State v. Hemenway

95 P.3d 408
Court of Appeals of Washington·Decided August 3, 2004·No. 29956-9-II·Published·Cited by 15 cases

Opinion

95 P.3d 408 (2004)

STATE of Washington, Respondent,
v.
Billyjo Lynn HEMENWAY, Appellant.

No. 29956-9-II.

Court of Appeals of Washington, Division 2.

August 3, 2004.

*410 Michael C. Kinnie, Vancouver, WA, for Respondent.

Lisa Elizabeth Tabbut, Attorney at Law, Longview, WA, for Appellant.

VAN DEREN, J.

Billyjo Lynn Hemenway appeals the trial court's denial of his request to represent himself at trial on the charge of first degree rape. Because Hemenway was consistently disruptive and sought to obstruct the orderly administration of justice, we affirm.

FACTS

The State charged Hemenway with first degree rape. Hemenway was arraigned, he removed one judge for prejudice, and his first court appointed attorney successfully moved to withdraw after Hemenway made accusations against him.

Alleging that his second court appointed attorney was biased and ineffective for failing to submit his motion, Hemenway requested new counsel on December 9, 2002. The court asked if he sought self representation. Hemenway indicated that he did not, but he continued to complain about the second attorney. The court appointed this attorney as stand by counsel after a long discussion with Hemenway.

The next day the court again addressed whether Hemenway sought to waive counsel and represent himself at trial. The court asked Hemenway:

In my review of the record from yesterday, you were not unequivocal. You were saying to me essentially that you didn't want to represent yourself but you didn't have the money to hire the attorney you want to have.
That's not quite equivocal enough, Mr. Hemenway, so I need to hear from you, sir. Do you wish to do this case yourself?
[Hemenway]: No.

IV Report of Proceedings (RP) at 67.

Then at the next hearing on December 31, 2002, Hemenway indicated that he wanted to represent himself, asserting that his attorney was lying to him. The court denied Hemenway's request in part because of his prior disruptive behavior. Soon after this hearing, the court granted the State's motion to determine Hemenway's competency for trial. The court later found Hemenway competent.[1]

Trial commenced on February 3, 2003. Potential jurors were screened using a questionnaire inquiring about prior media coverage of Hemenway's alleged crime. Before the first jury panel was sworn in, Hemenway continuously interrupted the judge, showed contempt for the court proceedings, and alleged that his attorney instructed him to lie. Consequently, the court temporarily removed him from the courtroom. Upon removal, he engaged in a loud fight with custodial staff which the potential jurors could hear. The court called in a new jury pool to ensure that Hemenway received a fair trial.[2] The jury found Hemenway guilty as charged and the court sentenced him to life in prison.

*411 ANALYSIS

I. SELF REPRESENTATION

Hemenway argues that the trial court erred by refusing to allow him to represent himself. He asserts that he made a timely request and that the trial court's rationale for denying his right of self representation improperly focused on serving his best interests.

A criminal defendant has a constitutional right to waive assistance of counsel and proceed pro se at their trial. U.S. CONST. AMEND. VI, VIX; WASH. CONST., art. I, § 22; State v. Fritz, 21 Wash.App. 354, 358, 585 P.2d 173 (1978). "In order to exercise the right, a defendant's request must be unequivocal, knowingly and intelligently made, and must be timely." State v. Vermillion, 112 Wash.App. 844, 851, 51 P.3d 188 (2002), review denied, 148 Wash.2d 1022, 66 P.3d 638 (2003). To determine the validity of a defendant's self representation request, the trial court examines the facts and circumstances and the entire record. In re Detention of Turay, 139 Wash.2d 379, 396, 986 P.2d 790 (1999); State v. DeWeese, 117 Wash.2d 369, 378, 816 P.2d 1 (1991). The court should also engage in a colloquy with the defendant to ensure that he or she understands the risks and consequences of self representation. Vermillion, 112 Wash.App. at 851, 51 P.3d 188.

We review a trial court's denial of a defendant's self representation request for an abuse of discretion that "lies along a continuum, corresponding to the timeliness of the request: '(a) if made well before trial ... and unaccompanied by a motion for continuance, the right of self-representation exists as a matter of law.'" Vermillion, 112 Wash.App. at 855, 51 P.3d 188 (quoting Fritz, 21 Wash.App. at 361, 585 P.2d 173). However, a defendant cannot seek self representation in order to cause delay or obstruct the administration of justice, even though a court "should indulge every reasonable presumption against finding that a defendant has waived the right to counsel," and a defendant can waive self representation by disruptive words or misconduct. Vermillion, 112 Wash.App. at 851, 51 P.3d 188; Fritz, 21 Wash.App. at 361, 363, 585 P.2d 173.

Hemenway consistently engaged in disruptive behavior that obstructed the orderly administration of justice. Significantly, Hemenway provides no argument to rebut this fact. We briefly review the proceedings leading up to his purported unequivocal request for self representation on December 31, to demonstrate Hemenway's pattern of misconduct and disrespect toward the court's officers and process.

In his first court appearance, Hemenway refused to speak or respond when the court asked him preliminary questions, such as the spelling of his name. The first judge was removed because of Hemenway's affidavit of prejudice. Hemenway then complained at a later hearing that his court appointed attorney lied to him. Because his trial for first degree rape was scheduled less than two weeks from that date, the court attempted to explain to Hemenway that if he received new counsel, he had to waive his right to a speedy trial in order to provide new counsel adequate time to prepare his defense. Hemenway refused to make a choice and instead asserted ineffective assistance of counsel. The trial court indicated that Hemenway was inappropriately repeating the same arguments he had made to the first judge. See II RP at 13 (the court stated, "you've been down this road ... with [the first judge] a number of times. I've reviewed the tapes ... It still comes down to the same problem.").

Soon after this exchange, Hemenway alleged that the second judge was biased because his attorney was a, "friend of the Court." The court responded, "you and I need to come to an understanding real soon, real quick. You are not gonna pull the same things with me that you pulled with [the first judge]." II RP at 16. The court granted Hemenway's first attorney's request to withdraw, which was based on Hemenway's accusations, and appointed a second attorney to represent He

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State v. Hemenway, 95 P.3d 408 (Wash. Ct. App. 2004).

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