State v. Imus

679 P.2d 376, 37 Wash. App. 170, 1984 Wash. App. LEXIS 2755

• Court: Court of Appeals of Washington
• Decided: March 19, 1984
• Docket: 11484-1-I
• Status: Published

Opinions

Durham, C.J.

The defendant, John Frederick Imus, appeals the judgment and sentence entered on his conviction by a jury of rape in the first degree (RCW 9A.44.040) while armed with a deadly weapon (RCW 9.95.040) which was also a firearm (RCW 9.41.025). The single issue before us is if the trial court correctly granted Imus' request to discharge his attorney and to represent himself at trial. We affirm.

Imus was arrested December 8, 1981, and charged with rape and kidnapping. Based on observations by his appointed counsel, Wayne Lieb, Imus was examined by a psychiatrist, Dr. Richard Jarvis, to evaluate his competency to stand trial. Dr. Jarvis reported that Imus had various adjustment problems and was a functional illiterate, having left school during the second grade, but concluded that Imus was competent to stand trial. On January 29, 1982, pursuant to an order of commitment, Imus was sent to Western State Hospital for further evaluation of his competence. Western State staff concluded that Imus, although of borderline intelligence, was not insane at the time of the alleged rape and was competent to stand trial. Following a hearing, the trial court entered an order on February 9, 1982, stating that Imus was competent to stand trial.

The same day, a hearing was held before Judge Dixon on a motion by Wayne Lieb to withdraw as counsel for Imus and on Imus' motion to proceed pro se. Judge Dixon questioned Imus about his decision to proceed pro se, and strenuously warned him against it. Following the hearing, Judge Dixon entered an order permitting Lieb to withdraw and Imus to represent himself, with the stipulation that Lieb would remain in a standby capacity.

Trial began before Judge Roberts 10 days later. Prior to the selection of the jury, Judge Roberts questioned Imus as to his choice to proceed pro se and warned him against' it. Nevertheless, Imus proceeded to represent himself. The jury returned a verdict of guilty of rape in the first degree while armed with a deadly weapon and a firearm. The trial court appointed Lieb as standby counsel for purposes of posttrial motions, denied Imus1 motion for judgment in arrest of verdict and for a new trial, and entered judgment and sentence on the jury verdict.

On appeal, Imus contends that the trial court erred by permitting him to proceed pro se without first ascertaining that- he had made a knowing and intelligent waiver of his right to counsel. He argues: (1) that the trial court failed to fully inform him of the nature and consequences of the charges against him, (2) that he was incompetent to waive his right to counsel due to his illiteracy, and (3) that he had never unequivocally asked to proceed pro se in the first place. We shall discuss these contentions in order.

Trial Court's Duty To Inform

A defendant who is mentally competent has the right to conduct his defense in person, without the assistance of counsel. Faretta v. California, 422 U.S. 806, 821, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975); Const. art. 1, § 22 (amend. 10). To exercise the right of self-representation, a defendant must be found to have validly waived his right to counsel. A valid waiver of counsel not only must be voluntary, but also knowing and intelligent. Faretta, 422 U.S. at 835.¹ The validity of a defendant's waiver of counsel is an issue which depends upon the particular facts and circumstances of each case. See Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A.L.R. 357 (1938). Imus argues that the court erred by not informing him of

the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charge, and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.

Brief of Appellant, at 8, quoting Von Moltke v. Gillies, 332 U.S. 708, 724, 92 L. Ed. 309, 68 S. Ct. 316 (1948). He claims that the failure to inform him of each of these facts prevented his waiver of counsel from being knowing and intelligent. We disagree. The United States Supreme Court has made it clear that a defendant does not need to be informed of technical legal matters to validly waive counsel. The central concern is that the defendant generally understand the import of his decision to proceed pro se:

Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open."

(Italics ours.) Faretta, 422 U.S. at 835.

A review of the record in this case convinces us that, under the Faretta standard, Imus' waiver of counsel was knowing and intelligent. Despite strenuously repeated warnings by Judge Dixon, Imus was emphatic about his desire to proceed pro se:

The Court: You want to represent yourself?

The Defendant: You bet.

The Court: Why?

The Defendant: Wayne Lieb is a good attorney, one of the best, but he don't believe I'm innocent and I feel a man that don't believe I'm innocent don't have any right representing me. I can address the Court and show you why, if you don't mind.

The Court: Okay, the concluding line [of Western State's evaluation] is, since our evaluation is complete, Mr. Imus is competent. We request that he be returned to Court for further proceeding.

Have you ever been in Court before in a trial?

The Defendant: Yes, I did—I represented myself right here and this is what the judge gave me at the time. Here is a copy of it. It was over changing the visiting rights on my two minor children. Your Honor, I represented myself on that matter.

The Court: That was in April of this year or last year rather.

The Court: You want to represent yourself? Do you understand the Rules of Evidence?

The Defendant: I understand the best thing in my behalf, that I'm not guilty, that is the biggest thing in my favor. That's the biggest thing in my favor.

The Court: A lot of not guilty people have been convicted.

The Defendant: I can appreciate that, your Honor.

The Court: I'm going to let you represent yourself. I think you are making a big, big mistake representing yourself. I think you are substantially increasing the likelihood you will be convicted and I'm saying these things on the record now because if you are convicted and if you are sent to the penitentiary, I don't want to see any writs floating over here saying you were denied your rights to representation; it is against the expressed advise [sic] of the Court you are going to represent yourself.

The Defendant: I understand that, your Honor.

The Court: The Rules of Evidence that [sic] the trial will be observed, if you ask for information from a witness and it's objectionable, the judge will sustain the objection, he will afford you no extra consideration because you are representing yourself. He will expect exactly the same sort of thing out of you that he will expect from an attorney. He will sustain proper objections to leading questions, he will not let you say come in [sic], he will not let you call the prosecuting attorney a liar. You will not be able to put this man on trial, that's what I'm saying, all of those things apply, all of the rules will be observed.

The Defendant: Your Honor, have you ever read her statement?

The Court: No, I have no reason to read her statement at this hearing. You see, that's what I'm talking about, you don't know what you are doing, you are in a courtroom, you are out of your element. You think I should read statements from some girl at a hearing to determine whether or not you ought to be able to discharge your attorney. That has nothing to do with it, you don't understand it. If I discharge your attorney, he is going to be out, you will not be afforded a continuance of the trial date.

The Defendant: That's fine, your Honor.

The Court: The case will go to trial on the date that it's now set. I again, I would express to you as strenuously as I can, you are probably making the biggest mistake of your life and one that may result in your being confined in the penitentiary of this State for, what's the maximum on this?

Mr. Lobsenz: Life.

The Defendant: Life.

The Court: Life in the penal institution.

The Defendant: I understand. For the Court's information, I'm not guilty and that's in my favor.

The Court: That has nothing to do with whether or not you should be represented by an attorney. If you are not guilty, that is even more reason for you to be represented by an attorney.

Mr. Lobsenz: Your Honor, I was wondering if I could put a few things on the record.

The Court: You bet.

Mr. Lobsenz: The State's position is that Mr. Imus has a right to represent himself and I don't oppose the Court's granting the motion, although I have reviewed the law and I have reviewed what is set forth in State us. Watkins [25 Wn. App. 358, 606 P.2d 1237 (1980)]. It sets forth eight principles that the Court's to be guided by. The only one that I think is at all troublesome is obviously the waiver must be knowingly and intelligent. I think your Honor has done more than—

The Court: You better go through the other part of it.

Mr. Lobsenz: The other principles say there is a constitutional right to self-representation. The defendant must request it himself; it must be unequivocal; must be timely made, cannot be used to delay or obstruct trial; does not excuse procedural law, and all of those are satisfied in my opinion at this point, although I would ask the Court to do a number of things. Notice that stand-by counsel can be appointed over the defendant's objection to stand by in case he changes his mind during trial, in case during trial he wants the advice of an attorney on one specific point or in case the trial judge decides he can no longer represent himself and a lawyer will be appointed.

The Court: I will ask Mr. Lieb to stand by, but he will not participate unless specifically requested.

On the day of trial, Judge Roberts restated these warnings, after an extensive attempt to discern Imus' true intent, to be discussed infra:

The Court: Just a minute, sir. Before Judge Dixon, according to the prosecuting attorney's brief, Judge Dixon said he—well, he advised the Defendant Imus, the Court believed Imus was making a very big mistake in representing himself. Quite frankly, I would share that opinion.

I will just say this: I am not trying to convince you one way or the other. You have an absolute constitutional right to represent yourself, and Judge Dixon honored that right. I will honor that right, but I just want to make sure that that is your decision, and I am not trying to convince you one way or the other.

There is an old adage in the law, you know, a person who represents himself has a fool for a client.

Mr. Imus: I know it, your Honor.

The Court: I have already told you, I spent eighteen years as a trial lawyer, and I have spent over twelve years on this bench. If I were accused of a crime, there is no way I would ever try to represent myself even though I think I was a pretty darned good trial lawyer in my day.

If you want that right—and it is a right to you—or if you want Mr. Lieb to represent you, this is the question we first have to ascertain, and only you can make that decision. What is your decision?

Mr. Imus: About him representing me?

The Court: That's right.

Mr. Imus: No, your Honor.

The record is clear that both judges believed that Imus was competent to waive his right to counsel:

[Judge Dixon] You look fine to me, you seem to be an individual about to make a big mistake but you seem fine from a mental point of view.

[Judge Roberts] You have gone into this with your eyes wide open. You have made the decision. I will, again, extend to you the right to change your opinion as to whether or not you represent yourself, but you cannot have it both ways.

We conclude that the facts of this case comport with the standards laid down in Faretta. Imus was informed that his conviction could lead to life in prison. He was repeatedly and strenuously warned of the danger and disadvantages of self-representation. Judge Roberts also offered to let Imus reconsider his decision at any time during the trial. Despite these warnings, Imus proceeded pro se. Given the lengthy colloquy below, we fail to see how information concerning lesser included offenses, the range of allowable punishments thereunder, or possible defenses and mitigating factors, would have made Imus' decision more knowing and intelligent in any significant sense.²

Effect of Illiteracy

Imus next argues that his ability to waive counsel was impaired by the fact that he was of borderline intelligence and a functional illiterate. We agree that, in some cases, a defendant's level of intelligence and literacy may reflect his ability to understand the import of his decision to proceed pro se. Nevertheless, these factors do not automatically preclude a defendant from being allowed to exercise his right of self-representation. So long as the defendant is made aware of the dangers and disadvantages of self-representation, and the record reflects that '"he knows what he is doing and his choice is made with eyes open", the court cannot deny the defendant's request to proceed pro se. Faretta, 422 U.S. at 835, quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 87 L. Ed. 268, 63 S. Ct. 236, 143 A.L.R. 435 (1942). A defendant's illiteracy seems more likely to impair his ability to wage a competent defense than to affect his initial decision to waive counsel.³ It is clear, however, that a defendant's competency to wage an effective pro se defense is a separate matter from his competency to waive his right to counsel:⁴

We need make no assessment of how well or poorly [the defendant] had mastered the intricacies of the hearsay rule and the California code provisions that govern challenges of potential jurors on voir dire. For [the defendant's] technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself.

(Footnote omitted. Italics ours.) Faretta, 422 U.S. at 836. Accord, State v. Fritz, 21 Wn. App. 354, 360, 585 P.2d 173, 98 A.L.R.3d 1 (1978).

Both judges below knew of Imus' inability to read, yet found that he understood what he was doing when he waived counsel. We cannot disagree with this finding, given the numerous exchanges on the record in which Imus appears fully aware of the import of his decision to represent himself.⁵

Unequivocal Request

Finally, Imus argues that his request to proceed pro se was not stated unequivocally, and that the trial judge improperly assumed that Imus wished to waive the assistance of counsel. The requirement that a request to proceed pro se be stated unequivocally derives from the fact that there is a conflict between a defendant's rights to counsel and to self-representation. Because of this conflict, a defendant's request for self-representation can be a "heads I win, tails you lose" proposition for a trial court. People v. Sharp, 7 Cal. 3d 448, 462 n.12, 499 P.2d 489, 103 Cal. Rptr. 233, 242 (1972), cert. denied, 410 U.S. 944 (1973). If the court too readily accedes to the request, an appellate court may reverse, finding an ineffective waiver of the right to counsel. But if the trial court rejects the request, it runs the risk of depriving the defendant of his right to self-representation. People v. Sharp, supra. To limit baseless challenges on appeal, courts have required that a defendant's request to proceed pro se be stated unequivocally.⁶ Chapman v. United States, 553 F.2d 886, 892-93 (5th Cir. 1977). Accord, State v. Fritz, supra at 360.

Imus argues that his request below was not to represent himself, but to have the court appoint new counsel. However, a careful reading of the record reveals that this was not the case. Imus numerous times stated unequivocally his desire to represent himself and his reasons for wanting to do so. The matter first arose before Judge Dixon on February 9, 1982, at a hearing on Imus' motion to discharge his attorney and to represent himself. The court's first question to Imus was: "You want to represent yourself?", to which Imus replied, "You bet." Later, Imus requested a copy of the order allowing him to represent himself. He also objected to the court's order that his attorney remain as standby counsel, and requested the appointment of new counsel for that purpose. The court denied the request.

On the day of Imus' trial, the matter of self-representation came up again. Judge Roberts took great care to insure that Imus' desire to proceed pro se was stated clearly for the record. Imus' ultimate response was unequivocal:

The Court: Well, this case is called for trial right now, sir, and the first question, and I will repeat it for the third or fourth time is, do you wish to be represented by Mr. Lieb or do you wish to represent yourself pursuant to the order previously entered in this cause by Judge Dixon?

Mr. Imus: Well, two things, sir, your Honor: I have never been able to talk up for myself around this whole situation ever. In talking to the prosecuting attorney's office, if we could have talked, this thing probably never would have went to jury trial.

I do want to represent myself because then I can speak for myself, and I know myself and can speak the right way. I am not going to be wrong, just like I want a motion today for a PR, and I can tell you why.

The Court: So, you wish to represent yourself?

Mr. Imus: That's right.

The Court: All right. Now, we passed that point.

We are convinced that Imus' request to represent himself was unequivocal, and that the trial court properly granted the request.

The judges below went to great length to determine Imus' intent regarding self-representation, and, then, to warn him of the consequences of his decision. In these circumstances, a finding of error by this court would place the trial court in the position of committing reversible error regardless of which way it ruled. We decline to so hold.

The judgment is affirmed.

Williams, J., concurs.

1 Faretta v. California, 422 U.S. 806, 835, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975) adopted the definition of "waiver" as stated in Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A.L.R. 357 (1938): "A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege."

2 Imus cites the procedures for waiver of counsel set forth in Justice Black's plurality opinion in Von Moltke v. Gillies, 332 U.S. 708, 92 L. Ed. 309, 68 S. Ct. 316 (1948). We note that the petitioner's waiver of counsel in Von Moltke was accompanied by a plea of guilty. Von Moltke, 332 U.S. at 709. Justice Black's opinion appears to merge the procedures for waiving counsel with those for pleading guilty. See CrR 4.2(d).

3 In view of this fact, the trial court allowed a standby attorney to sit with Imus through the trial. Imus also had the opportunity to consult with counsel before his decision to proceed pro se.

4 A defendant's competency to waive counsel is also a separate matter from his competency to stand trial. See Westbrook v. Arizona, 384 U.S. 150, 16 L. Ed. 2d 429, 86 S. Ct. 1320 (1966) (finding of competency to stand trial is not dispositive of issue of competency to waive counsel).

5 For example, during trial, Imus stated:

"This is why I am representing myself, [to be allowed to make an opening statement] because I do want to exercise my right to represent myself. After all, I am the one that is going to go to prison for the rest of my life."

6 See, e.g., Meeks v. Craven, 482 F.2d 465, 467-68 (9th Cir. 1973) (defendant's statement "I think I will" held to be an equivocal request to proceed pro se).