State v. Johnson , 33 Wash. App. 15 ( 1982 )

Durham, A.C.J.

Jimmy Curtis Johnson appeals his conviction of burglary in the first degree. At about 2 or 3 a.m. on July 29, 1980, Eldred and Brenda Simpson were awakened by an intruder in their apartment bedroom. Brenda saw him going through Eldred's pants pockets. Eldred jumped from bed and struggled with the intruder, who hit Eldred several times. The struggle carried them out of the apartment and down the stairs. Eldred retreated to clothe himself, then he and a neighbor pursued the intruder while Brenda called police. Eldred found the man in the alley and cornered him, and the man threatened to kill him. Police arrived and arrested the intruder, who was identified as Jimmy Curtis Johnson. Johnson represented himself at trial. On appeal, he claims that he was deprived of his constitutional right to counsel.

The following is a brief chronology of Johnson's seven court appearances prior to trial:

August 15 (Judge T. Patrick Corbett): John Muenster of the Public Defender's Office appeared at arraignment for Johnson, waived the reading of the information and entered a plea of not guilty. The court continued the matter to August 29 to confirm counsel, set a trial date, and conduct an omnibus hearing. Prior to the arraignment, Johnson received a letter advising him to contact the Office of Public Defense if he needed assigned counsel.

August 29 (Judge Jerome M. Johnson): At this and all further hearings, Johnson appeared without counsel. Johnson stated that he wanted an attorney and that he had been to the Office of Public Defense. He was told there that because his income was too high, he was ineligible for appointed counsel. Johnson said that he had an attorney, but could not remember his name. Trial was set for October 29, and the omnibus hearing was continued to September 5.

September 5 (Judge Frank D. Howard): The prosecutor informed Johnson that it was of "paramount importance" that he obtain counsel. Johnson said that he had not contacted an attorney because of the cost, and that he did not have $700 to pay at once.

The Court: So it is your intention at this time to proceed to trial without an attorney?

Mr. Johnson: Yes.

The Court: ... I want to be certain at this time that . . . it's your intention to proceed to trial without an attorney.

Mr. Johnson: Well, I'm trying to get one. Like I said, I'm trying to get one is all.

After this somewhat contradictory exchange, the trial court continued the hearing to allow Johnson to obtain counsel, warning him that the matter had already been continued twice and further delays would not be granted.

September 10 (Judge Frank H. Roberts, Jr.): Johnson said that he had talked with some people "over in some building down on First Avenue" but he could not pay $700. He said that he could not get a "free" attorney and did not want to jeopardize his job by taking time to hire a lawyer of his own. The judge continued the matter to September 12, and arranged another appointment for Johnson with the Office of Public Defense. He gave Johnson the following advice:

The Court: ...

Now, if you don't get an attorney, which is your privilege, then you are going to go to trial without an attorney, and I think you realize that the seriousness of this charge is such that you sure need to be represented by counsel, but I want you to know that we are not going to play games, because I strongly suspect . . . that that's what is being done here, is that we're playing games.

This case is going to go to trial on the 29th of October . . .You are either going to have an attorney at public expense representing you or you are going to go out and get an attorney or you are going to suffer the consequences, but we are not going to have games played.

Do you understand?

The Defendant: (Nodding head.) Understand.

September 12 (Judge Frank H. Roberts, Jr.): The court examined Bruce Wilson of the Office of Public Defense as to Johnson's eligibility for appointed counsel. Mr. Wilson said that according to Johnson's financial statement, his take-home income was $253 per week, but that he had expenses of $960 per month. He also had $400 in savings. The staff at Mr. Wilson's office determined that Johnson was not eligible for appointed counsel and recommended that he contact Lawyer Referral Service. Johnson did so, and was told to call back later. He apparently never called back, as he remained without counsel. The court advised Johnson to return to Lawyer Referral Service immediately to secure counsel, and continued the hearing to September 15.

September 15 (Judge Frank D. Howard): Prior to the hearing, Johnson told the prosecutor that he intended to proceed pro se. The court set a CrR 3.5 hearing date of October 15, and then inquired as to Johnson's representation:

The Court: Mr. Johnson, again, it's your intention to proceed to trial without an attorney?

Mr. Johnson: (Nodded head), okay.

The Court: Excuse me, is that your wish, you want to go to trial without being represented by an attorney; you do not intend to get one to represent you?

The Defendant: No.

The Court: All right. I have signed the order and made the notation on it that the defendant again stated he did not want an attorney.

October 15 (Judge H. Joseph Coleman): Prior to the CrR 3.5 hearing, the court again questioned Johnson about his representation. Judge Coleman first asked if the court had previously explained Johnson's right to be represented by counsel, to which Johnson answered "Yes." The court continued:

The Court: Now, you fully understand that you have the right to have an attorney to represent you at all stages of these proceedings, and if you do not have funds to hire a lawyer, the Court will appoint one for you at no expense to you. Do you understand that?

The Defendant: Yes, I do.

The Court: Now, do you further understand the role of a lawyer in these proceedings? A lawyer would advise you with respect to legal defenses that you have. A lawyer would cross examine witnesses, would raise objections to evidence, other matters of that nature. Do you realize that by representing yourself, you are giving up the opportunity to have a trained and skilled person represent you in these proceedings? Do you understand that?

The Defendant: Yes.

Johnson then stated that he wanted an attorney, but could not take the time from his job to find one. Johnson requested that the hearing be continued. The court reviewed the events of prior hearings and concluded:

The Court: . . .

Then on September 15th, the defendant stated that he did not wish to be represented by counsel. It appears to the Court, Mr. Johnson, that substantial time has been permitted you for purposes of your obtaining counsel, and it doesn't appear to the Court that we can justifiably delay this matter any further.

What efforts have you made to obtain counsel over the period of this last two weeks?

The Defendant: I didn't make any . . .

The court then explained the nature of the CrR 3.5 hearing and proceeded with the hearing. Before adjourning, the court again advised Johnson:

The Court: Now, if you wish to be represented by counsel at your trial, you must obtain counsel at that time. Otherwise, the Court on that date will have to proceed as we have proceeded this morning.

October 29 (Judge Eugene G. Cushing): When the case came on for trial, Johnson stated that he wanted an attorney. The court noted that on September 12 Johnson had signed an intention to appear pro se, and that if he wanted a lawyer, he had had plenty of time to find one. At 10:25 a.m. the court continued the trial until 1:30 that afternoon to allow Johnson to obtain counsel.

Johnson returned to the courtroom at 1:30 without an attorney. During the recess, Mr. Wilson spoke with the trial court. The court recounted that Johnson had listed monthly expenses of $200 for clothes and $450 for food, and that Mr. Wilson felt that these amounts were exorbitant. The court also noted that Johnson had $400 in savings, and asked what happened to that amount. Johnson replied that he had withdrawn his savings, and had borrowed an additional $1,000 (for purposes unstated). The court went on to question Johnson:

The Court: Well, Mr. Wilson said you didn't qualify and he couldn't appoint counsel for you because you were financially able and had enough income to hire your own attorney.

Did you try and hire an attorney for yourself today?

Mr. Johnson: Nope.

The Court: Well—

Mr. Johnson: Because I ain't got no money.

The Court: The record is very clear to me that you had ample opportunity to get counsel. You don't qualify under the rules and regulations of the King County Office of [Public Defense].

The court then reviewed events of the prior hearings in detail, and concluded as follows:

The Court: . . .

. . .You should have an attorney. But you have had a long time to get an attorney. It appears to this court that you have no intention of trying to hire a lawyer. Have you ever gone out and tried to hire an attorney?

Mr. Johnson: Yes.

The Court: When?

Mr. Johnson: The first week after I got out of jail.

The Court: Who did you see?

Mr. Johnson: I don't know the lawyer's name, but he wanted $700 and I didn't have no cash.

The Court: Have you been to any lawyers since that time, to try and hire another lawyer?

Mr. Johnson: No.

The court then called a jury and the trial commenced.

Johnson claims that his constitutional right to counsel was abrogated. No one doubts that one accused of a crime is guaranteed the assistance of counsel by the constitution. U.S. Const. amend. 6. Furthermore, the State must furnish counsel at no cost to the indigent when he may lose his liberty if found guilty. Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972); Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R.2d 733 (1963); Morgan v. Rhay, 78 Wn.2d 116, 470 P.2d 180 (1970).

Johnson first argues that he was never properly advised of his right to counsel. It is accurate that at arraignment, and at some of the later court appearances, the right to counsel was not specifically enumerated. Nonetheless, the record clearly reflects Johnson's awareness of this right. Prior to arraignment, Johnson received a letter telling him to contact the Office of Public Defense for appointed counsel, and he went there almost immediately upon his release from custody.¹ Under no conceivable set of circumstances could that visit be interpreted as anything but a response to his having been informed of his right to counsel. Later, on October 15, Judge Coleman explained the right to counsel and the consequences of waiver thereof in great detail. Johnson acknowledged that he had been previously so informed. Johnson's own actions, described in the record before us, indicate beyond question that Johnson was well aware of his right to counsel, and we find no error.

The critical question in this appeal then becomes: Did Johnson knowingly and intelligently waive his right to counsel? After a careful examination of the record, we are satisfied that the answer is "yes". Although Johnson sporadically stated that he wished counsel, his conduct throughout these proceedings strongly indicates otherwise.

The record illustrates a continuing pattern of dilatory conduct by Johnson undertaken to slow the administration of justice and postpone his ultimate day of reckoning. Other courts have disapproved such efforts:

It is a fundamental principle in our criminal justice system that a defendant has an absolute right to counsel. There is no concurrent right, however, that permits a defendant to delay a trial either deliberately or inadvertently because he has made little effort to engage an attorney.

United States v. Merriweather, 376 F. Supp. 944, 945 (E.D. Pa. 1974). A defendant may not "manipulate his right to counsel for the purpose of delaying and disrupting the trial." United States v. Sperling, 506 F.2d 1323, 1337 n.19 (2d Cir. 1974), cert. denied, 420 U.S. 962 (1975). See also Relerford v. United States, 309 F.2d 706 (9th Cir. 1962). The same principle has been applied in cases involving a defendant's choice of counsel, United States v. Terry, 449 F.2d 727 (5th Cir. 1971); United States v. Merriweather, supra; People v. Guice, 83 Ill. App. 3d 914, 404 N.E.2d 261 (1980), cert. denied, 450 U.S. 968 (1981); see State v. Shelton, 71 Wn.2d 838, 431 P.2d 201 (1967); State v. Barton, 28 Wn. App. 690, 626 P.2d 509 (1981), request for a continuance to obtain counsel, United States v. Grow, 394 F.2d 182 (4th Cir.), cert. denied, 393 U.S. 840 (1968); Glenn v. United States, 303 F.2d 536 (5th Cir. 1962); Spevak v. United States, 158 F.2d 594 (4th Cir. 1946); State v. Miles, 77 Wn.2d 593, 464 P.2d 723 (1970), and right of self-representation, Chapman v. United States, 553 F.2d 886 (5th Cir. 1977); United States v. Bennett, 539 F.2d 45 (10th Cir.), cert. denied, 429 U.S. 925 (1976); State v. Fritz, 21 Wn. App. 354, 585 P.2d 173, 98 A.L.R.3d 1 (1978). See also United States v. Abbamonte, 348 F.2d 700 (2d Cir.), cert. denied, 382 U.S. 982 (1966). In the case presently before us, Johnson's almost complete inaction, which led to his failure to appear for trial represented by counsel, constituted a waiver of his right to counsel.

The court in United States v. Arlen, 252 F.2d 491 (2d Cir. 1958), had before it similar facts. Aden's original counsel withdrew about 6 weeks before trial. Aden, who was not indigent, waited 3 weeks before informing the trial judge that he had no attorney, although he wanted one. He was still without counsel when the case came on for trial. The trial judge denied his motion for a continuance, and Arlen represented himself at trial. On appeal, he claimed that he was deprived of his Sixth Amendment right to counsel. The Court of Appeals rejected his argument, stating that

where a defendant able to retain counsel has been advised by the court that he must retain counsel by a certain reasonable time, and where there is no showing why he has not retained counsel within that time, the court may treat his failure to provide for his own defense as a waiver of his right to counsel and require such defendant to proceed to trial without an attorney. Such a waiver is similar in its consequences to an election made by an indigent defendant.

Arlen, at 494-95. A waiver was also found in People v. Losacano, 29 Ill. App. 3d 103, 329 N.E.2d 835 (1975). There, the nonindigent defendant failed to secure his own attorney after the court denied his motion for appointment of counsel. He represented himself at trial. The appellate court found that because the record showed that the defendant made no effort to obtain an attorney, he was deemed to have waived his right to counsel. Losacano, 329 N.E.2d at 838.

The record indicates that the trial court determined that Johnson was not indigent and had sufficient resources to hire his own lawyer. The court repeatedly advised him to do so. He was given instructions, through the Office of Public Defense, on how to obtain an attorney through Lawyer Referral Service, and was given considerable time to follow through with this advice. He never took advantage of this help, nor of the time given him. Assuming the truth of Johnson's own testimony, he contacted only one lawyer during the entire 11-week period between his arraignment and trial, and that was apparently just after the arraignment. He did nothing else, despite continual prodding by the court and the prosecutor. Johnson's behavior indicates a clear choice on his part not to be represented by counsel at trial, and he may not now disclaim the consequences of his choice. We agree with the court in Spevak v. United States, supra at 596, which said:

It seems clear that an accused who is able to employ counsel and fails to do so after being afforded opportunity, thereby waives the right and may not urge lack of counsel as excuse for delay.

Johnson also argues that the trial court did not adequately determine his eligibility for appointed counsel. To the contrary, the record shows that Johnson's financial situation was examined at several pretrial hearings.

In King County, the Office of Public Defense assists the superior court in determining eligibility. That office interviewed Johnson prior to the September 12 hearing. Based on his signed financial statement, which included employment, income, expenses, and resource information, the office decided that Johnson was not eligible for appointed counsel. The inquiry did not end there, however, and the court reviewed this determination on September 12. Judge Roberts examined Bruce Wilson of the Office of Public Defense and was satisfied that Johnson was financially able to hire an attorney, and advised him to visit Lawyer Referral Service immediately to obtain counsel.

Johnson again visited the Office of Public Defense on October 29, the first day of his trial. That office once more rejected Johnson's request for appointed counsel, and Bruce Wilson again spoke with the trial judge about the matter. When court reconvened that afternoon, Judge Cushing reviewed the facts which influenced Wilson's rejection of Johnson's indigency status, and came to no different conclusion than that reached by the Office of Public Defense. Under these circumstances, we cannot say that the question of Johnson's eligibility for appointed counsel was inadequately determined. Because the Office of Public Defense and the trial court properly determined that Johnson was financially able to obtain his own attorney, he had no right to appointed counsel. CrR 3.1(d)(1).

Finally, Johnson challenges local procedures which allow representatives of the Public Defender's Office to appear at arraignment on behalf of a defendant without counsel, and do not require them to reappear without formal discharge by the court. These procedures substantially comply with the rules. CrR 3.1(b); CrR 4.1(b). They assist the court in handling the large number of individuals brought before it for arraignment. The same methods provide defendants with information regarding the Office of Public Defense and its functions in determining eligibility for appointed counsel. We find no error or violation of the rules in the use of these necessary procedures.

The judgment is affirmed.

Williams, J., concurs.

1 We also note that approximately 2 months prior to this offense, Johnson went to the Office of Public Defense to obtain appointed counsel on a misdemeanor charge. His request was denied on the same basis as this incident.