State v. McDonald

• Decision Date: 10 May 2001
• Docket Number: No. 68376-0.,68376-0.
• Citation: 143 Wash.2d 506,22 P.3d 791
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Steven Darby McDONALD, Respondent. In re the Personal Restraint Petition of Steven Darby McDonald, Petitioner.

22 P.3d 791

143 Wash.2d 506

STATE of Washington, Petitioner, v. Steven Darby McDONALD, Respondent.

In re the Personal Restraint Petition of Steven Darby McDonald, Petitioner.

No. 68376-0.

Supreme Court of Washington, En Banc.

Argued January 17, 2001.

Decided May 10, 2001.

Reconsideration Denied July 12, 2001.

Thomas Verge, Skagit County Prosecutor, Erik Pedersen, Deputy Prosecutor, Mount Vernon, for appellant.

Steven McDonald, pro se.

Sheryl McCloud, Seattle, for Respondent.

JOHNSON, J.

This case involves a claim of conflict of interest between standby counsel and the defendant, where the defendant had been afforded his right to self-representation. Steven Darby McDonald (McDonald) was convicted of first and second degree arson and, based upon his prior criminal record, was sentenced to life in prison without the possibility of parole under the Persistent Offender Accountability Act (POAA). The Court of Appeals reversed the convictions, holding McDonald received ineffective assistance of counsel due to the conflict between the defendant and standby counsel. We affirm the Court of Appeals but clarify what standard applies to the performance of standby counsel.

FACTS

The State charged McDonald with first and second degree arson. The first degree arson charge was based upon the defendant setting fire to the welcome mat outside a motel room, which destroyed the mat and discolored the door before being extinguished. The second degree arson charge was based upon a separate incident where McDonald set fire to an automobile. One week after arraignment at a bail hearing, McDonald moved to proceed pro se. Following a Faretta¹ hearing, the trial judge granted the motion and allowed McDonald to represent himself, but with standby counsel. On April 4, 1996, a second judge conducted a hearing on the self-representation issue and, again, granted McDonald's motion and appointed Gary Gaer (Gaer) as standby counsel.

Problems apparently arose between McDonald and Gaer. On May 16, 1996, McDonald informed the trial court he had filed bar complaints and civil rights suits against the local public defenders, including Gaer. On five occasions, the trial court heard and denied motions by all of the parties to remove Gaer as standby counsel. On July 25, 1996, the trial court noted the State's motion to discharge Gaer because of the pending federal civil action and the potential conflict of interest. However, the court denied the motion based upon Gaer's belief there was no conflict of interest at that time. McDonald reasserted his motion to dismiss Gaer, which the court again denied on August 7, 1996. On September 16, 1996, the prosecutor made another motion to dismiss Gaer as standby counsel because the prosecutor's office had been assigned to defend Gaer against McDonald's lawsuit in federal court, thereby creating a conflict of interest. The trial court denied the motion. On September 4, 1996, Gaer moved to withdraw as standby counsel because he believed a real conflict was created when the prosecutor's office was assigned to defend him against McDonald's lawsuit. McDonald also reiterated his earlier motion to remove Gaer as standby counsel. The trial court denied the motions, believing the federal suit was frivolous and would proceed more slowly than the criminal case before it.

The criminal case against McDonald proceeded to trial, with Gaer as standby counsel. McDonald was convicted as charged and sentenced to life in prison without the possibility of parole. The sentencing judge considered McDonald's prior criminal history in imposing the sentence. On November 4, 1996, the federal district court dismissed with prejudice McDonald's lawsuit against the public defender's office and Gaer, among others.

McDonald appealed his conviction. After filing his opening brief with the Court of Appeals, McDonald moved to represent himself on appeal. A commissioner ordered the trial court to hold a hearing to determine whether McDonald was competent to represent himself on appeal. After McDonald refused to answer any of the trial court's Faretta inquiries at the hearing, the court sent McDonald to Western State Hospital to evaluate his competency. McDonald refused to answer any questions posed by the evaluating doctors. The trial court then found McDonald incompetent to represent himself on appeal, primarily because he refused to answer any questions. Appellate counsel was appointed and filed briefs in McDonald's case. McDonald moved for substitute counsel and filed a personal restraint petition alleging ineffective assistance of appellate counsel. The Court of Appeals denied the motion and dismissed the petition, based upon its resolution of the right to counsel issue. In a published decision, the court reversed McDonald's convictions and held because the trial court failed to adequately inquire into the nature and extent of the alleged conflict between McDonald and Gaer, McDonald's right to effective assistance of counsel was violated. State v. McDonald, 96 Wash.App. 311, 979 P.2d 857 (1999).

We accepted review of the State's petition. McDonald cross-petitioned the Court of Appeals denial of his motion to represent himself on appeal. McDonald also moved in this court for self-representation, which we denied. McDonald is represented here by counsel and has filed a pro se brief.²

ANALYSIS

We resolve this case by determining whether an actual conflict of interest between standby counsel and a defendant merits an assumption of prejudice justifying reversal of the trial court's decision. Because we affirm the Court of Appeals result, we need not fully address and analyze the constitutional right to proceed pro se on appeal.³ We have also fully considered the other issues raised by McDonald and find them moot for purposes of our disposition.

The Sixth Amendment to the United States Constitution gives a criminal defendant the right to effective assistance of counsel. In re Personal Restraint Petition of Brett, 142 Wash.2d 868, 16 P.3d 601 (2001). Effective assistance includes a duty of loyalty and a duty to avoid conflicts of interest. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Sixth Amendment also gives a criminal defendant the right to represent himself or herself at trial. Faretta v. California, 422 U.S. 806, 816, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, the United States Supreme Court has held the trial court has the authority to appoint standby counsel (even over the defendant's objections) to explain court rulings and requirements to the defendant and to assure a defendant lacking in legal knowledge does not interfere with the administration of justice. McKaskle v. Wiggins, 465 U.S. 168, 177-78, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984).

This court has defined standby counsel's role as not necessarily representing the defendant but as providing technical information. Standby counsel must be available to represent the accused on a moment's notice in the event termination of the defendant's self-representation is necessary. Furthermore, statements between defendant and standby counsel are privileged. State v. Bebb, 108 Wash.2d 515, 525, 740 P.2d 829 (1987). In this case, we must determine whether an actual conflict of interest between standby counsel and McDonald merits a presumption of prejudice justifying reversal of his conviction, when the trial court was notified of the conflict and did not inquire into its nature and extent.⁴

The Court of Appeals relied upon State v. Benn, 120 Wash.2d 631, 666, 845 P.2d 289 (1993) for the proposition that an effective assistance of counsel analysis applies to an attorney appointed as standby counsel. However, in Benn, the defendant did not wish to present mitigating evidence during the penalty phase of a capital punishment case, even though trial counsel was prepared to present such evidence. The trial court had granted Benn's motion to proceed pro se in the penalty phase. Trial counsel, therefore, became standby counsel for a brief period during the penalty phase. Thus, Benn involved a disagreement over trial strategy between the defendant and standby counsel. Benn did not involve a situation where standby counsel suffered a conflict of interest with the defendant. Although the court's language in Benn does suggest standby counsel's performance is subject to an effective assistance of counsel analysis, this suggestion is inaccurate because Benn did not involve ineffective performance by standby counsel.

Generally, defendants who are afforded the right to self-representation cannot claim ineffective assistance of counsel for the obvious reason they become their own counsel and assume complete responsibility for their own representation. However, this does not mean standby counsel has no obligations or duties to the defendant when standby counsel has been appointed by the court. A defendant possesses a right to have...