No. 56250-9-I.The Court of Appeals of Washington, Division One.
May 1, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-09813-7, Theresa B. Doyle, J., entered April 26, 2005.
Affirmed by unpublished per curiam opinion.
Counsel for Appellant(s), Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Scott Frederick Leist, King County Prosecutors Office, W554 King County Courthouse, 516 3rd Ave, Seattle, WA 98104-2390.
PER CURIAM.
Following a jury trial, Felix Martinez was convicted of three counts of Violation of the Uniform Controlled Substances Act for possession of cocaine. Martinez appeals, contending both that the court improperly deprived him of his right to proceed pro se and that the court improperly denied his motion to sever the three counts for separate trials. We affirm.
FACTS
On October 17, 2003, Seattle Police Officer Victor Maes was patrolling Freeway Park. He looked over a ledge and saw Martinez bring a pipe to his mouth, light the pipe, and inhale. Officer Maes arrested Martinez for cocaine possession based on residue in the pipe. The residue tested positive for cocaine.
On December 25, 2003, Seattle Police Officer P.J. Fox was patrolling Freeway Park. At 11 p.m., he observed Martinez leave a hotel and walk onto Eighth Avenue, where he met two other people. Officer Fox caught up with the three people and saw Martinez with a crack pipe in his left hand. Martinez dropped the pipe. Officer Fox retrieved the pipe and arrested Martinez for cocaine possession based on residue in the pipe. The residue tested positive for cocaine.
On February 16, 2004, Seattle Police Officer Matthew Diezsi was in the Freeway Park area at about 10:30 p.m., when he observed Martinez drop an apparent rock of cocaine from his right hand. The officer retrieved the rock and arrested Martinez for possession of cocaine. The rock tested positive for cocaine.
These arrests led to charges against Martinez for three counts of possession of cocaine. The three possession counts were subsequently joined for a single trial.[1]
After Martinez moved for appointment of new counsel, his first attorney for the three possession counts, Cathy Gromley, was allowed to withdraw on August 30, 2004. John Ostermann was thereafter assigned to represent Martinez on all charges.
On September 29, 2004, King County Superior Court Judge Julie Spector heard Martinez’s second motion for appointment of new counsel.
At the outset of the hearing, the court expressed confusion concerning an interpreter who was present but not interpreting. The court asked Martinez if he had been assisted by an interpreter previously. Martinez replied that he had not, and stated that he did not need an interpreter. The court inquired of Ostermann whether his office had used an interpreter in working with Martinez. Ostermann replied that his office had used an interpreter at times in working with Martinez, but not at other times. When the court asked Martinez whether he wanted an interpreter, Martinez’s response was unintelligible to the court reporter and the court. The court stated, “I can’t understand you, so I am going to have the interpreter interpret and I want this to go slowly so that there’s no question before the court.”[2] Martinez asked for new counsel because Ostermann was a friend of Martinez’s previous counsel, whom Martinez did not trust. He also expressed frustration with the length of time it was taking for Ostermann to assist him in completing some paperwork and in negotiating a plea deal with prosecutors. Ostermann agreed with Martinez that there had been a breakdown of communication.
The court ruled that Martinez had failed to present a sufficient legal basis to justify granting his motion for appointment of new counsel. Martinez then inquired, “If I have him to my trial [sic], can I go by myself?” The court replied, “You all have the right to be pro se.” Martinez stated, “Then I’ll go completely by myself.”
The court then engaged in a colloquy with Martinez, asking whether he had studied law, was familiar with the court rules, or had represented himself previously. Additionally, the court asked Martinez whether he knew how to prepare jury instructions, knew what a jury instruction was, knew what an opening or closing statement was, and knew what direct examination or cross-examination was. Martinez answered negatively to each question. The court also informed Martinez of the sentences he would face if convicted.
Martinez conceded his lack of knowledge of details of the case against him, and of virtually every aspect of trial procedure. The court concluded that Martinez lacked “even a basic understanding of how a trial proceeds,” and stated, “It would certainly mandate a continuance if I were to allow you to proceed pro se.” The court denied the motion to proceed pro se, finding it was not made in a timely manner.
After his motion was denied, Martinez spoke with Ostermann about assisting him in resolving his charges. Martinez commented that he wanted “a person who can talk to the prosecutor” in an attempt to resolve his cases.
Martinez stated that his attorney and the prosecutor could let him “know next week or something about a deal.” Additionally, when asked by the court to give his counsel a chance to negotiate with the State, Martinez said, “I don’t mind,” and commented that he didn’t “have anything against” his attorney, who had “too many cases.”
On March 29, 2005, pretrial motions were heard before the Honorable Theresa Doyle.
Martinez moved to sever the three counts of possession of cocaine for separate trials. Martinez argued that the three counts were similar because each involved a lone police witness testifying that Martinez possessed cocaine in Freeway Park. Accordingly, Martinez argued, the jury would aggregate the testimony from each witness and conclude that, because Martinez was arrested for cocaine possession in Freeway Park three times, each arrest and possession charge was likely valid, and the jury would improperly convict him on that basis. Martinez further argued that the State’s evidence was weak on each count, that the offenses were not cross-admissible, and that his defenses were inconsistent and antagonistic. The trial court denied the motion to sever.
ANALYSIS Request to Proceed Pro Se
In criminal prosecutions, an accused has the right to appear and defend himself in person, or by counsel. Const. art. I, sec. 2; State v. Vermillion, 112 Wn. App. 844, 850, 51 P.3d 188 (2002). The sixth and fourteenth amendments to the United States Constitution similarly guarantee the right to self-representation. Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
The request or demand to defend pro se must be knowingly and intelligently made, it must be unequivocal, and it must be timely. State v. Breedlove, 79 Wn. App. 101, 106, 900 P.2d 586 (1995). Courts should indulge every reasonable presumption against finding that a defendant has waived the right to assistance of counsel. State v. Chavis, 31 Wn. App. 784, 789, 644 P.2d 1202 (1982).
The trial court’s decision to grant or deny a defendant’s motion to proceed pro se is reviewed on appeal for abuse of discretion. Breedlove, 79 Wn. App. at 107. The trial court’s discretion in granting a motion to proceed pro se lies “along a continuum” that corresponds with the timeliness of the request to proceed pro se. Breedlove, 79 Wn. App. at 106. Washington law does not provide an exact timeline indicating when the varying degrees of discretion accorded to the trial court apply. See State v. Stenson, 132 Wn.2d 668, 737-39, 940 P.2d 1239
(1997); State v. Fritz, 21 Wn. App. 354, 585 P.2d 173 (1978). Absent a substantial reason, a late request should generally be denied, especially if granting such a request might delay the trial. State v. Garcia, 92 Wn.2d 647, 656, 600 P.2d 1010 (1979).
Martinez asserts that his motion was made in a timely manner. However, Martinez asked to represent himself on September 29, 2004, three weeks before his trials were scheduled to start. Further, Martinez asked to represent himself on four separate cause numbers, each potentially involving a separate trial. Given Martinez’s lack of knowledge of criminal trial procedure, the court determined that allowing Martinez to proceed pro se would necessarily require a continuance of the four potential trial dates, and denied his motion as untimely made.
We conclude that the trial court did not abuse its discretion in determining that Martinez’s motion to proceed pro se was not made in a timely manner. First, although Martinez indicated that he would be ready to proceed on his trial date, the trial court determined that Martinez’s opinion in this regard was an uninformed opinion and that, to the contrary, granting the motion “would certainly mandate a continuance.” Second, we recognize that the trial court’s discretion in granting a motion to proceed pro se lies “along a continuum” that corresponds with the timeliness of the request to proceed pro se. Breedlove, 79 Wn. App. at 107. The trial court was in the best position to assess Martinez’s demeanor, presentation, level of functioning, and ability to communicate in determining whether he could prepare himself for trial without creating unnecessary delay.
Finally, the “request to be pro se must be unequivocal in the context of the record as a whole.” Stenson, 132 Wn.2d at 741-42. Martinez’s request to proceed pro se was equivocal in the context of the record as a whole. Here, Martinez initiated his request only after his second motion for new appointed counsel was denied. Further, the context of Martinez’s request demonstrates that his motivation was to obtain more satisfactory representation from his appointed defense counsel. Martinez commented that he wanted “a person who can talk to the prosecutor” to resolve his cases, and stated that his attorney and the prosecutor could let him “know next week about a deal.” Additionally, when asked by the court to give his counsel a chance to negotiate with the State, Martinez said, “I don’t mind,” and commented that he didn’t “have anything against” his attorney, who had “too many cases.” Accordingly, the context of Martinez’s request contravenes his assertion that the request was unequivocal.
Motion to Sever
In assessing whether severance is appropriate, a trial court weighs the prejudice inherent in joined trials against the State’s interest in maximizing judicial economy. State v. Kalakosky, 121 Wn.2d 525, 537, 852 P.2d 1064 (1993).
The court’s denial of a timely severance motion is reviewed for abuse of discretion. Kalakosky, 121 Wn.2d at 537.
Factors the trial court considers when assessing prejudice include (1) the strength of the prosecution’s evidence with respect to each charge, (2) the jury’s ability to keep the evidence separate, (3) the court’s instructions to the jury to consider the evidence separately, and (4) the cross-admissibility of the offenses had they not been tried together. Kalakoskv, 121 Wn.2d at 537. There is an obvious benefit to judicial economy when similar matters involving the same defendant are resolved with a single trial. State v. Bythrow, 114 Wn.2d 713, 723, 790 P.2d 154
(1990).
A review of these factors demonstrates that the trial court’s decision to join the three possession counts for trial was a proper exercise of its discretion.
First, the evidence on each count was uniformly strong. In each instance, a police officer observed Martinez in possession of incriminating evidence, the incriminating evidence was retrieved, and the evidence tested positive for the presence of cocaine. Consideration of this factor supports joinder.
Second, the three charged incidents were separate and distinct. Each count involved a distinct setting in or around Freeway Park, a different police officer witnessing different behavior, and distinct physical evidence. Additionally, the three incidents occurred weeks apart. Thus, there was no evidence that overlapped from one count to the other. When the evidence with respect to each charge is separate and distinct, it is easier for the jury to evaluate the pertinent evidence without regard to the other charges. State v. Harris, 36 Wn. App. 746, 751, 677 P.2d 202
(1984). Consideration of this factor similarly favors joinder of the three counts for trial.
Third, the counts were completely distinct and uncomplicated and therefore unlikely to lead to juror confusion. The trial court instructed the jury to consider the evidence for each count separately. When a joined trial involves distinct, uncomplicated counts, it is assumed that a jury instructed to decide each count separately can do so. Bythrow, 114 Wn.2d at 723. Consideration of this factor favors joinder of the three counts for trial.
Fourth, although the evidence was not cross-admissible, where separate crimes were not difficult to “compartmentalize,” the State’s evidence on each count was strong, and the trial court instructed the jury to consider each count separately, this factor alone does not warrant reversal of an order denying severance. Kalakosky, 121 Wn.2d at 539.
The benefit to judicial economy outweighed any prejudice suffered by Martinez. The court did not abuse its discretion by so finding and refusing to sever the counts for trial.
Affirmed.
DWYER, BECKER and COX, JJ., concur.