State v. Evatt
| Decision Date | 06 June 2017 |
| Docket Number | No. 34963-2-III,34963-2-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. SCOTT EMERSON EVATT, Appellant. |
SIDDOWAY, J. — Scott Evatt was convicted of third degree assault and unlawful use of drug paraphernalia following a bench trial in which he was allowed to represent himself. Represented by counsel on appeal, he argues that the trial court erred or abused its discretion in (1) not ordering a second competency examination after the prosecutor expressed her belief that he might need reevaluation, (2) allowing Mr. Evatt to represent himself without reevaluation by a Western State Hospital psychologist, and (3) imposing a sentence in excess of the statutory maximum for third degree assault. In a pro se statement of additional grounds, Mr. Evatt contends that six discrete errors, along with cumulative error, deprived him of a fair trial.
The State concedes that Mr. Evatt's sentence, including the mandatory community custody imposed, exceeds the statutory maximum for third degree assault. We affirm the convictions but remand for resentencing.
At around 9:30 p.m. on July 6, 2015, two Tacoma police officers traveling together and one sergeant, traveling separately, responded to a report of a suspicious individual, later identified as Scott Evatt. They arrived at his location at about the same time. Mr. Evatt did not initially comply with their verbal commands to stop walking away from them, but soon did. He dropped to his knees, intentionally dropped a glass methamphetamine pipe within full view, and submitted to being handcuffed. Mr. Evatt had been released from jail three days earlier, was struggling with homelessness, and dropped the pipe with the hope of being arrested for possession of drug paraphernalia. He was aware it was only a misdemeanor, but expected it would get him to jail and "a nice place to sleep." Report of Proceedings (RP) (Trial)1 at 422. He cooperated with thetwo patrol officers, allowing them to lead him to their car. At that point the sergeant left to speak with the party who had called 911 to express concern about Mr. Evatt.
Mr. Evatt was searched by the patrol officers incident to the arrest, was read Miranda2 warnings, agreed to speak with the officers, and admitted he had smoked methamphetamine earlier in the day using the pipe they had seized.
According to Mr. Evatt, the two patrol officers obtained his Qwest card (presumably during the search), which he later described as his "ID." RP (Trial) at 429. Mr. Evatt believed that one of the officers made a statement about how, if they took his ID away, they could make him "disappear." Id. at 425. The trial court would later find that Mr. Evatt's methamphetamine use could explain delusions Mr. Evatt experienced at this point and thereafter. Mr. Evatt admitted that in addition to smoking earlier, he swallowed a sealed baggie of methamphetamine he was carrying when he first saw the officers' patrol cars approaching, in order to avoid being found in possession and subject to a felony charge.
Whatever Mr. Evatt's reason for perceiving he was in danger of "disappearing," he responded to the threat by bracing himself against the exterior of the patrol car and resisting the officers' verbal and physical efforts to get him into the car. When officers finally forced him into the back seat through the passenger's side door, he managed toroll to the driver's side door, which was open. Both officers ran around to that door to stop him from escaping, and the first to arrive was kicked in the chest by Mr. Evatt and stumbled backward. As Mr. Evatt tried to leave through the open door, his legs were grabbed by one or both of the officers and he fell forward, hitting his face either on the floor board of the patrol car or the ground. During the melee, one of the officers radioed for support and the sergeant quickly returned and assisted in restraining Mr. Evatt so that a hobble could be placed on his legs.
Once hobbled, Mr. Evatt was placed in the back seat of the patrol car, where he claims to have heard snatches of conversation between the officers about having tracked him, using something placed in his eye in 2006. The Tacoma Fire Department was contacted for medical care for Mr. Evatt's injuries from his fall, and he told responding medics about having swallowed the methamphetamine. He was transported to Tacoma General Hospital in an ambulance. One of the patrol officers rode along in the ambulance and, according to Mr. Evatt, continued whispering things to frighten him. Mr. Evatt was soon cleared by the hospital, after which he was taken to the jail and booked.
Mr. Evatt was charged with third degree assault, obstructing a law enforcement officer, and unlawful use of drug paraphernalia.
A little over a week after his arrest, in a pretrial hearing before the Honorable Jack Nevin at which appointed counsel David Shaw, was present, Mr. Evatt moved to represent himself. Judge Nevin commented that Mr. Evatt had represented himselfbefore the judge on a prior occasion. To address the motion for self-representation, Judge Nevin read through questions from a prepared Faretta3 inquiry, in response to which Mr. Evatt indicated, among other things, that he was aware of the charges against him, had represented himself in proceedings in the past, and had read through rules of evidence and criminal procedure more than once. Asked by the court why he wanted to represent himself, Mr. Evatt answered that he had some type of proceeding pending against the Pierce County Department of Assigned Counsel (DAC) that gave rise to a conflict with anyone with the DAC. He also identified two lawyers from outside DAC whose representation he had found objectionable. He said he would prefer to represent himself until the court could assign counsel that did not have a conflict of interest.
At this point, Mr. Shaw suggested to the court that a "1077" was needed, referring to chapter 10.77 RCW, which deals with criminal insanity, including examinations to determine competency to stand trial. RP (Pretrial) at 7. Mr. Shaw pointed out that Mr. Evatt had "had several" 1077s. Id. Asked to respond, Mr. Evatt said "I've already done this like over ten times, your Honor," and characterized the request for a 1077 as a DAC "stall tactic." RP (Pretrial) at 7-8. After hearing from Mr. Evatt and Mr. Shaw, the judge ordered a competency examination by Western State Hospital.
Dr. Mark Duris conducted the evaluation of Mr. Evatt several days later, on July 17. His single-spaced, five-page report indicated that he reviewed Mr. Evatt's history of hospitalization at Western State, his history of contacts with the Pierce County Regional Support Network, and, among other materials, reviewed four other forensic mental health evaluations of Mr. Evatt performed by Western State Hospital between 2007 and 2015, all of which had found him competent to stand trial. Mr. Evatt's diagnoses had ranged from "Bipolar 1 Disorder, Antisocial Personality Disorder, 'Refusal of Treatment,' Cocaine Dependence, Drug Dependence, and Drug Abuse." Clerk's Papers (CP) at 12.
Dr. Duris described Mr. Evatt's thought processes as "grossly normal," with "no thought derailment," and with a "rate of . . . thought . . . within normal limits and . . . without thought blocking." Id. On issues related to delusion, his report stated:
Dr. Duris's report stated that Mr. Evatt confirmed, as he had reported in the past, that cocaine and meth "cause him to experience psychotic symptoms inclusive ofparanoia." Id. at 13. He concluded that a diagnosis of Substance Induced Psychotic Disorder was indicated for the psychotic-like symptoms (delusions and paranoia) reported by Mr. Evatt, and while Mr. Evatt had a significant history of substance abuse disorders, "what is important for the purpose of this competency evaluation is that his diagnoses do not appear to impair significantly his behavior, knowledge, and reasoning ability." Id. For reasons explained in more detail in his report, he concluded that Mr. Evatt "possess[ed] the basic and fundamental capacity to rationally participate in his own defense with or without counsel." Id. at 14 (emphasis added).
Following receipt of Dr. Duris's report, Judge Nevin entered an order on July 29 finding Mr. Evatt competent to stand trial.
The issue of whether Mr. Evatt would be allowed to proceed pro se was taken up again by Judge Nevin at a hearing on August 5. The judge repeated the Faretta inquiry he had begun on July 14 and this time, completed it. At its conclusion, he orally ruled that Mr. Evatt knowingly, intelligently, and voluntarily waived the right to counsel and would be allowed to represent himself. Although Mr. Evatt initially objected to Mr. Shaw serving as his standby counsel, he eventually agreed to accept his help "just until I get an investigator assigned to me." RP (Pretrial) at 29.
At a hearing two days later, Judge Nevin heard the State's request that he reconsider his order granting Mr. Evatt's request to proceed pro se. The prosecutor argued at length that whether Mr. Evatt was competent to stand trial was...
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