State of Washington v. Lance Theopolis Smith

FILED
JULY 9, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 36552-2-III
) (consolidated with
Respondent, ) No. 36553-1-III)
)
v. )
) PUBLISHED OPINION
LANCE THEOPOLIS SMITH, )
)
Appellant. )
LAWRENCE-BERREY, J. — Lance Smith appeals after a jury found him guilty of
two counts of felony violation of a no-contact order. Smith contends the trial court
committed constitutional error when it revoked his self-represented status, appointed
counsel, and later refused to allow him to represent himself. Because Smith lacked the
mental capacity to represent himself, we affirm.
FACTS
Lance Smith was a server at a restaurant in Richland. Jennifer Bonneru also
worked there. Smith and Bonneru became friends, but were never romantically involved.
They worked together for about six months. During this time, Smith sustained a head
injury from a snowboarding accident.
No. 36552-2-III; No. 36553-1-III
State v. Smith
When Smith returned to work, Bonneru noticed a change in his behavior. Smith
acted strange, said weird things, began peeling decals from the restaurant’s windows, and
tried to plant trees in concrete outside the restaurant. The restaurant asked Smith not to
come back to work.
After Smith left the restaurant, he began contacting Bonneru. He sent Bonneru
lengthy messages that did not make sense. She asked him to stop. She blocked him on
social media and changed her telephone number. Smith sent messages to her through
Facebook, sent letters to her place of employment, contacted her sister and mother, and
threatened her ex-boyfriends. At one point, Bonneru’s cell phone was rendered
temporarily inoperable because Smith had sent over 200 texts within a short period of
time.
Bonneru contacted police and obtained a no-contact order. Additional orders were
placed after misdemeanor violations by Smith.
In the fall of 2017, Smith sent Bonneru a message through Facebook in violation
of an existing no-contact order. In January 2018, Smith saw Bonneru through the front
window of a bar and waved at her. Bonneru’s friend asked Smith to leave and called the
police.
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No. 36552-2-III; No. 36553-1-III
State v. Smith
Procedural History
The State charged Smith with two felony violations of a no-contact order under
separate cause numbers for the 2017 and 2018 incidents. The trial court consolidated
Smith’s two cases. At his initial appearance, the court appointed public counsel for
Smith.
At Smith’s omnibus hearing, he requested to represent himself. Smith told the trial
court he self-studied the law, was relatively familiar with the rules of evidence, wanted to
represent himself because he was innocent, and believed he would have a bigger effect
representing himself and proving his innocence. The court denied Smith’s oral motion
but allowed Smith to make a written motion.
Smith filed a written motion to represent himself and the trial court granted it.
Smith argued for release on his own recognizance. The court denied Smith’s request, but
lowered his bail amount. Smith continued to dispute the court’s decision.
Throughout pretrial proceedings, Smith continued to argue with, berate, and ask
unusual questions to the trial court. See Report of Proceedings (RP) (Jan. 25, 2018) at 3-
5; RP (Feb. 28, 2018) at 42-45, 47-51, 53; RP (Mar. 7, 2018) at 9-13, 39, 41-46, 67, 71,
74-77, 80, 91-93, 98-104, 106-07, 113-14, 121-24, 161-64, 166-68; RP (Mar. 12, 2018) at
10; RP (Mar. 14, 2018) at 31-39, 42-43, 46; RP (Apr. 11, 2018) at 54; RP (July 25, 2018)
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No. 36552-2-III; No. 36553-1-III
State v. Smith
at 6-10; RP (Nov. 5, 2018) at 17-18, 20-25, 36-41, 44-45; RP (Dec. 19, 2018) at 48-52.
The court ordered a competency evaluation. Smith’s evaluator found Smith competent to
stand trial.
Smith’s case proceeded to trial. During voir dire, Smith repeatedly asked the
jurors which of them did not want to be there. A few minutes in, four jurors said they
could not be fair because Smith made a bad decision to represent himself, and he made a
negative impact on them. The trial court excused those jurors.
Smith then began making an opening argument to the venire jury; the court re-
directed him to ask the jurors questions. Smith then asked a juror who was the most
famous attorney he knew. At that point, a different juror addressed the court and said, “I
am concerned whether the defendant is of a sound mind the way this is proceeding and I
just wanted to bring that to your attention.” RP (Mar. 12, 2018) at 69. Smith responded
to the juror by saying he comes off as a genius to some people or really irritating and
completely mental to others. Smith and the juror then began to argue.
Smith asked a different juror if he was excited for St. Patrick’s Day. Smith asked
another, “[D]o you like the way our government is being ran right now?” RP (Mar. 12,
2018) at 71. Smith asked another, “[D]o you think it’s cool or not cool that the Bible is
no longer in our courtroom?” RP (Mar. 12, 2018) at 72. Smith stated he had been locked
4
No. 36552-2-III; No. 36553-1-III
State v. Smith
up for two months and asked another juror if it was springtime. He asked two more jurors
if they appreciated the way the government is being run. A juror then addressed Smith
directly: “Mr. Smith, I am concerned about your ability to represent yourself. You are off
topic. You’re—you don’t seem to be aware of what time of the year it is, and I don’t
think I can be fair because I don’t think you have the capability to represent yourself.”
RP (Mar. 12, 2018) at 73.
At that point, the trial court excused the venire jury and spoke to the parties about
the jurors’ concerns. Those concerns, coupled with the fact that Smith asked repetitive
questions, referred to being locked up, and said he hoped he would be out in the new year,
led the court to declare a mistrial. The court set a hearing date to determine whether
Smith could continue to represent himself.
At that hearing, the trial court ultimately determined that Smith could not continue
to represent himself and receive a fair trial. The court explained to Smith:
You have a consistent pattern in hearings and sessions in court of
being unable to, either through the passage of time or through results that
you disagree with, that you’re simply unable to keep from acting out. And
that makes it impossible for you to discharge the role of representing
yourself.
As I indicated to you, the problem with that is that your failure to
comply would have the disastrous result that not only would you be unable
to represent yourself, but, if I had to remove you from the courtroom for
your behavior, you would then be left in a position without anyone present
to be able to vindicate your interests.
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No. 36552-2-III; No. 36553-1-III
State v. Smith
Here, using the analogy of State v. Thompson, [169 Wash. App. 436,
290 P.3d 996 (2012)] which deals with it in the context of appointing
successor counsel, I find that it’s appropriate to deny you pro se status
because you’re not merely disruptive but you’re sufficiently disruptive that
it means that we can’t pick a jury.
The Court in [State v.] Kolocotronis[, 73 Wash. 2d 92, 436 P.2d 774
(1968)] indicates that mental health is an issue that the Court can consider.
Mental health issues that don’t rise to the level of incompetency are still
properly considered by the Court.
. . . But your behavior, during our attempt to pick a jury, has shown
that those things about you, which I’ve described, mean that there’s no
reasonable likelihood that you can effectively represent yourself. . . .
RP (Mar. 14, 2018) at 40-41 (emphasis added). Smith then began to argue, interrupt, and
speak out, and the court removed him from the courtroom.
At the next hearing, Smith spoke out of turn and asked the trial court if it was
familiar with mutual combat and said, “[Y]ou may be subpoenaed to mutual combat with
me by the State of Washington.” RP (Apr. 11, 2018) at 54. The court ordered a second
competency evaluation. The evaluator again found Smith competent to stand trial.
Smith continued to argue to the trial court that he wanted to represent himself. At
defense counsel’s request, the court ordered a mental health evaluation to determine
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No. 36552-2-III; No. 36553-1-III
State v. Smith
Smith’s sanity or diminished capacity.1 With respect to whether Smith had the mens rea
to commit the charged offenses, the evaluator concluded: “‘[I]t is . . . likely that Mr.
Smith experienced reduced mental status due to symptoms of delusional disorder which
overshadowed his rational thinking and impulse control abilities.’” Clerk’s Papers
(CP) at 34. Smith, with counsel, proceeded to trial under a theory of diminished capacity
due to mental defect.
During voir dire of Smith’s second jury, Smith exclaimed, “For the record,
Attorney Ajax, you are fired because you don’t listen to me and you are jeopardizing my
innocence.” RP (Mar. 7, 2018) at 161. The court excused the venire jury and Smith
continued, “Keep that in mind, jurors. Thank you. . . . As you are leaving, she does not
represent me.” RP (Mar. 7, 2018) at 161. After continued argument and outbursts with
the court, the court removed Smith to a media room. Smith remained in the media room
for the first day of trial, but returned to the courtroom the second day of trial.
1
The trial court’s findings in support of its order state in part: “The defendant is
competent to proceed to trial. The defense notified the prosecution that it intends to rely
upon the defense of . . . insanity . . . and/or [lack of] capacity to have a particular state of
mind . . . . Independent evaluator, Dr. Jameson Lontz, previously evaluated the defendant
and supports that affirmative defense.” Clerk’s Papers (CP) at 26.
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No. 36552-2-III; No. 36553-1-III
State v. Smith
The jury found Smith guilty of both counts. The court convicted Smith and
sentenced him to 13 months on each count, to run concurrently, with credit for time
served.
Smith timely appealed.
ANALYSIS
Smith contends the trial court committed two errors. He claims the court erred by
revoking his right to proceed pro se and the court erred by not adequately considering his
subsequent requests to proceed pro se.
We review a trial court’s denial of the right to self-representation for an abuse of
discretion. In re Pers. Restraint of Rhome, 172 Wash. 2d 654, 667, 260 P.3d 874 (2011). A
trial court abuses its discretion if its “decision is manifestly unreasonable or ‘rests on facts
unsupported in the record or was reached by applying the wrong legal standard.’” State
v. Madsen, 168 Wash. 2d 496, 504, 229 P.3d 714 (2010) (quoting State v. Rohrich, 149
Wash. 2d 647, 654, 71 P.3d 638 (2003)).
The Washington Constitution expressly guarantees criminal defendants the right to
self-representation. WASH. CONST. art. I, § 22. The Sixth Amendment to the United
States Constitution implicitly guarantees this right. Faretta v. California, 422 U.S. 806,
819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). Courts regard this right as “so fundamental
8
No. 36552-2-III; No. 36553-1-III
State v. Smith
that it is afforded despite its potentially detrimental impact on both the defendant and the
administration of justice.” Madsen, 168 Wash. 2d at 503. Improper denial of the right to
represent oneself requires reversal, and no showing of prejudice is required. Id.
Smith emphasizes that he has a constitutional right to represent himself and
repeatedly cites Madsen for the proposition that a trial court must honor this constitutional
right even though self-representation might be detrimental to the defendant or a burden on
the efficient administration of justice.
In Madsen, the defendant requested three times to proceed pro se. The first time,
the trial court appointed new counsel and deferred ruling on the motion. Id. at 501. The
second time, the trial court expressed concerns about Madsen’s competency, stated its
desire for someone to find out if Madsen was competent, appointed new counsel, and
denied the motion. Id. at 501-02. The third time, the trial court denied the motion
because it was made on the eve of trial and granting it would obstruct the orderly
administration of justice. Id. at 502-03. The trial court entered a written order that stated
that Madsen, during the third hearing, had been “‘extremely disruptive,’” “‘repeatedly
addressed the court at inopportune times,’” and “‘consistently showed an inability to
follow or respect the court’s directions.’” Id. Madsen was convicted, and the Supreme
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No. 36552-2-III; No. 36553-1-III
State v. Smith
Court accepted his petition for review to determine whether the trial court erred in
denying his motion to proceed pro se.
The Madsen court determined that Madsen’s second request to proceed pro se was
unequivocal, timely, voluntary, knowing, and intelligent. Id. at 506. It explained, if the
trial court had concerns about Madsen’s competency, the trial court should have ordered a
competency hearing. Id. at 510. The Madsen court concluded that the trial court erred in
denying Madsen’s second request to proceed pro se. Id.
We contrast Madsen with Rhome. In Rhome, our Supreme Court explained that
the right of self-representation does not extend to persons who lack the mental capacity to
represent themselves. Rhome, 172 Wash. 2d at 661-62; see also State v. Englund, 186 Wn.
App. 444, 457, 345 P.3d 859 (2015). We quote Rhome at length because it squarely
addresses all of Smith’s arguments raised on appeal:
[T]he Edwards[2] Court . . . held that it is constitutionally permissible for a
state to deny a defendant pro se status “on the ground that [he] lacks the
mental capacity to conduct his trial defense” even though he was found
competent to stand trial. Id. at 174.
The Edwards Court observed that the standard to determine whether
a defendant is competent to stand trial assumes he will assist in his defense,
not conduct his defense, and therefore competency to stand trial does not
automatically equate to a right to self-representation. Id. at 174-75. In
addition, while the dignity and autonomy of an individual underscore the
right to self-representation, in the Edwards Court’s view,
2
Indiana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008).
10
No. 36552-2-III; No. 36553-1-III
State v. Smith
a right of self-representation at trial will not “affirm the dignity”
of a defendant who lacks the mental capacity to conduct his defense
without the assistance of counsel. To the contrary, given that
defendant’s uncertain mental state, the spectacle that could well
result from his self-representation at trial is at least as likely to prove
humiliating as ennobling.
Id. at 176 (citation omitted) (quoting McKaskle v. Wiggins, 465 U.S. 168,
176-77, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984)). Furthermore, “insofar as
a defendant’s lack of capacity [for self-representation] threatens an
improper conviction or sentence, self-representation in that exceptional
context undercuts the most basic of the Constitution’s criminal law
objectives, providing a fair trial.” Id. at 176-77. Finally, in addition to a
concern that the proceeding be fair, the Edwards Court also worried that
self-representation in this context might damage the appearance of fairness
observers expect from our justice system. Id. at 177.
Rhome, 172 Wash. 2d at 659-60 (some alterations in original).
The Rhome court discussed Kolocotronis, 73 Wash. 2d 92, and confirmed
Kolocotronis . . . allows a trial court to limit the right to self-representation
when there is a question about a defendant’s competency . . . to act as his
own counsel, even if the defendant has been found competent to stand trial.
This reflects concern for a defendant’s right to a fair trial and due process of
law.
Rhome, 172 Wash. 2d at 661-62.
If there are sufficient facts in the record, we defer to the trial court’s finding that a
defendant lacks the mental capacity for self-representation. This is because the trial court
communicates with and observes the defendant’s nonverbal behavior. Englund, 186 Wash.
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No. 36552-2-III; No. 36553-1-III
State v. Smith
App. at 454 n.5. Nonverbal behavior is often inadequately reflected in the written record
on review.
Here, the trial court did not make any express finding why it revoked Smith’s self-
represented status. Nevertheless, an appellate court may examine the trial court’s oral
comments to determine the basis for its decision. State v. Kronich, 131 Wash. App. 537,
543, 128 P.3d 119 (2006), aff’d, 160 Wash. 2d 893, 161 P.3d 982 (2007). After the trial
court declared a mistrial, it scheduled a hearing. In that hearing, the court explained to
Smith its reasons for revoking his self-represented status and appointing counsel. The
court explained to Smith that his mental health issues caused him to engage in such a high
degree of disruptive behavior that “there’s no reasonable likelihood that you can
effectively represent yourself.” RP (Mar. 14, 2018) at 41. We construe this comment as a
finding that Smith lacked the mental capacity to represent himself. Such a finding is well
supported by the record.
We distinguish this case from Madsen. Here, the trial court twice ordered a
competency evaluation. Although both evaluations concluded that Smith was competent
to assist trial counsel, they did not conclude that Smith had the mental capacity to conduct
his own defense. As noted in Rhome, one may be competent to assist trial counsel but
lack the mental capacity to conduct one’s own defense. 172 Wash. 2d at 659. A medical
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No. 36552-2-III; No. 36553-1-III
State v. Smith
evaluation later concluded that Smith’s mental capacity was sufficiently impaired that he
lacked the impulse control to comply with the no-contact order. Impulse control was an
important consideration in the trial court’s finding that Smith lacked the mental capacity
to represent himself. The trial court’s finding, supported by a medical opinion, combine
to distinguish this case from Madsen.3 The facts here fit squarely within the rule
announced in Rhome.
Consistent with Rhome, the trial court properly revoked Smith’s self-represented
status and appointed counsel. This was necessary to protect Smith’s constitutional rights
to a fair trial and due process of law. We conclude the trial court did not abuse its
discretion in doing this. Because there is no evidence that Smith’s mental capacity
improved, we also conclude the trial court did not err in denying Smith’s later requests to
represent himself.
3
A medical opinion is not required for a trial court to find that a defendant lacks
the mental capacity for self-representation. But such an opinion will likely avoid a
successful appeal of the issue. In Englund, the majority and the dissent disagreed whether
the defendant’s lack of capacity to represent himself was due to a lack of skill and
education or due to a mental impairment. An expert opinion can be helpful in making this
important distinction. A lack of skill or education is an improper basis to deny a
defendant’s request for self-representation.
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No. 36552-2-III; No. 36553-1-III
State v. Smith
Affirmed.
j
WE CONCUR:
Pennell, C.J. Fearing, J.
14