State v. James
| Decision Date | 17 May 2007 |
| Docket Number | No. 24477-6-III.,24477-6-III. |
| Citation | 138 Wn. App. 628,158 P.3d 102 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Bryan Montez JAMES, Appellant. |
Janet G. Gemberling, Gemberling & Dooris PS, Spokane, WA, for Appellant.
Kevin Michael Korsmo, Attorney at Law, Spokane, WA, for Respondent.
¶ 1 Bryan Montez James represented himself at trial. The jury found him guilty of two counts of attempted murder and one count of unlawful possession of a firearm. He appeals, contending the court erred in allowing self-representation. He further contends (1) insufficient evidence supports his attempted murder convictions, (2) police officers' testimony violated his confrontation rights, (3) use of his juvenile convictions to determine his offender score violates his right to a jury trial under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and (4) insufficient evidence to prove his offender score. We hold Mr. James unequivocally waived his right to counsel. Finding no other error, we affirm.
¶ 2 On June 27, 2004 at 3:24 a.m., Spokane Police Officer Joel Fertakis responded to a shooting call at Crestline and Illinois in Spokane. He found Nicholas Schelin and Richard Payne bleeding from gunshot wounds. An unidentified witness led officers to Bryan James. Evidence showed Mr. James drove slowly past the victims as they stood on the sidewalk, leaned over his girl friend Marie Vialpando who was in the passenger seat, and shot the men.
¶ 3 Mr. James was charged with two counts of attempted first degree premeditated murder or, in the alternative, two counts of attempted felony murder with a predicate felony of first degree assault, and one count of unlawful possession of a firearm.
¶ 4 Before trial, Mr. James demanded in writing to act pro se. Judge Kathleen O'Connor reviewed the risk factors in a colloquy in response to Mr. James' demand. She reviewed the offenses and the maximum penalties with Mr. James. She reviewed his education, lengthy criminal history, and lack of experience with a complete trial. She informed Mr. James of the basic trial requirements and complexities, such as jury selection, evidence rules, examining witnesses, closing arguments, and jury instructions. Mr. James repeatedly informed the court he understood his decision to act pro se. When questioned about trial procedure, Mr. James said he did not understand everything, but would "hit the law library" to learn. Report of Proceedings (RP) (Mar. 10, 2005) at 14. She indicated Mr. James needed to think about affirmative defenses.
¶ 5 Judge O'Connor repeatedly asked Mr. James if he understood. Twice Mr. James seemed unsure, once stating: RP (Mar. 10, 2005) at 20-21. Judge O'Connor responded: RP (Mar. 10, 2005) at 20.
¶ 6 Judge O'Connor determined Mr. James was not afflicted with mental conditions, physical disabilities, or substance impairment that would interfere with his decision-making. Judge O'Connor asked defense counsel, Steven Reich, if he had anything to add. Counsel reported Mr. James had filed a grievance with the bar association about him, which had been summarily dismissed. Nonetheless, counsel stated: "The fact that [Mr. James] has indicated he believes he can't work with me and doesn't want to[,] doesn't change my position that I believe I can work with him and I'll continue to work with him." RP (Mar. 10, 2005) at 23.
¶ 7 Judge O'Connor responded, "Well, the issue before me is not to, at least is not to replace Mr. Reich but to discharge Mr. Reich." RP (Mar. 10, 2005) at 24. Therefore, Judge O'Connor stated, the purpose of the colloquy was limited to advising him to prepare himself for trial, informing him of the seriousness of the penalty, warn him that he will be held to the same legal standards as a lawyer, and assess his competence. Judge O'Connor stressed the purpose of the motion hearing was to consider Mr. James' self-representation and not to replace counsel. Even so, Judge O'Connor announced she would order standby counsel and direct the public defender to assign new counsel.
¶ 8 On March 15, the trial court entered an order finding that Mr. James had made a knowing and voluntary waiver of his right to counsel and allowing self-representation. On May 2, another order clarified the new standby counsel's role.
¶ 9 At trial, Mr. James reaffirmed his waiver before Judge Robert Austin:
Mr. James, I am not going to go through that again with you. But I will caution you with these kind of charges, this is one of the most difficult things for any lawyer to do, who's been trained and trained and trained. You do understand that?
¶ 10 A jury found Mr. James guilty of two counts of attempted murder and one count of unlawful possession of a firearm. The court denied Mr. James' motion for a new trial based on his claimed denial of right to counsel. After sentencing, Mr. James appealed.
¶ 11 The issue is whether the trial court erred by violating Mr. James' Sixth Amendment right to counsel in allowing him to represent himself. Mr. James contends he did not knowingly, intelligently, and unequivocally waive his right to counsel.
¶ 12 A defendant has the constitutional right to represent himself at trial and at sentencing. State v. DeWeese, 117 Wash.2d 369, 377, 816 P.2d 1 (1991); State v. Buelna, 83 Wash.App. 658, 660, 922 P.2d 1371 (1996); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Once a defendant unequivocally demands self-representation, the trial court must determine if the defendant has made a knowing, intelligent, and voluntary waiver of the right to assistance of counsel. DeWeese, 117 Wash.2d at 377, 816 P.2d 1. We review a trial court's grant of a defendant's self-representation request for an abuse of discretion. State v. Hemenway, 122 Wash.App. 787, 792, 95 P.3d 408 (2004). A trial court abuses its discretion if its "decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons." State v. Vermillion, 112 Wash.App. 844, 855, 51 P.3d 188 (2002).
¶ 13 No set formula exists for deciding the validity of a waiver of counsel. DeWeese, 117 Wash.2d at 378, 816 P.2d 1. Rather, the court should inquire "`for as long and as thoroughly as the particular circumstances demand.'" State v. Chavis, 31 Wash. App. 784, 789, 644 P.2d 1202 (1982) (quoting Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948)). At a minimum, a defendant must understand the severity of the charges; the maximum possible penalties for the crime charged; and the existence of technical, procedural rules governing the presentation of a defense. City of Bellevue v. Acrey, 103 Wash.2d 203, 211, 691 P.2d 957 (1984). We review the record as a whole in determining whether a defendant knowingly and intelligently waived counsel. In re Det. of Turay, 139 Wash.2d 379, 397, 986 P.2d 790 (1999).
¶ 14 Here, the colloquy occurring on March 10, and the brief colloquy on May 9, sufficiently established that Mr. James unequivocally waived his right to counsel and did so knowingly and intelligently. Mr. James demanded self-representation in writing. Judge O'Connor's lengthy colloquy conformed to the Faretta principles. She carefully explained the severity of the charges; the maximum possible penalties for the crime charged; and the existence of technical, procedural rules governing the presentation of a defense. See Acrey, 103 Wash.2d at 211, 691 P.2d 957. When asked whether he understood, Mr. James repeatedly answered in the affirmative. He informed the court he would research the legal procedures he was unsure of at the local law library. Judge Austin confirmed Mr. James' desire to represent himself.
¶ 15 While Mr. James expressed some confusion about replacing counsel and/or discharging counsel, he unequivocally informed Judge Austin at trial he still wished to proceed pro se. Judge O'Connor additionally ordered replacement counsel even though the request was made orally during the colloquy. Thus, Mr. James was granted both his self-representation request and new counsel request. Mr. Cipolla confirmed to Judge Austin that Mr. James was "well-versed" in the colloquy as Judge Austin began the colloquy anew. RP (May 9, 2005) at 1. After Judge Austin cautioned Mr. James about the risks of self-representation, Mr. James unequivocally replied he wanted to proceed without a lawyer.
¶ 16 Given the above, the court had a tenable basis to allow Mr. James to represent himself. Therefore, the court did not abuse its discretion in allowing self-representation.
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