Nos. 24927-1-III; 24974-3-III.The Court of Appeals of Washington, Division Three.
May 15, 2007.
Appeals from judgments of the Superior Court for Grant County, Nos. 05-1-00754-3 and 05-1-00755-1, Kenneth L. Jorgensen, J., entered January 10, 2006.
Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, A.C.J., and Kulik, J.
While incarcerated in Grant County, Amel W. Dalluge caused property damage to the jail, put a sharp object on a mop handle to fashion a spear, and spit on a corrections officer. He was charged with and convicted of first degree malicious mischief, possession of a weapon while incarcerated, and third degree assault. By counsel, Mr. Dalluge contends the trial court erred in denying his request for a CrR 3.5 hearing and allowing him to represent himself. Pro se, Mr. Dalluge states a multitude of additional grounds for error. Finding no error, we affirm.
FACTS
Mr. Dalluge was incarcerated at the Grant County jail when he began yelling, screaming, and throwing garbage in response to an officer confiscating materials from his cell. He repeatedly dumped buckets of water on the floor, and used the buckets to damage six windows. Mr. Dalluge ripped a phone from the wall, broke it, and used a piece of the broken phone to fashion a spear out of a broken mop handle. He also told officers outside the common area, “[y]ou’re going to have to come in and get me.” Report of Proceedings (RP) (Dec. 8, 2005) at 200.
A Corrections Response Team (CRT) was called in. Unable to calm Mr. Dalluge, the CRT placed him in a restraining chair. During the struggle, Mr. Dalluge used vulgar language and shouted at one of the officers, “[i]t takes more than you . . . you can’t fight me, man on man.” RP (Dec. 7, 2005) at 89. He then spit in one officer’s face.
The State charged Mr. Dalluge with first degree malicious mischief and possession of a weapon by a person serving a sentence in a local correctional institution. By separate information, the State also charged Mr. Dalluge with third degree assault. The cases were joined for trial.
Mr. Dalluge’s counsel requested a continuance for a CrR 3.5 hearing. One prosecutor stated, “We’d have to do the 3.5 the day of trial.” RP (Nov. 23, 2005) at 6. Another prosecutor said, “[y]ou don’t need a 3.5. There’s no custodial statements.”Id. The court responded, “It doesn’t sound like it. I’ll consider [the State’s] statement an offer of proof.”Id. at 6-7. Defense counsel objected, wanting to talk with the officers. The court responded, “All right. Talk to them.” Id. at 8.
Mr. Dalluge then demanded self-representation. The court advised Mr. Dalluge that this was “a very foolish thing to do.” RP (Nov. 29, 2005) at 7. The court extensively questioned Mr. Dalluge about his decision, inquiring into his legal background and his specific knowledge of the sentencing options available to him. Mr. Dalluge stressed he was familiar with the legal system based on his prior criminal record and was prepared to represent himself. Following this exchange, the court found Mr. Dalluge was fully advised of his rights and ordered that he be permitted to act pro se with standby counsel.
Two days before trial, Mr. Dalluge’s standby counsel presented findings and an order allowing self-representation signed by Mr. Dalluge, defining the standby counsel’s role. On the morning of trial, standby counsel reported he had talked with Mr. Dalluge, and was prepared to handle the case, but that Mr. Dalluge “expressed his desire to proceed as pro se counsel[.]” RP (Dec. 7, 2005) at 15. Further, he told Mr. Dalluge, “That’s not wise. I don’t recommend it.” Id.
The court raised the CrR 3.5 issue. Without objection from Mr. Dalluge, the State responded, “I don’t believe there’s any question that there was no custodial interrogation involved.” RP (Dec. 7, 2005) at 6. The court stated, “All right” in response. Id. When the court inquired whether the parties had any motions in limine, Mr. Dalluge remained silent. When the court asked Mr. Dalluge if he wanted to bring up anything before trial started, he responded, “No, your Honor.” RP (Dec. 6, 2005) at 14. The jury found Mr. Dalluge guilty as charged. He appealed. This court consolidated his appeals.
ANALYSIS A. Statements
The issue, as framed by Mr. Dalluge, is whether the trial court erred in denying his request for a CrR 3.5 hearing.
Prior to Mr. Dalluge becoming self-represented, his counsel had continued the CrR 3.5 hearing to the morning of trial. Then, when Mr. Dalluge was pro se, the State argued, without Mr. Dalluge’s objection, a CrR 3.5 hearing was not required because the statements were not the result of a custodial interrogation. A pro se litigant is held to the same rules of procedure and substantive law as an attorney. Westberg v. All-Purpose Structures, Inc., 86 Wn. App. 405, 411, 936 P.2d 1175 (1997).
In any event, no error can be claimed under these circumstances. Mr. Dalluge fails to identify in his brief what statements he thinks should have been excluded. The trial evidence included no “statements” from Mr. Dalluge. The yelling, screaming, and abusive language were part of the events described, were spontaneous, and were not elicited by any state agent. Thus, what was said was not the product of interrogation.
Federal and state constitutions guarantee the privilege against self incrimination. U.S. Const. amend. V; Wash. Const. art. 1, §§ 9; State v. Earls, 116 Wn.2d 364, 374, 805 P.2d 211 (1991). “Miranda[1] warnings were designed to protect a defendant’s right to not make incriminating statements while in police custody.” State v. Lorenz, 152 Wn.2d 22, 36, 93 P.3d 133 (2004) (citing State v. Harris, 106 Wn.2d 784, 789, 725 P.2d 975 (1986)). Miranda does not apply outside the context of custodial interrogation. Roberts v. United States, 445 U.S. 552, 560, 100 S. Ct. 1358, 63 L. Ed. 2d 622 (1980). An objective standard is used to determine whether a person is in custody — would a reasonable person in the individual’s position “believe he or she was in police custody to a degree associated with formal arrest.”Lorenz, 152 Wn.2d at 36-37 (citing Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)).
“The general rule is that a statement is voluntary if it is made spontaneously, is not solicited, and not the product of custodial interrogation.” State v. Ortiz, 104 Wn.2d 479, 484, 706 P.2d 1069 (1985) (citing State v. Miner, 22 Wn. App. 480, 591 P.2d 812 (1979)). Voluntary, spontaneous statements are not protected by Miranda. It is clear that Mr. Dalluge’s statements satisfy this criteria. Hence, even if a CrR 3.5 hearing would have been conducted, the event-statements would still have been admitted. Mr. Dalluge, therefore, cannot show prejudice.
B. Self-Representation
The issue is whether the trial court erred in granting Mr. Dalluge’s request for self-representation. Mr. Dalluge contends he did not knowingly, intelligently, and voluntarily waive his right to assistance of counsel.
A defendant has the constitutional right to represent himself at trial and at sentencing. State v. Buelna, 83 Wn. App. 658, 660, 922 P.2d 1371 (1996). Once the defendant unequivocally makes such a demand, the trial court must determine whether the defendant has made a knowing, intelligent and voluntary waiver of the right to assistance of counsel State v. DeWeese, 117 Wn.2d 369, 377, 816 P.2d 1
(1991). We review a trial court’s grant of a defendant’s self-representation request for an abuse of discretion State v. Hemenway, 122 Wn. App. 787, 792, 95 P.3d 408
(2004). A trial court abuses its discretion if its “decision is manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons.” State v. Vermillion, 112 Wn. App. 844, 855, 51 P.3d 188 (2002), review denied, 152 P.3d 347 (2007).
No formula exists for determining the validity of a waiver of counsel. DeWeese, 117 Wn.2d at 378. Rather, the court should inquire for “`as long and as thoroughly as the circumstances . . . demand.'” State v. Chavis, 31 Wn. App. 784, 789, 644 P.2d 1202 (1982) (quoting Von Moltke v. Gillies, 332 U.S. 708, 68 S. Ct. 316, 92 L. Ed. 309 (1948)). At a minimum, a defendant must understand the severity of the charges, the maximum possible penalties for the crime charged, and the existence of technical, procedural rules governing the presentation of a defense. Acrey v. City of Bellevue, 103 Wn.2d 203, 211, 691 P.2d 957 (1984).
Here, Mr. Dalluge unequivocally demanded to represent himself. But he argues he did not knowingly, intelligently, and voluntarily waive his right to counsel because the court inadequately advised him of the consequences. At the preliminary hearings, the court informed Mr. Dalluge of the charges he faced. See Acrey, 103 Wn.2d at 211 (a reviewing court may look to “any evidence on the record that shows defendant’s actual awareness of the risks of self-representation”). At the self-representation hearing, the judge advised Mr. Dalluge that this was “a very foolish thing to do.” RP (Nov. 29, 2005) at 7. And, he extensively questioned Mr. Dalluge about his decision, inquiring into his legal background and his specific knowledge of the sentencing options available to him. Mr. Dalluge stressed he was familiar with the legal system based on his prior criminal record and was prepared to represent himself.
The record shows Mr. Dalluge understood the severity of the charges; the maximum possible penalties for the crimes charged; and the existence of technical, procedural rules governing the presentation of a defense. He was aided by standby counsel, who warned him against self-representation. Thus, considering all, the trial court did not err in granting his request for self-representation.
C. Pro Se Additional Grounds
Mr. Dalluge appears to contend (1) the jury was improperly instructed, (2) his cases were wrongly consolidated, (3) he was forced to make a “Hobson’s choice,” (4) prosecutorial misconduct, (5) improper rounding up of the restitution amount, (6) oaths were improperly given, (7) he was subjected to cruel and unusual punishment, (8) the judge amended the judgment and sentence without his knowledge, (9) evidentiary error, (10) offender score miscalculation, (11) improper venue, and (12) other State wrongdoing. These contentions are grouped together from over 200 pages of submissions.
1. Jury instructions. Mr. Dalluge argues the jury was instructed on crimes he was not charged with committing. Jury instructions are sufficient if they permit the party to argue his or her theory of the case, are not misleading, and when read as a whole, correctly inform the jury of the applicable law State v. Willis, 153 Wn.2d 366, 370, 103 P.3d 1213
(2005). Mr. Dalluge was charged with first degree malicious mischief, possession of a weapon while incarcerated, and third degree assault. The jury was properly instructed regarding the elements of these crimes.
2. Consolidation. “A trial court’s ruling consolidating cases is reviewed under the abuse of discretion standard.” State v. Norby, 122 Wn.2d 258, 264, 858 P.2d 210 (1993). Since the charges arise from events occurring closely in time to each other and stem from Mr. Dalluge’s outrage, the court had a tenable basis to consolidate the cases.
3. Hobson’s choice. A “Hobson’s choice” occurs when a defendant is forced to waive one trial right in order to preserve another See State v. Michielli, 132 Wn.2d 229, 246, 937 P.2d 587 (1997) (upholding dismissal of case where defendant was forced to choose between waiving right to speedy trial or right to effective assistance of counsel). Here, Mr. Dalluge argues he was forced to choose between his speedy trial rights and his due process rights. He does not explain his argument further. Nevertheless, no evidence suggests one right was waived to preserve the other.
4. Prosecutorial misconduct. Mr. Dalluge argues the prosecutor’s opening remark that Mr. Dalluge damaged the jail at the taxpayer’s expense was improper. A defendant claiming prosecutorial misconduct “bears the burden of establishing the impropriety of the prosecuting attorney’s comments and their prejudicial effect.” State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). Here, the prosecutor’s opening comments were not transcribed. Nevertheless, a prosecutor may comment on common knowledge, such as the fact that public funds are used for county jails. Assuming this was the prosecutor’s statement, there was no misconduct.
5. Restitution amount. Mr. Dalluge appears to argue the court erred in rounding the restitution amount, but the record shows otherwise. For the malicious mischief and possession convictions, the court ordered him to pay $10,706.74; no restitution was ordered for the assault conviction.
6. Oath. CR 43(d)(1)(c) provides that all witnesses in superior court shall be administered an oath by the judge and “shall stand while the oath is administered.” There is no comparable criminal rule. Where the criminal rules are silent, the civil rules can be instructive as to matters of procedure. State v. Hackett, 122 Wn.2d 165, 170, 857 P.2d 1026 (1993). The record shows the trial judge repeatedly told the witnesses to be seated after being sworn. Logically, they were standing before being seated.
7. Cruel and unusual punishment. Next, Mr. Dalluge argues he was harassed while incarcerated. This argument relies on matters outside the record, which this court cannot address on direct appeal. McFarland, 127 Wn.2d at 335. Review of issues that require this court to consider matters outside of the record are properly presented in a personal restraint petition Id. at 338.
8. Judgment and sentence. Mr. Dalluge contends the court amended the judgment and sentence without his knowledge. Again, this argument is based on matters outside this court’s record, which this court cannot address.
9. Evidentiary error. Mr. Dalluge argues numerous instances of evidentiary error in his first amended statement of additional grounds for review and in his pro se reply brief. Evidentiary error is grounds for reversal only if it results in prejudice State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120
(1997). An error is prejudicial if, “`within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.'” State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (quotin State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139
(1980)). Improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the evidence as a whole. Thieu Lenh Nghiem v. State, 73 Wn. App. 405, 413, 869 P.2d 1086 (1994). Here, any error was harmless.
10. Offender score. Mr. Dalluge argues his offender score was miscalculated because the court relied on prior juvenile convictions. But prior juvenile convictions may be considered in calculating a defendant’s offender score. State v. Weber, 159 Wn.2d 252, 265, 149 P.3d 646 (2006).
11. Venue. CrR 5.1(a)(1)(2) provides that all actions must be commenced in the county where the offense was committed or where an element of the offense occurred. The defendant must object to the venue as soon after the initial pleading is filed as he or she has knowledge of the facts to support an objection. CrR 5.1(c). Mr. Dalluge argues the question of venue should have been put before the jury, but juries do not decide venue. No venue objection is shown. Lastly, the events arose in the Grant County jail. Grant County was the proper county for this action to be commenced.
12. Other State wrongdoing. Mr. Dalluge argues the State prospered from its wrongs, citing to appellate counsel’s CrR 3.5 argument. But RAP 10.10(a) precludes consideration of issues adequately addressed by his appellate counsel.
In sum, Mr. Dalluge fails to provide a basis for reversal in his statement of additional grounds for review, his supplements or his pro se reply brief. We do not address other voluminous arguments depending upon evidence outside our record.
Affirmed.
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.
Schultheis, A.C.J. and Kulik, J., concur.