State v. Kolocotronis, 38822
| Decision Date | 25 January 1968 |
| Docket Number | No. 38822,38822 |
| Citation | 436 P.2d 774,73 Wn.2d 92 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Cyrill Athanasios KOLOCOTRONIS, Appellant. |
Johnston & Woody, Frank Woody, Mountlake Terrace, for appellant.
Robert Schillberg, Pros. Atty., Allen J. Hendricks, David G. Metcalf, Deputy Pros. Attys., Everett, for respondent.
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The defendant, Cyrill Athanasios Kolocotronis, was charged with the crimes of first degree burglary, second degree assault, and attempted rape, all charges arising out of the same incident. On defendant's first appearance in superior court on September 29, 1965, the court noted that the defendant did not seem to comprehend what was happening and was informed that defendant had a history of mental illness. On the following day, the court ordered a sanity commission of three psychiatrists to determine and report to the court: (1) Whether the defendant was presently sane? (2) Whether the defendant was capable of appreciating his peril? (3) Whether the defendant was capable of rationally assisting in his own defense. Based on an examination of the defendant in early October 1965, the sanity commission answered all three questions in the negative. One of the psychiatrists testified that on that examination the defendant was psychotic and suffered delusions:
(H)e thought I was his uncle. He also revealed certain hallucinatory manifestations--claimed that he saw girls in his cell; he also told me that he had seen his father (who had been deceased since 1949) in the jail, and that his father could change size and get through the bars.
On receipt of the commission's report, the trial court stayed proceedings and committed him to Northern State Hospital for observation and treatment.
Dr. Larson, his attending psychiatrist at the state institution, diagnosed his condition as acute undifferentiated schizophrenia. He testified that the defendant exhibited unusual sexual manifestations, resulting from his delusions, and was the most difficult patient, on admission, which the hospital had had in the preceding 11 months.
Defendant's medical history showed 12 prior admissions to mental hospitals over the period of eight years prior to trial. The recurrent commitments followed a pattern of unacceptable social conduct, precipitated by the buildup of mental crises, after the defendant failed to continue his prescribed medication. His last prior commitment was to the Eastern State Hospital, from which he took unauthorized leave. He discontinued use of prescribed medicine for a few weeks and then committed the acts which resulted in his arrest on the charges of burglary, assault and attempted rape.
Under treatment at the Northern State Hospital with enforced medication, the defendant's mental condition improved rapidly and he was returned to the Snohomish County jail and re-examined on January 21, 1966, by two members of the sanity commission which had examined him previously. They found and reported to the court that defendant was then sane, appreciated his peril in connection with the pending criminal charges and was capable of rationally assisting in his defense.
A second pre-trial proceeding was had on January 24, 1966, at which the trial court adopted as its conclusion the report of the sanity commission that defendant was then able to stand trial. Defendant was then arraigned and pleaded not guilty. He was represented at this hearing by counsel appointed by the court on account of his inability to employ counsel. In addition to defendant's plea of not guilty, his counsel, over defendant's objection, interposed a special plea the defendant was not guilty by reason of his insanity at the time the acts were committed, but that he was, at the time of trial, sane and mentally responsible. RCW 10.76.020 permits the interposition of such a plea by 'the defendant, his counsel or other person authorized by law to appear and act for him, * * *.'
The trial commenced on March 7, 1966. At that time, his mental condition had improved to the point where the defendant felt competent to handle his own defense and insisted on using his counsel only in an advisory capacity. He also demanded that the special plea of insanity be withdrawn. The court refused to allow withdrawal of the plea of insanity and commenced trial after counsel had emphasized his intention not 'to back off from my duties in this case whatsoever; * * *.'
At the trial, the defendant did participate in the handling of his own defense. The defendant was permitted to question jurors on their voir dire examination, make an opening statement to the jury, cross-examine the state's witnesses, and against his counsel's advice, testify in his own behalf. He made numerous motions and objections to evidence offered, some of which had merit and were sustained by the court.
However, the court also permitted defendant's court-appointed counsel to participate in the examination and cross-examination of witnesses, make a closing argument to the jury, and generally give aid where legal skill was needed. Over defendant's objection, the court permitted defense counsel to call three psychiatrists who had examined the defendant at the court's direction, and present evidence in support of the special plea of insanity. The evidence was conclusive that the defendant was insane at the time of commission of the acts.
Court-appointed counsel rendered necessary services, during the trial, in areas overlooked by defendant acting pro se. He attempted to convince the jury that defendant could safely be treated on an out-patient basis, and that he would be a safe person to be at large. Counsel moved for dismissal of all charges and was successful in obtaining a dismissal of the burglary charge. He made a vigorous argument to the jury that the state had failed to prove the charges of assault and attempted rape beyond a reasonable doubt.
The jury returned a general verdict of not guilty, and special verdicts that: (1) Defendant did commit the crimes charged. (2) The defendant was acquitted because of insanity at the time the crimes were committed. (3) Defendant was not insane at the time of trial. (4) There was such likelihood of a relapse or recurrence of the insane condition that the defendant was not a safe person to be at large.
There was sufficient evidence to sustain special verdict No. (4), including: (1) The bizarre nature of his assault upon the victim. (2) Defendant's threats to kill her when she screamed. (3) His threats to kill the three persons who came to her assistance. (4) The unusual manifestation of sex abnormalities when in a state of tension. (5) Testimony that he had not in the past, and probably would not continue his medication when released from a mental institution. (6) Dr. Larson's testimony that three weeks without treatment would make him potentially dangerous. (7) Testimony that he needed continuation of medication for a period of from 6 to 10 years in the future. (8) The testimony of all three psychiatrists that he would be dangerous without further treatment.
Briefs on appeal have been submitted both by the defendant, pro se, and by counsel appointed by the court to assist him on his appeal. We will consider first the assignments of error set out in counsel's brief.
The first four assignment focus on defendant's claim that he was denied his constitutional right to act as his own counsel. The defendant claims that his constitutional rights were ignored when the trial court permitted court-appointed counsel to interpose the defense of insanity over defendant's objection, when the court denied defendant's demand that such defense be stricken, and when the court permitted court-appointed counsel, over defendant's objection, to call witnesses to support such defense. Error is also assigned to the submission of such special issues to the jury, over defendant's objection and entry of judgment upon the jury's verdicts on the special issue of insanity.
Before considering the constitutional questions presented by the first four assignments, we dispose of a factual issue set out in the brief of counsel on appeal. He was not the same attorney who represented the defendant in the trial court. He claims that the trial counsel was never appointed to represent the defendant in the trial court. The record does not support this contention. On the defendant's first appearance in superior court on September 29, 1965, the court stated: 'I will appoint Mr. Ingalls to represent Mr. Kolocotronis.' Pursuant to that appointment, this counsel represented the defendant at all preliminary proceedings and on the trial of the case. Defendant made no objections to the services rendered by counsel except as they related to the issue of insanity.
The defendant was effectively denied the right to act as his own counsel, contrary to his repeated demands, on all matters relating to the issue of his insanity. His right to act as his own counsel was denied him by the court in permitting his court-appointed counsel, over defendant's objections, to enter the special plea of not guilty by reason of insanity, to call witnesses and to elicit testimony to support the special plea, and by submitting to the jury the issues dealing with insanity, over defendant's objection.
The right which the defendant asserts is set out in Const. art. 1, § 22 (amendment 10): 'In criminal prosecutions the accused shall have the right to appear and defend in person, and by counsel, * * *.' The language used in the constitutional provision is plain, direct, unqualified, unambiguous, and unequivocal. But, it is no more so than language contained in the Bill of Rights of the United States Constitution.
In speaking of the First Amendment, as it relates to the right of free speech, the United States Supreme Court said in United Public Workers of America v. Mitchell, 330 U.S. 75, 95, 67 S.Ct. 556, 567, 91 L.Ed. 754 (1947): 'Of course, it...
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