State v. Vermillion

• Decision Date: 05 August 2002
• Docket Number: No. 47309-3-I.,47309-3-I.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Marvin Lee VERMILLION, Appellant.

51 P.3d 188

112 Wash.App. 844

STATE of Washington, Respondent, v. Marvin Lee VERMILLION, Appellant.

No. 47309-3-I.

Court of Appeals of Washington, Division 1.

August 5, 2002.

Jason Brett Saunders, Washington Appellate Project, Seattle, WA, for Appellant.

Heather M. Jensen, King County Prosecuting Attorney, Seattle, WA, for Respondent.

KENNEDY, J.

Marvin Lee Vermillion was convicted of first-degree robbery and threats to bomb property. Beginning six days before jury selection, Vermillion repeatedly and unequivocally requested to represent himself. The trial court denied his requests on the improper basis that his appointed counsel was better educated and versed in the law and thus would better serve his interests. However, assertion of the right to self-representation does not require a showing of technical knowledge. If a person is competent to stand trial, he is competent to represent himself. Vermillion did not request that the trial be continued, and he was courteous and respectful to the court; thus, there was no indication that his purpose was to delay the trial or to obstruct the orderly administration of justice. We reverse Vermillion's convictions and remand for a new trial because the trial court failed to uphold Mr. Vermillion's constitutional right to self-representation.

Even though Vermillion is charged with having committed the robbery by displaying and threatening to detonate what appeared to be a bomb, the State may retry him for both crimes, and if he is convicted he may be punished for both crimes without violation of his constitutional protection against double jeopardy. Also, the trial court properly ruled, at the pretrial CrR 3.6 hearing, that a Frye¹ hearing was not necessary to prove the reliability of the confidential tracking device by which police located Vermillion after the robbery, and properly admitted the evidence obtained by use of the tracking device for the jury's consideration. Finally, police had a sufficient basis to stop and frisk Mr. Vermillion. Accordingly, although we reverse and remand for a new trial, we affirm the CrR 3.6 rulings that were made for the first trial.

FACTS

On July 2, 1998, near the end of the business day, a white male in his 50's with gray hair and wearing light-colored clothing and gloves robbed a downtown Seattle bank located on 4th Avenue between Pike and Pine Streets. The robber, who was carrying a package, handed a note to the teller indicating that the package contained a bomb and that he would detonate the bomb if the teller told anybody that a robbery was in progress, or if anyone followed him from the bank. The teller gave the robber a bag containing money, a confidential tracking device, and bait money. The robber then left the bank with the bag, leaving the package containing the alleged bomb at the teller's window. The teller activated the tracking device and promptly called the police, giving them a physical description of the robber. Within moments, several officers converged on the area, some of them in patrol cars that were equipped to locate the tracking device.

The tracking device broadcast a radio signal that led police to Mr. Vermillion, who fit the physical description of the robber except that he was wearing dark clothing and was not wearing gloves. Three officers stopped Mr. Vermillion near the crosswalk at 4th and Pine. One of the officers patted Mr. Vermillion down for weapons and discovered a bag tucked into his waistband containing several thousand dollars, the tracking device, which was still operating, and the bait money. Mr. Vermillion was placed under arrest and his pockets were searched. The note used in the robbery was found in one of his pockets.

The Seattle Police Explosives Squad evacuated the bank building, cordoned off the block surrounding the building, and sent a robot into the bank. The robot moved the package to the floor, and opened it. Cameras showed the package to contain a bundle of rolled up paper. A member of the bomb squad, wearing a bomb suit, entered the bank to determine whether a bomb was hidden in the bundle. There was no bomb.

The State charged Mr. Vermillion, by amended information, with one count of robbery in the first degree, and one count of threats to bomb or injure property. Mr. Vermillion pleaded not guilty.

On five occasions before and immediately after commencement of the trial, Mr. Vermillion requested to represent himself. The court denied each request.

A CrR 3.6 hearing was held and the court admitted the evidence obtained by the confidential tracking device, denying a defense request for a Frye hearing before admitting the evidence, and finding that the device was in proper working condition when police utilized it to locate Mr. Vermillion.

After the jury found Mr. Vermillion guilty as charged, he moved for a new trial on the ground that the court improperly denied his requests to represent himself. Defense counsel moved to withdraw before sentencing and for the appointment of substitute counsel. The court denied both motions. Mr. Vermillion was sentenced to standard-range sentences on both counts.

He timely filed a notice of appeal.

ANAYLYSIS

Right to Self-Representation

The State and Federal Constitutions guarantee a criminal defendant the right to self-representation. U.S. Const., amend. VI and XIV; Wash. Const., art. I § 22. This right is afforded a defendant despite the fact that exercising the right will almost surely result in detriment to both the defendant and the administration of justice. State v. Fritz, 21 Wash.App. 354, 359, 585 P.2d 173 (1978). A defendant need not demonstrate technical knowledge of the law and the rules of evidence. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The right to self-representation is either respected or denied; its deprivation cannot be harmless. McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984).

The right is not absolute, however. In re Richardson, 100 Wash.2d 669, 674, 675 P.2d 209 (1983). For example, the court bears no affirmative duty to inform a defendant that he has the right; the defendant must personally ask to exercise the right. State v. Garcia, 92 Wash.2d 647, 654, 600 P.2d 1010 (1979). Once the issue is raised, however, the trial court should assume responsibility for assuring that the defendant's decision is made with at least minimal knowledge of what the task entails, preferably through a colloquy on the record assuring that the defendant understands the risks of self-representation. City of Bellevue v. Acrey, 103 Wash.2d 203, 211, 691 P.2d 957 (1984). At a minimum, a defendant should be apprised of the seriousness of the charge, the maximum potential penalty involved, and the existence of technical, procedural rules governing the presentation of the accused's defense. Id.

In order to exercise the right, a defendant's request must be unequivocal, knowingly and intelligently made, and must be timely. State v. Breedlove, 79 Wash.App. 101, 106, 900 P.2d 586 (1995). The right may not be exercised for the purpose of delaying the trial or obstructing justice. Id. Even when a request is unequivocal, a defendant may still waive the right of self-representation by subsequent words or conduct. State v. Luvene, 127 Wash.2d 690, 699, 903 P.2d 960 (1995). Courts should indulge every reasonable presumption against finding that a defendant has waived the right to counsel. State v. Chavis, 31 Wash.App. 784, 789, 644 P.2d 1202 (1982).

Mr. Vermillion asserts that he repeatedly, consistently, and unequivocally asserted his right to represent himself, and that he did so knowingly, intelligently, and in a timely fashion. The record bears this out. He sought to assert his right on five separate occasions, the first time at an omnibus hearing held on September 30, 1998, before Judge Janice Niemi. At the hearing, his counsel stated, "In addition, Mr. Vermillion would like to make a motion to go pro se today and I don't know when the Court wants to hear that." Vol. 3 Report of Proceedings at 3. Judge Niemi declined to address the motion at that hearing.

At a pretrial hearing held on the following day, October 1, 1998, Mr. Vermillion renewed the request before Judge Marsha Pechman, who had convened court for the purpose of hearing a motion to exclude witnesses. Mr. Vermillion moved to "discharge" his appointed counsel and to "go forward pro se." Vol. 4 Report of Proceedings at 3. He explained to the court: "I raised this with Judge Niemi yesterday, and she, for whatever reason, didn't want to deal with it at that time." Id. Mr. Vermillion then stated that he "would prefer to represent" himself because he felt inadequately informed of the charges against him, he wanted to see a copy of the police report, and he wanted to pursue an issue that his trial counsel would not pursue, that being his claim that the police seized $5,000 from his person at the time of his arrest but had reported seizing only $862. Id. at 4-5. In response to questions from Judge Pechman, Mr. Vermillion stated that he had taken a couple of years of college, had studied some law, and was prepared to represent himself, examine witnesses, and to be held to the same standard as a lawyer. However, he admitted to having done "very little preparation" for trial. In an effort to satisfy Mr. Vermillion's concerns, Judge Pechman allowed him to see the police reports, with some of the information redacted. Moreover, the deputy prosecutor informed Mr. Vermillion, on the record, of the charges against him and the potential penalty for each charge. The court then denied Mr. Vermillion's motion to represent himself, stating:

And sir, I believe it's really in your best interests to be able to have counsel. These are serious charges, and you haven't convinced me that you would be prepared to even meet the allegations or know how to proceed in a courtroom, given the serious nature of these charges. And I

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