State v. Hightower
| Decision Date | 23 January 1984 |
| Docket Number | No. 13319-5-I,13319-5-I |
| Citation | 36 Wn.App. 536,676 P.2d 1016 |
| Parties | STATE of Washington, Respondent, v. Michael Ray HIGHTOWER, III, Appellant. |
| Court | Washington Court of Appeals |
Michael Ray Hightower, III, appellant pro se.
Seth R. Dawson, Snohomish County Pros. Atty., David Kurtz, James C. Townsend, Deputy Pros. Atty., Everett, for respondent.
The defendant, Michael Ray Hightower, III, appeals the judgment and sentence entered following a jury verdict finding him guilty of first degree assault while armed with a firearm and deadly weapon. RCW 9A.36.010(1)(a); RCW 9.95.040; RCW 9.41.025.
Late on the night of August 11, 1981, as the victim was driving home from work, she noticed a car behind her flashing its lights and trying to pull alongside her automobile. She pulled over to the side of the road to let the other car pass, but the other car also stopped and its driver got out. The driver of the other car walked to the victim's automobile and told her that her car had a gas leak. He was looking directly into the car at her as he spoke. When the victim refused to get out of her car, the defendant pulled a gun and threatened to shoot her.
At this, the victim leaned toward the passenger seat of her automobile, engaged the clutch and put it into first gear. The man yelled, "Don't do that", then shot her in the back. She drove away as fast as she could but was shot twice more in the back. This was as she was holding herself up just high enough to see over the steering wheel to drive. She was blowing the car horn with her left thumb while steering with her left hand. With her right hand she held her side trying to stanch the flow of blood and to assist her breathing. The shots at the victim through her rolled up window caused the glass to shatter and glass particles sprayed about both inside and outside her automobile.
The victim realized she could not make it home so she drove into a driveway, stopped the car, opened the door The victim positively identified the defendant as the man who shot her, first from a photo montage, later in a police lineup and then again at trial.
and screamed "I've been shot; I'm bleeding to death; somebody please call the medics." No one responded immediately. She then noticed a porch light on at a house, so holding her side, she started toward the house continuing to scream for help. Before she could reach the house she collapsed. Then someone yelled to her from the house that the medics had been called and shortly thereafter some neighbors came to assist
Two guns and a box of bullets were found and linked to the defendant. A latent fingerprint found on the victim's car was identified as the defendant's print by the State's experts. Both the prosecution and defense presented expert testimony concerning this identification evidence.
Pursuant to a search warrant, dirt samples were taken from the defendant's car. Later, at trial, an FBI expert testified that in his opinion the glass particles found in some of these samples probably came from the victim's car window. Another expert testified that a positive identification of the glass particles could not be made in this instance.
The jury returned a verdict finding the defendant guilty as charged. Direct appeal to the State Supreme Court followed; but the case was transferred by that court to this court for decision.
The defendant's briefs on appeal, including his pro se briefs, present the following principal issues.
ISSUE ONE. Did the trial court err in denying the defendant's motion to personally participate in the trial as co-counsel?
ISSUE TWO. Did the trial court err when it denied defendant's motion to suppress evidence seized from the defendant's car pursuant to a search warrant?
ISSUE THREE. Did the trial court err by allowing expert testimony concerning identification of the glass fragments ISSUE FOUR. Did the trial court err in ruling that in the event the defendant took the stand his prior felony convictions would be admissible by way of impeachment?
and bullets?
ISSUE FIVE. Did the trial court err when it denied the defendant's motion for a mistrial based on a statement made by the deputy prosecuting attorney in closing argument?
ISSUE ONE.
CONCLUSION. The defendant in this criminal case had no constitutional right to hybrid representation, i.e., to participate as co-counsel at trial, and the trial court did not abuse its discretion in denying him co-counsel status.
It has long been basic that the defendant in a criminal case has a constitutional right to representation by competent legal counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963).
In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 95 S.Ct. 2525 (1975), the United States Supreme Court further held that the sixth amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment, guarantees a defendant the right to represent himself without legal counsel. Faretta, however, left open a host of procedural questions. In State v. Fritz, 21 Wash.App. 354, 585 P.2d 173, 98 A.L.R.3d 1 (1978), review denied, 92 Wash.2d 1002 (1979), we summarized the generally-accepted procedures for implementing and asserting that right in eight basic principles, one of which is that standby counsel could be authorized and appointed to aid the accused.
The case before us involves a different aspect of the matter, namely, a defendant's effort to participate as co-counsel at trial, or, as it is also known, to have hybrid representation.
The United States Supreme Court has not held that the sixth amendment to the United States Constitution confers a right of hybrid representation on a defendant. Prior to Faretta, as well as since, the other federal courts which have considered the matter have consistently held that no such right exists under the federal constitution. United States v. Hill, 526 F.2d 1019 (10th Cir.1975), cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976); United States v. Bennett, 539 F.2d 45 (10th Cir.1976), cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293 (1976); United States v. Halbert, 640 F.2d 1000 (9th Cir.1981).
In state courts as well, "[t]he great weight of judicial authority is to the effect that a defendant has no constitutional right to proceed to trial with counsel and to simultaneously actively conduct his own defense." Moore v. State, 83 Wisc.2d 285, 265 N.W.2d 540, 545, cert. denied, 439 U.S. 956, 99 S.Ct. 356, 58 L.Ed.2d 348 (1978) (collecting authorities). Moreover, however debatable constitutional provisions of some states may be as to the existence of such a right, there is clearly no constitutional right to hybrid representation in this state where the rights in question are granted in the disjunctive.
In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, ...
(Italics ours.) Const. art. 1, § 22. See State v. Blanchey, 75 Wash.2d 926, 938, 454 P.2d 841 (1969).
"Whether to allow hybrid representation remains within the sound discretion of the trial judge." Halbert, at 1009. One court has observed that such representation should not be foreclosed where there is a strong showing of "special need", Wilson v. State, 44 Md.App. 318, 408 A.2d 1058, 1065 (1979), cert. denied, 287 Md. 758 (1980), and another holds that it should be allowed only where there has been a "substantial showing" that "the cause of justice will thereby be served", People v. Mattson, 51 Cal.2d 777, 336 P.2d 937, 952 (1959).
In discussing the limitations to granting a right of hybrid representation, one court explains that the conflicting interests of the accused and society involved in a criminal trial can be served only in an orderly proceeding. The trial judge must therefore have discretion to control the conduct of a trial to maintain dignity, decorum and orderly procedures; to avoid unnecessary delays; and to prevent the disruption of the judicial process by the accused's inept or disorderly self-representation. This approach reflects the fact that no right is more important to the accused and to society than the right to a fair, orderly trial.
Moore, 265 N.W.2d at 546. Another court points to the potential problems involved in disagreements and conflict between defendant and counsel in such a situation. Landers v. State, 550 S.W.2d 272, 280 (Tex.Cr.App.1977).
Another obvious factor to be considered before allowing a defendant co-counsel status is the possibility of a victim or witness being intimidated, especially in cases involving crimes of violence such as rape, robbery and assault.
It may also be observed that there are certain obvious tactical benefits to a defendant in this course, none of which relate to the truth finding function of the law. One is that if a defendant proceeds pro se he cannot thereafter complain of ineffective assistance of counsel, see Faretta, 422 U.S. at 835-36 n. 46, 95 S.Ct. at 2541 n. 46; whereas if he proceeds as co-counsel, he likely can. See State v. Barker, 35 Wash.App. 388, 394-96, 667 P.2d 108 (1983); Williams v. State, 549 S.W.2d 183, 189 (Tex.Cr.App.1977). Another is that the defendant may well be able to use this as a device to present himself and his view of the facts to the jury without subjecting himself to impeachment or cross examination.
For all of the foregoing reasons, and from the dearth of decisions holding that the denial of a defendant's request to serve as co-counsel is an abuse of discretion, it is at once apparent that such requests are not favored in the law. Here, the defendant was charged with a serious assault; he almost succeeded in killing a young woman. The record reflects that, while the defendant showed no signs of mental derangement or incompetency in this...
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