State v. Bebb

723 P.2d 512, 44 Wash. App. 803, 1986 Wash. App. LEXIS 3220
CourtCourt of Appeals of Washington
DecidedAugust 7, 1986
Docket5839-5-III
StatusPublished
Cited by29 cases

This text of 723 P.2d 512 (State v. Bebb) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bebb, 723 P.2d 512, 44 Wash. App. 803, 1986 Wash. App. LEXIS 3220 (Wash. Ct. App. 1986).

Opinions

Thompson, J.

Robert Bebb was convicted by a jury of first degree murder for killing Kay Divine in the course of an attempted robbery at the Password Answering Service office. His appeal raises issues concerning (1) his right to proceed pro se; (2) his right to a speedy trial; (3) the introduction of certain allegedly irrelevant evidence; (4) the closing argument of the prosecutor, which he asserts commented on his right to remain silent; and (5) the failure of the prosecutor to disclose allegedly favorable evidence. We affirm.

First, did the trial court infringe on Mr. Bebb's constitutional right to represent himself? Mr. Bebb initially represented himself and Assistant Public Defender Roger Peven was appointed to act as standby counsel. On November 9, 1982, during a hearing in which Mr. Bebb made several motions relative to preparation of his case, he asked the court if what he said to Mr. Peven was privileged. The prosecutor argued there was no attorney/client privilege [805]*805because Mr. Bebb "is both the attorney and the client." The court then commented: "That's about the way I see it as well." After Mr. Peven stated this effectively terminated Mr. Bebb's ability to talk to him about factual matters, the court concluded:

I guess what I am saying here, Mr. Bebb, is your question isn't one that I'm going to precisely answer at this point. I've given you what my gut reaction is, and I think if there was some case law on it one way or the other, that would be more persuasive to me than a gut reaction.

Mr. Bebb continued to represent himself until January 7, 1983, at which time, prior to trial, he asked the court to appoint Mr. Peven cocounsel. He asserts that although he was proceeding pro se, he had a right to have standby counsel assist him. He reasons that without the assurance of an attorney/client privilege, he could not turn to Mr. Peven for assistance, and thus was effectively forced to abandon his right to represent himself.

The United States Supreme Court has never held a pro se defendant has a right to standby counsel to assist him in his defense. Rather, the Court has stated that such counsel may be appointed — even where the defendant objects — to aid the accused if he so requests and to be available to take over the defense if termination of the defendant's right to proceed pro se is necessary. McKaskle v. Wiggins, 465 U.S. 168, 79 L. Ed. 2d 122, 104 S. Ct. 944, 950 (1984) (quoting Faretta v. California, 422 U.S. 806, 834 n.46, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975)).

However, the Supreme Court has held that the constitutional right of access to the courts means that the state must provide jailed persons "adequate law libraries or adequate assistance from persons trained in the law." Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977). In State v. Dougherty, 33 Wn. App. 466, 471, 655 P.2d 1187 (1982), this court held: "Where the defendant has knowingly and intelligently exercised his right of self-representation, the appointment of standby counsel meets the meaningful access requirement of Bounds." See also [806]*806People v. Rice, 40 Colo. App. 357, 579 P.2d 647, cert. denied, 439 U.S. 898, 58 L. Ed. 2d 245, 99 S. Ct. 261 (1978); Annot., Accused's Right To Represent Himself in State Criminal Proceeding — Modern State Cases, 98 A.L.R.3d 13, § 25 at 89 (1980) (access of defendant to legal resources).

We take judicial notice of the fact that the jail in which Mr. Bebb was incarcerated did not contain a law library. Although the court appointed a runner and investigator to assist Mr. Bebb, the person appointed was neither a lawyer nor a legal intern. Thus, Mr. Bebb's meaningful access to the court was, in this instance, through his standby counsel. But such counsel without an attorney/client privilege cannot provide a pro se defendant with the assistance necessary to fully protect the right of access. Specifically, a pro se defendant may have to disclose facts to his standby counsel in order to seek advice on various matters, including procedure, appropriate law books, and research material. He should not have to waive the confidentiality of these disclosures in order to achieve his right of meaningful access to the judicial process.

The material question here is whether the court's statement concerning the existence of a privilege so undermined or chilled Mr. Bebb's ability to use standby counsel that it infringed upon his right of access. We hold it did not. The right of self-representation is not a license to avoid compliance with relevant rules of procedural and substantive law, Faretta, 422 U.S. at 834 n.46, since the rules apply equally to defendants represented by counsel or appearing pro se. State v. Barker, 35 Wn. App. 388, 392 n.1, 667 P.2d 108 (1983); State v. Hoff, 31 Wn. App. 809, 812, 644 P.2d 763, cert. dismissed, 459 U.S. 1093 (1982). Neither counsel nor pro se defendant may remain silent at trial as to claimed errors and later, if the verdict is adverse, urge trial objections for the first time in a motion for new trial or appeal. Hoff, at 812 (citing Sherman v. Mobbs, 55 Wn.2d 202, 207, 347 P.2d 189 (1959)).

As previously discussed, Mr. Peven noted on the record [807]*807that the court's ruling would terminate Mr. Bebb's ability to talk to him about factual matters.1 In response to Mr. Peven's comment, the judge made it clear that his statement was no more than a "gut reaction". Later, on-record discussions made it clear that both the judge and Mr. Peven recognized the fact the court had not actually ruled Mr. Bebb did not have a privilege. In light of this unsettled situation, Mr. Bebb had the obligation to request a ruling which he could thereafter challenge if adverse. The judge's final remark left the issue unresolved and was not sufficiently specific to justify Mr. Bebb concluding his conversation with standby counsel was not privileged. A pro se defendant has no more right to subjectively elevate an informal observation to an appealable issue than would trained legal counsel. We conclude Mr. Bebb has failed to properly establish a reviewable issue.

Mr. Bebb also contends that the Superior Court never informed him of the risks of self-representation as set forth in Bellevue v. Acrey, 103 Wn.2d 203, 691 P.2d 957 (1984). However, his assignment of error is that he was not allowed to proceed pro se, rather than vice versa. In these circumstances, Mr. Bebb's reliance on Bellevue v. Acrey, supra, does not aid him. Mr. Bebb also alleges that law books mailed to him in the county jail were returned unopened by jail officials. The record does not provide sufficient facts to make it possible to review this complaint.

Second, was Mr. Bebb denied his right to a speedy trial under CrR 3.3? The following chronology is significant in analyzing Mr. Bebb's argument in this regard:

June 29, 1982: Mr. Bebb arrives in Washington following extradition from California.

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Cite This Page — Counsel Stack

Bluebook (online)
723 P.2d 512, 44 Wash. App. 803, 1986 Wash. App. LEXIS 3220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bebb-washctapp-1986.