STATE v. JAMES, 132 Wn. App. 1048 (2006)

No. 55894-3-I.The Court of Appeals of Washington, Division One.
May 1, 2006.

Appeal from a judgment of the Superior Court for King County, No. 04-1-01692-1, Paris K. Kallas, J., entered March 1, 2005.

Affirmed by unpublished per curiam opinion.

Counsel for Appellant(s), Magda Rona Baker, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3647.

Counsel for Respondent(s), Deborah A. Dwyer, King Co Pros Ofc/Appellate Unit, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.

Patrick Joseph Preston, McKay Chadwell, PLLC, 600 University St Ste 1601, Seattle, WA 98101-4124.

PER CURIAM.

During his trial on charges of first degree burglary and felony harassment, Terrell James moved for substitution of counsel on the basis of disagreements with and frustration about his attorney’s trial strategy and preparation. The trial court did not abuse its discretion in denying the motion. James later moved to proceed pro se, but engaged in obstreperous and threatening behavior toward the court during the judge’s attempt to address him regarding the motion. The trial court did not abuse its discretion in denying this motion. The jury instructions correctly stated the law, and the jury is presumed to follow the instructions. The prosecutor did not make any statements during closing argument that would have invalidated the verdict. We affirm.

FACTS
Rita Sanchez and Terrell James were married in 1994. James lived with Sanchez intermittently during the next 10 years. In April 2004 James moved back in, but Sanchez made him leave because he would not obey the rules of the household.

On the night of June 21, 2004, Sanchez’ daughter, her niece and her son’s girl friend were watching a movie in the living room and Sanchez was in the hallway. James burst through the second-floor window, and Sanchez screamed at him to get out. James pushed Sanchez out of the way and went down the hall. Sanchez said she would call the police, and James said that if she did, he would kill her. James pushed Sanchez several more times as he looked through the apartment. James walked through the apartment and left through the front door.

James was charged with one count of first degree burglary[1] and one count of felony harassment — domestic violence.[2] On September 17, 2004, the trial court ruled on a motion to exclude witnesses and recessed trial until September 23. At that hearing, James moved for substitution of counsel on the basis of his dissatisfaction with counsel’s handling of the case. James said he did not know what was happening with his case and that counsel refused to get documents he had requested. James also opined that counsel was upset because he did not accept a plea deal counsel had negotiated, and that counsel was working with the State, not with him. When the trial judge said these were not sufficient reasons to allow substitution of counsel, James became upset, interrupting the judge and refusing to sit down. The trial court denied his motion for substitution of counsel.

On September 27, James renewed his motion for substitution of counsel. James said he had no faith in counsel and threatened to disrupt the trial, repeatedly stating that he did not want this attorney. When the trial judge attempted to speak to him, James continually interrupted and spoke over the judge. The judge had James removed and stated on the record that James refused to sit down and was verbally and physically threatening.

When James returned to the courtroom, he asked to proceed pro se. When the trial judge attempted to explain the required procedures, James repeatedly interrupted and refused to listen. The trial judge denied James’ motion, noting that James made this motion only after the court denied his motion for substitution of counsel. The judge found that the only reason James made this motion was to vent his anger at the court’s denial of his previous motion.

After a jury trial, James was found guilty as charged. He appeals.

SUBSTITUTION OF COUNSEL
James contends that the trial court erred in denying his motion for substitution of counsel. We review the trial court’s denial of this motion for abuse of discretion.[3] An indigent defendant does not have the right to have an attorney of his choosing.[4] To obtain substitution of counsel, a defendant must show an irreconcilable conflict between himself and counsel.[5] In determining whether a trial court erred in denying a motion for substitution, this court considers “(1) the extent of the conflict, (2) the adequacy of the inquiry, and (3) the timeliness of the motion.”[6] Because the purpose of counsel is to ensure that a defendant receives a fair trial, “the appropriate inquiry focuses on the adversarial process, not on the accused’s relationship with his lawyer as such.”[7]

The bases of the motion for substitution of counsel were James’ disagreement with counsel’s handling of the case, his feeling that counsel was not telling him what was happening in the case, and his distrust of counsel after he rejected a plea deal that counsel had negotiated. While James argues that there was an irreconcilable conflict between him and counsel, a review of the record shows that he apologized to the court for his unacceptable behavior and worked with counsel during trial, and that any effect on his representation was negligible. Counsel adequately prepared for trial by interviewing witnesses and performing investigation, and adequately conducted cross-examination and closing argument. And where, as here, the motion for substitution comes on the eve of or during trial, the trial court may exercise its discretion and reject the motion.[8] The trial judge did not abuse her discretion in denying the motion for substitution of counsel.

MOTION TO PROCEED PRO SE
Both the United States and Washington constitutions provide criminal defendants the right to self-representation at trial.[9] After the trial judge denied the motion for substitution of counsel, James moved to proceed pro se. He contends that the trial judge erred in denying this motion. In order to obtain self-representation, a defendant’s request must be unequivocal, knowing, and timely; further, it must not be made in order to delay trial or obstruct justice.[10] “Courts should indulge every reasonable presumption against finding that a defendant has waived the right to counsel.”[11] We review the denial of a motion to proceed pro se made just before or during the trial for an abuse of discretion.[12] “However, a defendant cannot seek self-representation in order to cause delay or obstruct the administration of justice, . . . and a defendant can waive self-representation by disruptive words or misconduct.”[13]

Since James made his motion to proceed pro se after a motion to exclude witnesses, trial had begun and the decision to grant the motion rested in the trial court’s discretion. Upon James’ request to proceed pro se, the trial judge attempted to engage him in a colloquy, but James thwarted her efforts by interrupting and repeating his request for self-representation. The judge had James removed from the courtroom because of his disruptive behavior, and it is clear from the record that the judge did not abuse her discretion in denying the motion on the basis of this behavior.

SUFFICIENCY OF EVIDENCE
James contends that the evidence was insufficient to support findings that he intended to commit a crime inside the apartment and that he assaulted Sanchez. In reviewing a challenge to the sufficiency of the evidence, we determine whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could find the essential elements of the crime charged beyond a reasonable doubt.[14]

To convict a defendant of first degree burglary as charged against James, the jury must find that he entered or remained unlawfully in a building with the intent to commit a crime against a person or property therein, and that he assaulted a person inside.[15] James contends that the prosecutor encouraged the jury to find unlawful entry without sufficient evidence in stating that “a person who enters unlawfully is inferred to be entering with the intent to commit a crime. . . .” James does not argue that he entered lawfully when he broke through the second floor window into Sanchez’ bedroom rather than entering through a door. The jury is presumed to follow the court’s instructions,[16] and instruction 10 correctly stated that the defendant “may be inferred” to have intended to commit a crime if he entered unlawfully. The evidence was sufficient to support a finding that James intended to commit a crime inside the apartment.

James also argues that the prosecutor’s closing argument allowed the jury to convict him whether he intended to assault Sanchez or not. The prosecutor stated that “[i]f you find that that touching in either situation is offensive, then that is an assault. . . .” James did not object to this statement, and the prosecutor later said that James’ action “were deliberate in pushing [Sanchez] into the wall.” And jury instruction 11 correctly stated that an assault is an intentional act. Since the jury is presumed to follow the instructions, we conclude that the prosecutor’s comments did not invalidate the verdict.

CONCLUSION
Affirmed.

AGID, SCHINDLER and BECKER, JJ.

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