State v. Curry , 423 P.3d 179 ( 2018 )

!■■■ \ This opinion was filed for record
X •* CtlWM OWICB X
tijMaEC0URr.8miEW«wsHMsiQN at S ■ CO 168 Wn.2d 496,
503, 229 P.Sd 714 (2010)(citing Wash. Const, art. I, § 22 ("the accused shall have
the right to appear and defend in person"); Faretta v. California, 422 U.S. 806, 819,
95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)). However, the right to self-representation is
neither self-executing nor absolute. Id. at 504. In fact, the right to self-representation
is in tension with another crucial constitutional right: a defendant's right to the
assistance of counsel. State v. DeWeese, 117 Wn.2d 369, 376, 816 P.2d 1 (1991).
Because of this tension, a defendant must unequivocally request to proceed pro se
before he or she will be permitted to do so. Id. This requirement protects defendants
from inadvertently waiving assistance of counsel and protects trial courts from
"manipulative vacillations by defendants regarding representation." Id. Additionally, "a
state V. Curry (Jerome), No. 94681-7
trial court must establish that a defendant, in choosing to proceed pro se, makes a
knowing and intelligent waiver of the right to counsel." Id. at 377.
Here, Curry contends that his request to proceed pro se was not unequivocal
and that, as a result, the trial court abused its discretion when it allowed Curry to
represent himself at trial.^ The Court of Appeals reversed the trial court, finding that
"[t]he qualifications attached to Mr. Curry's request for self-representation constituted
equivocation." State v. Curry, 199 Wn. App. 43, 45, 398 P.3d 1146, review granted,
189 Wn.2d 1009, 403 P.3d 41 (2017). The Court of Appeals further held that when a
defendant requests to proceed pro se to avoid a trial delay, it is valid only if the record
as a whole "demonstrate[s] the defendant is clear eyed in his strategy and not merely
frustrated with the slow pace of the legal process." Id. at 50.
The State appealed, again on the narrow question of whether Curry's request
to represent himself was unequivocal. We hold that the trial court did not abuse its
discretion in granting Curry's request to represent himself, and thus we reverse and
remand to the Court of Appeals to resolve the remaining issues.
I. Abuse of Discretion
We review a trial court's decision to grant or deny a defendant's request to
proceed pro se for abuse of discretion. Madsen, 168 Wn.2d at 504. A trial court has
abused its discretion if its decision "is manifestly unreasonable or 'rests on facts
2 Curry does not assert a violation of his right to a speedy trial, nor did he challenge his
convictions on the grounds that his request for self-representation was not voluntary,
intelligent, or knowing. However, Gurry did challenge his convictions on grounds unrelated to
his self-representation, which the Court of Appeals did not reach and which were not raised
here.
state V. Curry(Jerome), No. 94681-7
unsupported in the record or was reached by applying the wrong legal standard.'" Id.(quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)).
A trial judge afforded discretion is not free to act at whim or in boundless
fashion, and discretion does not allow the trial judge to make any decision he or she
is inclined to make:
"The judge, even when he is free, is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant roaming at will in pursuit
of his own ideal of beauty or of goodness. He is to draw his inspiration
from consecrated principles. He is not to yield to spasmodic sentiment,
to vague and unregulated benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy, disciplined by system, and
subordinated to 'the primordial necessity of order In the social life.' Wide
enough in all conscience is the field of discretion that remains."
Coggle v. Snow, 56 Wn. App. 499, 504-05, 784 P.2d 554 (1990)(quoting Benjamin
Cardozo, The Nature of the Judicial Process 141 (1921)). But, within bounds set
by case law and statute, the grant of discretion is broad: "Affording discretion to a trial
court allows the trial court to operate within a 'range of acceptable choices.'" State v.
Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942 (2012) (internal quotation marks
omitted)(quoting Rohrich, 149 Wn.2d at 654).
Thus, we give great deference to the trial court's determination: even if we
disagree with the trial court's ultimate decision, we do not reverse that decision unless
it falls outside the range of acceptable choices because it is manifestly unreasonable,
rests on facts unsupported by the record, or was reached by applying the wrong legal
standard. See State v. Dye, 178 Wn.2d 541, 548, 309 P.3d 1192(2013).
We must remain mindful of several factors when reviewing a trial court's
decision to grant or deny self-representation for abuse of discretion. First, the trial
state V. Curry (Jerome), No. 94681-7
court is in a favorable position compared to that of an appellate court. Trial judges
have far more experience considering requests to proceed pro se and are better
equipped to balance the competing considerations. State v. McKenzie, 157 Wn.2d 44,
52, 134 P.Sd 221 (2006) (stating that '"the trial judge,' having 'seen and heard' the
proceedings 'is in a better position to evaluate and adjudge than can we from a cold,
printed record'" (quoting State v. Wilson, 71 Wn.2d 895, 899, 431 P.2d 221 (1967))).
Additionally, trial courts have the benefit of observing the behavior and characteristics
of the defendant, the inflections and language used to make the request, and the
circumstances and context in which it was made. See id.Second, whether a request for self-representation is unequivocal must be
determined on a case-by-case basis, considering the circumstances, the defendant,
and the request. Sisouvanh, 175 Wn.2d at 621-22 (applying an abuse of discretion
standard when "a determination is fact intensive and involves numerous factors to be
weighed on a case-by-case basis" (citing In re Parentage of Jannot, 149 Wn.2d 123,
127, 65 P.3d 664 (2003); State v. Garza, 150 Wn.2d 360, 366, 77 P.3d 347 (2003))).
The decision is inevitably fact intensive and involves the weighing of numerous
factors. See DeWeese, 117 Wn.2d at 378 (noting that the validity of a waiver of
counsel depends on the facts of the case and that "there is no checklist of the
particular legal risks and disadvantages attendant to waiver which must be recited to
the defendant").
Third, a generally applicable rule cannot be effectively constructed. Sisouvanh,
175 Wn.2d at 621-22. This is because the decision is fact specific and the extent of
the trial court's discretion is partially tied to the timing of a defendant's request to
state V. Curry (Jerome), No. 94681-7
proceed pro se. State v. Breedlove, 79 Wn. App. 101, 107, 900 P.2d 586 (1995)
(discretion of a trial court "lies along a continuum that corresponds with the timeliness
of the request to proceed pro se"); State v. Fritz, 21 Wn. App. 354, 361, 585 P.2d 173(1978). Accordingly, we have not articulated a bright-line rule instructing the trial court
when to grant and when to deny a request for self-representation, nor is it pragmatic
to do so.
Under an abuse of discretion standard, we do not reverse a trial court's decision
unless the trial court applied the wrong legal standard, based its decision on facts
unsupported by the record, or made a decision that is manifestly unreasonable—even
if we may have reached a different conclusion on de novo review. With these
considerations in mind, we now examine whether the trial court abused its discretion
when it granted Curry's request for self-representation.
II. A Request for Self-Representation Must Be Unequivocal
Trial courts must "indulge in 'every reasonable presumption against a
defendant's waiver of his or her right to counsel'" before granting a defendant's
request to waive the right to assistance of counsel and proceed pro se. Madsen, 168
Wn.2d at 504 (internal quotation marks omitted) (quoting In re Del of Turay, 139
Wn.2d 379, 396, 986 P.2d 790 (1999)). This requires the court to engage in a two-
step determination. First, the court must determine whether the request for self-
representation is timely and unequivocal. Id. If the request for self-representation is
untimely or equivocal, the defendant's right to counsel remains in place and the trial
court must deny the request to proceed pro se. State v. Woods, 143 Wn.2d 561, 587-
88, 23 P.3d 1046 (2001). Second, if the request is timely and unequivocal, the court
8
state V. Curry (Jerome), No. 94681-7
must then determine whether the request is also voluntary, knowing, and intelligent.^
Madsen, 168 Wn.2d at 504.
The threshold Issues of timeliness and equivocality focus on the nature of the
request itself—if, when, and how the defendant made a request for self-
representation—not on the motivation or purpose behind the request. Adams v.
Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989).
The requirement that a defendant's request for self-representation be
unequivocal serves dual purposes. First, it protects defendants from inadvertently
waiving their right to counsel through spontaneous expressions of frustration or
"occasional musings on the benefits of self-representation." Id. Second, the
requirement "prevents a defendant from taking advantage of the mutual exclusivity of
the rights to counsel and self-representation." Id.The competing rights to counsel and self-representation can place the trial court
in a difficult position; if the trial court '"too readily accedes to the request, an appellate
court may reverse, finding an ineffective waiver of the right to counsel. But if the trial
court rejects the request. It runs the risk of depriving the defendant of his right to self-
representation.'" DeWeese, 117 Wn.2d at 377 (quoting State v. Imus, 37 Wn. App.
170, 179-80, 679 P.2d 376 (1984)). Requiring an unequivocal request for self-
representation "resolves this dilemma by forcing the defendant to make an explicit
choice. If he equivocates, he is presumed to have requested the assistance of
counsel." Adams, 875 F.2d at 1444.
3 We do not address whether Curry's request was timely or whether his waiver of counsel
was knowing, voluntary, and intelligent because those issues were not raised in this appeal.
state V. Curry (Jerome), No. 94681-7
To determine if a request for self-representation was unequivocal, the court
must in fact answer two questions:(1)Was a request made? If so,(2)was that request
unequivocal? Accordingly, when determining whether the defendant made an
unequivocal request for self-representation, the trial court must focus on if and how
the request was made and on the nature of the request. In doing so, the court should
examine the "facts and circumstances" of the case, DeWeese, 117 Wn.2d at 378,
while indulging in '"every reasonable presumption against a defendant's waiver of his
or her right to counsel,'" Madsen, 168 Wn.2d at 504 (internal quotation marks omitted)
(quoting Turay, 139 Wn.2d at 396).
To determine whether a request was made, the court can consider the following
nonexclusive factors: (1) how the request was made—for example, was the request
made formally in a motion or spontaneously at a hearing?, compare Madsen, 168
Wn.2d 496, with State v. Luvene, 127 Wn.2d 690, 903 P.2d 960 (1995); (2) the
language used in the actual request—for example, was the defendant asking to
proceed pro se or expressing frustration?, compare Madsen, 168 Wn.2d 496, with
Luvene, 127 Wn.2d 690; and (3) the context surrounding the request—for example,
was the request made after counsel sought a continuance or because of a
disagreement regarding strategy?, see State v. Modica, 136 Wn. App. 434, 149 P.3d
446 (2006), aff'd, 164 Wn.2d 83, 186 P.3d 1062 (2008); DeWeese, 117 Wn.2d 369.
In Woods, we held that a defendant's statement was not a request for self-
representation but merely an expression of frustration. 143 Wn.2d at 587. There, the
defendant interjected during a hearing on a motion for continuance to say that he
would '"be prepared to proceed . . . with this matter here without counsel'" on its
10
state V. Curry (Jerome), No. 94681-7
scheduled date. Id. at 574. We held that "telling a trial judge [the defendant] 'will be
prepared to proceed without counsel' is qualitatively different from telling a judge that
one wishes to proceed pro se," and that the defendant's comments were "not an
expression of an unequivocal desire to represent himself." Id. at 588.
The defendant in Luvene also expressed frustration rather than unequivocally
requesting self-representation. At a hearing, Luvene's counsel requested a trial
continuance. Luvene objected to the continuance, stating:
"I've been here since July. . . . You know, I don't wanna sit here any
longer. It's me that has to deal with this. If I'm prepared to go for myself,
then that's me. You know, can't nobody tell me what I wanna do. They
say I did this, so why not—if I wanna go to trial, why can't I go to trial on
the date they have set for my life? I'm prepared. I'm not even prepared
about that. I wanna go to trial, sir. . . .
"I don't wanna extend my time. This is out of my league for doing that.
I do not want to go. If he's not ready to represent me, then forget that.
But I want to go to trial on this date."
Luvene, 127 Wn.2d at 698. We held that Luvene's statements were an "expression of
frustration" with the delay in trial, not an unequivocal assertion of Luvene's right to
self-representation. Id. at 699.
When determining whether a defendant's request to proceed pro se is
unequivocal, the court must also examine the nature of the request. Relevant
considerations include whether the request was made as an alternative to other,
preferable options and whether the defendant's subsequent actions indicate the
request was unequivocal. These factors are not dispositive, though they should be
considered. An otherwise unequivocal request to proceed pro se is valid even if
combined with an alternative request for new counsel; but such a request"may be an
11
state V. Curry (Jerome), No. 94681-7
indication to the trial court, in light of the whole record, that the request is not
unequivocal." State v. Stenson, 132 Wn.2d 668, 740-41, 940 P.2d 1239(1997). And if
the defendant makes an explicit request to proceed pro se, that request is not
necessarily rendered equivocal simply because it is motivated by a purpose other than
a desire to represent him- or herself, such as frustration with the speed of trial or an
attorney's performance. Modica, 136 Wn. App. 434.
For example, in Modica, the Court of Appeals held that the trial court did not
abuse its discretion in allowing the defendant to represent himself, even though
frustration in a trial delay motivated the request. Id. There, the defendant was
dismayed when his attorney sought a six-week continuance. Id. at 439. Modica asked
to proceed pro se, and after a lengthy colloquy, the trial court granted his request. Id.
at 440. Modica reaffirmed his desire to represent himself multiple times until the day
after the jury was impaneled when he moved for reappointment of counsel. Id. The
trial court denied the motion. Id.
The Court of Appeals held that Modica had made an unequivocal request to
waive his right to counsel and proceed pro se, regardless of his motivation: "Here,
Modica made a strategic choice to assert his right to self-representation in order to
proceed to trial more quickly than the four to six weeks it would take his new attorney
to adequately prepare. Whatever his underlying motivation for doing so, his request
was clear and unequivocal." Id. at 442 (footnote omitted).
Similarly, in DeWeese, we held that the trial court did not abuse its discretion
by allowing the defendant to represent himself, even though the defendant's request
was motivated by frustration with the attorney's performance and was accompanied
12
state V. Curry (Jerome), No. 94681-7
by a request that counsel be replaced, because his request was unequivocal and
otherwise proper. 117 Wn.2d at 377.
This court has not provided an explicit definition of what qualifies as an
unequivocal request for self-representation. However, we adopt the Ninth Circuit's
articulation: an unequivocal request to proceed pro se requires a defendant to "make
an explicit choice between exercising the right to counsel and the right to self-
representation so that a court may be reasonably certain that the defendant wishes to
represent himself." United States v. Arit, 41 F.Sd 516, 519 (9th Cir. 1994). To be
reasonably certain that the defendant wishes to represent himself, the trial court must
first determine whether a request for self-representation was made at all and, if so,
whether that request reflected a desire to exercise the right to self-representation.
Further, the trial court must make these determinations on a case-by-case basis,
taking into consideration the circumstances of each request.
III. The Trial Court Did Not Abuse Its Discretion When It Granted Currv's Request
To Proceed Pro Se
We hold that Curry's request to represent himself was unequivocal and that the
trial court did not abuse its discretion. Here, the trial court's decision was made using
the correct legal standard, was supported by substantial evidence, and was
reasonable. Rohrich, 149 Wn.2d at 654. As a result, we reverse the Court of Appeals.
A. The trial court applied the correct legal standard
The trial court based its decision on the correct legal standard. A defendant's
waiver of the right to counsel and request to proceed pro se must be timely.
13
state V. Curry(Jerome), No. 94681-7
unequivocal, voluntary, knowing, and intelligent. Madsen, 168 Wn.2d at 504. At issue
here is whether Curry's request was unequivocal.
Here, the trial judge was clearly aware of and applied the correct legal standard
to Curry's request for self-representation. An oral proclamation from the judge that a
request for self-representation is unequivocal is not required if the record reflects that
the judge applied the correct requirement. See DeWeese, 117 Wn.2d at 378 (colloquy
not required, but in absence of colloquy, record must reflect minimum requirements of
valid waiver). Here, the trial court did not state on the record that it had found Curry's
request unequivocal, but the record reflects the trial court's implicit finding of
unequivocality. Curry's motion to proceed pro se, the colloquy that occurred at the
hearing on the motion, and the subsequent order written by the trial judge confirm that
the judge was aware of and applied the correct legal standard when making this
decision.
First, the motion filed on Curry's behalf outlined the relevant legal standards
and then declared that those standards were met.'* Second, during the hearing on
Curry's request to proceed pro se, the trial court engaged Curry in an extensive
colloquy regarding his wish to represent himself. The trial court inquired about Curry's
motivation, his education, his knowledge of trial procedures, his experience
The motion stated:
Mr. Curry has again requested to represent himself as a Pro Se. He states that
he is expressing this desire with knowledge of the possible risks and without
any equivocation. The record supports the conclusion that he does in fact
understand what it means to represent himself.
CP at 51.
14
state V. Curry (Jerome), No. 94681-7
representing himself In other matters, and whether he was threatened or promised
anything by any outside sources or If the decision was his alone. The trial court also
ensured that Curry was aware of his possible prison time If convicted and was "aware
that there are dangers and pitfalls of self-representation." RP at 18.
Third, after orally granting Curry's request to represent himself, the trial court
filed an order appointing Curry backup counsel. This order outlines the trial judge's
findings with respect to Curry's self-representation. Including the unequivocal nature
of Curry's request:
Jerome J. Curry's motion to proceed pro se was granted on May
7th, 2015. The Court engaged In a colloquy with Mr. Curry on that same
date. Mr. Curry was fully advised of the following:
1) He has a right to appointed counsel;
2) He has a right to hire counsel of his choice;
3) Self representation cannot be used to disrupt or delay
proceedings;
4) His request to proceed pro se with standby counsel Is
unequivocal; and
5) He will be held to the standard of an attorney for all proceedings
In this matter.
CP at 61. Here, the trial court applied the correct legal standard: the trial court held a
hearing on Curry's motion, engaged In a colloquy that touched on each of the
requirements of a valid waiver of the right to counsel and request to proceed pro se,
and filed an order addressing the requirements.
B. Substantial evidence supports the trial court's decision
The trial court's decision Is supported by substantial evidence. On April 24,
2015, Curry asked that his appointed counsel set a motion hearing to allow him to
15
state V. Curry (Jerome), No. 94681-7
represent himself or, in the alternative, to select new counsel. On April 30, 2015,
Curry's appointed counsel filed a motion to act pro se or select new counsel. After
explaining the factual circumstances and relevant law, the motion stated that "Curry
has again requested to represent himself as a Pro Se," and it described the request
as having been made "with knowledge of the possible risks and without any
equivocation." CP at 51. While Curry's counsel drafted the motion, the colloquy
between Curry and the court at the hearing on the motion makes clear that Curry
himself was indeed making this request.
For example, when the court asked Curry why he wanted to represent himself.
Curry responded that he did not want the trial "to be delayed any more, because I
have obligations that I need to continue from on the streets. And, you know, if I can't
continue my obligations that I need to do, you know, I might as well just do them
myself. I can do bad by myself." RP at 7.
The trial court encouraged Curry to accept the help of counsel, and when the
court asked Curry why he thought he was better off representing himself instead of
proceeding with an attorney. Curry responded:
Because I basically, I mean, if I've got to sit and wait until the end of June,
I might as well go ahead by myself. Because I—I mean, send me to
prison or release me. One of the two. I mean, I ain't got time to sit here.
I mean, I have obligations on the streets. I'm losing my home. And if I've
got to lose my home, I might as well defend my own self.
Id. at 13. The court further discouraged Curry, urged him to stay with counsel,
reiterated the risk of prison time, and stated that self-representation is not a wise
choice. Curry replied, "Yes, but at—if we've got to go past June 1st, I'd rather just do
it myself." Id. at 14. Additionally, Curry stated that no one was pressuring or promising
16
state V. Curry (Jerome), No. 94681-7
him anything to represent himself and that it "[s]ort of, kind of, yes" was a voluntary
decision. Id. at 14-15.
Additionally, Curry represented himself in an earlier trial and he indicated that
he understood his responsibility for following the rules of procedure and evidence. The
trial court noted that
Mr. Curry has had the benefit of that experience. . . . Mr. Curry is saying
he's—he would prefer to represent himself given the current dates and
time frames of these particular matters before the court. Mr. Curry further
indicates that he's aware that there are dangers and pitfalls of self-
representation, as I've described.
Id. at 18. When asked if that was right. Curry responded, "Yes." Id.
The record gives no indication that Curry's request was inadvertent or
accidental; it was not simply an "expression of frustration," though frustration may
have been the motivation; and it was not a spontaneous comment or a musing on the
benefits of self-representation. Curry repeatedly expressed a desire to represent
himself. He made a request to proceed pro se in a written motion, which he discussed
at length with the trial judge in a scheduled hearing. Accordingly, the trial court's
decision is supported by substantial evidence.
C. The trial court's decision was reasonable.
"A manifestly unreasonable decision is one that is 'outside the range of
acceptable choices, given the facts and the applicable legal standard . . . .'" Dye, 178
Wn.2d at 555 (quoting In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362(1997)).
Here, given the facts and the applicable legal standard, the trial judge's decision
to allow Curry to represent himself was reasonable. It is true that Curry did not seek
17
state V. Curry (Jerome), No. 94681-7
to represent himself for a strategic reason or because of a difference in opinion with,
his attorney regarding how the case ought to be argued. He sought to represent
himself to avoid delaying his trial date. However, unlike Luvene, in which the
defendant's statement regarding self-representation amounted only to an expression
of frustration, here. Curry made an unequivocal request to proceed pro se, regardless
of his motivation. Curry was warned that it was unwise for him to represent himself,
he was aware of the potential sentence that his charges carried, he was not being
pressured by any outside source, and he nonetheless made a clear request to
represent himself. Under these circumstances, the trial court made a reasonable
determination that Curry's request to proceed pro se unequivocal.
CONCLUSION
The trial court applied the correct legal standard, and its decision to grant
Curry's request for self-representation was reasonable and supported by substantial
evidence. Accordingly, the trial court did not abuse its discretion by granting Curry's
request for self-representation. The Court of Appeals, in reaching its decision, found
it unnecessary to consider the remaining requirements to allow self-representation or
several other issues raised by Curry on appeal. Accordingly, we reverse and remand
to the Court of Appeals to resolve the remaining outstanding issues and for other
proceedings consistent with this opinion.
18
state V. Curry(Jerome), No. 94681-7
WE CONCUR.
19
State V. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
No. 94681-7
GORDON McCLOUD, J. (concurring)—I agree with the majority that the
Sixth Amendment to the United States Constitution, like article I, section 22 of the
Washington Constitution, provides two guaranties: the criminal defendant has a
right to counsel and the criminal defendant has a right to proceed pro se. I also agree
that those two rights sometimes stand in tension with each other. E.g., majority at 4,
9; accordFaretta v. California, 422 U.S. 806, 832-33, 95 S. Ct. 2525,45 L. Ed. 2d
562 (1975). Finally, I agree that the majority has properly resolved that tension in
this case: Jerome Curry Jr. made an unequivocal request to proceed pro se after a
complete colloquy and full advisement of his rights.
But there is a problem with our case law on this issue. The problem is that we
have come to very different conclusions about when such advisements, colloquies,
and attempted waivers are effective. The majority's decision reaches the correct
result but does not take any steps toward resolving that inconsistency in our case
law.
State V. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
I think that our conclusions vary so dramatically because we use the abuse of
discretion standard to review the validity of waivers and attempted waivers of the
right to counsel. We should instead apply de novo review to the trial court's legal
determination of whether a criminal defendant has effectively waived the
constitutional right to counsel through a particular set ofadvisements, questions, and
answers captured on a written record. This would allow us to attain greater
consistency in our case law concerning the adequacy of waivers of the right to
counsel. It would also align our standard for reviewing waivers of this fundamental
constitutional right with our standards for reviewing waivers of most other
constitutional rights.
For that reason, I respectfully concur.
I. Prior Decisions of This Court Have Come to Divergent Conclusions
about Whether Similar Colloquies Are Adequate To Waive the Right
to Counsel
Our prior decisions have reached very different conclusions about the legal
significance of virtually identical waivers and attempted waivers of the right to
counsel. I briefly trace the history of these decisions, before turning to our case law
on how to review waivers (or attempted waivers) of other constitutional rights.
State V. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
A. State V. DeWeese (1991)—Second-Choice Request To Proceed Pro
Se Deemed Unequivocal
The first post-Faretta case of this court to address the issue of self-
representation in detail is State v. DeWeese. 117 Wn.2d 369, 816 P.2d 1 (1991). The
DeWeese court addressed a self-representation request similar to the one that Curry
made—and we ruled that the request was unequivocal.
In DeWeese,the first appointed counsel withdrew due to a conflict.^ DeWeese
then moved to replace the second appointed lawyer with a third one. The trial court
denied this request and gave DeWeese a choice: it"allowed Mr.DeWeese the option
of either being represented by Mr. Baum or representing himself." Id. at 372. The
trial court advised DeWeese of the severity of his situation and the dangers of self-
representation. It also "advised Mr. DeWeese against opting for self-representation
rather than remaining with Mr. Baum as appointed counsel." Id. at 373.
DeWeese responded that this "choice"—between a lawyer he didn't want or
self-representation—^was really forcing him to request self-representation./J. at 378.
The trial court nevertheless forced—or allowed, depending on one's perspective—
DeWeese to proceed pro se to trial. On appeal, following conviction, DeWeese
'DeWeese, 117 Wn.2d at 378("The record shows Mr. DeWeese's refusal to accept
the professional advice of his first court-appointed counsel led to ethical problems for his
attomey, which eventually led to his withdrawal from the case.").
State 'v. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
argued that his request for self-representation was forced on him and, hence, that the
request was equivocal and ineffective. Id. at 375.
We rejected DeWeese's claim and affirmed his conviction. We reviewed the
trial court's decision for abuse of discretion. Id. at 376-77, 379. We found that
despite the fact that DeWeese's request to proceed pro se was a second choice, that
request was still unequivocal:
Mr. DeWeese's remarks that he had no choice hut to represent himself
rather than remain with appointed counsel, and his claims on the
record that he wasforced to represent himselfat trial, do not amount
to equivocation or taint the validity of his Faretta waiver. These
disingenuous complaints in Mr. DeWeese's case mischaracterize the
fact that Mr. DeWeese did have a choice, and he chose to reject the
assistance of an experienced defense attorney who had been appointed.
Id. at 378 (emphasis added).
B. State V. Luvene (1995)—Second-Choice Request To Proceed Pro Se
Deemed Equivocal
The next two decisions of our court came to a different conclusion based on
similar records. They treated second-choice requests for pro se status, like the one
that DeWeese made and the one that Curry made, as equivocal.
In State v. Luvene, the defendant moved to proceed pro se after his attorney
obtained a continuance to interview witnesses and prepare for the penalty phase of
his capital trial. 127 Wn.2d 690, 698-99, 903 P.2d 960 (1995). Luvene opposed the
State V. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
continuance and,in doing so, stated that he would rather represent himselfthan wait
for counsel to be ready:
"I've been here since July.. . . You know,I don't wanna sit here
any longer. It's me that has to deal with this. If I'm prepared to go for
myself, then that's me. You know, can't nobody tell me what I wanna
do. They say I did this, so why not—if I wanna go to trial, why can't I
go to trial on the date they have set for my life? I'm prepared. I'm not
even prepared about that. I wanna go to trial, sir. ...
"I don't wanna extend my time. This is out of my league for
doing that. I do not want to go. If he's not ready to represent me, then
forget that. But I want to go to trial on this date."
Id. at 698 (quoting Luvene Report of Proceedings at 72-73). The trial court denied
Luvene's request. Id.
On appeal, Luvene argued that his statements constituted an unequivocal
request to proceed pro se. Id. This court did not specify our standard of review. But
we accepted the trial court's ruling that Luvene's motion was not unequivocal:
While Mr. Luvene did state that he was "prepared to go
for myself," he also stated, "I'm not even prepared about that,"
and "[t]his is out of my league for doing that." Taken in the
context of the record as a whole, these statements can be seen
only as an expression offrustration by Mr.Luvene with the delay
in going to trial and not as an unequivocal assertion of his right
to self-representation.
State V. Curry (Jerome), No. 94681-7
(Gordon McCIoud, J., concurring)
Id. at 698-99. Essentially we ruled that since Luvene requested pro se status as a
second choice—and for what most would consider a poor reason—^we would uphold
the trial court's ruling that Luvene was really just expressing frustration. Id.
C. State V. Stenson (1997)—Second-Choice Request To Proceed Pro
Se Deemed Equivocal
This court came to a conclusion similar to the one in Luvene in State v.
Stenson, 132 Wn.2d 668,940 P.3d 1239(1997),just two years later. In Stenson, we
also held that the defendant's second-choice motion to represent himself was
equivocal and, hence, insufficient. Id. at 741.
But the colloquy in that case was virtually identical in relevant respects to the
colloquy in Curry's case. In Stenson, voir dire began on June 9, 1994.Id. at 730. On
July 12, 1994, Stenson filed a motion for appointment of a new lawyer or, in the
alternative, for permission to proceed pro se.Id. at 730-31. The trial court denied the
motion the next day. It denied the request for substitute counsel on the ground that
Stenson made that request only because of a disagreement with his counsel over trial
tactics. Id. at 732-33. It denied Stenson's request to proceed pro se on the ground
that Stenson's main goal was appointment ofnew counsel, so his alternative request
to proceed pro se was not unequivocal.(It also ruled that the motion to proceed pro
se waS'untimely). Id. at 733.
State V. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
Stenson made a similar set of alternative motions—for new counsel or pro se
status—a few days later. Id. The written motion sought substitute counsel.Id.(citing
Stenson sealed Report of Proceedings at 513). But when the trial court denied that
written motion, Stenson again moved to proceed pro se:
"THE DEFENDANT:. . . I would formally make a motion then
that I be able to allow [sic] to represent myself.I do not want to do this
but the court and the counsel thatIcurrently haveforce me to do this.
"As I said, I have been under the illusion that I was going to be
defended. Not merely as Mr. Leatherman stated the other day, he would
cross examine witnesses. That is not a defense."
Id. at 739 (emphasis added)(quoting Stenson Report of Proceedings at 3312). The
trial court denied the motion on the ground that it was equivocal and untimely:
"THE COURT: Mr. Stenson, I do not consider the issue of the
trial strategy or trial tactics which are going to be undertaken here as
anything which is resolved.
"THE DEFENDANT: Excuse me?
"THE COURT: I don't consider that resolved. That's a decision
between you and your counsel and that will have to be resolved as we
get into the trial. And I can't resolve that for you.
"As to a motion to represent yourself at this point in the trial, as
I have indicated, certainly you have a constitutional right to do that if a
motion is timely made.
"At this point in time I find that that motion is not timely made
and I alsofind based upon your indications that you really do not want
to proceed without counsel.
State V. Curry (Jerome), No. 94681-7
(Gordon McCIoud, J., concurring)
"THE DEFENDANT: But likewise I do not proceed [sic] with
counsel that I have.
"THE COURT: I understand that. Based upon those
considerations, I'm going to deny the motion to allow you to proceed
pro se."
Id. at 739-40 (quoting Stenson Report ofProceedings at 3312-13).
This court reviewed the denial ofthe request for self-representation for abuse
of discretion. Id. at 737. We acknowledged that a request for self-representation can
be stated "in the alternative of a request for new counsel" and still, theoretically, be
unequivocal. Id. at 741. But we concluded that the record as a whole indicated that
the defendant did not want to proceed pro se as a first choice and deemed the pro se
motion equivocal for that reason. Id. at 741-42. We explained, "[Stenson] told the
trial court that he did not want to represent himself but that the court and his counsel
hadforced him to do that. More importantly, the Defendant did not refute the trial
court's final conclusion that 'he really [did] not want to proceed without counsel.'"
Id. at 742 (emphasis added) (alteration in original) (quoting Stenson Report of
Proceedings at 3313). We deferred to the trial court's decision that the defendant's
"forced" choice to seek self-representation was not unequivocal.
State V. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
D. State V. Madsen (2010)—Second-Choice Request To Proceed Pro
Se Deemed Unequivocal
Our court's next decision in this line of cases is State v. Madsen, 168 Wn.2d
496, 229 P.3d 714 (2010). In Madsen, the defendant moved to proceed pro se on
three separate occasions. Id. at 500. Madsen made his first motion to proceed pro se
on January 24, 2006, when "Madsen's privately retained counsel withdrew and
Madsen personally moved to proceed pro se." Id. at 501. When the trial court
inquired why Madsen wanted to represent himself, Madsen replied that he believed
he '"could resolve the whole issue.'" Id. (quoting Madsen Report of Proceedings
(Jan. 24, 2006) at 5). The court deferred ruling on this motion but appointed new
counsel, stating, "'After you have a chance to talk with them [new counsel], if you
still want to proceed pro se, I'm more than happy to hear the motion.'" Id.
Madsen made a second "motion to proceed pro se or in the alternative to
terminate his counsel's representation" on March 7,2006.Id. (citing Madsen Report
of Proceedings (Mar, 7, 2006) at 3). During the hearing on this motion, "Madsen
stated several reasons why he did not want to be represented by his then-counsel and
concluded, '1 think that I'd be better off representing myself . . . .'" Id. (citing
Madsen Report of Proceedings (Mar. 7, 2006) at 8). As in Stenson, the trial court
was concerned that "Madsen's true motive was to fire counsel, not necessarily to
proceed pro se." Id. Additionally, Madsen's counsel indicated that he had concerns
State V. Curry (Jerome), No. 94681-7
(Gordon McCIoud, J., concurring)
regarding Madsen's competency. Id. The trial court determined that the best option
was to appoint new counsel over Madsen's objection. Id. at 501-02.^
On May 2, 2006, Madsen made his third and final motion to proceed pro se.
"The trial court replied that it did not think Madsen was prepared to interview and
selectjury members or become sufficiently familiar with the trial procedures in time
for trial." Id. at 502.
The court then asked Madsen whether he still wished to represent
himself, and Madsen replied, ''at this point I am forced, almostforced
into doing that, so I would say yes.''[Report ofProceedings](May 2, 3,
4,8,2006)at 87. The court then stated,"I am going to deny your motion
to proceed pro se. I don't feel you are prepared." Id. at 89.
Id. (emphasis added). The following day, at the prosecutor's request, the court
clarified its reasons for denying Madsen's motion. Id. The trial court then further
clarified its ruling in writing the next day. Id. at 502-03. Both clarifications focused
on Madsen's third request for self-representation, and both clarifications focused on
Madsen's courtroom conduct as well as the untimeliness ofthat third motion.
Madsen was convicted and the Court of Appeals affirmed. State v. Madsen,
noted at 143 Wn. App. 1028, 2008 WL 625282.
^ Madsen offered to take an "TQ (intelligence quotient) test,"' a '"psychologieal
exam,"' or whatever assessment the judge wanted to show his competency. Id at 502
(quoting Madsen Report of Proceedings (Mar. 7, 2006) at 18-19). No competency
hearing was ordered. Id. On March 9, Madsen's newly appointed counsel informed the
court she had no concems regarding Madsen's competency. Id.10
State V. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
We reversed. Madsen, 168 Wn.2d 496. We began by applying the abuse of
discretion standard. Id. at 504. We held that the trial court properly deferred ruling
on Madsen's first request to proceed pro se. Id. at 506. But we concluded that the
trial court abused its discretion by failing to grant Madson's second request to
proceed pro se. We acknowledged that Madsen's second request was coupled with
an alternative request to fire substitute counsel.Id. at 507. But we did not treat these
alternative requests as equivocal as we had in Stenson and Luvene. Instead, we held:
Madsen explicitly and repeatedly cited article I, section 22 of the
Washington State Constitution—^the provision protecting Madsen's
right to represent himself. Madsen never waveredfrom his demandfor
self-representation. Unlike his January motion, the court had clear
notice; the hearing was explicitly set to consider Madsen's motion to
proceed pro se or, alternatively, to fire his attorney.
Id. at 506-07(second emphasis added).
E. Faretta v. California (1975)—Second-Choice Request To Proceed
Pro Se Deemed Unequivocal
Thus, our court has a p- osi-Faretta history of treating second-choice requests
to proceed pro se in different ways. We should therefore go back to basics—and in
this context, that means going back to the seminal United States Supreme Court case
on how to treat such second-choice or "forced" requests to proceed pro se—Faretta,
422 U.S. at 835.
11
State V. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
In Faretta, the defendant declared that he wanted to represent himself. But he
explained that his reason for moving to proceed pro se was that the public defender's
office was overburdened with an extremely heavy caseload:
Well before the date of trial, however, Faretta requested that he be
permitted to represent himself. Questioning by the judge revealed that
Faretta had once represented himself in a criminal prosecution, that he
had a high school education, and that he did not want to be represented
by the public defender because he believed that that office was ''very
loaded down with ... a heavy case load.'' The judge responded that he
believed Faretta was"making a mistake" and emphasized that in further
proceedings Faretta would receive no special favors.
Id. at 807-08 (emphasis added)(alteration in original).
The trial court initially accepted Faretta's waiver ofthe assistance of counsel.
Id. at 808. But a few weeks later, the trial court reversed itself. It held a hearing to
determine Faretta's ability to conduct his own defense. It questioned Faretta about
procedural matters such as the rules of evidence and the ways to challenge potential
jurors. The colloquy with Faretta was extensive, and Faretta successfully fielded
several technical legal questions. Id. at 808 n.3. The trial court nevertheless denied
Faretta's request to proceed pro se. Id. at 808-09.
The Supreme Court reversed. It did not state what standard of review it was
using. But it clearly rejected the trial court's assessment ofFaretta's motion. Instead,
it ruled—based on the written record—^that "weeks before trial, Faretta clearly and
12
State V. Curry (Jerome), No. 94681-7
(Gordon McCIoud, J., concurring)
unequivocally declared to the trial judge that he wanted to represent himself and did
not want counsel." Id. at 835.
This means that the Supreme Court read the record independently, without
deference to the trial court, and treated Faretta's statement that the public defender
was overworked, and for that reason he needed to represent himself, as
"unequivocal[ ]." Id.F. Conclusion as to This Court's Treatment ofSecond-Choice Requests
To Proceed Pro Se
In sum, Stenson and Luvene treated requests for pro se status, where the
defendant indicated that he was being forced by circumstances to proceed pro se as
a second choice, as equivocal. Stenson, 132 Wn.2d at 739; Luvene, 127 Wn.2d at
698-99. Faretta, Madsen, and DeWeese, in contrast, treated requests for pro se
status, where the defendant indicated that he was being forced by circumstances to
proceed pro se as a second choice, as unequivocal. Faretta,422 U.S. at 835; Madsen,
168 Wn.2d at 507; DeWeese, 117 Wn.2d at 378.
Our trial courts do not benefit from such mixed messages. I think the problem
is due in part to a deferential standard of review that prevents us from developing a
consistent legal analysis of when a waiver of the constitutional right to counsel is
effective. We should address the inconsistency by applying the standard of review
13
State V. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
that we usually apply to review oflegal and constitutional issues, including the issue
of waiver of other constitutional rights: de novo review.
II. The Majority Is Correct That Madsen Adopted an Abuse of Discretion
Standard for Reviewing the Voluntariness of Waivers of the Right to
Counsel
The majority based its decision to review Curry's self-representation request
for abuse of discretion on Madsen. Majority at 5 (citing Madsen, 168 Wn.2d at 504).
And the majority is correct that Madsen adopted that deferential standard ofreview.
But the Madsen court did not explain why it adopted that deferential standard.
Instead, it stated only that "[a]s a request for pro se status is a waiver of the
constitutional right to counsel, appellate courts have regularly and properly reviewed
denials ofrequests for pro se status under an abuse of discretion standard." Madsen,
168 Wn.2d at 504 (citing State v. Hemenway, 122 Wn. App. 787, 792, 95 P.3d 408(2004)). Then, based on the factual circumstances surrounding Madsen's requests
for pro se status, we ruled that the trial court had abused its discretion. Id. at 507.
Notably, however, we ruled that the trial court abused its discretion because
it "rel[ied] on improper legal reasoning and thus reliance on such is an abuse of
discretion." Id. We then explained what the legal error was in a passage that sounds
more like de novo review than deferential review: "The argument that Madsen's
request was equivocal because it was coupled with an alternative request is fallacious
14
State V, Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
and ignores this court's precedent." Id. But Madsen said that it was using the abuse
of discretion standard, and that deferential standard stuck.
III. Madsen's Abuse of Discretion Standard Is Incorrect: It Conflicts in
Principle with Decisions of This Court Applying De Novo Review to
the Voluntariness of Waiver of Other Constitutional Rights
But we generally review the voluntariness of waivers of constitutional rights
de novo. Madsen'^ adoption ofthe abuse of discretion standard conflicts in principle
with those decisions.
For example, we review the voluntariness of a criminal defendant's waiver of
his constitutional right to refuse consent to a search de novo. E.g.,State v. Budd, 185
Wn.2d 566, 571-73, 374 P.3d 137 (2016) (reviewing de novo the issue of
voluntariness of consent to search during "knock and talk" investigations where
there was an absence ofFerrieP warnings).
Similarly, we characterize the voluntariness of a defendant's waiver of the
right to jury trial as a legal question, and we review it de novo. E.g., State v.
Buchnan, 190 Wn.2d 51, 57, 409 P.3d 193 (2018)("The standard of review in this
case is de novo. . . . [T]he request for [plea] withdrawal in this case is based on a
claimed constitutional error [involuntary waiver of right to trial and resulting guilty
plea] and resulting prejudice—both of which are issues that we review de novo.");
State V. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
15
State V. Curry (Jerome), No. 94681-7
(Gordon McCIoud, J., concurring)
State V. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004) (reviewing
constitutional issues de novo (citing City ofRedmond v. Moore, 151 Wn.2d 664,
668, 91 P.3d 875 (2004))).
Likewise, we consider the voluntariness ofa waiver ofthe constitutional right
to remain silent to be a question of law reviewable de novo. E.g., State v.
McReynolds, 104 Wn. App. 560, 575, 17 P.3d 608 (2000) ("A trial court's
determination on the 'ultimate issue of"voluntariness"' [of a confession] is a legal
determination, subject to independent, de novo review." (quoting Miller v. Fenton,
474 U.S. 104, 110, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985))).
We seem to review the validity of a criminal defendant's waiver of the
constitutional right to appeal de novo. See State v. Sweet, 90 Wn.2d 282, 289, 581
P.2d 579 (1978)(reviewing the record to determine the merits of the defendant's
constitutional claim without presuming waiver because "it is incumbent on a
reviewing court to make its own independent examination and evaluation of the
facts" (citing State v. Byers, 85 Wn.2d 783, 539 P.2d 833 (1975))."
Other courts also review waiver of the right to appeal de novo. United States v.
Petty, 80 F.3d 1384, 1386 (9th Cir. 1996)("We review de novo the issue [of] whether
[defendant] has waived his right to appeal." (citing United States v. Catherine, 55 F.3d
1462, 1464(9th Cir. 1995))); United States v. Buchanan, 59 F.3d 914, 916 (9th Cir. 1995)
(reviewing de novo the validity of a waiver of appellate rights); United States v. Robertson,
52 F.3d 789, 791 (9th Cir. 1994)(reviewing waiver of a statutory right to appeal de novo
(quoting United States v. Gonzalez, 16 F.3d 985, 988 (9th Cir. 1994))).
16
State V. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
We consider the validity of a waiver of Miranda^ rights during a custodial
interrogation to be a legal issue that is reviewed de novo. State v. Campos-Cerna,
154 Wn. App. 702, 708, 226 P.3d 185 (2010){(^Miranda claims are issues of law
that we review de novo. We also review de novo the adequacy ofo.Miranda warning
and whether there was a valid waiver of Miranda rights." (citation and footnote
omitted)).
There are certainly exceptions. For example, in State v. Garza, we held that
whether a defendant voluntarily waived his right to presence at trial is a factual
determination, so we deferred to the trial court's decision on that point by using an
abuse of discretion standard of review. 150 Wn.2d 360, 366, 77 P.3d 347 (2003).
But in general, we review the voluntariness of relinquishment of a constitutional
right de novo.
I would not depart from our general practice ofreviewing claimed waivers of
constitutional rights de novo in this case. Instead, I would revisit Madsen and apply
de novo review to Faretta waivers also.
^ Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).
17
State V. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
IV. Madsen's Abuse of Discretion Standard Is Incorrect: It Conflicts
Directly with the Persuasive Decisions of Other Courts Applying De
Novo Review to Faretta Waivers
The majority relies heavily on Ninth Circuit decisions concerning the
effectiveness of attempted waivers of the right to counsel. E.g., majority at 13.
The Ninth Circuit, however, reviews the voluntariness of Faretta waivers of
the right to counsel de novo. E.g., United States v. Neal, 776 F.3d 645, 657-58 (9th
Cir. 2015)("We review whether a Faretta waiver satisfied these requirements de
novo, even where the defendant failed to raise the issue ofthe validity ofthe Faretta
waiver to the district court." (citing United States v. Erskine, 355 F.3d 1161, 1166-
67(9th Cir. 2004))); United States v. Gerritsen, 571 F.3d 1001, 1006(9th Cir. 2009)
("We review the validity of a waiver ofthe right to counsel de novo."(citing United
States V. Forrester,512 F.3d 500,506(9th Cir. 2008)));see also Crandell v. Bunnell,
25 F.3d 754, 754 (9th Cir. 1994) (per curiam) ("Crandell claims he did not
voluntarily waive his right to counsel and elect self-representation in the municipal
court proceedings. This is a mixed question of law and fact which we review de
novo."(citing United States v. Robinson,913 F.2d 712,714(9th Cir. 1990))); United
States V. Springer, 51 F.3d 861, 864 (9th Cir. 1995) ("Whether a defendant
knowingly, voluntarily and intelligently waived his Sixth Amendment right to
18
State V. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
counsel is a mixed question of law and fact that we review de nova.'" (citing
Robinson, 913 F.2d at 714)).
Other federal courts review Fare/to waivers de novo also. E.g., United States
V. Kimball, 291 F.3d 726, 730 (11th Cir. 2002)(per curiam)("A district court's
conclusion that a defendant's [Farettd] waiver is valid—-that it is knowing,
voluntary, and intelligent—is a mixed question of law and fact that we review de
novo."" (citing United States v. Cash, 47 F.3d 1083, 1088 (11th Cir. 1995))); United
States V. Ladoucer, 573 F.3d 628,633(8th Cir. 2009)("We review de novo a district
court's decision to permit a defendant to proceed pro sc." (citing United States v.
Crawford, 487 F.3d 1101, 1105 (8th Cir. 2007))); United States v. Belin, 868 F.3d
43, 53-54 (1st Cir. 2017) ("[o]ur standard for reviewing the adequacy of such a
warning called a Faretta warning ... is effectively de novo"), cert, denied, 138 S.
Ct. 703 (2018); United States v. Roy,444 F. App'x 480,484(2d Cir. 2011){Faretta
waiver is reviewed de novo).
To be sure, that is not the universal view. Some federal courts treat the
standard of review for waivers of the right to counsel as an open question. United
States V. McBride, 362 F.3d 360, 365-66 (6th Cir. 2004)(noting that whether plain
error or de novo review applies to challenges to a Faretta waiver remains an open
question). Others apply more deferential review. For example, the Fourth Circuit
19
State V. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
applies de novo review to a waiver of the right to counsel up until the start of trial.
United States v. Hickson, 506 F. App'x 227, 233 (4th Cir. 2013). Once the trial has
started the court reviews a district court's decision to allow a defendant to proceed
pro se for an abuse of discretion. Id.The majority, however, provides no explanation for its reliance on persuasive
Ninth Circuit precedent for one part of the Faretta waiver analysis but not for this
standard-of-review part of the Faretta waiver analysis. I would not parse out the
holdings ofthese Ninth Circuit decisions in such a stingy manner. Instead, I would
revisit Madsen and apply de novo review to Faretta waivers.
V. Madsen's Abuse of Discretion Standard Is Incorrect: It Conflicts in
Principle with the Persuasive Decisions of Other Courts Applying De
Novo Review to Waivers of Other Important Constitutional Rights
Madsen's adoption of the abuse of discretion standard also stands in tension
with the persuasive decisions of other courts applying de novo review to the
voluntariness of waiver decisions by criminal defendants.
For example,other courts—including the United States Supreme Court—^hold
that the voluntariness of a criminal defendant's waiver of the right to remain silent
(and the admissibility of subsequent confessions) is reviewed de novo. Miller, 474
U.S. at 110 (finding the issue of voluntariness is a legal question requiring an
20
State V. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
independent federal determination); United States v. Preston, 751 F.3d 1008, 1020
(9th Cir. 2014).
Other courts hold that the voluntariness of a criminal defendant's waiver of
the Sixth Amendment right to a speedy trial is reviewed de novo. E.g., United States
V. Tanh Huu Lam, 251 F.3d 852, 855 (9th Cir. 2001)("Lam's motion to dismiss
based upon the Sixth Amendment right to a speedy trial is reviewed de novo."(citing
United States v. Beamon, 992 F.2d 1009, 1012(9th Cir. 1993))).
Other courts review the validity of a criminal defendant's waiver of the right
to counsel during interrogation de novo. E.g., United States v. Winn, 969 F.2d 642,
643 (8th Cir. 1992) (reviewing magistrate judge's factual findings concerning
waiver under the deferential clearly erroneous standard, but reviewing the decision
on whether a valid waiver occurred as a question oflaw subject to de novo review).
Other courts review the voluntariness of a defendant's decision to waive the
right to trial and plead guilty de novo. E.g., United States v. Mitchell, 633 F.3d 997,
1001 (10th Cir. 2011)("Our review ofthe voluntariness of a guilty plea is de novo."
(citing United States v. Hamilton, 510 F.3d 1209, 1215-16 (10th Cir. 2007))).
In sum, courts in other jurisdictions generally review the voluntariness of
criminal defendants' waiver decisions de novo. Those decisions are consistent with
21
State V. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
most of the decisions of our court, summarized in Part III, above. But they are
inconsistent with Madsen.
Conclusion
Courts—including our court—generally review a decision about the
voluntariness of a criminal defendant's waiver of an important constitutional right
de novo. This is certainly the better view. It conforms to our court's general rule that
the validity of waivers of most constitutional rights are reviewed de novo.^ It
conforms to our court's general rule that other mixed questions of fact and law are
reviewed de novo.^ And it conforms to the general rule in sister jurisdictions that
^ E.g., State V. Herron, 183 Wn.2d 737, 743, 356 P.3d 709 (2015) (reviewing
whether a defendant waived a constitutional right to a public trial de novo).
^ In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001)
(finding ineffective assistance of counsel claims are a mixed question of law and fact that
the Washington Supreme Court reviews de novo); State v. Lopez, 190 Wn.2d 104, 116-17,
410 P.3d 1117(2018)(finding that legal conclusions made during ineffective assistance of
counsel claims are reviewed de novo); In re Pers. Restraint ofLui, 188 Wn.2d 525, 538,
397 P.3d 90 (2017)(reviewing ineffective assistance of counsel claims de novo); In re
Pers. Restraint ofFleming, 142 Wn.2d 853, 865, 16 P.3d 610(2001)("Because claims of
ineffective assistance of counsel present mixed questions of law and fact, we review them
de novo."(citing State v. S.M., 100 Wn. App. 401, 409, 996 P.2d 1111 (2000))); see also
State V. White, 80 Wn. App. 406, 410, 907 P.2d 310, 313 (1995)(reviewing challenges to
effective assistance of counsel de novo); Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir.
1988)("The question of whether an attorney renders ineffective assistance is a mixed
question of law and fact, reviewed de novo." (citing Butcher v. Marquez, 758 F.2d 373,
376(9th Cir. 1985))).
22
State V. Curry (Jerome), No. 94681-7
(Gordon McCloud, J., concurring)
waivers of constitutional rights, including the constitutional right to counsel, are
reviewed de novo.
I would therefore revisit Madsen and apply de novo review to Faretta waivers.
For that reason, I respectfully concur.
23
State V. Curry (Jerome), No. 94681-7
(Gordon McCIoud, J., concurring)
24