State v. Madsen

• Decision Date: 25 March 2010
• Docket Number: No. 81450-3.,81450-3.
• Citation: 229 P.3d 714,168 Wash.2d 496
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Kurt Randall MADSEN, Petitioner.

229 P.3d 714

168 Wash.2d 496

STATE of Washington, Respondent, v. Kurt Randall MADSEN, Petitioner.

No. 81450-3.

Supreme Court of Washington, En Banc.

Argued September 15, 2009.

Decided March 25, 2010.

Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, for Petitioner.

William Leonard Doyle, James Morrissey Whisman, King County Prosecutor's Office, Seattle, WA, for Respondent.

J.M. JOHNSON, J.

¶ 1 This case involves a criminal defendant's "right to appear and defend in person, or by counsel," which is expressly protected by Washington Constitution article I, section 22. Kurt Madsen was first represented in a criminal proceeding by counsel appointed for him. Unhappy with counsel, Madsen moved to proceed pro se on three occasions, citing and quoting the relevant Washington constitutional provision. The trial court deferred ruling on the first two motions and instead appointed new counsel. Madsen's third motion was formally denied the day before scheduled jury selection. We reverse the Court of Appeals and hold that the trial court abused its discretion by denying Madsen the right of self-representation.

FACTS AND PROCEDURAL HISTORY

¶ 2 On September 2, 2004, Madsen placed three telephone calls to Deborah Stuart in violation of a no-contact order. Between the first and second call Stuart notified the police, and Madsen was later arrested and charged with three counts of felony violation of a court order under former RCW 26.50.110(1), (5) (2000).

¶ 3 At a court proceeding on January 24, 2006, Madsen's privately retained counsel withdrew and Madsen personally moved to proceed pro se. When the trial court inquired why Madsen wished to represent himself, Madsen replied that he believed he "could resolve the whole issue." Verbatim Report of Proceedings (VRP) (Jan. 24, 2006) at 5. The court deferred on ruling on the pro se request, instead appointing Madsen new counsel and stating, "After you have a chance to talk with them new counsel, if you still want to proceed pro se, I'm more than happy to hear the motion." Id.

¶ 4 On March 7, 2006, the trial court held a hearing to consider Madsen's motion to proceed pro se or in the alternative to terminate his counsel's representation. VRP (Mar. 7, 2006) at 3. Madsen stated several reasons why he did not want to be represented by his then-counsel and concluded, "I think that I'd be better off representing myself. . . . Under Article I Section 22 I have a right to represent myself." Id. at 8. Madsen also tried to argue several substantive points and interrupted the court on several occasions.

¶ 5 The trial court expressed concern that Madsen's true motive was to fire counsel, not necessarily to proceed pro se, and suggested an intermediate step of assigning new counsel. Madsen replied, "I'd rather represent myself." Id. at 12. The court asked Madsen's counsel if he had any concerns regarding Madsen's competency, and counsel responded affirmatively. Madsen then said to the court, "I am gonna revert to my constitutional rights, Washington State constitutional rights, Article 1, Subsection 22, I have a right to represent myself and that's what I'm going to move forward with doing." Id. at 13.

¶ 6 The trial court responded that if Madsen wanted to proceed pro se after new counsel was appointed, the court would "entertain the motion." Id. at 19. The court also stated that it wanted someone to find out whether Madsen was competent. Madsen objected to appointment of new counsel and volunteered to take an "IQ test" or a "psychological exam, whatever you need." Id. at 18-19. No competency hearing or exam was ever ordered. At a hearing on March 9, Madsen's new appointed counsel informed the court she had no concerns regarding Madsen. The court made no further comments regarding Madsen's competency.

¶ 7 On May 2, 2006, Madsen renewed his motion to proceed pro se. The trial court replied that it did not think Madsen was prepared to interview and select jury members or become sufficiently familiar with trial procedures in time for trial. The court then asked Madsen whether he still wished to represent himself, and Madsen replied, "at this point I am forced, almost forced into doing that, so I would say yes." VRP (May 2, 3, 4, 8, 2006) at 87. The court then stated, "I am going to deny your motion to proceed pro se. I don't feel you are prepared." Id. at 89.

¶ 8 On May 3, at the prosecutor's urging, the trial court clarified its grounds for denying Madsen's motion. The court stated it had denied Madsen's pro se motion after noting that Madsen had not been to law school, did not know how to select a jury, and that the court had noticed Madsen rolling his eyes and interpreted such as Madsen "not relishing the idea" of representing himself. Id. at 138. The court again asked if Madsen wished to represent himself. Madsen refused to answer, stating that the judge had earlier told him that "the only decisions you have at this point is whether to plead guilty or not guilty." Id. at 125, 138-39. The court then noted that Madsen's motion was made when the jury was about to be selected and adjourned the hearing.

¶ 9 The trial court entered a written order on May 4, 2006, denying Madsen's pro se motion. The order stated that during the May 2 hearing, Madsen had been "extremely disruptive," "repeatedly addressed the court at inopportune times," and "consistently showed an inability to follow or respect the court's directions." Clerk's Papers (CP) at 21. The court found that Madsen "at first was equivocal" in his pro se request, that Madsen was concerned about his attorney's preparation for trial, and that the "court engaged in a colloquoy sic with the defendant to ensure that the defendant understood the risks and consequences of self-representation." Id. The written order noted that trial was set to commence the next day, but that "regardless of whether defendant's request to proceed pro se is in his best interests, the Court finds that defendant's request was untimely, and granting the request would obstruct the orderly administration of justice." CP at 22. The first witness for trial was actually called on May 8, 2006.

¶ 10 Madsen was convicted and received an 18 month sentence on August 9, 2006. The Court of Appeals upheld Madsen's conviction. State v. Madsen, noted at 143 Wash.App. 1028, 2008 WL 625282. Madsen petitioned this court, and we granted review.¹

ANALYSIS

¶ 11 Criminal defendants have an explicit right to self-representation under the Washington Constitution and an implicit right under the Sixth Amendment to the United States Constitution. WASH. CONST. art. I, § 22 ("the accused shall have the right to appear and defend in person"); Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This right is so fundamental that it is afforded despite its potentially detrimental impact on both the defendant and the administration of justice. Faretta, 422 U.S. at 834, 95 S.Ct. 2525; State v. Vermillion, 112 Wash.App. 844, 51 P.3d 188 (2002). "The unjustified denial of this pro se right requires reversal." State v. Stenson, 132 Wash.2d 668, 737, 940 P.2d 1239 (1997) (emphasis added).

¶ 12 However, both the United States Supreme Court and this court have held that courts are required to indulge in "`every reasonable presumption' against a defendant's waiver of his or her right to counsel." In re Det. of Turay, 139 Wash.2d 379, 396, 986 P.2d 790 (1999) (quoting Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977)). As a request for pro se status is a waiver of the constitutional right to counsel, appellate courts have regularly and properly reviewed denials of requests for pro se status under an abuse of discretion standard. E.g., State v. Hemenway, 122 Wash.App. 787, 792, 95 P.3d 408 (2004). Discretion is abused if a decision is manifestly unreasonable or "rests on facts unsupported in the record or was reached by applying the wrong legal standard." State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003).

¶ 13 The right to proceed pro se is neither absolute nor self-executing. State v. Woods, 143 Wash.2d 561, 586, 23 P.3d 1046 (2001). When a defendant requests pro se status, the trial court must determine whether the request is unequivocal and timely. Stenson, 132 Wash.2d at 737, 940 P.2d 1239. Absent a finding that the request was equivocal or untimely, the court must then determine if the defendant's request is voluntary, knowing, and intelligent, usually by colloquy.² Faretta, 422 U.S. at 835, 95 S.Ct. 2525; State v. Stegall, 124 Wash.2d 719, 881 P.2d 979 (1994). Even if a request is unequivocal, timely, voluntary, knowing, and intelligent, a court may defer ruling if the court is reasonably unprepared to immediately respond to the request. Again, the court shall indulge in "`every reasonable presumption' against a defendant's waiver of his or her right to counsel." Turay, 139 Wash.2d at 396, 986 P.2d 790 (quoting Brewer, 430 U.S. at 404, 97 S.Ct. 1232).

¶ 14 This presumption does not give a court carte blanche to deny a motion to proceed pro se. The grounds that allow a court to deny a defendant the right to self-representation are limited to a finding that the defendant's request is equivocal, untimely, involuntary, or made without a general understanding of the consequences. Such a finding must be based on some identifiable fact; the presumption in Turay does not go so far as to eliminate the need for any basis for denying a motion for pro se status. Were it otherwise, the presumption could make the right itself illusory.

¶ 15 A court may not deny a motion for self-representation based on grounds that self-representation would be detrimental to the defendant's ability to present his case or concerns that courtroom proceedings will be less efficient and orderly than if the defendant were represented by counsel. Similarly, concern regarding a defendant's competency alone is insufficient; if the court doubts the...