No. 22035-4-IIIThe Court of Appeals of Washington, Division Three. Panel One.
Filed: October 14, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-8-00204-4. Judgment or order under review. Date filed: 04/18/2003. Judge signing: Hon. David Mountsier Thorn.
Counsel for Appellant(s), Susan Marie Gasch, Attorney at Law, PO Box 30339, Spokane, WA 99223-3005.
Aleksandr N. Shingarey (Appearing Pro Se), 213 W. Carlisle, Spokane, WA 99205.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
SWEENEY, J.
This is an appeal from a juvenile adjudication of guilt for two counts of reckless burning in the second degree. Here, Alexander Shingarey[1]
challenges conclusions of law that his confession followed a knowing waiver of his Miranda[2] warnings, and that the facts support his adjudication of guilt for these charges. The findings here amply support the conclusions and we affirm.
FACTS
Alexander Shingarey started or helped start two separate fires in Shaw Middle School. The State charged him with two counts of first degree arson.
Mr. Shingarey moved to discharge his court appointed counsel. He also moved to dismiss the charges for violation of his right to a speedy trial. The court heard his motion to discharge counsel but never entered an order. He later renewed his request to discharge counsel along with a motion to dismiss. The court denied both requests. The court then held a CrR 3.5 (admissibility of statement) hearing and the adjudicatory hearing. It found Mr. Shingarey guilty of two counts of reckless burning in the second degree.
DISCUSSION Right to Represent Himself
Mr. Shingarey argues on appeal that he made an unequivocal, knowing, and intelligent request to represent himself. And the trial court violated his constitutional right to represent himself by denying that request.
Whether a waiver of the right to counsel is valid is within the sound discretion of the trial court. State v. Chavis, 31 Wn. App. 784, 787, 644 P.2d 1202 (1982). This is a fundamental right, but it is also a matter addressed to the sound discretion of the trial judge. City of Bellevue v. Acrey, 103 Wn.2d 203, 207, 691 P.2d 957 (1984); Chavis, 31 Wn. App. at 787. Mr. Shingarey had both a federal and state constitutional right to represent himself if he properly waived his right to counsel. State v. Woods, 143 Wn.2d 561, 585, 23 P.3d 1046 (2001). But his waiver must be voluntary, knowing, and intelligent. Acrey, 103 Wn.2d at 208-09.
The trial court should make sure a defendant has at least minimal knowledge of what risks and responsibilities the task of self-representation entails. Id. at 210. And this is done by talking to the defendant in court and on the record. Id. at 211. This discussion between the court and the defendant should include the nature and classification of the charge, the maximum possible penalty, and that the presentation of the case must follow technical rules. Id.
Mr. Shingarey’s discussion with the court amply supports the court’s refusal to allow him to represent himself. And we therefore quote it in some detail:
THE COURT: All right. Why don’t we start with that.
Mr. Shingarey, if you would stand, please.
Sir, you have filed a notice to discharge counsel. What is it that you are asking me to do, and why?
DEFENDANT (through interpreter): Which —
THE COURT: Okay. You are asking me to discharge Ms. Manlove as your attorney; is that correct?
DEFENDANT: (Inaudible).
THE COURT: Why do you want that done?
DEFENDANT: Because she — she never calls the — the other guys that — that (inaudible). She doesn’t do her job.
THE COURT: Sir, if she is discharged as your attorney are you going to be representing yourself?
DEFENDANT: Yes.
. . . .
THE COURT: Sir, how old are you?
DEFENDANT: (No audible response).
THE COURT: You’re 15 years old. What is your education level, please.
. . . .
DEFENDANT: Ninth grade.
THE COURT: Sir, do you think you are qualified to represent yourself in a court of law, on two serious felony matters?
DEFENDANT: Yes.
THE COURT: How?
DEFENDANT: Everything (inaudible).
THE COURT: Well, I don’t have to grant your motion, either, if you don’t tell me why you want this done.
DEFENDANT: (No audible response).
THE COURT: Have you ever had any experience in a courtroom?
DEFENDANT: (No audible response).
THE COURT: No. I need him to answer the question.
DEFENDANT: (No audible response).
Report of Proceedings (RP) at 5-7.
At a later hearing, the judge again questioned Mr. Shingarey:
THE COURT: . . . .
Alexander, you also have a motion before this court that was presented to Judge Clark under a different set of circumstances. I do not have an order from Judge Clark’s hearing, so I can’t be absolutely positive about what she ruled, and her findings, and the basis for her decision. I’m under the impression that you also have before me today a request to represent yourself. Are you asking to represent yourself today at trial?
DEFENDANT: Yes.
THE COURT: Do you understand that you have a right to counsel for every critical phase of the proceedings?
DEFENDANT: Yes.
THE COURT: And that does include your motion to dismiss. Do you feel you need any help to present your motion to dismiss, (inaudible) an attorney?
DEFENDANT: Say again? What did you say (inaudible), Judge?
THE COURT: Do you feel you need an attorney to help you present your motion to dismiss?
DEFENDANT: No.
THE COURT: Okay. Why do you want to represent yourself?
DEFENDANT: I have that right.
THE COURT: Do you feel you understand the law?
DEFENDANT: Yes.
THE COURT: Have you ever — have you been in court before where you’ve represented yourself?
DEFENDANT: No.
THE COURT: Have you gone through other court proceedings before this one?
DEFENDANT: I have a right to remain silent.
THE COURT: Okay. Is there anything else you’d like to say about your motion to represent yourself?
DEFENDANT: I’m not going to say anything.
RP at 28-29. These discussions make several things clear. Mr. Shingarey does not understand the seriousness of the charges or the seriousness of the penalties. He does not understand the procedures in presenting a case. And some responses are down right inappropriate: `I have a right to remain silent.’ RP at 29. Ultimately Mr. Shingarey ends the discussion before the court can make the complete required inquiry.
The court’s refusal to allow Mr. Shingarey to represent himself is amply supported by this record.
Miranda Rights
Mr. Shingarey next argues that the court should have suppressed his incriminating statements to police because the record does not support a knowing waiver of his Miranda rights. Essentially, Mr. Shingarey’s argument is that he did not understand his rights, or at least did not clearly understand his rights, because of his difficulty understanding English.
The test to determine the capacity of a juvenile’s understanding is whether a person knew he had the right to remain silent, and that anything he said could be used against him in a court of law, not whether he understood the precise legal effect of his admissions. If a juvenile understands that he has a right, after he is told that he has that right, and that his statements can be used against him in a court, the constitutional requirement is met.
Dutil v. State, 93 Wn.2d 84, 90, 606 P.2d 269 (1980) (citation omitted).
The trial court’s factual findings are not challenged here on appeal. So the only question before us is whether they support the trial judge’s conclusion that Mr. Shingarey’s waiver of his Miranda rights was knowing. We review that decision de novo. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003).
Here are the pertinent findings:
Mr. Shingarey was advised of his Miranda rights on two separate occasions.
Mr. Shingarey acknowledged that he understood his rights on both occasions that the Miranda rights were read to him.
Mr. Shingarey told the officer on both occasions that his Miranda rights were read to him that he wanted to waive his rights and talk to him.
Mr. Shingarey signed the standard warning of constitutional rights card after he was first advised of his constitutional rights.
At no time during any of the three interviews did Mr. Shingarey request an attorney.
At no time during any of the three interviews did Mr. Shingarey invoke his right to silence.
Mr. Shingarey was never offered anything in return for his statements.
At no time did the officer make any threat or threatening action toward Mr. Shingarey.
Mr. Shingarey spoke English at all times, appropriately responded to the officer’s questions, and did not appear to be confused at any time.
Mr. Shingarey never requested an interpreter.
Clerk’s Papers (CP) 32-33.
Mr. Shingarey argues that the court erred by not inquiring into his understanding of English. But again he does not assign error to the underlying findings of fact:
`At all times [Mr. Shingarey] spoke in English and responded appropriately to questions asked by [the officer] and did not appear to be confused at any time.’ CP at 33.
`[Mr. Shingarey] never requested an interpreter. . . .’ CP at 33.
`[The] Educational Supervisor . . . testified . . . [s]he saw [Mr. Shingarey] on an almost daily basis while he attended Shaw Middle School. . . . [H]e always spoke and responded to her in English. . . . [Mr. Shingarey] would respond appropriately and never appeared confused. She also saw him interact with English speaking students and Russian speaking students. When he interacted with English speaking students he spoke in English. She never saw [Mr. Shingarey] speak through an interpreter.’ CP at 33.
There is nothing here to suggest that Mr. Shingarey lacked the intelligence to understand either his rights or the waiver of his rights, or that his grasp of the English language was insufficient to vitiate his waiver of his Miranda rights. And therefore Mr. Shingarey waived his Miranda rights.
Sufficiency of Evidence
Mr. Shingarey argues that the State made no showing of the required statutory element that Mr. Shingarey `knowingly caused’ a fire beyond a reasonable doubt.
We review a challenge to the sufficiency of the evidence in a criminal case, by reviewing the evidence in the light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We will affirm if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.
A person is guilty of reckless burning in the second degree if he knowingly causes a fire or explosion, whether on his own property or that of another, and thereby recklessly places a building or other structure, or any vehicle, railway car, aircraft, or watercraft, or any hay, grain, crop or timber, whether cut or standing, in danger of destruction or damage.
RCW 9A.48.050(1) (emphasis added).
General requirements of culpability:
(b) KNOWLEDGE. A person knows or acts knowingly or with knowledge when:
(i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or
(ii) he has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense.
(c) RECKLESSNESS. A person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation.
RCW 9A.08.010(1)(b), (c).
Moreover,
(1) A person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable.
(2) A person is legally accountable for the conduct of another person when:
. . . .
(c) He is an accomplice of such other person in the commission of the crime.
(3) A person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the commission of the crime, he (i) solicits, commands, encourages, or requests such other person to commit it; or
(ii) aids or agrees to aid such other person in planning or committing it.
RCW 9A.08.020(1), (2), (3).
The State did not charge Mr. Shingarey as an accomplice. But it did not have to. State v. Teal, 117 Wn. App. 831, 838, 73 P.3d 402 (2003), aff’d, ___ Wn.2d ___, 96 P.3d 974 (2004). And it proved that he was an accomplice.
Again, the trial court’s unchallenged findings of fact amply support Mr. Shingarey’s criminal culpability for both crimes as an accomplice:
A fire was started in the boys’ bathroom across from the cafeteria.
`[A] custodian . . . testified . . . [that] [w]hen he went into the bathroom, it was full of smoke and there were five feet high flames coming from a large rubber trashcan. The trashcan was totally melted, with some of the rubber adhering to the tile behind it, and the sheetrock was badly scorched.’ CP at 36.
Mr. Shingarey `first denied that he told [J.R.] that they were going to the bathroom to light a fire, then admitted that that was their purpose in going to the bathroom and that he was part of starting the fire.’ CP at 37.
`[I.K.] . . . testified that he, [J.R.] and [Mr. Shingarey] were in the boys’ bathroom across from the cafeteria. . . . [Mr. Shingarey] then told [J.R.] to start the towel on fire. . . . [J.R.] took the lighter from his sock and started the towel on fire, and [I.K.] placed the towel in the trashcan.’ CP at 38.
A second fire was started in the boys’ bathroom #137.
`[A] teacher . . . went to the bathroom, and upon entering saw flames several feet high coming out of the boys’ trashcan. . . . The walls were somewhat scorched. . . .’ CP at 37.
`[Mr. Shingarey] admitted to going to bathroom #137 with [R.J.] with the intent of lighting a fire in the trashcan.’ CP at 38.
`[R.J.] testified that . . . [Mr. Shingarey] asked him if he would like to start a fire, to which he consented. He and [Mr. Shingarey] then went into bathroom #137. . . . [Mr. Shingarey] then told [R.J.] to `light it quickly and leave.’ [R.J.] then dropped a lighted match in the trashcan and they left.’ CP at 38.
A fair inference from this is that Mr. Shingarey knew his actions of telling another student to light a paper towel on fire would promote the student to commit the crime. And Mr. Shingarey knew his actions of telling another student to light a match after they had already planned to start a fire would promote the student to commit the crime.
There is sufficient evidence to find Mr. Shingarey guilty of two counts of reckless burning.
We affirm the convictions.
A majority of the panel has determined that 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.
KATO, C.J. and BROWN, J., Concur.
(1966).