State v. Fox (In re Pers. Restraint of Fox)
| Decision Date | 04 February 2021 |
| Docket Number | No. 36865-3-III,c/w No. 37371-1-III,36865-3-III |
| Parties | STATE OF WASHINGTON, Respondent, v. JOHN CHRISTOPHER FOX, Appellant. In the Matter of the Personal Restraint of JOHN CHRISTOPHER FOX, Petitioner. |
| Court | Washington Court of Appeals |
KORSMO, J.P.T.1 — John Fox challenges, by appeal and personal restraint petition (PRP), convictions for first degree burglary, second degree assault, and felony violation of a protection order. His appointed counsel filed a motion to withdraw in accordance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). We affirm the convictions and dismiss the petition.
This case arises from a failed relationship. On the date charged, Mr. Fox broke into the home of the protected person, TM, who fled to the street. Fox grabbed a kitchen knife and followed her outside, yelling menacingly. Law enforcement was called, Mr. Fox was apprehended, and the noted charges filed.
Counsel was assigned for Mr. Fox's first appearance; the attorney suggested the court order a competency evaluation. A psychologist found Mr. Fox competent to stand trial and the court entered an order to that effect. Later, Mr. Fox asked to represent himself, expressing distrust for the court system. After a colloquy, the court accepted his waiver of counsel. A few months later, Mr. Fox asked that standby counsel take the case over and the court reappointed counsel.
Defense counsel obtained a continuance to prepare. Two weeks later, Mr. Fox again asked to represent himself. After a colloquy, the court again accepted a waiver of counsel. Mr. Fox then represented himself at trial. The trial court granted the State's motion in limine to exclude a diminished capacity defense since no expert witness had been retained. During deliberations, the jury sent out a question concerning "intent," but Mr. Fox declined to return to the courtroom. The court responded to the jury in writing, advising that there would be no further instructions. The jury found Mr. Fox guilty of burglary, but was unable to decide the other charges.
A second jury trial was held with Mr. Fox again representing himself. Mr. Fox absented himself from the trial after the State rested its case, complaining that his medication prevented him from proceeding. The court granted a one hour recess, but then Mr. Fox continued to refuse to proceed. The trial court, believed Mr. Fox was playing games, found that Mr. Fox was oriented and responsive to questions, and denied a request for a mistrial. Acknowledging that he was waiving his right to be present, Mr. Fox again left the courtroom. The second jury convicted him of assault and felony violation of a protection order, each while armed with a deadly weapon.
At sentencing, the defense requested that the three offenses be treated as one for scoring purposes. The trial court declined and imposed concurrent standard range terms. Mr. Fox then timely appealed to this court. His appointed counsel filed a motion to withdraw in accordance with Anders. Meanwhile, Mr. Fox filed a CrR 7.8 motion for resentencing, which the trial court transferred to this court for consideration as a PRP. Our commissioner then consolidated the two matters and referred them to a panel. A panel then considered the cases without conducting argument.
Appellate counsel ably identified every contested issue in the case and suggested them as potential issues to which error could properly be assigned. The prosecutor thoroughly and concisely explained why each issue was without merit. In light of thenature of the briefing, and with the facts well known to the parties, our answers to the potential assignments will be rather summary.
Competency to Stand Trial. Appellate counsel suggests that Mr. Fox was not competent to stand trial. RCW 10.77.060. A person is competent to stand trial if s/he both (1) understands the nature of the charges filed and (2) is able to assist in the defense. In re Pers. Restraint of Fleming, 142 Wn.2d 853, 861-862, 16 P.3d 610 (2001). Determinations of competence to stand trial are reviewed for abuse of discretion. State v. Ortiz, 104 Wn.2d 479, 482, 706 P.2d 1069 (1985). Deference is given to the trial court's determination due to the court's opportunity to observe the defendant's behavior and demeanor. State v. Hanson, 20 Wn. App. 579, 582, 581 P.2d 589 (1978). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
There was no abuse of discretion here. While he had a history of mental health issues, there was no evidence that Mr. Fox did not understand the nature of the case against him or was unable to assist in his defense. The expert's report found that he was competent to stand trial. Mr. Fox personally has never claimed otherwise. This contention is without merit.
Self-Representation. Counsel next suggests that the trial court abused its discretion in permitting Mr. Fox to waive counsel. The trial court properly honored Mr. Fox's rights under the constitution.
Both the United States and Washington Constitutions permit an accused to waive the right to counsel and engage in self-representation. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010) (citing WASH. CONST. art. I, § 22). The right to self-representation is implicit in the Sixth Amendment, but explicit in art. I, § 22. Deprivation of this right is considered to be structural error. Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (). In order to exercise this right, the criminal defendant must knowingly and intelligently waive the right to counsel after advice about the dangers and disadvantages of self-representation. Faretta, 422 U.S. at 835. A thorough colloquy on the record is the preferred method of ensuring an intelligent waiver of the right to counsel. City of Bellevue v. Acrey, 103 Wn.2d 203, 211, 691 P.2d 957 (1984). A trial court's decision to permit self-representation is reviewed for abuse of discretion. State v. Curry, 191 Wn.2d 475, 483, 423 P.3d 179 (2018).
The record here reflects thorough colloquies on two occasions as well as the exercise of the right to switch back to counsel. Mr. Fox clearly knew what he was doing and undertook self-representation twice. In light of the multiple colloquies, the trial court had very tenable grounds for allowing self-representation.
Time for Trial. Counsel also suggests that the trial court erred in granting a trial continuance over the objection of the defendant. This argument is easily met. Unless a defendant objects to a new trial date and files a timely motion to compel a different trialdate, the claim is waived. CrR 3.3(d)(3). That is the situation here. Mr. Fox never filed a challenge and request for a new trial date. Accordingly, the time for trial rule was not violated by the continuance.
Exclusion of Diminished Capacity Defense. Counsel next notes the trial court's exclusion of a diminished capacity defense. Again, this argument is without merit.
A defendant is entitled to a diminished capacity instruction if (1) the crime charged includes a particular mental state as an element, (2) the defendant presents evidence of a mental disorder, and (3) expert testimony logically and reasonably connects the defendant's alleged mental condition with the asserted inability to form the mental state required for the crime charged. State v. Atsbeha, 142 Wn.2d 904, 914, 921, 16 P.3d 626 (2001). The testimony of an expert witness is necessary to present a diminished capacity defense. State v. Stumpf, 64 Wn. App. 522, 526, 827 P.2d 294 (1992).
Here, the trial court prohibited the diminished capacity defense at the State's request because the defendant repeatedly failed to obtain an evaluation and an expert witness necessary to provide a foundation for the defense. In the absence of expert support, there is no basis for a diminished capacity defense. Stumpf, 64 Wn. App. 522.
Prosecutorial Misconduct. Mr. Fox alleged at the second trial that the prosecutor had committed misconduct in opening statement by urging jurors to "send a message" to Mr. Fox. The court denied the motion, stating that the prosecutor made no such statement. Report of Proceedings (RP) (May 7, 2019) at 63.
We review a trial court's ruling on a motion to declare a mistrial for abuse of discretion. State v. Weber, 99 Wn.2d 158, 166, 659 P.2d 1102 (1983). "The question is not whether this court would have decided otherwise in the first instance, but whether the trial judge was justified in reaching his conclusion." State v. Taylor, 60 Wn.2d 32, 42, 371 P.2d 617 (1962). Since there was no factual basis for the request, the trial court had very tenable grounds for denying the motion.
Defendant's Presence. Mr. Fox stopped taking part in each trial as they reached the end. Appellate counsel suggests that his right to be present might have been violated. However, the trial court correctly concluded that Mr. Fox voluntarily absented himself in each instance.
A defendant has a right to appear at his trial. WASH. CONST. art. I, § 2. A defendant may waive this right and the trial court's decision to proceed with the trial in the defendant's absence is reviewed for abuse of discretion. State v. Thurlby, 184 Wn.2d 618, 624-625, 359 P.3d 793 (2015). When a defendant fails to appear for trial, the trial court must ascertain whether the defendant's absence is voluntary. State v. Thomson, 123 Wn.2d 877, 881, 872 P.2d 1097 (1994). Our courts traditionally perform a three step analysis that includes:
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