CrR 3.5 hearing, Davis claimed he could not continue with the trial because of excessive pain. Davis again moved for a continuance and the trial court told him it had already denied the motion. Davis stated he was "unable to continue as [his] own counsel." The court reminded Davis it had denied that motion as well. In an attempt to advise Davis of what was expected at trial, the court warned Davis it would remove him if he acted disruptively. Davis said he did not care and that the court could hold trial without him.
¶ 14 Davis appeared for trial on March 7, 2017. In the middle of the afternoon, during the State’s examination of Officer Antholt, the court excused Davis for a restroom break. When Davis returned, he noticed the water had been removed from his table. He began banging his fists on the table, screaming he needed water. The court told Davis the water was removed because Davis took restroom breaks every twenty-five minutes. The court noted Davis had consumed twice as much water as the day before and that the proceeding would soon adjourn for the day. The court tried to proceed with trial. The State attempted to continue its examination of Officer Antholt, but Davis repeatedly interrupted to make comments about the water. The trial court temporarily retired the jury and the following exchange took place:
¶ 15 At this point, it was after three o’clock in the afternoon. In Davis’s absence, the State continued questioning...
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State v. Davis
...removed but concluded the trial court was not required to consider less restrictive means before removing him. State v. Davis , 6 Wash. App. 2d 43, 54-57, 429 P.3d 534 (2018). Davis also asserted he was without representation when the State examined witnesses testifying to his February 2014......
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State v. Fox (In re Pers. Restraint of Fox)
...this framework is not essential if the defendant informs the court he wishes to absent himself. State v. Davis, 6 Wn. App. 2d 43, 55, 429 P.3d 534 (2018). The third analytical prong is primarily meant to ensure the defendant an opportunity to explain the absence to the court. Thurlby, 184 W......
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State v. Fox
...this framework is not essential if the defendant informs the court he wishes to absent himself. State v. Davis, 6 Wn.App. 2d 43, 55, 429 P.3d 534 (2018). The third analytical prong is meant to ensure the defendant an opportunity to explain the absence to the court. Thurlby, 184 Wn.2d at 629......
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State v. Dalluge
...this framework is not essential if the defendant informs the court he wishes to absent himself. State v. Davis, 6 Wn. App. 2d 43, 55, 429 P.3d 534 (2018). The third analytical prong is primarily meant to ensure the defendant an opportunity to explain the absence to the court. Thurlby, 184 W......