No. 60568-2-I.The Court of Appeals of Washington, Division One.
September 29, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-1-09405-5, Richard A. Jones, J., entered August 27, 2007.
UNPUBLISHED OPINION
PER CURIAM.
A defendant has a constitutional right to waive the assistance of counsel at trial. A defendant’s choice to assert unconventional beliefs as a defense to the charged crime is a legitimate trial strategy. Such a choice does necessarily raise doubts about the defendant’s competency. We affirm appellant Lindell’s conviction, rejecting his argument that the trial court violated his due process rights by failing to require a competency evaluation.
Police arrested Kenneth Lindell for stealing a truck from Auburn Valley Motors on May 28, 2007. The State charged Lindell with theft in the first degree.
At Lindell’s arraignment on July 11, 2007, his court-appointed attorney stated that Lindell wished to appear pro se. According to the attorney, Lindell told her that he had represented himself before and understood what the task entailed. She said Lindell had talked to her about his view of the legal system and the jurisdictional arguments that he felt were important in the case. She advised him that she would not be willing to make those arguments.
Lindell followed his attorney’s remarks by emphatically stating that he wanted to represent himself. He said that while representing himself in Pierce County approximately four months earlier, he had successfully worked out a deal with the prosecutor.
The trial court told Lindell that it is very difficult to represent oneself, and asked him some questions to determine whether he knew what he was up against. When questioned about the maximum penalty, Lindell accurately responded that he faced between 43 to 57 months in prison if found guilty. The court asked him about the possible monetary fine he faced. Lindell said he thought the fine would be limited to the damage caused to the allegedly stolen truck. The prosecutor informed Lindell that he could actually be fined up to $10,000.00.
The court explained to Lindell that he was not entitled to stand-by counsel if he chose to represent himself. The court recommended that he take advantage of his constitutional right to be represented by court appointed counsel. Lindell replied that he understood the court’s concerns, but wanted to handle the matter himself. The court concluded that Lindell had made a knowing, intelligent and voluntary waiver of his right to counsel.[1] Lindell entered a plea of not guilty.
Lindell moved for a fact finding hearing. The court reconvened on July 12, 2007. Lindell said that he had requested the hearing in order to ask the State a few questions and to read into the record his private beliefs and opinions bearing on the case. He submitted for the record 11 handwritten pages summarizing his beliefs about the legal system. The writings documented Lindell’s belief in the binding authority of the Magna Carta and Washington’s Territorial Constitution of 1878. They conveyed Lindell’s demand for an opportunity to confront the State:
Now knowing the Supreme Laws of the Land are my basic beliefs in the Bill of Rights of 1787 1791; being my emulate my 6th Amendment gives me the Right of Confrontation by the State = King or Caesar its gambit in the end. I will be requesting a subpoena for this King or State, whatever it deems itself, Respectfully speaking![2]
After reviewing these documents, the court commented that they were not relevant or responsive to the charge of theft, and expressed some doubt that Lindell actually had the ability to represent himself:
[THE COURT]: You know . . . I don’t doubt that any of this is in good faith, but — but I will tell you, Mr. Lindell, all what this is doing is making me wonder if it was the right decision to let you go pro se or whether you really can — can represent yourself. . . . It’s all — you know, the Magna Carta is important . . . as a piece of history. . . . All this stuff you’ve filed today really doesn’t have anything to do with your case.[3]
The court set another hearing on July 16 to discuss Lindell’s choice to proceed pro se. At the hearing, the court explained its concerns: “it seemed like we were kind of on parallel tracks but not the same track in terms of talking about the issues in this case.”[4] The court identified two options for moving forward in the case: “One is to have the Office of Public Defense appoint a lawyer for you to meet with you and then — then, if appropriate, we can readdress the issue of you representing yourself. The other is for me to order a competency evaluation.”[5] Lindell stated that he did not need a competency hearing because he had just been discharged from Western State Hospital and fully understood what was going on in the proceedings. He reiterated that he had successfully represented himself in Pierce County just a few months earlier. The court concluded that Western State Hospital had likely completed a report on Lindell’s competency and asked the prosecutor to find out what he could about the records available from Western. The court signed an order directing the Office of Public Defense to appoint another lawyer for Lindell. The court scheduled a hearing for the following week.
The next hearing was on July 23, 2007. Lindell’s newly appointed attorney appeared. He said that Lindell refused to speak with anyone from his office and wished to continue representing himself. The prosecutor submitted the competency evaluation from Western State Hospital dated February 13, 2007. The court read the evaluation and discussed its findings on the record. According to the court, the evaluation concluded that Lindell was competent to stand trial. His rationality was not significantly compromised by a major mental disease; he retained awareness of his actions; and he was able to provide and receive information. The court issued an order confirming its earlier ruling that Lindell’s waiver of his right to be represented was knowing, intelligent, and voluntary.
The trial began on August 2, 2007. Before trial, the judge told Lindell that if he doubted his choice to appear pro se, the court could still appoint an attorney for him. Lindell declined the offer and expressed his intent to represent himself: “For reasons that only I can stand up for my individual liberties in this courtroom, Your Honor, a WSBA attorney just couldn’t do for me.”[6] Lindell waived his right to a jury trial. The court found Lindell guilty of theft in the first degree and sentenced him to 57 months in prison.
Lindell appeals. He assigns error to the court’s decision to allow him to represent himself. He claims that the trial court should have first ordered him to undergo a new competency evaluation and the failure to do so violated his due process right to not stand trial while incompetent.
The Sixth and Fourteenth Amendments include a constitutional right to proceed without counsel when a criminal defendant voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). But a defendant who is incompetent to stand trial is also incompetent to waive the right to counsel. See State v. Hahn, 106 Wn.2d 885, 895, 726 P.2d 25 (1986).
No incompetent person shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity continues. RCW 10.77.050; In re Fleming, 142 Wn.2d 853, 863, 16 P.3d 610 (2001). The test for competency to stand trial is “if the defendant has the capacity to understand the nature of the proceedings against him and to assist in his own defense.” Hahn, 106 Wn.2d at 895.
“The determination of whether a competency examination should be ordered rests generally within the discretion of the trial court.” In re Fleming, 142 Wn.2d at 863. The factors a trial judge may consider in determining whether or not to order a formal inquiry into the competence of an accused include the defendant’s appearance, demeanor, conduct, personal and family history, past behavior, medical and psychiatric reports and the statements of counsel. State v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302 (1967). A court is required to order a mental evaluation whenever there is a reason to doubt the defendant’s competency. RCW 10.77.060. Once there is reason to doubt a defendant’s competency, failure to order an investigation is a denial of due process. State v. Marshall, 144 Wn.2d 266, 279, 27 P.3d 192 (2001). Lindell’s argument is premised on his assertion that the trial court actually doubted his competency, or reasonably should have doubted it; and therefore, by statute, the court was required to order an evaluation.
Lindell overstates the court’s comments when he argues that the court expressed significant doubts as to Lindell’s competency on more than one occasion. After the trial court initially granted Lindell’s request to waive counsel, the court became concerned when Lindell started making arguments centered on his unconventional beliefs about the foundations of the law rather than the charge at hand. But Lindell’s chosen trial strategy was not, in and of itself, a basis for doubting his competency. Importantly, in reexamining the decision to allow Lindell to represent himself, the court did not specifically express concern about Lindell’s competency. In response to Lindell’s request to put his personal beliefs in the record and his demonstrated lack of knowledge on how to properly subpoena witnesses, the court said: “this is . . . making me wonder if it was the right decision to let you go pro se or whether you really can — can represent yourself.”[7] A few days later the court commented that Lindell was not on the same track as the court in terms of talking about the issues in the case. In neither instance did the court directly question Lindell’s competency. The court was concerned about whether he fully understood the disadvantages of proceeding pro se given his apparent choice to forego making practical legal arguments directly relevant to the charge of theft.
The fact that the court identified ordering a competency evaluation as one possible option demonstrates that the court was thinking about the issue, but the court did not conclude that there was sufficient reason to doubt Lindell’s competency. Applying the factors listed in Dodd, the trial court properly considered Lindell’s recent competency evaluation that found no mental disease, his gentlemanly conduct in court, and the fact that neither defense attorney appointed to represent Lindell had questioned his competency. Lindell timely requested discovery and expressed his understanding that he would have to abide by the court rules.
Further, there is no evidence in the record that Lindell has ever been diagnosed as suffering from a mental disease. The prosecutor stated that the five-month-old mental evaluation from Western State Hospital concluded that Lindell was unaffected by any major mental illness. Western State discharged Lindell after 47 days, despite having authority to hold him for 90 days. Lindell stated that he did not take any medication while at Western. There was no basis to suggest that events between Lindell’s discharge from Western and the trial had caused a previously unknown mental condition to manifest itself.
Lindell argues that the trial court manifested doubt about his competency when questioning his ability to assist an attorney on July 23. The court stated:
I think I said this at the last hearing . . . I don’t know if you could help your lawyer because the things that you have talked about have . . . really nothing . . . to do with helping either yourself or a lawyer prepare your case for trial or get ready for trial.[[8] ]
Lindell was adamant that a court-appointed attorney would not be able to adequately make the arguments he believed were crucial to the case. He was not unable to cooperate with an attorney; he was unwilling to do so. A defendant’s unwillingness to accept the assistance of a court-appointed attorney does not amount to a conclusion that the defendant is unable to assist in his own defense.
Because the trial court reasonably concluded Lindell’s competence was not in question, his waiver of the right to counsel was not invalid. We conclude the court was not bound by statute to order a new competency evaluation for Lindell.
Affirmed.