State v. Staten

• Decision Date: 14 January 1991
• Docket Number: No. 23319-0-I,23319-0-I
• Citation: 60 Wn.App. 163,802 P.2d 1384
• Parties: STATE of Washington, Respondent, v. John Aaron STATEN, Appellant. Division 1
• Court: Washington Court of Appeals

Page 163

60 Wn.App. 163

802 P.2d 1384

STATE of Washington, Respondent, v. John Aaron STATEN, Appellant.

No. 23319-0-I.

Court of Appeals of Washington,

Division 1.

Jan. 14, 1991.

Washington Appellate Defender, Lenell Nussbaum, Seattle, for appellant

Norm Maleng, King County Pros. Atty., Michael Hogan, Seattle, for respondent.

WINSOR, Judge. ^*

John Staten appeals a judgment and sentence for two counts of first degree robbery. We affirm.

Staten was arrested on the night of May 24, 1988, for a May 17, 1988 bank robbery. He was subsequently charged with committing that robbery, as well as a May 24, 1988 bank robbery. In both robberies the robber carried a lunch box which he claimed contained a bomb.

Staten's original speedy trial deadline was August 6, 1988. For reasons not contained in the record, that deadline was extended. Trial was then set for September 12, 1988. Trial did not proceed as scheduled, however, because Staten refused to come to court. Staten claimed to have medical problems which caused him so much pain he could not attend trial. A jail physician who examined Staten disagreed with Staten's self-diagnosis and opined that "defendant was in sufficient physical condition to come to Court." Nevertheless, the trial judge permitted Staten to waive speedy trial for a period sufficient to permit him to go "to Harborview Medical Center for diagnosis of whatever ailment he may have and treatment if it's necessary." Trial was then reset for October 17, with a speedy trial expiration date of October 24, 1988.

On September 28, 1988, in a proceeding for which there is no report of proceedings, Staten moved to substitute Staten then addressed the court, arguing that

                counsel.   He had been represented by Frank Calero of the Public Defenders Association (PDA).   A PDA lawyer subsequently contacted the Associated Counsel for the Accused (ACA) and asked that one of their lawyers be present at a follow up hearing on September 30.   The ACA lawyer appeared at the September 30 hearing and informed the court that his office was opposed to representing Staten "[u]nless there is a legal conflict, i.e., PDA has represented a victim or a witness or something", and that ACA would not accept a trial date before the 1st of December. 1
                

Public Defender does not have time to prepare my case. I have been in jail over four months. I have yet to see my attorney anywhere but in court. I cannot reach him by phone. There are a lot of things in my case that are just not ready. I believe Mr. Calero is an excellent attorney because I liked his arguments in the pretrial motions, but he just doesn't have time to prepare my case. I don't believe any public defender has time to prepare my case.

Your Honor, I know it boils down to economic problems, but I just want to ask the Court: How much is a human life worth? ... It is simply difficult to prove I did not commit the crime if an attorney has no less than thirty or forty people on his case load. It is hard for an attorney to keep track of what's going on when he has forty people to deal with.... Your Honor, I feel like I cannot get a fair trial from the Public Defender, not because they are not good attorneys, but because they just don't have the time to prepare my case so I can have a fair trial.

Based on this and Staten's September 28 arguments, the trial judge interpreted Staten's position to be that he would only be satisfied if a private lawyer were appointed to represent him. The judge denied Staten's motion to substitute.

On October 19 the parties returned to court for pretrial matters. Attorney Calero informed the trial judge that he did not think he could adequately represent Staten because Staten would not listen to his advice. Staten then presented a written motion to substitute counsel alleging that Calero The judge then asked Calero's opinion as to whether Staten's allegations were accurate. Calero said he did not think that they were. The judge asked Calero whether he had prepared the case and whether he was ready to represent Staten. Calero answered affirmatively. ³ Noting that trial had already been delayed since September 12 and that he was satisfied Calero was prepared, capable and experienced sufficiently to represent Staten adequately, the trial judge denied Staten's motion.

                had not:  conferred with him concerning preparation of the defense, communicated with him, subpoenaed defense witnesses, performed critical investigations, prepared an affirmative defense or prepared necessary motions.   Staten's motion also alleged that Calero had failed "to declare prejudice and/or conflict against declarant and due to such failure has taken on the role of a surrogate prosecutor".   Staten offered no evidence supporting these allegations. 2
                

Staten responded that if he could not have new counsel, he would represent himself, although that alternative was "definitely against my wishes." After discussing the risks of self-representation with Staten, the judge ruled that Staten could proceed pro se with Calero serving as his legal assistant.

Staten next sought a continuance to prepare for trial. Satisfied that all discoverable materials had been provided Calero and that Calero could immediately turn them over to Staten, the trial judge denied the continuance. The record makes it clear that the trial judge's ruling was influenced by his opinion that Staten was simply trying to delay trial:

I have indicated to you before that you used various tactics to try to delay the matter, and we are not going to delay it any longer. We are going to proceed with the trial. The Court made ... a well prepared lawyer available to you, and you have chosen to do otherwise. Having made that choice, that is the choice you have to live with.

The matter proceeded to trial before a jury. The State's evidence included: (1) testimony that a fingerprint on the lunch box used in the May 24 robbery was Staten's; (2) testimony that when arrested, Staten had two $20 bills with serial numbers matching numbers on "bait bills" taken in the May 24 robbery; ⁴ (3) in-court identifications of Staten by two bank tellers present at the May 17 robbery and another present at the May 24 robbery; and (4) bank photographs of the May 17 robbery which allegedly showed clearly that Staten was the robber. ⁵ In his defense, Staten relied on all of the eye-witnesses' failure to describe the robber as having only one arm, ⁶ and on some of the eye-witnesses' inability to select his picture in a photomontage prepared by police. This, he alleged, created a reasonable doubt as to whether he had committed the robberies. The jury disagreed and found Staten guilty as charged.

VOLUNTARINESS

Staten contends that constitutional error occurred when the trial court denied his October 19 motion to substitute counsel, because the denial caused him to involuntarily proceed pro se. The State responds that because Staten's motion was properly denied, no constitutional error occurred. We agree with the State.

Requiring a defendant to choose between waiving counsel and continuing with present counsel is not constitutionally offensive unless defendant's objections to existing counsel are such that he has a right to new counsel. United States v. Padilla, 819 F.2d 952, 955 (10th Cir.1987); accord, Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976); State v. Sinclair, 46 Wash.App. 433, 436-37, 730 P.2d 742 (1986), review denied, 108 Wash.2d 1006 (1987). In other words, "even when a defendant does not want to appear pro se, if he fails to provide the court with legitimate reasons why he is entitled to reassignment of counsel, the court can require that he either waive or continue with appointed counsel." Sinclair, 46 Wash.App. at 436, 730 P.2d 742. A defendant's conclusory, unsubstantiated statement that his or her current counsel is unqualified does not entitle a defendant to new counsel. Wilks v. Israel, 627 F.2d 32, 36, n. 4 (7th Cir.1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981); see also State v. Shelton, 71 Wash.2d 838, 839-40, 389, 431 P.2d 201 (1967) (substitution motion properly denied when defendant failed to support motion with reasons for his alleged lack of confidence in counsel and did not point out how he thought counsel had been lax in preparing his case). Thus, for example, it is not error to force a defendant to appear pro se or continue to be represented by existing counsel when defendant gives the trial judge only "a vague account of how counsel had lied and had not shown him the State's fingerprint evidence" and "failed to articulate any reason he felt justified counsel's replacement, other than his general discomfort with her representation." Sinclair, 46 Wash.App. at 436, 730 P.2d 742.

Here, Staten failed to provide the trial court with legitimate and sufficient grounds why he was entitled to substitute counsel. The principal ground Staten alleged at his September motion was that any public defender would be too overworked to properly prepare his case. Staten cites no case in which this reason has been accepted as sufficient

                for substituting counsel, and we have located none. 7 [802 P.2d 1388] The circumstances of Staten's October motion to substitute are somewhat different in that Staten's reasons, if substantiated, could have been grounds for granting a motion to substitute.   However, Staten failed to provide any evidentiary support for his allegations.   Unsupported general allegations of deficient representation are inadequate to support a motion to substitute, particularly when the motion to substitute is brought shortly before or during trial.  Wilks, 627 F.2d at 36;  see also McKee v. Harris, 649 F.2d 927, 931 (2nd Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982);  Shelton, 71 Wash.2d at 839, 431 P.2d 201
                

ASSISTANCE OF COUNSEL

Staten also contends that he was denied effective assistance of counsel at his two motions to substitute. Concerning...