FILED
APRIL 1, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 30226-1-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) THOMAS MICHAEL KLINDWORTH, ) ) Appellant. )
PRICE, J.* - Thomas M. Klindworth appeals his driving under the influence (DUI)
conviction, arguing the trial court violated both his constitutional right and rule based
right to a speedy trial under CrR 3.3. He also contends (1) he was denied his right to
present a defense, (2) a State's witness improperly commented on his constitutional right
to remain silent, (3) the trial court violated his right to represent himself, (4) the trial court
erred in denying his CrR 8.3 motion to dismiss for prosecutorial and court
mismanagement, and (5) the court erred in imposing an ignition interlock requirement at
sentencing. In his statement of additional grounds for review (SAG), he alleges (1) his
*Judge Michael Price is serving as judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150. No.30226-1-III State v. Klindworth
speedy trial rights were violated, (2) the prosecutor failed to release exculpatory evidence,
(3) the prosecutor released slanderous infonnation to a local newspaper to create negative
pretrial publicity, (4) the blood evidence was tainted, (5) willful court misconduct and
wrongful incarceration hampered his ability to present a defense, (6) the removal of
defense counsel added one year to the pretrial process, (7) improper denial of public
funds for his defense, and (8) the court improperly disallowed evidence that Mr.
Klindworth spent months in jail before trial. Finding no reversible error, we affinn.
FACTS
During the early morning of January 21, 2007, Franklin County Police Sergeant
Jim Dickenson was on patrol and noticed a car traveling under the speed limit. The car
swerved abruptly into the officer's lane of travel and quickly braked, almost causing a
collision. Sergeant Dickenson had to slam on his brakes to avoid hitting the car. The car
then slowed to 30 miles per hour in a 60 mile per hour zone. When the car crossed into
the fog line, the sergeant activated his emergency lights.
When the sergeant approached the car, he could smell burnt methamphetamine.
He observed that the driver, later identified as Mr. Klindworth, had extremely red eyes,
dilated pupils, slurred speech, and was nervous, fidgety, and very talkative. Mr.
Klindworth was reaching all over inside the car and appeared confused about the stop.
No. 30226-1-111 State v. Klindworth
Sergeant Dickenson arrested Mr. Klindworth for driving under the influence of drugs.
After Sergeant Dickenson placed Mr. Klindworth in the back of his patrol car, Mr.
Klindworth continued to be very fidgety and extremely talkative. Most of what he said
did not make sense. The patrol car had a strong odor of methamphetamine. Mr.
Klindworth eventually consented to a blood draw. Sergeant Dickenson took Mr.
Klindworth to a local hospital for the blood test and advised Mr. Klindworth of his right
to have an independent blood test. Mr. Klindworth requested that a third vial be drawn.
However, he later failed to retrieve it.
On March 16,2007, the State charged Mr. Klindworth with various counts related
to the incident, including reckless driving and driving while under the influence. The
State amended the information just before trial to a single count of driving while under
the influence. Due primarily to Mr. Klindworth's failures to appear for scheduled court
appearances, including a lengthy absence between September 9,2010, and April 5, 2011,
the case did not go to trial until July 2011.
At trial, Sergeant Dickenson testified that traveling under the speed limit is "one
indicator of many for an impaired driver." Report of Proceedings (RP) (Vol. VI of VI) at
911. He characterized Mr. Klindworth's driving as "erratic and abnormal." RP (Vol. VI
of VI) at 912. He explained that typical signs of methamphetamine use include fidgeting,
excessive talking, twitching of arms and legs, sweating, restlessness, being
argumentative, and irritability. Sergeant Dickenson stated, "When I walked up to the
vehicle [Mr. Klindworth] was moving about the vehicle very rapidly. He was reaching.
The entire vehicle where he could reach, he was reaching in the backseat, the consul [sic],
the passenger floor, in his pockets." RP (Vol. VI of VI) at 916-17.
Asa Louis, a Washington State Patrol toxicologist, testified that he tested the two
vials of blood drawn by the State and found "significant" levels of methamphetamine in
both vials. RP (Vol. II of III) at 108. He testified that these levels would cause fidgeting,
rapid speech and body movements, dilated pupils, and could potentially impair driving.
Mr. Klindworth did not testify or present witnesses. A jury found Mr. Klindworth
guilty as charged. Mr. Klindworth appeals.
ANALYSIS
Violation ofCrR 3.3 Rights. Mr. Klindworth first contends that the trial court
failed to bring him to trial within the time required under CrR 3.3. He also contends that
the State violated LCrR 3.2(a). We review the application of court rules de novo. State v.
Carlyle, 84 Wn. App. 33, 35-36,925 P.2d 635 (1996). Whether a speedy trial rule was
violated, mandating dismissal, is a question oflaw, also reviewed de novo. Id. at 35.
CrR 3.3 governs the time for trial in criminal cases. Under CrR 3.3(b)(2), a
No.30226-1-III State v. Klindworth
criminal defendant must be brought to trial within 90 days if not incarcerated. The 90 day
period commences on the arraignment date, but the commencement date may be reset for
various reasons under the rule. For example, the commencement date is reset when
counsel is disqualified from representation. erR 3.3(c)(2)(vii). In such a case, the 90 day
period begins on the disqualification date. erR 3.3(c)(2)(vii).
The commencement date is also reset for a defendant's failure to appear at any
proceeding that requires the defendant's presence. erR 3.3(c)(2)(ii). The defendant's
presence is required at "the arraignment, at every stage of the trial including the
empaneling of the jury and the return of the verdict, and at the imposition of sentence."
erR 3.4(a). The defendant's presence is also required where the court orders him to
appear. State v. Branstetter, 85 Wn. App. 123, 128-29, 935 P.2d 620 (1997).
erR 3.3(c)(2)(ii) states:
Failure to Appear. The failure of the defendant to appear for any proceeding at which the defendant's presence was required. The new commencement date shall be the date of the defendant's next appearance.
Mr. Klindworth contends that his time for trial rights were violated when the trial
court issued a bench warrant on July 17, 2007. He claims he appeared for court, but was
in the wrong courtroom. On July 18,2007, after being arrested the day before for failing
to appear, he told the court, "We were delayed in getting there. I was late, but I was there
for a long time. 1 was in the wrong courtroom .... And anyway 1 didn't intend to do
anything wrong." RP (July 18,2007) at 3-4. Mr. Klindworth contends the speedy trial
time period expired on August 20, 2007, based on a commencement date of May 22,
2007. He argues "[w]hen the trial court reset Mr. Klindworth's trial date to October 3,
2007 it violated CrR 3.3." Br. of Appellant at 25.
The record undermines Mr. Klindworth's claim. Mr. Klindworth was arraigned on
March 20, 2007. After Mr. Klindworth failed to appear for a scheduled court date on
May 15, 2007, the court rescheduled the court date for July 17, 2007. Mr. Klindworth
failed to appear on July 17, 2007. The judge noted that witnesses were present and that
he waited close to one hour for Mr. Klindworth to appear. After Mr. Klindworth failed to
appear, the court struck the court date and issued a bench warrant. The court scheduled
the next trial date for October 3,2007.
The trial court did not violate Mr. Klindworth's speedy trial rights when it reset the
trial date to October 3,2007. Washington law is well settled that a failure to appear, even
if inadvertent, resets the commencement date of speedy trial. State v. Wachter, 71 Wn.
App. 80, 856 P.2d 732 (1993) (trial court correctly reset time for trial when the defendant
inadvertently failed to appear when her case was called). Our Supreme Court has
explained:
No.30226-1-II1 State v. Klindworth
[T]he "failure to appear" provision is intended to apply to a defendant who thwarts the government's attempt to provide a trial within the time limits specified under the rule by absenting himself from a proceeding. Thus, the phrase "failure to appear" refers to a defendant's unexcused absence from a court proceeding. A defendant who negligently or even inadvertently fails to appear when required to do so forfeits the right to a trial within the statutory time-for-trial period, even if the defendant has not deliberately or intentionally absconded.
State v. George, 160 Wn.2d 727, 739, 158 P.3d 1169 (2007).
Mr. Klindworth's failure to appear on July 17,2007, even if inadvertent, as he
claims, reset the speedy trial clock. There was no speedy trial violation.
Mr. Klindworth next contends that he was not properly notified of an October 2,
2007 court date in violation of LCrR 3.2(a). He claims that the court did not mail notice
to him until September 28,2007. Citing CR 6(a), which excludes weekends from
computing the period of time, he contends his notice was inadequate. He also contests
that he received oral notice on September 26, 2007, from a court administrator.
LCrR 3.2(a) provides:
Defendants on bail or recognizance are expected to be available for non
scheduled appearances upon seventy-two hours notice to defendant or
defendant's attorney. They are expected to be present and on time at all
scheduled appearances concerning which they have received either oral or
written notice.
The record contradicts Mr. Klindworth's claim. Patricia Austin, the Franklin
County Superior Court Administrator, stated that she called Mr. Klindworth on
September 26, 2007, and informed him of the October 2, 2007 court date. This provided
timely notice to Mr. Klindworth. His failure to appear reset the speedy trial clock.
Mr. Klindworth next asserts that a "final violation occurred during the period
April 5, 2011 to July 20,2011." Br. of Appellant at 29. He claims that after he appeared
on April 5, 2011, the court failed to set a new court date and there is no indication the trial
court complied with CrR 3 .3(d)(2) after Mr. Klindworth's appearance on April 5, 2011.
He maintains that the record does not reflect that any notice was mailed regarding an
April 20, 2011 court date.
Initially, we note that Mr. Klindworth fails to provide an adequate record to
support his claim. He asserts that a hearing occurred on April 20, 2011, and that he did
not get notice of this court date, but fails to designate as part of the record on appeal the
April 20, 2011 hearing, contrary to RAP 9.1. Mr. Klindworth's only reference to the
record regarding this portion of his argument is to a "Notice of Issue and Note for Motion
Docket," filed on April 20, 2011, indicating that on April 19, 2011, the State set a new
hearing date for May 20,2011. Clerk's Papers (CP) at 427.
The appellant has the burden of complying with the rules and presenting a record
adequate for review on appeal. In re Marriage o/Haugh, 58 Wn. App. 1,6,790 P.2d
1266 (1990). Failure to provide an adequate record precludes appellate review. Olmsted
v. Mulder, 72 Wn. App. 169, 183,863 P.2d 1355 (1993). Here, in the absence ofa
transcription of the April 20, 2011 hearing, we are unable to address what occurred on
that date or the merits of Mr. Klindworth's claim.
However, to the extent we can address the issue without a complete record, Mr.
Klindworth's claim fails. In his statement of facts, Mr. Klindworth notes that a hearing
scheduled for April 12, 2011, was continued because he filed an affidavit ofprejudice.
He then notes that the next court date was May 20, 2011, and that he did not appear. The
record before us supports this version of the facts. The record shows that Mr. Klindworth
appeared for court on April 5, 2011, after arrest on a bench warrant that was issued in
December 2010. The court set the next court date for April 12, 2011. On April 12, 2011,
the case was continued because Mr. Klindworth filed an affidavit of prejudice against the
assigned judge. On April 19, 2011, the court reset the hearing date for May 20,2011.
The note for motion docket stated, "Karla Kane, attorney for the defendant will provide
notice to defendant." CP at 427. Mr. Klindworth did not appear on May 20, 20 II. As
indicated, the note for the motion indicates that Ms. Kane was instructed to give Mr.
Klindworth notice of the date. Nevertheless, Mr. Klindworth did not reappear until May
23,2011, which reset the commencement date. Mr. Klindworth's rule-based speedy trial
right was not violated.
No.30226-I-III State v. Klindworth
Violation ofConstitutional Speedy Trial Rights. Mr. Klindworth also argues that
the trial court violated his right to a speedy trial under the Sixth Amendment and article I,
section 22 of the Washington Constitution. His argument fails under the facts of this
case.
Both the United States Constitution and the Washington Constitution provide a
criminal defendant with the right to a speedy public trial. U.S. CONST. amend. VI;
CONST. art. I, § 22. Our state constitution "requires a method of analysis substantially the
same as the federal Sixth Amendment analysis and does not afford a defendant greater
speedy trial rights." State v. Iniguez, 167 Wn.2d 273,290,217 P.3d 768 (2009). We
review de novo constitutional speedy trial claims. Id at 280.
Any "inquiry into a speedy trial claim necessitates a functional analysis of the right
in the particular context of the case." Barker v. Wingo, 407 U.S. 514, 522, 92 S. Ct. 2182,
33 L. Ed. 2d 101 (1972); see State v. Ollivier, 178 Wn.2d 813, 826-27, 312 P.3d 1 (2013).
Because some delay is both necessary and inevitable, the appellant bears the burden of
demonstrating that the delay between the initial accusation and the trial has crossed a line
between ordinary and unreasonable to create a "presumptively prejudicial" delay.
Iniguez, 167 Wn.2d at 283. Once this showing is made, courts must consider several
nonexclusive factors in order to demonstrate whether the appellant's constitutional speedy
No. 30226~1~I1I State v. Klindworth
trial rights were violated. ld. These factors include the length and reason for the delay,
whether the defendant has asserted his right, and prejudice to the defendant. ld.
Here, there was over a 50 month delay between arraignment and trial. This time
period is more than sufficient to meet the defendant's initial burden. Id. at 291~92. Mr.
Klindworth meets his burden of showing presumptive prejudice. Therefore, it is
necessary to tum to the Barker factors to determine if the constitutional guarantee was
violated.
The first factor is the length of the delay. Unlike the presumptive prejudice
inquiry, this factor requires us to consider the length of time beyond that which triggers a
Barker inquiry. Specifically, the concern is the difference between the time necessary to
prepare for trial and the time the case is actually tried. As a relatively simple DUI case,
this matter should have been fairly easy to prepare for trial. This factor weighs in Mr.
Klindworth's favor. Iniguez, 167 Wn.2d at 292.
The second factor is the reason for the delay; this factor looks to the comparative
contributions of the parties to the delay. Id. at 294. While some of the responsibility for
the delay is attributable to the State, the vast bulk of the delay is overwhelmingly
attributable to Mr. Klindworth. By Mr. Klindworth's own account, he failed to appear for
court on many occasions. In his brief, Mr. Klindworth concedes the following missed
court dates: May 15,2007; July 17,2007; October 2,2007; March 17,2009; May 29,
2009; September 18,2009; October 22,2009; June 23,2010; September 9,2010;
December 10,2010; and May 20,2011. These frequent failures to appear resulted in
numerous delays and resetting of court dates. Moreover, he was on bench warrant status
between September 2010 and April 2011.
Additionally, a substantial part of the delay is attributable to Mr. Klindworth's
request for continuances. At a pretrial hearing on December 4,2007, Mr. Klindworth
requested a continuance to hire an attorney. At the next court appearance, Mr.
Klindworth appeared without an attorney. On January 9,2008, Mr. Klindworth appeared
for trial, but was not prepared. Trial was rescheduled at his request. On April 28, 2009,
Mr. Klindworth, through counsel, requested another continuance. Delays caused by
defense counsel are also attributed to the defendant because the attorney is acting on the
defendant's behalf. Vermont v. Brillon, 556 U.S. 81,90-91,129 S. Ct. 1283, 173 L. Ed.
2d 231 (2009); see State v. Campbell, 103 Wn.2d 1, 15, 691 P.2d 929 (1984).
Since the delays in this case are significantly the responsibility of Mr. Klindworth,
this factor weighs heavily in favor of the State.
The third factor is whether Mr. Klindworth has asserted his right to a speedy trial.
Iniguez, 167 Wn.2d at 294-95. This factor favors Mr. Klindworth. He raised speedy trial
issues on multiple occasions during the five years between arraignment and trial.
The final factor is whether the defendant was prejudiced by the delay. ld. at 295.
Our Supreme Court recently held that "[a] defendant ... must establish actual prejudice
before a violation of the constitutional right to a speedy trial will be recognized."
Ollivier, 178 Wn.2d at 840. Mr. Klindworth fails to articulate a sound case for prejudice.
He concedes that he "was not incarcerated at all times during the critical period." Br. of
Appellant at 34. The crux of his argument seems to be that he was not appointed an
attorney until nine days before trial, which impaired his ability to prepare a defense.
Mr. Klindworth ignores the fact that he was not appointed counsel until just before
trial because he had been asserting his right to proceed pro se. In fact, one of the issues
on appeal is that the court appointed defense counsel over his objection. He also fails to
identify how late appointment of counsel prejudiced his defense. There is no indication
his ability to present a defense was hindered by the passage of time. This factor weighs in
favor of the State.
On balance, the Barker factors favor the State. While the lengthy delay favors Mr.
Klindworth, his significant contribution to the delay and the absence of prejudice all
weigh against his position. Mr. Klindworth's constitutional speedy trial right was not
l3 No. 30226-1-111 State v. Klindworth
Right to Present a Defense. Mr. Klindworth next contends that the trial court
denied him his right to present a defense by preventing him from challenging the blood
test results and fully cross-examining Sergeant Dickenson. He contends, "[t]he critical
aspect of [his] defense was the attack of the blood test results and the denial of his ability
to have independent tests conducted." Br. of Appellant at 35. He contends the trial court
should have suppressed the blood test results because he was denied the opportunity to
have the third blood vial tested. Specifically, he claims the arresting officer was under a
duty pursuant to RCW 46.20.308(2) and RCW 46.61.506(6) to inform him that the
hospital would only keep the vial for one week and that the arresting officer should have
taken the third sample and preserved it. He also maintains that "a full cross-examination
of [Sergeant] Dickenson could have impacted the trial court's decision in denying the
CrR 3.6 motion as to the blood tests." Br. of Appellant at 36. His arguments fail.
First, the State was under no obligation to cover the expenses or otherwise assist in
the procurement of additional blood tests for Mr. Klindworth. Gonzales v. Dep't of
Licensing, 112 Wn.2d 890,899, 774 P.2d 1187 (1989). "While the State must afford a
[DUI] suspect a reasonable opportunity, under the circumstances, to obtain additional
tests, this does not require the State to administer additional tests." State v. McNichols,
128 Wn.2d 242, 249, 906 P.2d 329 (1995) (citations omitted) (citing State v. Stannard,
109 Wn.2d 29,36, 742 P.2d 1244 (1987)). Furthennore, the State is under no duty to
assist the accused in obtaining exculpatory evidence. McNichols, 128 Wn.2d at 249.
RCW 46.20.308(2) instructs the officer administering an alcohol or drug test to
infonn the DUI suspect of his or her rights under the statute. The implied consent statute
also gives the driver the right to undergo additional tests of his or her own choosing after
he or she has either taken or refused the police administered test. RCW 46.20.308(2).
RCW 46.20.308(2) states in relevant part, "The officer shall infonn the person of his or
her right ... to have additional tests administered by any qualified person of h(s or her
choosing as provided in RCW 46.61.506." RCW 46.61.506(6) states:
The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his or her own choosing administer one or more tests in addition to any administered at the direction ofa law enforcement officer. The test will be admissible if the person establishes the general acceptability of the testing technique or method. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.
The court denied Mr. Klindworth's motion to suppress the blood test results,
finding that Mr. Klindworth was given ample opportunity to make arrangements for his
own blood draw and that he failed to take the steps necessary to have it preserved. The
court did not err. The record establishes that Sergeant Dickenson read Mr. Klindworth
his implied consent warning numerous times. The sergeant explained that he eventually
transported Mr. Klindworth to a hospital for a blood draw where a third vial was drawn,
at Mr. Klindworth's request. Sergeant Dickenson took two vials and left the third vial
with hospital staff. Under well-established law, Sergeant Dickenson had no affirmative
duty to assist Mr. Klindworth in obtaining an independent test of the third blood vial.
In a related assignment of error, Mr. Klindworth asserts that the trial court
prevented him from presenting a defense regarding the flaws in the blood evidence
because it forced him to proceed to the CrR 3.6 hearing unprepared. The Sixth
Amendment guarantees criminal defendants the right to present a defense. State v. Jones,
168 Wn.2d 713, 719-20, 230 P.3d 576 (2010). We may review de novo an alleged denial
of the Sixth Amendment right to present a defense, but only if the defendant's need to
present the evidence outweighs the State's interest in precluding the evidence. Id. at 720
(quoting State v. Darden, 145 Wn.2d 612,622,41 P.3d 1189 (2002)).
Relying on Jones, Mr. Klindworth complains that the court's refusal to continue
the CrR 3.6 hearing so that Mr. Klindworth could obtain his notes and legal materials,
resulted in compromising his ability to fully examine Sergeant Dickenson and adequately
challenge the State's blood evidence. However, Jones does not help him. In that case,
the issue was whether the trial court violated the defendant's right to present a defense by
refusing to let him testify or introduce evidence regarding the circumstances of the
16 No. 30226-1-111 State v. Klindworth
charged rape. Jones, 168 Wn.2d at 719-20. Here, unlike the defendant in Jones, Mr.
Klindworth was not prevented from admitting any evidence or examining witnesses. In
fact, he was given multiple opportunities to question Sergeant Dickenson.
For example, on March 23,2010, Mr. Klindworth asked to represent himself and
argue several motions, including a challenge to the admissibility of the blood draw
evidence. He stated that he needed until the middle of June to prepare his motions. The
court accommodated him and scheduled a pretrial hearing for June 23,2010. Mr.
Klindworth did not appear for the scheduled hearing. At the next scheduled hearing on .
August 17, 2010, Mr. Klindworth started questioning Sergeant Dickenson, but the hearing
had to be continued to September 9,2010, due to a mechanical failure of the stenographic
machine. Mr. Klindworth indicated that he was aware of the new court date, but did not.
appear on September 9, 2010. Mr. Klindworth disappeared until April 5, 2011. A new
court date was scheduled for May 20, 2011. Mr. Klindworth failed to appear again on
May 20,2011.
On July 8, 2011, the date finally set for Mr. Klindworth's suppression motion, Mr.
Klindworth initially indicated that he wanted to proceed with the hearing. Sergeant
Dickenson was present. However, shortly into the hearing, Mr. Klindworth reversed his
position and informed the court that he was not prepared to continue his questioning of
No. 30226-I-Ill State v. Klindworth
Sergeant Dickenson due to his inability to access his notes while he was incarcerated.
The court noted that Sergeant Dickenson was present and pointed out that this was Mr.
Klindworth's chance to finally complete his cross-examination of the sergeant. Mr.
Klindworth refused and the court excused Sergeant Dickenson.
Mr. Klindworth had multiple opportunities to cross-examine Sergeant Dickenson.
Ultimately, his inability to do so was based on his failure to appear for scheduled court
hearings and his refusal to proceed with the CrR 3.6 hearing and finish his questioning of
Sergeant Dickenson. The trial court did not deny Mr. Klindworth the opportunity to
challenge the blood evidence or present a defense.
Right to Remain Silent. Next, Mr. Klindworth contends that the prosecutor
violated his right to remain silent by eliciting testimony from Sergeant Dickenson that Mr.
Klindworth refused to cooperate with a DUl investigation.
The Fifth Amendment to the United States Constitution states that "[no] person ...
shall be compelled in any criminal case to be a witness against himself." Article l,
section 9 of the Washington Constitution states that "[no] person shall be compelled in
any criminal case to give evidence against himself." Both provisions guarantee a
defendant the right to be free from self-incrimination, including the right to silence. State
v. Knapp, 148 Wn. App. 414, 420, 199 P.3d 505 (2009). The State violates this right
No. 30226-1-III State v. Klindworth
when it uses the defendant's constitutionally permitted silence as substantive evidence of
guilt. State v. Burke, 163 Wn.2d 204,217, 181 P.3d 1 (2008). This means the State
cannot elicit comments from witnesses or make closing arguments that infer guilt from
the defendant's silence. State v. Easter, 130 Wn.2d 228,236,922 P.2d 1285 (1996).
Eliciting testimony about and commenting on a suspect's postarrest silence or
partial silence is constitutional error and subject to our stringent constitutional error
standard. Jd. at 236-37. Under this standard, we presume constitutional errors are
harmful and reverse and remand for a new trial unless the State meets the heavy burden of
establishing that the constitutional error was harmless beyond a reasonable doubt. Jd. at
242. A constitutional error is harmless beyond a reasonable doubt only if the evidence is
so overwhelming that any rational trier of fact would necessarily have found the
defendant guilty. Jd.
A "comment" involves use of silence either as substantive evidence of guilt or to
suggest that the defendant's silence was an admission of guilt. State v. Lewis, 130 Wn.2d
700, 707, 927 P .2d 235 (1996). Here, the prosecutor questioned Sergeant Dickenson as
follows:
Q. Okay, Sergeant Dickenson, I'm handing you State's
Identification 8 (indicating). Do you recognize it?
A. Yes. This is the portion of the constitutional rights in the DUI packet.
Q. Was this form filled out during the course of your investigation for this case? A. Yes, it was. Q. Are those the same or substantially the same rights that you just read from your Miranda card? A. Yes. Q. Did the defendant sign indicating that he understood those rights? A. He did.
Q. Is this portion of your investigation voluntary? A. Yes. Q. Did the defendant agree to do the DUI interview with you? A. I believe he didn't. I'd have to look at my form.
RP (Vol. VI of VI) at 929. After a few more questions, Sergeant Dickenson confirmed
that Mr. Klindworth refused the interview. Defense counsel did not object to the
questioning and the matter was not mentioned again.
In the context of the trial, the single reference to Mr. Klindworth's failure to
cooperate with the DUI interview was elicited to show that after his arrest, he was
irritable, uncooperative, and exhibiting the effects of methamphetamine use. The
prosecutor did not at any point during trial invite the jury to use Mr. Klindworth's failure
to cooperate with the DUI interview as substantive evidence of guilt or suggest that guilt
could be inferred from silence. A statement will not be considered a comment on the
right to remain silent, if'''standing alone, [it] was so subtle and so brief that [it] did not
naturally and necessarily emphasize defendant's testimonial silence.'" Burke, 163 Wn.2d
at 216 (internal quotation marks omitted) (quoting State v. Crane, 116 Wn.2d 315, 331,
804 P .2d 10 (1991». A mere reference to silence is not reversible error absent a showing
of prejudice. Burke, 163 Wn.2d at 216.
However, even if we assume that Sergeant Dickenson's testimony constituted an
impermissible comment on Mr. Klindworth's right to remain silent, the error was
harmless under the constitutional error standard. The untainted evidence of guilt is
overwhelming. Specifically, as detailed above, Sergeant Dickenson testified that Mr.
Klindworth was driving dangerously, speeding and then slowing down, stopping in front
of the patrol car and then veering over the fog line. The car smelled of
methamphetamine, and Mr. Klindworth's behavior was consistent with methamphetamine
use. A blood draw revealed the presence of methamphetamine in Mr. Klindworth's
system.
In light of this overwhelming evidence demonstrating Mr. Klindworth's guilt, any
rational trier of fact would necessarily have found Mr. Klindworth guilty of driving while
under the influence of drugs. Accordingly, any error related to an improper comment on
Mr. Klindworth's postarrest silence was harmless beyond a reasonable doubt.
Right to Self.-Representation. Mr. Klindworth next contends that the trial court
erred by denying his request to proceed pro se. He contends the trial court forced him to
be represented by appointed defense counsel, Karla Kane, over his objection. He further
maintains that the breakdown in communication between him and Ms. Kane violated his
effective right to counsel.
We review the trial court's denial of a request for self-representation for an abuse
of discretion. State v. Madsen, 168 Wn.2d 496,504,229 P.3d 714 (2010). A trial court
abuses its discretion when its decision is manifestly unreasonable or is based on untenable
grounds. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v.
Blackwell, 120 Wn.2d 822,830,845 P.2d 1017 (1993)).
Criminal defendants have a constitutional right to waive the assistance of counsel
and represent themselves at trial. Faretta v. California, 422 U.S. 806, 819-20, 95 S. Ct.
2525,451. Ed. 2d 562 (1975); State v. Barker, 75 Wn. App. 236, 238,881 P.2d 1051
(1994). An unjustified denial of this right requires a new trial. Madsen, 168 Wn.2d at
503 (quoting State v. Stenson, 132 Wn.2d 668, 737, 940 P.2d 1239 (1997)); State v.
Breedlove, 79 Wn. App. 101, 111, 900 P.2d 586 (1995). The court must indulge in every
reasonable presumption against the defendant's waiver of right to counsel. In re Det. of
Turay, 139 Wn.2d 379,396,986 P.2d 790 (1999) (quoting Brewer v. Williams, 430 U.S.
387,404,97 S. Ct. 1232,51 1. Ed. 2d 424 (1977)).
The right to self-representation, however, is not absolute. State v. DeWeese, 117
Wn.2d 369,375-76,816 P.2d 1 (1991). As a threshold matter, the defendant's request to
proceed pro se must be both timely and unequivocal. Stenson, l32 Wn.2d at 737. Where
a defendant's request for self-representation is untimely, "the right is relinquished and the
matter of the defendant's representation is left to the discretion of the trial judge."
DeWeese, 117 Wn.2d at 377.
Mr. Klindworth's request to proceed pro se was neither timely nor unequivocal.
On July 8, 2011, Mr. Klindworth asked to proceed with the erR 3.6 hearing without the
benefit of standby counsel. Later in the hearing, he indicated he wanted standby counsel
and refused to argue the motion without legal counsel present. The court reminded Mr.
Klindworth that it had advised him one year ago that he was being foolish by representing
himself. Mr. Klindworth repeated his desire to have legal counsel. The court denied the
request, noting "you've asked for lawyers on mUltiple occasions, and then you've asked
they be discharged on multiple occasions, and I see this as simply another ploy on your
part." RP (Vol. IV of VI) at 741.
On July 12,2011, Mr. Klindworth asked for an attorney to represent him at trial
scheduled for July 20, 2011. The court appointed Karla Kane. Mr. Klindworth
responded, "I will not work with Karla. . .. Our differences are irretrievable, and if
forced to, I need to continue on to trial on my own because we've had differences that I
don't want to discuss in open court that would ... undermine my entire defense." RP
(Vol. V of VI) at 806. The court responded, "Ms. Kane is your attorney right now. If you
wish to renew your request to represent yourself at time of trial, on July 20th you can
bring that up to the court." RP (Vol. V of VI) at 807.
On July 19,2011, Ms. Kane advised the court:
Your Honor, at this point Mr. Klindworth does feel he is bound to proceed with me as his attorney. His tactic of defending the case would have been-is severely different than mine in terms of part of the differences as to why I had asked the court to not appoint me last week. But at this point he feels like in order to get his trial underway, he has to proceed with me because he obviously didn't-since he felt like your Honor was appointing me and that the issue was closed, that he is not prepared and hasn't subpoenaed witnesses that he would have wanted, etc., for trial tomorrow. So, at this point I am proceeding forward as his attorney.
RP (VoL V of VI) at 820-21.
When the State voiced concerns that Mr. Klindworth had a right to
represent himself, the court responded:
From my perspective, he didn't-he never wanted to proceed pro se. He just didn't want Karla Kane as his attorney, and he doesn't have a choice to choose his attorney. That's why the court ruled the way it did. Then he brings it up eight days before trial, which under those circumstances could only be characterized as efforts to undermine the process.
RP (Vol. V of VI) at 821-22.
24 No.30226-I-III State v. Klindworth
The right to represent oneself does not encompass a right to choose a particular
advocate. State v. Schaller, 143 Wn. App. 258,267, 177 P.3d 1139 (2007). Moreover, a
pro se request made in the context of expressing displeasure with one's counsel often
indicates that the request is equivocal. State v. Woods, 143 Wn.2d 561,587,23 P.3d
1046 (2001). In Woods, the defendant stated that:
"I will be prepared to proceed with-with this matter here without counsel
come October.
I've already consented to one continuance, Your Honor. And they-they
have done nothing but grossly misuse that time."
Id. The court found that this was not an unequivocal request, but an expression of the
defendant's displeasure with his counsel's motion to continue his trial. Id.
Mr. Klindworth's request was likewise equivocal. The overall purpose of his
exchanges with the court was to express displeasure with appointed defense counsel and
to obtain new counsel. Moreover, on the day of trial, he did not renew his request to be
pro se. Considering Mr. Klindworth's statements in context and applying the
presumption against waiver of right to counsel, his request was equivocal.
Additionally, a trial court may terminate pro se status if a defendant "deliberately
engages in serious and obstructionist misconduct." Faretta, 422 U.S. at 834 n.46; see
also Madsen, 168 Wn.2d at 509 n.4 ("if a defendant is sufficiently disruptive or if delay
becomes the chief motive"). Here, the trial court based its decision on its finding that Mr.
Klindworth was undermining and delaying proceedings. As just detailed, the record
amply supports the court's finding, establishing repeated disruptions by Mr. Klindworth
and repeated admonitions by the court. The trial court did not abuse its discretion in
denying Mr. Klindworth's request to proceed without counsel.
Denial ofMotion to Dismiss. Mr. Klindworth contends that the trial court abused
its discretion in denying his motion to dismiss under erR 8.3(b) for mismanagement. He
argues that the "notification procedures utilized by the State in this case constitute
mismanagement," which resulted in substantial prejudice to Mr. Klindworth, including
incarceration on several occasions. Br. of Appellant at 45.
erR 8.3(b) states:
The court, in the furtherance ofjustice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial. The court shall set forth its reasons in a written order.
Before a trial court may dismiss charges under erR 8.3(b), the defendant must
show by a preponderance of the evidence (1) arbitrary action or governmental misconduct
and (2) prejudice affecting the defendant's right to a fair trial. Rohrich, 149 Wn.2d at
654. The governmental misconduct need not be evil or dishonest; simple mismanagement
is sufficient. Blackwell, 120 Wn.2d at 831. And, the defendant must show actual
prejudice, not merely speculative prejudice affecting his right to a fair trial. Rohrich, 149
Wn.2d at 657. Dismissing charges under erR 8.3(b) is an extraordinary remedy and is
limited to truly egregious cases of mismanagement. State v. Wilson, 149 Wn.2d 1, 9, 65
P.3d 657 (2003) (quoting State v. Duggins, 68 Wn. App. 396, 401, 844 P.2d 441, a.ff'd,
121 Wn.2d 524, 852 P.2d 294 (1993)). We review a trial court's decision denying a
motion to dismiss under erR 8.3 for an abuse of discretion. Blackwell, 120 Wn.2d at 830.
In December 2009, Mr. Klindworth filed a erR 8.3 motion to dismiss, alleging his
case had been mismanaged by the prosecutor, court administration, and the clerk's office.
He claimed that he was not given notice of court dates and that when he showed up for
court, the date would be reset. He claimed that the resulting delays prejudiced his trial
because a witness had died during this time and his speedy trial rights were violated.
The court denied Mr. Klindworth's motion, finding that Mr. Klindworth had been
advised of court dates and that his failures to appear were unexcused. The court also
noted that most of the delays were attributable to Mr. Klindworth, pointing out that Mr.
Klindworth filed approximately 10 motions in July 2010, but failed to note any of them
for the motion docket. The court also found that Mr. Klindworth was not credible and
that he failed to support his contentions with supporting documents.
27 No.30226-1-III State v. Klindworth
Mr. Klindworth fails to explain how the court abused its discretion. Mr.
Klindworth does not specify which "notification procedures" prejudiced him or point to
any evidence in the record to support his claim. In view of Mr. Klindworth's mUltiple
unexcused failures to appear for court, failure to support his arguments with supporting
documentation, and failure to establish actual prejudice, the trial court did not abuse its
discretion in denying his motion.
Imposition ofInterlock Requirement. Finally, Mr. Klindworth contends that the
trial court erred in imposing an ignition interlock device requirement at sentencing. This
contention is without merit. The court did not impose an ignition interlock requirement.
SAG Issues. Mr. Klindworth raises a number of additional grounds in his SAG.
He contends his speedy trial rights were violated, the prosecutor failed to release
eXCUlpatory evidence, the prosecutor released slanderous information to the Tri-City
Herald to create negative pretrial publicity, the procedure for gathering an independent
blood test was flawed, willful court misconduct and wrongful incarceration hampered his
ability to present a defense, the removal of defense counsel added one year to the pretrial
process, denial of public funds for his defense, and the court's instruction that the jury
was not to be told that Mr. Klindworth spent months in jail before trial denied him a fair
trial.
28 No.30226-1-III State v. Klindworth
None of these claims are properly before us. Several of his alleged errors have
been addressed by counsel and are, therefore, not matters for his SAG. These include
issues related to speedy trial violations, the blood test, and violation of his right to present
a defense. RAP 10.1 O(a) permits an appellant to file a pro se statement of additional
grounds "to identify and discuss those matters which the defendant/appellant believes
have not been adequately addressed by the brief filed by the defendant/appellant's
counsel."
The remaining claims either involve matters outside the record, State v.
McFarland, 127 Wn.2d 322, 335, 338 n.5, 899 P.2d 1251 (1995) (matters outside record
must be raised in personal restraint petition), were not raised at trial, or are insufficiently
argued. ,Although RAP 10.10(c) states that reference to the record and citation to
authorities are not required in statements of additional grounds for review, the rule also
states that the appellate court will not consider the SAG for review ifit does not inform
the court of the nature and occurrence of the alleged errors. Here, Mr. Klindworth fails to
cite to record or adequately describe the nature and occurrence of any alleged errors as
required by RAP 10.10(c). We are not obligated to search the record in support of SAG
claims. Additionally, several claims would require us to consider affidavits and other
evidence outside the record below and on appeal. If Mr. Klindworth wishes to raise
issues of facts and evidence outside the record, he must raise them in a personal restraint
petition. McFarland, 127 Wn.2d at 335.
We affirm the trial court.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040. //
~~ /Price, J.P.T.
WE CONCUR: